7–2–10 Friday Vol. 75 No. 127 July 2, 2010

Pages 38391–38692

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Contents Federal Register Vol. 75, No. 127

Friday, July 2, 2010

Agriculture Department Commodity Credit Corporation See Commodity Credit Corporation NOTICES See Forest Service Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38456 Army Department See Engineers Corps NOTICES Commodity Futures Trading Commission Meetings: NOTICES Army Science Board, 38504 Finding That Trades Perform a Significant Price Discovery Function: Arts and Humanities, National Foundation Mid–C Financial Peak Contract and Mid–C Financial Off– See National Foundation on the Arts and the Humanities Peak Contract, 38469–38478 Findings That Trades Do Not Perform a Significant Price Blind or Severely Disabled, Committee for Purchase From Discovery Function: People Who Are Fuel Oil–180 Singapore Swap Contract, 38487–38492 See Committee for Purchase From People Who Are Blind or Mid–C Financial Peak Daily Contract and Mid–C Severely Disabled Financial Off-Peak Daily Contract, 38478–38487 Centers for Disease Control and Prevention NOTICES Consumer Product Safety Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 38531–38532 Meetings; Sunshine Act, 38492–38493 Centers for Medicare & Medicaid Services NOTICES Defense Department Agency Information Collection Activities; Proposals, See Army Department Submissions, and Approvals, 38530–38531 See Engineers Corps Meetings: See Navy Department Medicare Program; Advisory Panel on Ambulatory RULES Payment Classification Groups, 38533–38535 Federal Acquisition Regulation: FAR Case 2008–011, Government Property, 38675–38683 Children and Families Administration FAR Case 2008–023, Clarification of Criteria for Sole RULES Source Awards to Service-disabled Veteran-owned Child Support Enforcement Program; Intergovernmental Small Business Concerns, 38687–38689 Child Support, 38612–38644 FAR Case 2008–035, Registry of Disaster Response Contractors, 38683–38684 Coast Guard FAR Case 2009–040, Trade Agreements Thresholds, RULES 38689–38691 Drawbridge Operation Regulations: FAR Case 2010–008; Recovery Act Subcontract Reporting Charles River, Boston, MA, Public Event, 38411–38412 Procedures, 38684–38687 Chelsea River, Chelsea and East Boston, MA, Event – Federal Acquisition Circular 2005–43; Introduction, Road Race, 38411 38674–38675 Chicago River, Chicago, IL, 38412 Federal Acquisition Circular 2005–43; Small Entity Safety Zones: Compliance Guide, 38691–38692 Multiple Firework Displays in Captain of the Port, Puget NOTICES Sound Area of Responsibility, WA, 38415–38417 Meetings: San Diego POPS Fireworks, San Diego, CA, 38412–38415 Board of Regents of the Uniformed Services University of Special Local Regulations: the Health Sciences, 38493 Macy’s Fourth of July Fireworks Spectator Vessels Defense Health Board, 38493–38494 Viewing Areas, Hudson River, New York, NY, Privacy Act; Systems of Records, 38494–38495 38408–38411 Revised Non-Foreign Overseas Per Diem Rates, 38495– NOTICES 38499 Meetings: National Maritime Security Advisory Committee, 38536 Education Department Commerce Department NOTICES See International Trade Administration Applications for New Awards for Fiscal Year 2010: See National Oceanic and Atmospheric Administration Coordinating Center for Transition and Postsecondary Programs for Students with Intellectual Disabilities, Committee for Purchase From People Who Are Blind or 38506–38510 Severely Disabled Personnel Development to Improve Services and Results NOTICES for Children with Disabilities, 38510 Procurement List; Additions and Deletions, 38467–38469 Training for Realtime Writers, 38510–38514

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Employee Benefits Security Administration Federal Communications Commission NOTICES NOTICES Prohibited Transaction Exemptions and Grant of Individual Agency Information Collection Activities; Proposals, Exemptions: Submissions, and Approvals, 38523–38524 PNC Financial Services Group, Inc., et al., 38551–38557 Proposed Exemptions: Federal Energy Regulatory Commission Morgan Stanley & Co., Inc., et al., 38557–38564 NOTICES Order on Intent to Revoke Market-Based Rate Authority: Energy Department Electric Quarterly Reports; Strategic Energy Management See Energy Information Administration Corp.; Solaro Energy Marketing Corp., 38516 See Federal Energy Regulatory Commission NOTICES Federal Highway Administration Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 38514 Buy America Waiver Notification, 38593–38595 Applications to Export Electric Energy: Surface Transportation Environment and Planning Brookfield Energy Marketing LP, 38514–38515 Cooperative Research Program, 38605–38606 Temporary Closure of I–70 on October 7, 2010, in Energy Information Administration Indianapolis, IN, 38606–38608 NOTICES Agency Information Collection Activities; Proposals, Federal Motor Carrier Safety Administration Submissions, and Approvals, 38515 RULES Minimum Levels of Financial Responsibility for Motor Engineers Corps Carriers, 38423–38430 NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Guidance to States: Proposed Folsom South of U.S. Highway 50 Specific Plan Driver History Record Information Security, Continuity of Project, in Sacramento County, CA, 38500–38501 Operation Planning, and Disaster Recovery Planning, Sunridge Properties in the Sunridge Specific Plan Area, 38595–38596 in Rancho Cordova, Sacramento County, CA, 38502– Qualification of Drivers; Exemption Applications; Diabetes 38504 Mellitus, 38597–38599 Town of Nags Head Proposed Beach Nourishment Project Qualification of Drivers; Exemption Applications; Epilepsy in Dare County, NC, 38501–38502 and Seizure Disorders, 38599–38602 Qualification of Drivers; Exemption Applications; Vision, Environmental Protection Agency 38602–38603 RULES Qualification of Drivers; Exemption Renewals; Vision, Denying Washington Toxics Coalition Petition to Revoke 38603 Tolerances; etc.: State Responsibility for Timely Reporting and Posting of Carbaryl, 38417–38422 Certain Convictions and Disqualifications, etc., 38603– NOTICES 38605 Determinations: Massachusetts Marine Sanitation Device Standard, Federal Railroad Administration 38516–38517 PROPOSED RULES Environmental Impact Statements; Availability, etc.: Railroad Safety Appliance Standards, Miscellaneous Weekly Receipts, 38517–38518 Revisions, 38432–38441 NOTICES Meetings: Applications and Funding Availability: Children’s Health Protection Advisory Committee, 38518 Reducing Effects of Traumatic Exposure to Grade Proposed Consent Decree, Clean Air Act Citizen Suit, Crossing and Trespasser Incidents on Train Crews, 38519–38521 38592–38593 Registration Reviews: Biopesticide Dockets Opened for Review and Comment, Federal Reserve System 38521–38523 NOTICES Change in Bank Control Notices; Acquisition of Shares of Federal Aviation Administration Bank or Bank Holding Companies, 38524 RULES Proposals to Engage in Permissible Nonbanking Activities Airworthiness Directives: or to Acquire Companies Engaged in Permissible Boeing Co. Model 747 100B, et al. Series Airplanes Nonbanking Activities, 38524 Equipped with Rolls–Royce RB211–524 Series Engines, 38404–38406 Fish and Wildlife Service Boeing Co. Model 747–100, –200B, and –200F Series PROPOSED RULES Airplanes, 38394–38396 Endangered and Threatened Wildlife and Plants: Boeing Co. Model 747–400, 747–400D, and 747–400F Revised Critical Habitat for Santa Ana Sucker, 38441– Series Airplanes, 38397–38404 38451 Amendment of Norton Sound Low and Control 1234L Offshore Airspace Areas: Food and Drug Administration Alaska, 38406–38408 NOTICES Special Conditions: Medical Devices: Boeing 757–200 with Enhanced Flight Vision System, Availability of Safety and Effectiveness Summaries for 38391–38394 Premarket Approval Applications, 38532–38533

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Forest Service Justice Department NOTICES NOTICES Meetings: Lodging of Consent Decree under the Clean Air Act, 38550 Collaborative Forest Landscape Restoration Program Lodging of Consent Decree under the Comprehensive Advisory Committee, 38456–38457 Environmental Response, Compensation, and Liability Eleven Point Resource Advisory Committee, 38457 Act, 38550–38551 General Services Administration Labor Department RULES See Employee Benefits Security Administration Federal Acquisition Regulation: See Occupational Safety and Health Administration FAR Case 2008–011, Government Property, 38675–38683 FAR Case 2008–023, Clarification of Criteria for Sole Land Management Bureau Source Awards to Service-disabled Veteran-owned NOTICES Small Business Concerns, 38687–38689 Alaska Native Claims Selection, 38536–38538 FAR Case 2008–035, Registry of Disaster Response Call for Nominations: Contractors, 38683–38684 Pinedale Anticline Working Group, Wyoming, 38538 FAR Case 2009–040, Trade Agreements Thresholds, Environmental Impact Statements; Availability, etc.: 38689–38691 Updating Cumulative Effects Analysis for the Newmont FAR Case 2010–008; Recovery Act Subcontract Reporting Mining Corporation Leeville Project, Nevada, 38539 Procedures, 38684–38687 Updating Cumulative Effects Analysis for the Newmont Federal Acquisition Circular 2005–43; Introduction, Mining Corporation South Operations Area Project 38674–38675 Amendment, Nevada, 38540 Federal Acquisition Circular 2005–43; Small Entity Filings of Plats of Survey: Compliance Guide, 38691–38692 Alaska, 38540 Final Supplementary Rules for Public Lands in Colorado: Geological Survey McInnis Canyons National Conservation Area, 38540– NOTICES 38543 Patent, Trademark and Copyright Acts, 38543 Proposed Reinstatement of Terminated Oil and Gas Lease (CACA 46594), 38543–38544 Health and Human Services Department Proposed Withdrawal Extension and Opportunity for Public See Centers for Disease Control and Prevention Meeting: See Centers for Medicare & Medicaid Services Nevada, 38544 See Children and Families Administration Montana, 38544–38545 See Food and Drug Administration Realty Action: See National Institutes of Health Competitive Auction of Public Lands in White Pine NOTICES County, NV, 38545–38547 Agency Information Collection Activities; Proposals, Non-Competitive (Direct) Sale of Public Lands, etc.; Submissions, and Approvals, 38524–38526 Madison County, ID, 38547–38548 Privacy Act; Systems of Records, 38526–38530 Temporary Closures of Public Lands: Washoe County, NV, 38548–38549 Homeland Security Department See Coast Guard National Aeronautics and Space Administration RULES Housing and Urban Development Department Federal Acquisition Regulation: NOTICES FAR Case 2008–011, Government Property, 38675–38683 Federal Property Suitable as Facilities to Assist the FAR Case 2008–023, Clarification of Criteria for Sole Homeless, 38536 Source Awards to Service-disabled Veteran-owned Small Business Concerns, 38687–38689 Interior Department FAR Case 2008–035, Registry of Disaster Response See Fish and Wildlife Service Contractors, 38683–38684 See Geological Survey FAR Case 2009–040, Trade Agreements Thresholds, See Land Management Bureau 38689–38691 See Reclamation Bureau FAR Case 2010–008; Recovery Act Subcontract Reporting Procedures, 38684–38687 International Trade Administration Federal Acquisition Circular 2005–43; Introduction, NOTICES 38674–38675 Final Determination of Sales at Less Than Fair Value: Federal Acquisition Circular 2005–43; Small Entity Certain Woven Electric Blankets from the People’s Compliance Guide, 38691–38692 Republic of China, 38459–38463 Final Results of Sunset Review and Revocation of Order: National Foundation on the Arts and the Humanities Greige Polyester Cotton Printcloth from the People’s NOTICES Republic of China, 38463 Agency Information Collection Activities; Proposals, Submissions, and Approvals, 38564 International Trade Commission NOTICES National Institutes of Health Appointment of Individuals to Serve as Members of NOTICES Performance Review Board, 38549 Meetings: Recent Trends in U.S. Services Trade, 2011 Annual Report, National Institute on Alcohol Abuse and Alcoholism, 38549–38550 38533

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National Oceanic and Atmospheric Administration Securities and Exchange Commission RULES NOTICES Fisheries of the Exclusive Economic Zone Off Alaska: Self-Regulatory Organizations; Proposed Rule Changes: Greenland Turbot in the Aleutian Islands Subarea of the Chicago Board Options Exchange, Inc., 38566–38569 Bering Sea and Aleutian Islands Management Area, Depository Trust Co., 38581–38583 38430–38431 International Securities Exchange, LLC, 38570–38571, PROPOSED RULES 38587–38589 Fisheries of the Exclusive Economic Zone Off Alaska: NASDAQ OMX BX, Inc., 38571–38574, 38585–38587 Central Gulf of Alaska License Limitation Program NASDAQ OMX PHLX, Inc., 38583–38585 (Amendment 86), 38452–38453 National Securities Clearing Corp., 38579–38581 Skates Management in the Bering Sea and Aleutian NYSE Amex LLC, 38574–38576 Islands Management Area; Groundfish Annual Catch NYSE Amex LLC; Correction, 38589 Limits, 38454–38455 NYSE Arca, Inc., 38576–38579 NOTICES Options Clearing Corp.; Correction, 38589 Applications: Marine Mammals; File No. 15511, 38457–38458 State Department Atlantic Coastal Fisheries Cooperative Management Act NOTICES Provisions: Culturally Significant Objects Imported for Exhibition General Provisions for Domestic Fisheries; Application Determinations: for Exempted Fishing Permits, 38458 Origins of Writing in the Ancient Middle East, 38589 Meetings: Salvador Dali: The Late Work, 38589–38590 Mid-Atlantic Fishery Management Council, 38464–38465 Venice: Canaletto and His Rivals, 38589 New England Fishery Management Council, 38463–38464 Susquehanna River Basin Commission Pacific Fishery Management Council, 38464 NOTICES Taking and Importing Marine Mammals: Actions Taken at June 11, 2010, Meeting, 38590–38591 Taking Marine Mammals Incidental to the Port of Projects Approved for Consumptive Uses of Water, 38591– Anchorage Marine Terminal Redevelopment Project, 38592 38465–38467 Transportation Department Navy Department See Federal Aviation Administration NOTICES See Federal Highway Administration Agency Information Collection Activities; Proposals, See Federal Motor Carrier Safety Administration Submissions, and Approvals, 38499–38500 See Federal Railroad Administration Meetings: RULES Naval Research Advisory Committee, 38504–38505 Procedures for Transportation Workplace Drug and Alcohol Secretary of the Navy Advisory Panel, 38505–38506 Testing Programs, 38422–38423 Nuclear Regulatory Commission Treasury Department NOTICES NOTICES Meetings: Privacy Act; Systems of Records, 38608–38609 Advisory Committee on Reactor Safeguards (ACRS); ACRS Subcommittee on ESBWR, 38564 Advisory Committee on Reactor Safeguards (ACRS); Separate Parts In This Issue ACRS Subcommittee on Plant Operations and Fire Protection, 38564–38565 Part II Health and Human Services Department, Children and Occupational Safety and Health Administration Families Administration, 38612–38644 PROPOSED RULES Standards Improvement Project—Phase III, 38646–38671 Part III Labor Department, Occupational Safety and Health Railroad Retirement Board Administration, 38646–38671 NOTICES Agency Information Collection Activities; Proposals, Part IV Submissions, and Approvals, 38565 Defense Department, 38674–38692 General Services Administration, 38674–38692 Reclamation Bureau National Aeronautics and Space Administration, 38674– NOTICES 38692 Central Valley Project Improvement Act, Water Management Plans, 38538–38539 Klamath Hydroelectric Settlement Agreement: Reader Aids Secretarial Determination on Whether to Remove Four Consult the Reader Aids section at the end of this page for Dams on the Klamath River in California and Oregon, phone numbers, online resources, finding aids, reminders, 38543 and notice of recently enacted public laws. To subscribe to the Federal Register Table of Contents Recovery Accountability and Transparency Board LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Agency Information Collection Activities; Proposals, archives, FEDREGTOC-L, Join or leave the list (or change Submissions, and Approvals, 38566 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.

14 CFR 25...... 38391 39 (3 documents) ...... 38394, 38397, 38404 71...... 38406 29 CFR Proposed Rules: 1910...... 38646 1915...... 38646 1917...... 38646 1918...... 38646 1926...... 38646 1928...... 38646 33 CFR 100...... 38408 117 (3 documents) ...... 38411, 38412 165 (2 documents) ...... 38412, 38415 40 CFR 180...... 38417 45 CFR 301...... 38612 302...... 38612 303...... 38612 305...... 38612 308...... 38612 48 CFR Ch.1 ...... 38674, 38691 2 (2 documents) ...... 38675, 38683 4 (3 documents) ...... 38675, 38683, 38684 7...... 38683 10...... 38683 13...... 38683 15...... 38675 18...... 38683 19...... 38687 22...... 38689 25...... 38689 26...... 38683 31...... 38675 32...... 38675 42...... 38675 45...... 38675 52 (4 documents) ...... 38675, 38683, 38684, 38689 49 CFR 40...... 38422 387...... 38423 Proposed Rules: 231...... 38432 50 CFR 679...... 38430 Proposed Rules: 17...... 38441 679 (2 documents) ...... 38452, 38454

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Rules and Regulations Federal Register Vol. 75, No. 127

Friday, July 2, 2010

This section of the FEDERAL REGISTER Federal holidays, between 7:30 a.m. and We will stamp the date on the postcard contains regulatory documents having general 4 p.m. and mail it back to you. applicability and legal effect, most of which are keyed to and codified in the Code of FOR FURTHER INFORMATION CONTACT: Dale Background Dunford, FAA, Transport Standards Federal Regulations, which is published under On June 23, 2009, the Federal Express Staff, ANM–111, Transport Airplane 50 titles pursuant to 44 U.S.C. 1510. Corporation applied for a supplemental Directorate, Aircraft Certification type certificate for the installation and The Code of Federal Regulations is sold by Service, 1601 Lind Avenue, SW., operation of a HUD and an EFVS on the Superintendent of Documents. Prices of Renton, Washington 98055–4056; Boeing Model 757–200. The original new books are listed in the first FEDERAL telephone (425) 227–2239; fax (425) type certificate for the 757–200 REGISTER issue of each week. 227–1320; e-mail: airplanes is A2NM, revision 27, dated [email protected]. July 16, 2009. DEPARTMENT OF TRANSPORTATION SUPPLEMENTARY INFORMATION: The FAA The Boeing Model 757–200 is a has determined that notice of, and transport-category, cargo-carrying Federal Aviation Administration opportunity for, prior public comment airplane that operates with a crew of on these special conditions are two and that carries no passengers. The 14 CFR Part 25 impracticable because these procedures model 757–200 airplane has a wing [Docket No. NM429; Special Conditions No. would significantly delay issuance of span of 125 feet, a length of 155 feet, a 25–407–SC] the design approval and thus delivery of maximum takeoff gross weight of the affected aircraft. In addition, the 255,000 pounds, is powered by two Special Conditions: Boeing 757–200 substance of these special conditions Pratt and Whitney PW2037, PW2040, With Enhanced Flight Vision System has been subject to the public-comment PW2043, or Rolls-Royce RB211 turbofan engines, and has a maximum range of AGENCY: Federal Aviation process in several prior instances with Administration (FAA), DOT. no substantive comments received. The 3,900 nautical miles. FAA therefore finds that good cause The electronic infrared image ACTION: Final special conditions; request exists for making these special displayed between the pilot and the for comments. conditions effective upon issuance. forward windshield represents a novel or unusual design feature in the context SUMMARY: These special conditions are Comments Invited issued for the Boeing Model 757–200 of 14 CFR 25.773. Section 25.773 was series airplanes. These airplanes, as We invite interested people to take not written in anticipation of such modified by the Federal Express part in this rulemaking by sending technology. The electronic image has Corporation, will have an advanced, written comments, data, or views. The the potential to enhance the pilot’s enhanced-flight-visibility system most helpful comments reference a awareness of the terrain, hazards, and (EFVS). The EFVS is a novel or unusual specific portion of the special airport features. At the same time, the design feature which consists of a head- conditions, explain the reason for any image may partially obscure the pilot’s up display (HUD) system modified to recommended change, and include direct outside compartment view. display forward-looking infrared (FLIR) supporting data. We ask that you send Therefore, the FAA needs adequate imagery. The applicable airworthiness us two copies of written comments. safety standards to evaluate the EFVS to regulations do not contain adequate or We will file in the docket all determine that the imagery provides the appropriate safety standards for this comments we receive, as well as a intended visual enhancements without design feature. These special conditions report summarizing each substantive undue interference with the pilot’s contain the additional safety standards public contact with FAA personnel outside compartment view. The FAA that the Administrator considers concerning these special conditions. intent is that the pilot will be able to use necessary to establish a level of safety You can inspect the docket before and a combination of the information seen equivalent to that established by the after the comment closing date. If you in the image, and the natural view of the existing airworthiness standards. wish to review the docket in person, go outside scene seen through the image, as DATES: The effective date of these to the address in the ADDRESSES section safely and effectively as a pilot special conditions is June 11, 2010. We of this preamble between 7:30 a.m. and compartment view without an EVS must receive your comments by July 22, 4 p.m., Monday through Friday, except image, that is compliant with § 25.773. 2010. Federal holidays. Although the FAA has determined ADDRESSES: You must mail two copies We will consider all comments we that the existing regulations are not of your comments to: Federal Aviation receive on or before the closing date for adequate for certification of EFVSs, it Administration, Transport Airplane comments. We will consider comments believes that EFVSs could be certified Directorate, Attn: Rules Docket (ANM– filed late if it is possible to do so through application of appropriate 113), Docket No. NM429, 1601 Lind without incurring expense or delay. We safety criteria. Therefore, the FAA has Avenue, SW., Renton, Washington may change these special conditions determined that special conditions 98057–3356. You may deliver two based on the comments we receive. should be issued for certification of copies to the Transport Airplane If you want us to acknowledge receipt EFVS to provide a level of safety Directorate at the above address. You of your comments on this proposal, equivalent to that provided by the must mark your comments: Docket No. include with your comments a self- standard in § 25.773. NM429. You can inspect comments in addressed, stamped postcard on which Note: The term ‘‘enhanced vision system’’ the Rules Docket weekdays, except you have written the docket number. (EVS) in this document refers to a system

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comprised of a head-up display, imaging The U.S. type-certification basis for Scene contrast detected by infrared sensor(s), and avionics interfaces that display these airplane models is listed in Type sensors can be much different from that the sensor imagery on the HUD, and overlay Certificate Data Sheet No. A2NM, detected by natural pilot vision. On a that imagery with alpha-numeric and revision 27, dated July 16, 2009, which dark night, thermal differences of symbolic flight information. However, the objects which are not detectable by the term has also been commonly used in covers all variants of the 757 airplanes. reference to systems that displayed the In addition, the certification basis naked eye are easily detected by many sensor imagery, with or without other flight includes certain special conditions and imaging infrared systems. On the other information, on a head-down display. For exemptions that are not relevant to these hand, contrasting colors in visual clarity, the FAA created the term ‘‘enhanced special conditions. Also, if the wavelengths may be distinguished by flight visibility system’’ (EFVS) to refer to regulations incorporated by reference do the naked eye but not by an imaging certain EVS systems that meet the not provide adequate standards with infrared system. Where thermal contrast requirements of the new operational rules— respect to the change, the applicant in the scene is sufficiently detectable, in particular, the requirement for a HUD and must comply with certain regulations in the pilot can recognize shapes and specified flight information—and which can patterns of certain visual references in ‘‘ effect on the date of application for the be used to determine enhanced flight the infrared image. However, depending visibility.’’ An EFVS can be considered a change. subset of a system otherwise labeled EVS. If the Administrator finds that the on conditions, those shapes and patterns in the infrared image can On January 9, 2004, the FAA applicable airworthiness regulations (i.e., part 25 as amended) do not contain appear significantly different than they published revisions to operational rules would with normal vision. Considering in 14 CFR parts 1, 91, 121, 125, and 135 adequate or appropriate safety standards for the Boeing Model 757–200 airplanes, these factors, the EFVS image needs to to allow aircraft to operate below certain be evaluated to determine that it can be altitudes during a straight-in instrument modified by Federal Express, because of a novel or unusual design feature, accurately interpreted by the pilot. approach while using an EFVS to meet The EFVS image may improve the visibility requirements. special conditions are prescribed under the provisions of § 21.16. pilot’s ability to detect and identify Prior to this rule change, the FAA items of interest. However, the EFVS Special conditions, as defined in issued Special Conditions No. 25–180– needs to be evaluated to determine that § 11.19, are issued in accordance with SC, which applied to an EVS installed the imagery allows the pilot to perform § 11.38 and become part of the type- on Gulfstream Model G–V airplanes. the normal flight-crew duties and certification basis in accordance with Those special conditions addressed the adequately see outside the window § 21.101. requirements for the pilot compartment through the image, consistent with the view and limited the scope of the Special conditions are initially safety intent of § 25.773(a)(2). intended functions permissible under applicable to the model for which they Compared to a HUD displaying the the operational rules at the time. The are issued. Should the applicant apply EFVS image and symbology, a HUD that intended function of the EVS imagery for a supplemental type certificate to only displays stroke-written symbols is was to aid the pilot during the modify any other model included on the easier to see through. Stroke symbology approach, and allow the pilot to detect same type certificate, to incorporate the illuminates a small fraction of the total and identify the visual references for the same novel or unusual design feature, display area of the HUD, leaving much intended runway down to 100 feet the special conditions would also apply of that area free of reflected light that above the touchdown zone. However, to the other model. could interfere with the pilot’s view out the EVS imagery alone was not to be Novel or Unusual Design Features the window through the display. used as a means to satisfy visibility However, unlike stroke symbology, the requirements below 100 feet. The Boeing Model 757–200 airplanes video image illuminates most of the The recent operational rule change will incorporate an EFVS, which is a total display area of the HUD expands the permissible application of novel or unusual design feature. The (approximately 30 degrees horizontally certain EVSs that are certified to meet EFVS is a novel or unusual design and 25 degrees vertically) which is a the new EFVS standards. The new rule feature because it projects a video image significant fraction of the pilot will allow the use of an EFVS for derived from a FLIR camera through the compartment view. The pilot cannot see operation below the minimum descent HUD. The EFVS image is projected in around the larger illuminated portions altitude or decision height to meet new the center of the ‘‘pilot compartment of the video image, but must see the visibility requirements of § 91.175(l). view,’’ which is governed by § 25.773. outside scene through it. The purpose of these special conditions The image is displayed with HUD Unlike the pilot’s external view, the is not only to address the issue of the symbology and overlays the forward EFVS image is a monochrome, two- ‘‘pilot compartment view,’’ as was done outside view. Therefore, § 25.773 does dimensional display. Many, but not all, by Special Conditions No. 25–180–SC, not contain appropriate safety standards of the depth cues found in the natural but also to define the scope of intended for the EFVS display. view are also found in the image. The function consistent with § 91.175(l) and Operationally, during an instrument quality of the EFVS image and the level (m). approach, the EFVS image is intended of EFVS infrared-sensor performance to enhance the pilot’s ability to detect could depend significantly on Type Certification Basis and identify ‘‘visual references for the conditions of the atmospheric and Under the provisions of 14 CFR intended runway’’ [see § 91.175(l)(3)] to external light sources. The pilot needs 21.101, the Federal Express Corporation continue the approach below decision adequate control of sensor gain and must show that the Boeing Model 757– height or minimum descent altitude. image brightness, which can 200 airplanes, as modified, comply with Depending on atmospheric conditions significantly affect image quality and the regulations in the U.S. type- and the strength of infrared energy transparency (i.e., the ability to see the certification basis established for those emitted and/or reflected from the scene, outside view through the image). airplanes. The U.S. type-certification the pilot can see these visual references Certain system characteristics could basis for the airplanes is established in in the image better than he or she can create distracting and confusing display accordance with § 21.21 and 21.17, and see them through the window without artifacts. Finally, because this is a the type certification application date. EFVS. sensor-based system intended to

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provide a conformal perspective its use by the pilot to visually monitor Model 757–200 airplanes. Should the corresponding with the outside scene, the integrity of the approach path. Federal Express Corporation apply at a the system must be able to ensure Compliance with these special later date for a supplemental type accurate alignment. Therefore, safety conditions does not affect the certificate to modify any other model standards are needed for each of the applicability of any of the requirements included on Type Certificate No. A2NM following factors: of the operating regulations (i.e., 14 CFR to incorporate the same novel or • An acceptable degree of image parts 91, 121, and 135). Furthermore, unusual design feature, the special transparency; use of the EFVS does not change the conditions would apply to that model as • Image alignment; approach minima prescribed in the well. • Lack of significant distortion; and standard instrument approach • The potential for pilot confusion or procedure being used; published Conclusion misleading information. minima still apply. This action affects only certain novel Section 25.773, Pilot compartment The FAA certification of this EFVS is or unusual design features on Boeing view, specifies that ‘‘Each pilot limited as follows: 757–200 airplanes. It is not a rule of compartment must be free of glare and 1. The infrared-based EFVS image general applicability and it affects only reflection that could interfere with the will not be certified as a means to satisfy the applicant who applied to the FAA normal duties of the minimum flight the requirements for descent below 100 for approval of these features on the crew * * *’’ In issuing § 25.773, the feet height above touchdown. airplane. FAA did not anticipate the development 2. The EFVS may be used as a List of Subjects in 14 CFR Part 25 of the EFVS and does not consider that supplemental device to enhance the § 25.773 adequately addresses the pilot’s situational awareness during any Aircraft, Aviation safety, Reporting specific issues related to such a system. phase of flight or operation in which its and recordkeeping requirements. Therefore, the FAA has determined that safe use has been established. ■ The authority citation for these special conditions are needed to address 3. An EFVS image may provide an special conditions is as follows: enhanced image of the scene that may the specific issues particular to the Authority: 49 U.S.C. 106(g), 40113, 44701, installation and use of an EFVS. compensate for any reduction in the 44702, 44704. clear outside view of the visual field Discussion framed by the HUD combiner. The pilot The Special Conditions The EFVS is intended to present an must be able to use this combination of ■ Accordingly, pursuant to the authority enhanced view during the landing information seen in the image and the delegated to me by the Administrator, approach. This enhanced view would natural view of the outside scene, seen the following special conditions are help the pilot see and recognize external through the image, as safely and issued as part of the type-certification visual references, as required by effectively as the pilot would use a pilot basis for Boeing Model 757–200 § 91.175(l), and to visually monitor the compartment view without an EFVS airplanes modified by the Federal integrity of the approach, as described image that is compliant with § 25.773. Express Corporation. in FAA Order 6750.24D (‘‘Instrument This is the fundamental objective of the 1. The EFVS imagery on the HUD Landing System and Ancillary special conditions. must not degrade the safety of flight, or Electronic Component Configuration The FAA will also apply additional interfere with the effective use of and Performance Requirements,’’ dated certification criteria, not as special outside visual references for required March 1, 2000). conditions, for compliance with related pilot tasks, during any phase of flight in Based on this approved functionality, regulatory requirements, such as which it is to be used. users would seek to obtain operational §§ 25.1301 and 25.1309. These 2. To avoid unacceptable interference approval to conduct approaches— additional criteria address certain image with the safe and effective use of the including approaches to Type I characteristics, installation, pilot compartment view, the EFVS runways—in visibility conditions much demonstration, and system safety. device must meet the following lower than those for conventional Image-characteristics criteria include requirements: Category I. the following: a. The EFVS design must minimize The purpose of these special • Resolution, unacceptable display characteristics or • Luminance, artifacts (e.g. noise, ‘‘burlap’’ overlay, conditions is to ensure that the EFVS to • be installed can perform the following Luminance uniformity, running water droplets) that obscure the • Low-level luminance, functions: • desired image of the scene, impair the • Contrast variation, Present an enhanced view that aids • Display quality, pilot’s ability to detect and identify the pilot during the approach. • visual references, mask flight hazards, • Display dynamics (e.g., jitter, Provide enhanced flight visibility to flicker, update rate, and lag), and distract the pilot, or otherwise degrade the pilot that is no less than the • Brightness controls. task performance or safety. visibility prescribed in the standard Installation criteria address visibility b. Automatic control of EFVS display instrument-approach procedure. and access to EFVS controls, and brightness must be sufficiently effective, • Display an image that the pilot can integration of EFVS in the cockpit. in dynamically changing background use to detect and identify the ‘‘visual The EFVS demonstration criteria (ambient) lighting conditions, to prevent references for the intended runway’’ address the flight and environmental full or partial blooming of the display required by 14 CFR 91.175(l)(3), to conditions that need to be covered. that would distract the pilot, impair the continue the approach with vertical The FAA also intends to apply pilot’s ability to detect and identify guidance to 100 feet height above the certification criteria relevant to high- visual references, mask flight hazards, touchdown-zone elevation. intensity radiated fields (HIRF) and or otherwise degrade task performance Depending on the atmospheric lightning protection. or safety. conditions and the particular visual c. A readily accessible control must be references that happen to be distinctly Applicability provided that permits the pilot to visible and detectable in the EFVS As discussed above, these special immediately deactivate and reactivate image, these functions would support conditions are applicable to Boeing display of the EFVS image on demand

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without removing the pilot’s hands from operation below minimum descent of a certain publication listed in the AD the primary flight controls (yoke or altitude/decision height. as of August 6, 2010. equivalent) or thrust control. c. Enabling the pilot to use the EFVS ADDRESSES: For service information d. The EFVS image on the HUD must imagery to detect and identify the identified in this AD, contact Boeing not impair the pilot’s use of guidance ‘‘visual references for the intended Commercial Airplanes, Attention: Data information, or degrade the presentation runway,’’ required by § 91.175(l)(3), to & Services Management, P.O. Box 3707, and pilot awareness of essential flight continue the approach with vertical MC 2H–65, Seattle, Washington 98124– information, displayed on the HUD, guidance to 100 feet height above 2207; telephone 206–544–5000, such as alerts, airspeed, attitude, touchdown-zone elevation. extension 1; fax 206–766–5680; e-mail altitude and direction, approach 5. Use of EFVS for instrument- [email protected]; Internet guidance, windshear guidance, Traffic approach operations must be in https://www.myboeingfleet.com. Alert and Collision Avoidance System accordance with the provisions of (TCAS) resolution advisories, or § 91.175(l) and (m), and § 121.651 where Examining the AD Docket unusual-attitude recovery cues. applicable. Appropriate limitations You may examine the AD docket on e. The EFVS image and the HUD must be stated in the Operating the Internet at http:// symbols—which are spatially referenced Limitations section of the airplane flight www.regulations.gov; or in person at the to the pitch scale, outside view and manual to prohibit the use of the EFVS Docket Management Facility between 9 image—must be scaled and aligned (i.e., for functions that have not been found a.m. and 5 p.m., Monday through conformal) to the external scene. In to be acceptable. Friday, except Federal holidays. The AD addition, the EFVS image and the HUD Issued in Renton, Washington, on June 11, docket contains this AD, the regulatory symbols—when considered singly or in 2010. evaluation, any comments received, and combination—must not be misleading, Jeffrey Duven, other information. The address for the cause pilot confusion, or increase Acting Manager, Transport Airplane Docket Office (telephone 800–647–5527) workload. Airplane attitudes or cross- Directorate, Aircraft Certification Service. is the Document Management Facility, wind conditions may cause certain [FR Doc. 2010–16166 Filed 7–1–10; 8:45 am] U.S. Department of Transportation, symbols (e.g., the zero-pitch line or BILLING CODE 4910–13–P Docket Operations, M–30, West flight path vector) to reach field-of-view Building Ground Floor, Room W12–140, limits such that they cannot be 1200 New Jersey Avenue, SE., positioned conformally with the image DEPARTMENT OF TRANSPORTATION Washington, DC 20590. and external scene. In such cases, these FOR FURTHER INFORMATION CONTACT: Ivan symbols may be displayed but with an Federal Aviation Administration Li, Aerospace Engineer, Airframe altered appearance which makes the Branch, ANM–120S, FAA, Seattle pilot aware that they are no longer 14 CFR Part 39 Aircraft Certification Office, 1601 Lind displayed conformally (for example, [Docket No. FAA–2010–0132; Directorate Avenue, SW., Renton, Washington ‘‘ghosting’’). Identifier 2009–NM–096–AD; Amendment 98057–3356; telephone (425) 917–6437; f. A HUD system used to display 39–16355; AD 2010–14–10] EFVS images must, if previously fax (425) 917–6590. certified, continue to meet all of the RIN 2120–AA64 SUPPLEMENTARY INFORMATION: requirements of the original approval. If Airworthiness Directives; The Boeing Discussion the HUD has not been previously Company Model 747–100, –200B, and The FAA issued a notice of proposed approved, it must be found to meet the –200F Series Airplanes basic HUD certification criteria rulemaking (NPRM) to amend 14 CFR documented in the HUD issue paper. AGENCY: Federal Aviation part 39 to include an AD that 3. The safety and performance of the Administration (FAA), DOT. supersedes AD 94–17–01, Amendment pilot tasks associated with the use of the ACTION: Final rule. 39–8996 (59 FR 41653, August 15, pilot compartment view must not be 1994). The existing AD applies to degraded by the display of the EFVS SUMMARY: The FAA is superseding an certain Model 747 airplanes. That image. Pilot tasks which must not be existing airworthiness directive (AD), NPRM was published in the Federal degraded by the EFVS image include: which applies to certain Model 747– Register on February 25, 2010 (75 FR a. Detection, accurate identification, 100, 747–200B, and –200F series 8554). That NPRM proposed to continue and maneuvering, as necessary, to avoid airplanes. That AD currently requires to require inspections for cracking in the traffic, terrain, obstacles, and other inspections to detect cracking in the upper row of fasteners holes of the skin hazards of flight. upper row of fasteners holes of the skin lap joints in the fuselage lower lobe, and b. Accurate identification and lap joints in the fuselage lower lobe, and repair, if necessary. The NPRM utilization of visual references required repair if necessary. This new AD proposed to reduce the maximum for every task relevant to the phase of reduces the maximum interval of the interval of the post-modification flight. post-modification inspections. This AD inspections. 4. The EFVS must be shown to be results from reports of fatigue cracking Comments compliant with these requirements, on modified airplanes. We are issuing under the provisions of §§ 91.175(l) and this AD to detect and correct fatigue We gave the public the opportunity to 121.651, with the following intended cracking in the longitudinal lap joints of participate in developing this AD. We functions: the fuselage lower lobe, which could considered the comments received from a. Presenting an image that would aid lead to the rapid decompression of the the sole commenter. the pilot during a straight-in instrument airplane and the inability of the Request To Clarify Term in Paragraph approach. structure to carry fail-safe loads. (i)(2) of the NPRM b. Enable the pilot to determine that DATES: This AD is effective August 6, the ‘‘enhanced flight visibility,’’ as 2010. Boeing requests that we add a note required by § 91.175(l)(2) and referenced The Director of the Federal Register below paragraph (i)(2) of the NPRM to in § 121.651, is adequate for descent and approved the incorporation by reference clarify the term ‘‘remove’’ to mean ‘‘to

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trim out all three fastener rows of the with the exception of paragraphs (h) and installation times and types of overlapping skin common to the lap (i) of this AD.’’ Boeing states that the modifications on the same airplane. joint.’’ Boeing states that the term exception ensures that operators meet We agree with the request. We have ‘‘remove’’ is not specific enough in this the intent of the requirement to lower revised paragraphs (g)(1), (g)(2), and context, and it is inconsistent with the the repetitive inspection intervals from (g)(3) of this final rule accordingly. terminology used in the structural repair 3,000 flight cycles to 1,000 flight cycles, Conclusion manual and Boeing Alert Service as required by paragraphs (h) and (i) of Bulletin 747–53A2267, Revision 4, this AD. We reviewed the relevant data, dated March 26, 2009. considered the comments received, and We agree with the request. We have We agree that clarification is determined that air safety and the revised paragraph (k)(4) of this final rule necessary for the reasons provided by public interest require adopting the AD accordingly. the commenter. We have added this with the changes described previously. information to paragraph (i)(2) of this Request To Revise Paragraphs (g)(1), We also determined that these changes final rule. (g)(2), and (g)(3) of the NPRM will not increase the economic burden on any operator or increase the scope of Request To Add an Exception Clause to Boeing requests that we add the AD. Paragraph (k)(4) of the NPRM ‘‘locations on’’ before the word Boeing requests that we add an ‘‘airplanes’’ in paragraphs (g)(1), (g)(2), Costs of Compliance exception clause to paragraph (k)(4) that and (g)(3) of the NPRM. Boeing states There are about 23 airplanes of the states ‘‘AMOCs approved previously in that the current phrasing in the NPRM affected design in the worldwide fleet. accordance with AD 94–17–01 are does not allow an operator to The following table provides the approved as AMOCs for the differentiate inspection thresholds estimated costs for U.S. operators to corresponding provisions of this AD, between lap joints with different comply with this AD.

ESTIMATED COSTS

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

Inspection (required by AD 94–17– 244 $85 $0 $20,740 per in- 7 $145,180 per in- 01). spection cycle. spection cycle.

Authority for This Rulemaking For the reasons discussed above, I § 39.13 [Amended] Title 49 of the United States Code certify that this AD: ■ 2. The Federal Aviation specifies the FAA’s authority to issue (1) Is not a ‘‘significant regulatory Administration (FAA) amends § 39.13 rules on aviation safety. Subtitle I, action’’ under Executive Order 12866, by removing Amendment 39–8996 (59 section 106, describes the authority of (2) Is not a ‘‘significant rule’’ under FR 41653, August 15, 1994) and by the FAA Administrator. ‘‘Subtitle VII: DOT Regulatory Policies and Procedures adding the following new airworthiness Aviation Programs,’’ describes in more (44 FR 11034, February 26, 1979), and directive (AD): detail the scope of the Agency’s (3) Will not have a significant 2010–14–10 The Boeing Company: authority. Amendment 39–16355. Docket No. We are issuing this rulemaking under economic impact, positive or negative, FAA–2010–0132; Directorate Identifier the authority described in ‘‘Subtitle VII, on a substantial number of small entities 2009–NM–096–AD. Part A, Subpart III, Section 44701: under the criteria of the Regulatory Effective Date General requirements.’’ Under that Flexibility Act. section, Congress charges the FAA with You can find our regulatory (a) This airworthiness directive (AD) is effective August 6, 2010. promoting safe flight of civil aircraft in evaluation and the estimated costs of air commerce by prescribing regulations compliance in the AD Docket. Affected ADs for practices, methods, and procedures List of Subjects in 14 CFR Part 39 (b) This AD supersedes AD 94–17–01, the Administrator finds necessary for Amendment 39–8996. safety in air commerce. This regulation Air transportation, Aircraft, Aviation Applicability is within the scope of that authority safety, Incorporation by reference, (c) This AD applies to The Boeing because it addresses an unsafe condition Safety. that is likely to exist or develop on Company Model 747–100, 747–200B, and Adoption of the Amendment 747–200F series airplanes, certificated in any products identified in this rulemaking category, as identified in Boeing Alert action. ■ Service Bulletin 747–53A2267, Revision 4, Accordingly, under the authority dated March 26, 2009. Regulatory Findings delegated to me by the Administrator, This AD will not have federalism the FAA amends 14 CFR part 39 as Subject implications under Executive Order follows: (d) Air Transport Association (ATA) of 13132. This AD will not have a America Code 53: Fuselage. PART 39—AIRWORTHINESS substantial direct effect on the States, on Unsafe Condition DIRECTIVES the relationship between the national (e) This AD results from reports of fatigue government and the States, or on the ■ cracking. The Federal Aviation distribution of power and 1. The authority citation for part 39 continues to read as follows: Administration is issuing this AD to detect responsibilities among the various and correct fatigue cracking in the fuselage levels of government. Authority: 49 U.S.C. 106(g), 40113, 44701. lower lobe longitudinal lap joints, which

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could lead to the rapid decompression of the AD, prior to further flight, repair in Office. The AMOC approval letter must airplane and the inability of the structure to accordance with Section 53–30–03 of the specifically reference this AD. carry fail-safe loads. Boeing 747 Structural Repair Manual (SRM); (3) An AMOC that provides an acceptable or Boeing Alert Service Bulletin 747– Compliance level of safety may be used for any repair 53A2267, Revision 4, dated March 26, 2009; required by this AD if it is approved by the (f) You are responsible for having the except as required by paragraph (j) of this Boeing Commercial Airplanes Organization actions required by this AD performed within AD; and repeat the inspection required by Designation Authorization (ODA) that has the compliance times specified, unless the paragraph (g) of this AD at the times actions have already been done. specified in paragraph (i)(1) of this AD. As been authorized by the Manager, Seattle ACO, to make those findings. For a repair Restatement of Requirements of AD 94–17– of the effective date of this AD, use only method to be approved, the repair must meet 01, With Revised Compliance Times for Post- Boeing Alert Service Bulletin 747–53A2267, Modification Inspection and Revised Service Revision 4, dated March 26, 2009. the certification basis of the airplane, and the Information (1) As of the effective date of this AD: If approval must specifically refer to this AD. the repair specified in the Boeing 747 SRM (4) AMOCs approved previously in Initial External High Frequency Eddy Current does not include removing the lap joint and accordance with AD 94–17–01 are approved Inspection the upper row of countersunk fasteners, as AMOCs for the corresponding provisions (g) Perform an external high frequency repeat the inspection required by paragraph of this AD, with the exception of paragraphs eddy current inspection to detect cracks in (g) of this AD at the earlier of the times (h) and (i)(1) of this AD. the upper row of fasteners in the modified specified in paragraphs (i)(1)(i) and (i)(1)(ii) lap joints in accordance with Boeing Service of this AD, and thereafter at intervals not to Material Incorporated by Reference Bulletin 747–53A2267, Revision 3, dated exceed 1,000 flight cycles. (l) You must use Boeing Alert Service March 26, 1992; or Boeing Alert Service (i) Within 3,000 flight cycles after the last Bulletin 747–53A2267, Revision 4, dated inspection required by paragraph (g) of this Bulletin 747–53A2267, Revision 4, dated March 26, 2009; at the time specified in AD. March 26, 2009, to do the actions required by paragraph (g)(1) or (g)(2) or (g)(3) of this AD, (ii) Within 1,000 flight cycles after the last this AD, unless the AD specifies otherwise. as applicable. As of the effective date of this inspection required by paragraph (g) of this (1) The Director of the Federal Register AD, only Revision 4 may be used. AD, or within 500 flight cycles after the approved the incorporation by reference of (1) For locations on airplanes on which the effective date of this AD, whichever occurs this service information under 5 U.S.C. full modification required by AD 90–06–06, later. 552(a) and 1 CFR part 51. Amendment 39–6490, has been (2) If the repair specified in the Boeing 747 (2) For service information identified in accomplished in accordance with Revision 2 SRM includes removing the lap joint and the this AD, contact Boeing Commercial of Boeing Service Bulletin 747–53A2267, upper row of countersunk fasteners, such Airplanes, Attention: Data & Services dated March 29, 1990; or Revision 3, dated repair constitutes terminating action for the Management, P.O. Box 3707, MC 2H–65, March 26, 1992; or Boeing Alert Service inspection requirements of this AD. To Bulletin 747–53A2267, Revision 4, dated ‘‘remove’’ means to trim out all three fastener Seattle, Washington 98124–2207; telephone March 26, 2009: Prior to the accumulation of rows of the overlapping skin common to the 206–544–5000, extension 1; fax 206–766– 10,000 flight cycles after accomplishment of lap joint. 5680; e-mail [email protected]; the full modification. Internet (2) For locations on airplanes on which the Exception to the Service Bulletin https://www.myboeingfleet.com. full modification required by AD 90–06–06 (j) If any cracking is found during any (3) You may review copies of the service has been accomplished in accordance with inspection required by this AD, and Boeing information at the FAA, Transport Airplane Boeing Service Bulletin 747–53A2267, dated Alert Service Bulletin 747–53A2267, March 28, 1986; or Revision 1, dated Directorate, 1601 Lind Avenue, SW., Renton, Revision 4, dated March 26, 2009, specifies Washington. For information on the September 25, 1986: Prior to the contacting Boeing for appropriate action: availability of this material at the FAA, call accumulation of 7,000 flight cycles after Before further flight, repair the cracking accomplishment of the full modification. using a method approved in accordance with 425–227–1221. (3) For locations on airplanes on which the the procedures specified in paragraph (k) of (4) You may also review copies of the optional modification has been accomplished this AD. For a repair method to be approved service information that is incorporated by in accordance with Boeing Service Bulletin by the Manager, Seattle ACO, as required by reference at the National Archives and 747–53A2267, Revision 2, dated March 29, this paragraph, the Manager’s approval letter Records Administration (NARA). For 1990, or Revision 3, dated March 26, 1992; must specifically refer to this AD. or Boeing Alert Service Bulletin 747– information on the availability of this 53A2267, Revision 4, dated March 26, 2009: material at NARA, call 202–741–6030, or go Alternative Methods of Compliance _ Prior to the accumulation of 7,000 flight (AMOCs) to: http://www.archives.gov/federal register/ cycles after accomplishment of the optional code_of_federal_regulations/ibr (k)(1) The Manager, Seattle Aircraft modification. _locations.html. Certification Office, FAA, has the authority to Repetitive External High Frequency Eddy approve AMOCs for this AD, if requested Issued in Renton, Washington, on June 23, Current Inspections using the procedures found in 14 CFR 39.19. 2010. (h) If no cracking is detected during the Send information to ATTN: Ivan Li, Ali Bahrami, Aerospace Engineer, Airframe Branch, ANM– inspection required by paragraph (g) of this Manager, Transport Airplane Directorate, AD, repeat the inspection required by 120S, FAA, Seattle Aircraft Certification Aircraft Certification Service. paragraph (g) of this AD at the earlier of the Office, 1601 Lind Avenue, SW., Renton, times specified in paragraphs (h)(1) and Washington 98057–3356; telephone (425) [FR Doc. 2010–15924 Filed 7–1–10; 8:45 am] (h)(2) of this AD, and thereafter at intervals 917–6437; fax (425) 917–6590. Or, e-mail BILLING CODE 4910–13–P not to exceed 1,000 flight cycles. information to (1) Within 3,000 flight cycles after the last 9-ANM-Seattle-ACO-AMOC-Requests- inspection required by paragraph (g) of this faa.gov. AD. (2) To request a different method of (2) Within 1,000 flight cycles after the last compliance or a different compliance time inspection required by paragraph (g) of this for this AD, follow the procedures in 14 CFR AD or 500 flight cycles after the effective date 39.19. Before using any approved AMOC on of this AD, whichever occurs later. any airplane to which the AMOC applies, notify your principal maintenance inspector Repair (PMI) or principal avionics inspector (PAI), (i) If any cracking is detected during any as appropriate, or lacking a principal inspection required by paragraph (g) of this inspector, your local Flight Standards District

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DEPARTMENT OF TRANSPORTATION Examining the AD Docket service information for accomplishing You may examine the AD docket on certain proposed actions. The Federal Aviation Administration the Internet at http:// procedures in Revision 1 of these www.regulations.gov; or in person at the service bulletins are essentially the 14 CFR Part 39 Docket Management Facility between 9 same as those in the original issue of a.m. and 5 p.m., Monday through these service bulletins. Revision 1 [Docket No. FAA–2009–0454; Directorate Friday, except Federal holidays. The AD clarifies certain work instructions and Identifier 2008–NM–156–AD; Amendment specifies that no further work is 39–16353; AD 2010–14–08] docket contains this AD, the regulatory evaluation, any comments received, and necessary for airplanes on which the actions in the original issue were RIN 2120–AA64 other information. The address for the Docket Office (telephone 800–647–5527) performed. Boeing Service Bulletin 747– Airworthiness Directives; The Boeing is the Document Management Facility, 28A2281, Revision 1, dated November Company Model 747–400, 747–400D, U.S. Department of Transportation, 25, 2009, also removes airplanes having and 747–400F Series Airplanes Docket Operations, M–30, West variable numbers RT966 and RT967 Building Ground Floor, Room W12–140, from the effectivity. These airplanes are AGENCY: Federal Aviation 1200 New Jersey Avenue, SE., not equipped with horizontal stabilizer Administration (FAA), DOT. Washington, DC 20590. tanks and therefore are not affected by ACTION the identified unsafe condition. : Final rule. FOR FURTHER INFORMATION CONTACT: Boeing has also published Boeing SUMMARY: We are adopting a new Douglas Bryant, Aerospace Engineer, Propulsion Branch, ANM–140S, FAA, Service Bulletin 747–28A2262, Revision airworthiness directive (AD) for certain 2, dated August 13, 2009. In the NPRM, Model 747–400, 747–400D, and 747– Seattle Aircraft Certification Office, 1601 Lind Avenue, SW., Renton, we referred to Boeing Service Bulletin 400F series airplanes. For all airplanes, 747–28A2262, Revision 1, dated May 8, this AD requires installing new pump Washington 98057–3356; telephone (425) 917–6505; fax (425) 917–6590. 2008, for accomplishing the installation control and time delay relays, doing of a new automatic shutoff system for SUPPLEMENTARY INFORMATION: related investigative and corrective the horizontal stabilizer tank (HST) fuel actions if necessary, and changing the Discussion pumps, before or at the same time as the wiring for the center and main fuel tank We issued a notice of proposed actions in Boeing Service Bulletin 747– override/jettison fuel pumps; and, for 28A2281. The procedures in Boeing certain airplanes, installing new relays rulemaking (NPRM) to amend 14 CFR part 39 to include an airworthiness Service Bulletin 747–28A2262, Revision and wiring for the horizontal stabilizer 2, dated August 13, 2009, are essentially override/jettison fuel pumps. This AD directive (AD) that would apply to certain Model 747–400, 747–400D, and the same as those in Boeing Service also requires a revision to the Bulletin 747–28A2262, Revision 1, maintenance program to incorporate 747–400F series airplanes. That NPRM was published in the Federal Register dated May 8, 2008. Revision 2 clarifies Airworthiness Limitation No. 28–AWL– certain work instructions and specifies 24 and No. 28–AWL–26. For certain on June 2, 2009 (74 FR 26317). That NPRM proposed to require installing that no further work is necessary for airplanes, this AD also requires airplanes on which the actions in installing an automatic shutoff system new pump control and time delay relays, doing related investigative and Revision 1 were performed. for the horizontal stabilizer tank fuel Therefore, we have changed this AD pumps and installing new integrated corrective actions if necessary, and changing the wiring for the center and to refer to these revised service bulletins display system software. This AD as the appropriate sources of service results from fuel system reviews main fuel tank override/jettison fuel pumps; and, for certain airplanes, information for the applicable actions. conducted by the manufacturer. We are We have also added a new paragraph (i) issuing this AD to prevent installing new relays and wiring for the horizontal stabilizer override/jettison to this AD that specifies that actions uncommanded operation of certain done before the effective date of this AD override/jettison pumps which could fuel pumps. That NPRM also proposed to require a revision to the maintenance in accordance with the previous issues cause overheat, electrical arcs, or of these service bulletins are acceptable frictional sparks, and could lead to an program to incorporate Airworthiness Limitation No. 28–AWL–24 and No. 28– for compliance with the corresponding ignition source inside a fuel tank. This requirements of this AD. condition, in combination with AWL–26. For certain airplanes that flammable fuel vapors, could result in a NPRM proposed to require installing an Comments automatic shutoff system for the fuel tank explosion and consequent loss We gave the public the opportunity to of the airplane. horizontal stabilizer tank fuel pumps and installing new integrated display participate in developing this AD. We DATES: This AD is effective August 6, system software. considered the comments received. 2010. The Director of the Federal Register Explanation of Revised Service Request to Clarify Certain Language approved the incorporation by reference Information Boeing asks that the term ‘‘Integrated of certain publications listed in the AD Boeing has published Boeing Service Display System (IDS)’’ be changed to as of August 6, 2010. Bulletins 747–28A2280 and 747– ‘‘IDS software’’ in all applicable sections ADDRESSES: For service information 28A2281, both Revision 1, both dated of the NPRM. Boeing states that this identified in this AD, contact Boeing November 25, 2009. In the NPRM, we change clarifies that the actions in the Commercial Airplanes, Attention: Data referred to the original issues of Boeing NPRM are for a software change to the & Services Management, P.O. Box 3707, Alert Service Bulletin 747–28A2280, IDS and not a change to the IDS MC 2H–65, Seattle, Washington 98124– dated August 7, 2008; and Boeing Alert hardware. 2207; telephone 206–544–5000, Service Bulletin 747–28A2281, dated We agree with the Boeing comment extension 1, fax 206–766–5680; e-mail December 13, 2007. We referred to the for the reason given. We have added the [email protected]; Internet original versions of these service word ‘‘software’’ after all references to https://www.myboeingfleet.com. bulletins as the appropriate sources of the IDS in this AD.

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Request To Remove Certain Airplanes in the un-powered condition. Boeing (o) to this AD (and reidentified Boeing asks that Model 747–400D and concludes that for this reason, the need subsequent paragraphs) to provide –400F airplanes be removed from to perform the operational test found in optional terminating action if the HST is paragraph (l) of the NPRM. Boeing states Section 28–31–00 of the Boeing 747–400 deactivated and to reinstate the that Model 747–400D and –400F airplane maintenance manual (AMM), requirements if the HST is later and called out in AWL No. 28–AWL–26, reactivated. airplanes are not affected by the is not necessary. horizontal stabilizer tank (HST) changes We disagree with the Boeing Request for Analytical Justification of because those airplanes do not have a comment. The AWL is part of the the Compliance Time HST. airplane type design, and a design Lufthansa German Airlines We agree with the Boeing comment change has not been proposed to change (Lufthansa) asks that we provide for the reason provided. We have the AWL. However, under the justification (including statistical and removed Model 747–400D and –400F provisions of paragraph (p)(1) of the AD, probabilistic background) for the airplanes from paragraph (m) of this AD we will consider removing the compliance time in the NPRM. (paragraph (m) was referred to as requirement if sufficient data are Lufthansa reiterates the NPRM paragraph (l) in the NPRM). submitted to substantiate that a project requirements and notes that it assumes Request To Remove Airplane Flight has been completed showing that that the failure probability is part of the Manual (AFM) Limitation removing the requirement would determination of the proposed provide an acceptable level of safety. compliance time of 60 months for the Boeing asks that we remove the We have made no change to the AD in installations and wiring changes. reference to the following AFM this regard. We acknowledge the commenter’s limitations: ‘‘The 17,000-lb center wing request and provide the following tank (CWT) minimum fuel amount to Request To Clarify the Requirements explanation. As stated in the preamble select the CWT override/jettison pumps for Airplanes With a Deactivated HST of the NPRM, ‘‘The pump is normally ON during takeoff’’ and ‘‘There is no Japan Airlines (JAL) asks that we commanded off if the fuel level goes change to the maximum zero fuel gross clarify the NPRM requirements for below the pump inlet, but if a single weight found in the airplane flight airplanes with a deactivated HST. JAL failure in the pump control circuitry manual.’’ Boeing states that the NPRM states that it decided to deactivate the occurs, a pump can continue to run after should be consistent with the AFM HST system in accordance with Boeing it is commanded off. Uncommanded certificate limitations contained in AD Service Bulletins 747–28–2310, dated operation of certain override/jettison 2007–13–04, Amendment 39–15108 (72 December 18, 2008; and 747–28–2314, pumps could cause overheat, electrical FR 33859, June 20, 2007). Boeing adds dated December 9, 2008. JAL adds that arcs, or frictional sparks, and could lead that in discussions regarding AFM the service bulletins specify removing to an ignition source inside a fuel tank.’’ limitations in this AD it was agreed that components, including the pumps on This ignition source can come from AFM limitations were not required for horizontal stabilizer fuel tank (HSFT), several sources seen in service that were an obvious pilot action driven by engine and reworking the system wiring. JAL not originally anticipated in the airplane indicating and crew alerting system notes that after the service bulletins design. Examples of those are friction in (EICAS) messages. have been incorporated, paragraphs the pump which could lead to very high We agree with the Boeing comment (g)(2), (h)(2), and (l) of the NPRM will internal surface temperatures caused by for the reasons provided and because not apply. JAL asks that an additional mechanical failures or ingestion of the certification limitation for CWT description be included in the AD debris into the pump, and electrical minimum fuel is covered by EICAS which clarifies that the requirements in faults leading to internal arcs or pump messages, which makes it redundant. those paragraphs are only for airplanes case burn-through. Since there are We have removed the subject with an active HSFT. JAL suggests several pumps in multiple fuel tanks, limitations and changed the FAA letter clarifying the applicability as follows: depending on the configuration of the concerning these limitations referred to ‘‘For Model 747–400 series airplanes airplane, there are several possible in Note 3 of this AD. with the active horizontal stabilizer single failures on a given airplane. This tank.’’ In lieu of that sentence, JAL Request To Remove Airworthiness is a single failure which cannot be suggests a note that specifies the Limitation (AWL) 28–AWL–26 reliably predicted with statistical and following: ‘‘The airplanes with the probabilistic methods. Boeing asks that we remove the horizontal stabilizer tank deactivated in Currently, we are reliant on crew requirement to revise the maintenance accordance with Boeing Service Bulletin procedures to shut off the pumps early program by incorporating AWL No. 28– are not applicable.’’ JAL concludes that to mitigate the single failure risk. We are AWL–26 of Section 9, ‘‘Airworthiness this additional description will save on aware of accounts of pilots failing to Limitations (AWLs) and Certification superfluous paperwork. turn pumps off due to the relatively Maintenance Requirements (CMRs)’’ of We partially agree with the JAL short time between the points when the the Boeing 747–400 Maintenance comments. We agree that the tank reaches the desired shutoff level Planning Data Document D621U400–9. applicability should be clarified for and the pump runs dry. Given the Boeing states that, with the introduction airplanes with a deactivated HST multiple sources of a single failure that of IDS–506 software, it has implemented because those airplanes have adequately can cause ignition, and acknowledging a status level EICAS message for the addressed the unsafe condition. the limited effectiveness of the current relays that control the Uncommanded- However, we do not agree with using mitigating actions, we consider that this ON state of the main 2 and main 3 tank the language JAL provided because it is an issue that requires action to return fuel override/jettison pumps. Boeing leaves ‘‘active’’ open to interpretation. to the failsafe intent of the design. adds that these messages are now Deactivation of a HST according to the When we determine that a safety issue consistent with the center tank applicable Boeing service bulletin warrants AD action, we ascertain how Uncommanded-ON messages. Boeing referred to in Table 3 of this AD is the quickly that issue can be eliminated notes that the EICAS message will only acceptable method of compliance. based on the actions proposed by the detect a relay that remains latched when We have added new paragraphs (n) and manufacturer and other related factors.

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This determination includes the safety intervals for most affected operators. necessary to perform only the actions issue, the time necessary to perform the However, under the provisions of actually required by this AD. We agree work on an airplane, the number of paragraph (p)(1) of the AD, we will that the parts cost, which was affected operators, and parts consider requests to adjust the inadvertently omitted from the Costs of availability. For major modification compliance time if sufficient data are Compliance table in the service bulletin, involving large fleets, and requiring submitted to substantiate that the new should be included because all three of specialized facilities, we consider the compliance time would provide an these service bulletins have been overall industry ability to perform the acceptable level of safety. We have revised. We have changed the Estimated modification on all affected airplanes in made no change to the AD in this Costs table to reduce certain work hours a timely manner. Based on these regard. and increase the parts cost in the first considerations, we determine a Cargolux adds that if the compliance row of the table to match Boeing Service compliance time that minimizes risk, as time is extended to 8 years, in the Bulletins 747–28A2280 and 747– well as the impact on commercial interim, it proposes to have the override 28A2281, both Revision 1, both dated airlines. We try to align compliance jettison pump push buttons replaced November 25, 2009; and Boeing Service times with the majority of operators’ with switches having a configuration Bulletin 747–28A2262, Revision 2, maintenance schedules, but that is ‘‘D’’ master module within 6 months dated August 13, 2009. We have also dependent on the severity of the unsafe after the effective date of the included the parts cost in the third row condition. In light of this analysis, we forthcoming AD. Cargolux states that of the table, and changed the costs per have determined that a 60-month this will prevent the ‘‘cap pop-up’’ or product and fleet costs in the table compliance time is appropriate for this ‘‘jamming’’ condition of the switch. accordingly. AD. We have made no change to the AD We disagree with the Cargolux in this regard. proposal to replace push buttons as Explanation of Change to Applicability mitigating action to allow for extending Requests To Extend Compliance Time the compliance time to 8 years, because We have changed the applicability in Lufthansa also states that the 60- its replacement is insufficient to this AD to identify model designations month compliance time is not in line mitigate the unsafe condition caused by as published in the most recent type with its heavy maintenance overlay possible single failures. We are aware of certificate data sheet for the affected schedule, which is based on the latest the problems with the push buttons and models. approved maintenance review board we are considering a separate Explanation of Additional Change to document, and asks for an extension to rulemaking action. The faulty pressure ‘‘Certificate Limitations’’ Section 72 months. Air Transport Association switches are not related to this unsafe (ATA), on behalf of its member United condition because they are not part of We have removed the fourth note Airlines (United), asks that the the pump power control circuit. We under ‘‘Certificate Limitations’’ in this compliance time be extended to 72 have made no change to the AD in this AD for consistency with prior FAA months in order to allow regard. approvals. The note specified the accomplishment of the proposed following: ‘‘The CWT and the HST may Request To Increase Work Hours and modifications during heavy be emptied normally during an Include Parts Cost in the Costs of maintenance visits. KLM Royal Dutch emergency.’’ Compliance Airlines (KLM) asks that the compliance Conclusion time be extended to 8 years, which ATA, on behalf of United, states that enables KLM to schedule the the estimate for labor and parts in the We reviewed the relevant data, modification during a D-check without NPRM is understated. United notes that considered the comments received, and additional downtime requirements. JAL Boeing Alert Service Bulletin 747– determined that air safety and the also asks that the compliance time be 28A2281, dated December 13, 2007, public interest require adopting the AD extended to 8 years because estimates that it would take 101 to 107 with the changes described previously. accomplishing the modification is work hours per product to install relays We also determined that these changes extensive work which can only be done and wiring for the HST. United adds will not increase the economic burden during an M check for heavy that this service bulletin also includes on any operator or increase the scope of maintenance. Cargolux also asks that the the kits of parts necessary for the the AD. compliance time be extended to 8 years modification, and indicates that the to coincide with its D-check heavy pricing for the kits can be obtained from Explanation of Additional Change to maintenance interval. Boeing spares. United also states that Costs of Compliance We do not agree with the commenters’ the work hours are underestimated for requests. In developing an appropriate Boeing Alert Service Bulletin 747– Since issuance of the NPRM, we have compliance time for the modification, 28A2280, dated August 7, 2008; and increased the labor rate used in the we considered the safety implications Boeing Service Bulletin 747–28A2262, Costs of Compliance from $80 per work and the practical aspect of Revision 1, dated May 8, 2008. hour to $85 per work hour. The Costs accomplishing the modification within We infer that the commenter is asking of Compliance information, below, a period of time that corresponds to the to increase the work hours and include reflects this increase in the specified normal scheduled maintenance for most the cost of certain parts. We do not agree hourly labor rate. affected operators. In consideration of that the work hours are underestimated. Costs of Compliance these items, and as noted under the The cost information in an AD describes Request for Analytical Justification of only the direct costs of the specific We estimate that this AD would affect the Compliance Time, we have actions required by this AD. Based on 102 airplanes of U.S. registry. The determined that a 60-month compliance the best data available, the manufacturer following table provides the estimated time will ensure an acceptable level of provided the number of work hours costs for U.S. operators to comply with safety and allow the modification to be necessary to do the required actions. this AD. The average labor rate is $85 done during scheduled maintenance This number represents the time per work hour.

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ESTIMATED COSTS

Number of Work Cost per U.S.-reg- Action hours Parts product istered Fleet cost airplanes

Installing relays/changing wiring for center and main fuel tanks ...... 369 to 389 $75,007 to $106,372 to 102 ...... $10,849,944 to $75,894. $108,959. $11,113,818. Installing new IDS software and revising the AFM when done 2 to 3 ...... $0 ...... Up to $255 .. Up to 102 Up to $26,010. (prior/concurrent action). Installing relays and wiring for horizontal stabilizer tank (HST) ...... 73 to 79 ... $5,778 to $11,983 to 74 ...... $886,742 to $6,486. $13,201. $976,874. Installing a new automatic shutoff for the HST ...... 44 ...... $4,112 ...... $7,852 ...... 74 ...... $581,048. Revising the maintenance program ...... 1 ...... $0 ...... $85 ...... 102 ...... $8,670.

Authority for This Rulemaking List of Subjects in 14 CFR Part 39 ensure the continued operational safety of the airplane. Title 49 of the United States Code Air transportation, Aircraft, Aviation specifies the FAA’s authority to issue safety, Incorporation by reference, Subject rules on aviation safety. Subtitle I, Safety. (d) Air Transport Association (ATA) of section 106, describes the authority of Adoption of the Amendment America Code 28: Fuel. the FAA Administrator. ‘‘Subtitle VII: Unsafe Condition ■ Accordingly, under the authority Aviation Programs,’’ describes in more (e) This AD results from fuel system detail the scope of the Agency’s delegated to me by the Administrator, the FAA amends 14 CFR part 39 as reviews conducted by the manufacturer. We authority. are issuing this AD to prevent uncommanded follows: We are issuing this rulemaking under operation of certain override/jettison pumps the authority described in ‘‘Subtitle VII, which could cause overheat, electrical arcs, PART 39—AIRWORTHINESS or frictional sparks, and could lead to an Part A, Subpart III, Section 44701: DIRECTIVES ignition source inside a fuel tank. This General requirements.’’ Under that ■ 1. The authority citation for part 39 condition, in combination with flammable section, Congress charges the FAA with fuel vapors, could result in a fuel tank promoting safe flight of civil aircraft in continues to read as follows: explosion and consequent loss of the air commerce by prescribing regulations Authority: 49 U.S.C. 106(g), 40113, 44701. airplane. for practices, methods, and procedures § 39.13 [Amended] Compliance the Administrator finds necessary for safety in air commerce. This regulation ■ 2. The FAA amends § 39.13 by adding (f) Comply with this AD within the the following new AD: compliance times specified, unless already is within the scope of that authority done. because it addresses an unsafe condition 2010–14–08 The Boeing Company: that is likely to exist or develop on Amendment 39–16353. Docket No. Installations and Wiring Changes products identified in this rulemaking FAA–2009–0454; Directorate Identifier (g) Within 60 months after the effective action. 2008–NM–156–AD. date of this AD, do the actions in paragraphs (g)(1) and (g)(2) of this AD, as applicable. Regulatory Findings Effective Date (1) For Model 747–400, 747–400D, and (a) This airworthiness directive (AD) is 747–400F series airplanes: Install new pump This AD will not have federalism effective August 6, 2010. control and time delay relays and do related implications under Executive Order investigative and all applicable corrective Affected ADs 13132. This AD will not have a actions, and change the wiring for the center substantial direct effect on the States, on (b) None. and main fuel tanks override/jettison fuel the relationship between the national Applicability pumps, in accordance with the Accomplishment Instructions of Boeing government and the States, or on the (c) This AD applies to The Boeing distribution of power and Service Bulletin 747–28A2280, Revision 1, Company Model 747–400, 747–400D, and dated November 25, 2009. Do all related responsibilities among the various 747–400F series airplanes, certificated in any investigative and applicable corrective levels of government. category; as identified in Boeing Service actions before further flight. For the reasons discussed above, I Bulletins 747–28A2280, Revision 1, dated (2) For Model 747–400 series airplanes: November 25, 2009, and 747–28A2281, certify that this AD: Install new relays and wiring for the Revision 1, dated November 25, 2009. horizontal stabilizer override/jettison fuel (1) Is not a ‘‘significant regulatory Note 1: This AD requires revisions to pumps in accordance with the action’’ under Executive Order 12866, certain operator maintenance documents to Accomplishment Instructions of Boeing (2) Is not a ‘‘significant rule’’ under include a new inspection. Compliance with Service Bulletin 747–28A2281, Revision 1, DOT Regulatory Policies and Procedures this inspection is required by 14 CFR dated November 25, 2009. (44 FR 11034, February 26, 1979), and 91.403(c). For airplanes that have been previously modified, altered, or repaired in Prior/Concurrent Requirements (3) Will not have a significant the areas addressed by this inspection, the (h) Prior to or concurrently with the economic impact, positive or negative, operator may not be able to accomplish the actions required by paragraph (g) of this AD, on a substantial number of small entities inspections described in the revisions. In this do the applicable actions in paragraphs (h)(1) under the criteria of the Regulatory situation, to comply with 14 CFR 91.403(c), and (h)(2) of this AD. Flexibility Act. the operator must request approval for an (1) For Model 747–400, 747–400D, and alternative method of compliance (AMOC) 747–400F series airplanes identified in You can find our regulatory according to paragraph (p)(1) of this AD. The paragraphs (h)(1)(i), (h)(1)(ii), and (h)(1)(iii) evaluation and the estimated costs of request should include a description of of this AD: Install new integrated display compliance in the AD Docket. changes to the required inspection that will system (IDS) software in accordance with the

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Accomplishment Instructions of the engines except airplanes having V/Ns RL456, Instructions of Boeing Service Bulletin 747– applicable service bulletin listed in RL492, and RL502: Boeing Service Bulletin 28A2262, Revision 2, dated August 13, 2009. paragraph (h)(1)(i), (h)(1)(ii), or (h)(1)(iii) of 747–31–2377, dated September 5, 2006. this AD. (iii) For Model 747–400 and 747–400F Credit for Actions Done According to (i) For Model 747–400, 747–400D, and series airplanes that have Rolls Royce Previous Issues of Service Bulletins 747–400F series airplanes that have General engines: Boeing Service Bulletin 747–31– (i) Actions done before the effective date of Electric engines, except airplanes having 2378, dated September 5, 2006. this AD in accordance with the applicable variable numbers (V/Ns) RL429, RL430, (2) For Model 747–400 series airplanes service information contained in Table 1 of RL473, RL511, and RL521: Boeing Service except V/Ns RM403, RM441 through RM443 Bulletin 747–31–2376, dated September 5, inclusive, and RM445: Install a new this AD are acceptable for compliance with 2006. automatic shutoff system for the horizontal the corresponding actions required by (ii) For Model 747–400 and 747–400F stabilizer tank (HST) fuel pumps in paragraphs (g) and (h) of this AD. series airplanes that have Pratt & Whitney accordance with the Accomplishment

TABLE 1—CREDIT SERVICE INFORMATION

Document Revision Date

Boeing Alert Service Bulletin 747-28A2280 ...... Original ...... August 7, 2008. Boeing Alert Service Bulletin 747-28A2281 ...... Original ...... December 13, 2007. Boeing Service Bulletin 747–28A2262 ...... Original ...... March 15, 2007. Boeing Service Bulletin 747–28A2262 ...... 1 ...... May 8, 2008.

Maintenance Program Revision Document D621U400–9, Revision April 2008. are approved as an AMOC in accordance (j) Concurrently with accomplishing the The inspection interval for AWL No. 28– with the procedures specified in paragraph AWL–24 and AWL No. 28–AWL–26 starts on (p)(1) of this AD. actions required by paragraph (g) of this AD, the date the modification is incorporated. revise the maintenance program by Acceptable Action for Certain ADs incorporating Airworthiness Limitation No Alternative Inspections or Inspection (l) For Model 747–400, –400D, and –400F (AWL) No. 28–AWL–24 and No. 28–AWL–26 Intervals series airplanes: Installing new IDS software of Section 9, ‘‘Airworthiness Limitations (k) After accomplishing the action in accordance with paragraph (h)(1) of this (AWLs) and Certification Maintenance specified in paragraph (j) of this AD, no AD is an acceptable method of compliance Requirements (CMRs),’’ of the Boeing 747– alternative actions or intervals may be used for the action in the applicable AD paragraph 400 Maintenance Planning Data (MPD) unless the inspections or inspection intervals listed in Table 2 of this AD.

TABLE 2—ACTIONS FOR WHICH PARAGRAPH (H)(1) OF THIS AD ISANACCEPTABLE METHOD OF COMPLIANCE (NO CERTIFICATE LIMITATIONS)

The action in— Of—

(1) Paragraph E ...... AD 90–09–06, amendment 39–6581. (2) Paragraph (b) ...... AD 91–13–10 R1, amendment 39– 8158. (3) Paragraph (d)(1) ...... AD 96–07–09, amendment 39–9558. (4) Paragraph (a)(3)(iii) ...... AD 2000–02–22, amendment 39– 11540. (5) Paragraph (a)(2)(ii) ...... AD 2000–12–21, amendment 39– 11799. (6) Paragraph (d)(2)(iv) ...... AD 2003–16–16, amendment 39– 13269. (7) Paragraph (d)(1) ...... AD 2004–10–05, amendment 39– 13635.

(m) For Model 747–400 series airplanes The center wing tank (CWT) fuel quantity If either the FUEL PRES STB L or R with a horizontal stabilizer fuel tank and indication system must be operative to message is displayed, both HST pumps must with horizontal stabilizer tank fuel pump dispatch with CWT mission fuel. be selected OFF. auto-shutoff installed: Installing new IDS If the FUEL LOW CTR L or R message is Defueling: software in accordance with paragraph (h)(1) displayed, both CWT override/jettison Prior to defueling any fuel tanks, perform of this AD is an acceptable method of pump(s) must be selected OFF. a lamp test of the respective Fuel Pump Low compliance for the action in the applicable If the FUEL PRESS CTR L or R message is Pressure indication lights. When defueling, AD paragraph listed in Table 3 of this AD, displayed, the corresponding CWT override/ the Fuel Pump Low Pressure indication provided the certificate limitations included jettison pump must be selected OFF. lights must be monitored and the fuel pumps in the following statement are incorporated Horizontal Stabilizer Tank: positioned to OFF at the first indication of into the Limitations Section of the applicable The following additional limitations must fuel pump low pressure. When defueling airplane flight manual (AFM) in place of the be followed if the horizontal stabilizer tank with passengers on board, fuel pump certificate limitation required by the AFM (HST) is fueled and used: switches must be selected OFF at or above revision specified in the applicable AD listed The HST fuel quantity indication system approximately 7,000 pounds (3,200 in Table 3 of this AD. This may be done by must be operative to dispatch with HST kilograms) for the CWT, 3,000 pounds (1,400 inserting a copy of this AD in the AFM. mission fuel. kilograms) for main tanks, and 2,100 pounds If either the FUEL PMP STB L or R message (1,000 kilograms) for the HST. (These CERTIFICATE LIMITATIONS is displayed while on the ground, both HST requirements apply for defueling or Center Wing Tank: pumps must be selected OFF. transferring between tanks.)

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Warnings and Notes Applicable to All Fuel Note conflicting basic airplane flight manual Operations In a low fuel situation, both CWT override/ limitations.’’ Warning jettison pumps may be selected ON and all Note 2: When a statement identical to that CWT fuel may be used. in paragraph (m) of this AD has been Do not reset a tripped fuel pump circuit included in the general revisions of the AFM, Note breaker. the general revisions may be inserted into the In a low fuel situation, both HST transfer AFM, and the copy of this AD may be Warning pumps may be selected ON and all HST fuel removed from the AFM. Do not cycle CWT and HST pump switches may be used. Note 3: The certificate limitations in from ON to OFF to ON with any continuous Note paragraph (m) of this AD are also included low pressure indication present. The limitations contained in these as an enclosure to FAA Letter 140S–09–191, certificate limitations supersede any dated June 23, 2009.

TABLE 3—ACTIONS FOR WHICH PARAGRAPH (H)(1) OF THIS AD ISANACCEPTABLE METHOD OF COMPLIANCE (WITH CERTIFICATE LIMITATIONS)

The action in— Of—

(1) Paragraph (a) ...... AD 2001–12–21, amendment 39– 12277. (2) Paragraph (a) ...... AD 2001–21–07, amendment 39– 12478. (3) Paragraph (c)(2) ...... AD 2002–19–52, amendment 39– 12900. (4) Paragraph (a) ...... AD 2002–24–52, amendment 39– 12993.

Optional Terminating Action for Paragraphs information in Table 4 of this AD, terminates accordance with the applicable service (g)(2), (h)(2), and (m) of this AD: Deactivation the requirements of paragraphs (g)(2), (h)(2), information in Table 5 of this AD also of the HST and (m) of this AD, except as provided by terminates the requirements of paragraphs (n) Deactivation of the HST, in accordance paragraph (o) of this AD. Deactivation of the (g)(2), (h)(2), and (m) of this AD, except as with the applicable Boeing service HST before the effective date of this AD in provided by paragraph (o) of this AD.

TABLE 4—DEACTIVATION SERVICE INFORMATION

Boeing Service Information Revision Date

Service Bulletin 747–28–2247 ...... Original .... November 26, 2002. Service Bulletin 747–28–2265 ...... Original .... February 22, 2006. Service Bulletin 747–28–2272 ...... Original .... February 21, 2006. Service Bulletin 747–28–2274 ...... 1 ...... May 21, 2008. Service Bulletin 747–28–2275 ...... 4 ...... February 2, 2009. Service Bulletin 747–28–2279 ...... 2 ...... October 16, 2007. Service Bulletin 747–28–2285 ...... 3 ...... August 30, 2007. Service Bulletin 747–28–2293 ...... 2 ...... March 4, 2008. Service Bulletin 747–28–2295 ...... 2 ...... January 19, 2009. Service Bulletin 747–28–2296 ...... Original .... July 13, 2007. Service Bulletin 747–28–2300 ...... 1 ...... June 2, 2008. Service Bulletin 747–28–2310 ...... Original .... December 18, 2008. Service Bulletin 747–28–2314 ...... Original .... December 9, 2008.

TABLE 5—DEACTIVATION CREDIT SERVICE INFORMATION

Boeing Service Information Revision Date

Service Bulletin 747–28–2274 ...... Original .... March 13, 2006. Service Bulletin 747–28–2275 ...... Original .... June 12, 2006. Service Bulletin 747–28–2275 ...... 1 ...... March 16, 2007. Service Bulletin 747–28–2275 ...... 2 ...... July 2, 2007. Service Bulletin 747–28–2275 ...... 3 ...... March 11, 2008. Service Bulletin 747–28–2279 ...... Original .... June 12, 2006. Service Bulletin 747–28–2279 ...... 1 ...... May 25, 2007. Service Bulletin 747–28–2285 ...... Original .... January 23, 2007. Service Bulletin 747–28–2285 ...... 1 ...... May 9, 2007. Service Bulletin 747–28–2285 ...... 2 ...... August 3, 2007. Service Bulletin 747–28–2293 ...... Original .... May 9, 2007. Service Bulletin 747–28–2293 ...... 1 ...... August 29, 2007. Service Bulletin 747–28–2295 ...... Original .... November 17, 2006. Service Bulletin 747–28–2295 ...... 1 ...... March 20, 2008. Service Bulletin 747–28–2300 ...... Original .... January 16, 2008.

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Reactivation of the HST Alternative Methods of Compliance for this AD, follow the procedures in 14 CFR (o) For any airplane on which the HST is (AMOCs) 39.19. Before using any approved AMOC on reactivated, the HST must be reactivated in (p)(1) The Manager, Seattle Aircraft any airplane to which the AMOC applies, accordance with a method approved by the Certification Office (ACO), FAA, has the notify your principal maintenance inspector Manager, Seattle Aircraft Certification Office authority to approve AMOCs for this AD, if (PMI) or principal avionics inspector (PAI), (ACO), FAA. For any airplane on which the requested using the procedures found in 14 as appropriate, or lacking a principal HST is reactivated, the requirements of CFR 39.19. Send information to Attn: inspector, your local Flight Standards District Douglas Bryant, Aerospace Engineer, paragraphs (g)(2), (h)(2), and (m) of this AD Office. The AMOC approval letter must Propulsion Branch, ANM–140S, FAA, Seattle specifically reference this AD. must be done before further flight following Aircraft Certification Office, 1601 Lind the reactivation, or within 60 months after Avenue, SW., Renton, Washington 98057– Material Incorporated by Reference the effective date of this AD, whichever 3356; telephone (425) 917–6505; fax (425) occurs later. For a reactivation method to be 917–6590. Or, e-mail information to 9-ANM- (q) You must use the service information approved, the reactivation method must meet [email protected]. contained in Table 6 of this AD, as the certification basis of the airplane, and the (2) To request a different method of applicable, to do the actions required by this approval must specifically reference this AD. compliance or a different compliance time AD, unless the AD specifies otherwise.

TABLE 6—REQUIRED MATERIAL INCORPORATED BY REFERENCE

Boeing Service Information Revision Date

Service Bulletin 747–28A2280 ...... 1 ...... November 25, 2009. Service Bulletin 747–28A2281 ...... 1 ...... November 25, 2009. Section 9, ‘‘Airworthiness Limitations (AWLs) and Certification Maintenance Requirements (CMRs),’’ of the April 2008 April 2008. 747–400 Maintenance Planning Data (MPD) Document D621U400–9. Service Bulletin 747–28A2262 ...... 2 ...... August 13, 2009. Service Bulletin 747–31–2376 ...... Original .... September 5, 2006. Service Bulletin 747–31–2377 ...... Original .... September 5, 2006. Service Bulletin 747–31–2378 ...... Original .... September 5, 2006.

If you accomplish the optional actions this AD, as applicable, to perform those specified in this AD, you must use the actions unless the AD specifies otherwise. service information specified in Table 7 of

TABLE 7—OPTIONAL MATERIAL INCORPORATED BY REFERENCE

Boeing Service Information Revision Date

Service Bulletin 747–28–2247 ...... Original .... November 26, 2002. Service Bulletin 747–28–2265 ...... Original .... February 22, 2006. Service Bulletin 747–28–2272 ...... Original .... February 21, 2006. Service Bulletin 747–28–2274 ...... 1 ...... May 21, 2008. Service Bulletin 747–28–2275 ...... 4 ...... February 2, 2009. Service Bulletin 747–28–2279 ...... 2 ...... October 16, 2007. Service Bulletin 747–28–2285 ...... 3 ...... August 30, 2007. Service Bulletin 747–28–2293 ...... 2 ...... March 4, 2008. Service Bulletin 747–28–2295 ...... 2 ...... January 19, 2009. Service Bulletin 747–28–2296 ...... Original .... July 13, 2007. Service Bulletin 747–28–2300 ...... 1 ...... June 2, 2008. Service Bulletin 747–28–2310 ...... Original .... December 18, 2008. Service Bulletin 747–28–2314 ...... Original .... December 9, 2008.

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(1) The Director of the Federal Register issuing this AD to detect and correct Discussion approved the incorporation by reference of cracks and fractures of the nacelle strut this service information under 5 U.S.C. We have received a report that an front spar chord assembly. Fracture of operator found a cracked strut number 552(a) and 1 CFR part 51. the front spar chord assembly could (2) For service information identified in 2 upper chord on a Rolls-Royce- this AD, contact Boeing Commercial lead to loss of the strut upper link load powered airplane while accomplishing Airplanes, Attention: Data & Services path and consequent fracture of the the actions specified in Boeing Service Management, P.O. Box 3707, MC 2H–65, diagonal brace, which could result in in- Bulletin 747–54–2213. The upper chord Seattle, Washington 98124–2207; telephone flight separation of the strut and engine was 50 percent cracked and had to be 206–544–5000, extension 1, fax 206–766– from the airplane. replaced. The airplane had accumulated 5680; e-mail [email protected]; DATES: This AD is effective July 19, approximately 10,500 total flight cycles Internet https://www.myboeingfleet.com. 2010. (3) You may review copies of the service and 83,700 total flight hours. information at the FAA, Transport Airplane The Director of the Federal Register In addition, two other operators Directorate, 1601 Lind Avenue, SW., Renton, approved the incorporation by reference reported finding two cracks on two Washington. For information on the of a certain publication listed in the AD Rolls-Royce RB211-powered airplanes availability of this material at the FAA, call as of July 19, 2010. on the strut number 1 upper chord. Both 425–227–1221. We must receive comments on this cracks were repaired and neither upper (4) You may also review copies of the AD by August 16, 2010. chord had to be replaced. The upper service information that is incorporated by chords on these two airplanes had reference at the National Archives and ADDRESSES: You may send comments by Records Administration (NARA). For any of the following methods: accumulated approximately 9,300 and information on the availability of this • Federal eRulemaking Portal: Go to 16,100 total flight cycles and 78,100 and material at NARA, call 202–741–6030, or go http://www.regulations.gov. Follow the 56,700 total flight hours respectively. to: http://www.archives.gov/federal_register/ instructions for submitting comments. This condition, if not corrected, could code_of_federal_regulations/ • Fax: 202–493–2251. result in the loss of the strut upper link _ ibr locations.html. • Mail: U.S. Department of load path. Continued operation without Issued in Renton, Washington, on June 17, Transportation, Docket Operations, the strut upper link load path could 2010. M–30, West Building Ground Floor, result in the fracture of the diagonal Robert D. Breneman, Room W12–140, 1200 New Jersey brace, and subsequent separation of the Acting Manager, Transport Airplane Avenue, SE., Washington, DC 20590. strut and engine from the airplane Directorate, Aircraft Certification Service. • Hand Delivery: U.S. Department of during flight. [FR Doc. 2010–15935 Filed 7–1–10; 8:45 am] Transportation, Docket Operations, Relevant Service Information BILLING CODE 4910–13–P M–30, West Building Ground Floor, Room W12–140, 1200 New Jersey We reviewed Boeing Alert Service Avenue, SE., Washington, DC 20590, Bulletin 747–54A2224, Revision 3, DEPARTMENT OF TRANSPORTATION between 9 a.m. and 5 p.m., Monday dated May 20, 2010. Revision 3 of this through Friday, except Federal holidays. service bulletin was issued, among other reasons, to add Model 747–100B, 747– Federal Aviation Administration For service information identified in 200B, 747–200F, 747–300, 747–400, this AD, contact Boeing Commercial 747–400F, and 747SP equipped with 14 CFR Part 39 Airplanes, Attention: Data & Services Rolls-Royce RB211–524 series engines. Management, P. O. Box 3707, MC 2H– [Docket No. FAA–2010–0641; Directorate This service bulletin describes Identifier 2010–NM–130–AD; Amendment 65, Seattle, Washington 98124–2207; procedures for repetitive detailed 39–16354; AD 2010–14–09] telephone 206–544–5000, extension 1; inspections and high frequency eddy fax 206–766–5680; e-mail RIN 2120–AA64 current (HFEC) inspections of the [email protected]; Internet forward and aft sides of the strut front https://www.myboeingfleet.com. Airworthiness Directives; The Boeing spar chord assemblies for cracks and Company Model 747–100B, 747–200B, Examining the AD Docket fractures at each strut location, and 747–200F, 747–300, 747–400, 747– corrective actions if necessary. 400F, and 747SP Series Airplanes You may examine the AD docket on the Internet at http:// Corrective actions include contacting Equipped with Rolls-Royce RB211–524 Boeing for additional instructions if any Series Engines www.regulations.gov; or in person at the Docket Management Facility between crack or fracture is found, and repairing AGENCY: Federal Aviation 9 a.m. and 5 p.m., Monday through any cracks and fractures. Administration (FAA), DOT. Friday, except Federal holidays. The AD Other Related Rulemaking ACTION: Final rule; request for docket contains this AD, the regulatory On December 30, 2009, we issued AD comments. evaluation, any comments received, and 2010–01–10, Amendment 39–16168 (75 other information. The street address for SUMMARY: We are adopting a new FR 3150, January 20, 2010), applicable the Docket Office (telephone 800–647– airworthiness directive (AD) for certain to certain Model 747–100, 747–100B, 5527) is in the ADDRESSES section. Model 747–100B, 747–200B, 747–200F, 747–100B SUD, 747–200B, 747–200C, Comments will be available in the AD 747–300, 747–400, 747–400F, and 747–200F, 747–300, 747SR, and 747SP docket shortly after receipt. 747SP series airplanes. This AD requires series airplanes equipped with General repetitive detailed and high frequency FOR FURTHER INFORMATION CONTACT: Ken Electric (GE) CF6–45 or –50 series eddy current inspections of the forward Paoletti, Aerospace Engineer, Airframe engines, or equipped with Pratt & and aft sides of the strut front spar Branch, ANM–120S, FAA, Seattle Whitney JT9D–3 or –7 (excluding –70) chord for cracks and fractures at each Aircraft Certification Office, 1601 Lind series engines. That AD currently strut location, and corrective actions if Avenue, SW., Renton, Washington requires repetitive inspections to detect necessary. This AD results from reports 98057–3356; telephone (425) 917–6434; cracks and fractures of the strut front of cracks and fractures in the nacelle fax (425) 917–6590. spar chord assembly (including the strut front spar chord assembly. We are SUPPLEMENTARY INFORMATION: forward side) at each strut location, and

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repair if necessary. That AD requires a Because of our requirement to promote Regulatory Findings one-time inspection for cracking of the safe flight of civil aircraft and thus, the forward side of the front spar chord critical need to assure structural This AD will not have federalism assembly on the inboard and outboard integrity of the engine support structure implications under Executive Order struts, installation of a cap skin doubler and the short compliance time involved 13132. This AD will not have a for certain airplanes, and repair if with this action, this AD must be issued substantial direct effect on the States, on necessary. Certain actions provided in immediately. the relationship between the national that AD terminate the repetitive government and the States, or on the Because an unsafe condition exists distribution of power and inspections of the forward side of the that requires the immediate adoption of strut front spar chord assembly; the responsibilities among the various this AD, we find that notice and levels of government. inspections of the aft side assembly are opportunity for prior public comment For the reasons discussed above, I not terminated and continue to be hereon are impracticable and that good certify that this AD: required. That AD referred to Boeing cause exists for making this amendment Alert Service Bulletin 747–54A2224, effective in less than 30 days. (1) Is not a ‘‘significant regulatory Revision 1, dated November 16, 2006, to action’’ under Executive Order 12866, address the identified unsafe condition Comments Invited (2) Is not a ‘‘significant rule’’ under on Model 747–100, 747–100B, 747– This AD is a final rule that involves DOT Regulatory Policies and Procedures 100B SUD, 747–200B, 747–200C, 747– requirements affecting flight safety, and (44 FR 11034, February 26, 1979), and 200F, 747–300, 747SR, and 747SP series we did not provide you with notice and (3) Will not have a significant airplanes equipped with GE CF6–45 or an opportunity to provide your economic impact, positive or negative, –50 series engines, or equipped with comments before it becomes effective. on a substantial number of small entities Pratt & Whitney JT9D–3 or –7 However, we invite you to send any under the criteria of the Regulatory (excluding –70) series engines. written data, views, or arguments about Flexibility Act. FAA’s Determination and Requirements this AD. Send your comments to an You can find our regulatory of This AD address listed under the ADDRESSES evaluation and the estimated costs of We are issuing this AD because we section. Include ‘‘Docket No. FAA– compliance in the AD Docket. 2010–0641; Directorate Identifier 2010– evaluated all the relevant information List of Subjects in 14 CFR Part 39 and determined the unsafe condition NM–130–AD’’ at the beginning of your described previously is likely to exist or comments. We specifically invite Air transportation, Aircraft, Aviation develop in other products of these same comments on the overall regulatory, safety, Incorporation by reference, type designs. This AD requires economic, environmental, and energy Safety. aspects of this AD. We will consider all accomplishing the actions specified in Adoption of the Amendment the service information described comments received by the closing date previously, except as discussed under and may amend this AD because of ■ Accordingly, under the authority ‘‘Differences Between the AD and the those comments. delegated to me by the Administrator, Service Information.’’ We will post all comments we the FAA amends 14 CFR part 39 as receive, without change, to http:// follows: Differences Between the AD and the www.regulations.gov, including any Service Information personal information you provide. We PART 39—AIRWORTHINESS Boeing Alert Service Bulletin 747– will also post a report summarizing each DIRECTIVES 54A2224, Revision 3, dated May 20, substantive verbal contact we receive ■ 2010, specifies to contact the about this AD. 1. The authority citation for part 39 manufacturer for instructions on how to continues to read as follows: repair certain conditions, but this AD Authority for This Rulemaking Authority: 49 U.S.C. 106(g), 40113, 44701. would require repairing those Title 49 of the United States Code conditions in one of the following ways: specifies the FAA’s authority to issue § 39.13 [Amended] • In accordance with a method that rules on aviation safety. Subtitle I, ■ we approve; or 2. The FAA amends § 39.13 by adding • section 106, describes the authority of the following new AD: Using data that meet the the FAA Administrator. ‘‘Subtitle VII: certification basis of the airplane, and Aviation Programs,’’ describes in more 2010–14–09 The Boeing Company: that have been approved by the Boeing Amendment 39–16354. Docket No. detail the scope of the Agency’s FAA–2010–0641; Directorate Identifier Commercial Airplanes Organization authority. Designation Authorization (ODA) whom 2010–NM–130–AD. we have authorized to make those We are issuing this rulemaking under Effective Date findings. the authority described in ‘‘Subtitle VII, Part A, Subpart III, Section 44701: (a) This airworthiness directive (AD) is effective July 19, 2010. Interim Action General requirements.’’ Under that We consider this AD interim action. If section, Congress charges the FAA with Affected ADs final action is later identified, we might promoting safe flight of civil aircraft in (b) None. air commerce by prescribing regulations consider further rulemaking then. Applicability for practices, methods, and procedures FAA’s Justification and Determination the Administrator finds necessary for (c) This AD applies to The Boeing of the Effective Date safety in air commerce. This regulation Company Model 747–100B, 747–200B, 747– 200F, 747–300, 747–400, 747–400F, and Continued operation without the strut is within the scope of that authority 747SP series airplanes; certificated in any upper link load path could result in the because it addresses an unsafe condition category; equipped with Rolls-Royce RB211– fracture of the diagonal brace, and that is likely to exist or develop on 524 series engines; as identified in Boeing subsequent separation of the strut and products identified in this rulemaking Alert Service Bulletin 747–54A2224, engine from the airplane during flight. action. Revision 3, dated May 20, 2010.

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Subject Boeing Commercial Airplanes Organization given that there is a requirement to (d) Air Transport Association (ATA) of Designation Authorization (ODA) that has provide Instrument Flight Rules (IFR) en America Code 54: Nacelles/Pylons. been authorized by the Manager, Seattle route Air Traffic Control (ATC) services ACO, to make those findings. For a repair and within which the United States is Unsafe Condition method to be approved, the repair must meet applying domestic ATC procedures. (e) This AD results from reports of cracks the certification basis of the airplane, and the and fractures in the nacelle strut front spar approval must specifically refer to this AD. DATES: Effective date 0901 UTC, September 23, 2010. The Director of the chord assembly. The Federal Aviation Material Incorporated by Reference Administration is issuing this AD to detect Federal Register approves this and correct cracks and fractures of the (j) You must use Boeing Alert Service incorporation by reference action under nacelle strut front spar chord assembly. Bulletin 747–54A2224, Revision 3, dated 1 CFR part 51, subject to the annual Fracture of the front spar chord assembly May 20, 2010, to do the actions required by revision of FAA Order 7400.9 and this AD, unless the AD specifies otherwise. could lead to loss of the strut upper link load publication of conforming amendments. path and consequent fracture of the diagonal (1) The Director of the Federal Register brace, which could result in in-flight approved the incorporation by reference of FOR FURTHER INFORMATION CONTACT: Ken separation of the strut and engine from the this service information under 5 U.S.C. McElroy, Airspace and Rules Group, airplane. 552(a) and 1 CFR part 51. Office of System Operations Airspace (2) For service information identified in and AIM, Federal Aviation Compliance this AD, contact Boeing Commercial Administration, 800 Independence (f) You are responsible for having the Airplanes, Attention: Data & Services Avenue, SW., Washington, DC 20591; Management, P.O. Box 3707, MC 2H–65, actions required by this AD performed within telephone: (202) 267–8783. the compliance times specified, unless the Seattle, Washington 98124–2207; telephone actions have already been done. 206–544–5000, extension 1; fax 206–766– SUPPLEMENTARY INFORMATION: 5680; e-mail [email protected]; Inspections of the Forward and Aft Sides of Internet https://www.myboeingfleet.com. History the Strut Front Spar Chord Assemblies (3) You may review copies of the service On Wednesday, March 31, 2010, the (g) Before the accumulation of 8,000 total information at the FAA, Transport Airplane FAA published in the Federal Register flight cycles, or within 90 days after the Directorate, 1601 Lind Avenue, SW., Renton, a notice of proposed rulemaking effective date of this AD, whichever occurs Washington. For information on the (NPRM) to modify two Alaskan Offshore availability of this material at the FAA, call later: Perform a detailed inspection and a Airspace Areas, Norton Sound Low, and high frequency eddy current (HFEC) 425–227–1221. inspection for cracking or fracturing in the (4) You may also review copies of the Control 1234L (75 FR 16024). Interested forward and aft sides of the strut front spar service information that is incorporated by parties were invited to participate in chord, in accordance with Parts 1 and 2 of reference at the National Archives and this rulemaking effort by submitting the Accomplishment Instructions of Boeing Records Administration (NARA). For written comments on the proposal. No Alert Service Bulletin 747–54A2224, information on the availability of this comments were received. With the Revision 3, dated May 20, 2010. If no material at NARA, call 202–741–6030, or go exception of editorial changes, this cracking or fracturing is found, repeat the to: http://www.archives.gov/federal_register/ _ _ _ amendment is the same as that proposed inspections thereafter at intervals not to code of federal regulations/ in the NPRM. exceed 1,500 flight cycles. ibr_locations.html. The Rule Corrective Actions Issued in Renton, Washington, on June 21, 2010. (h) If any crack or fracture is found during This action amends Title 14 Code of any inspection required by this AD: Before Ali Bahrami, Federal Regulations (14 CFR) part 71 by further flight, repair the crack or fracture Manager, Transport Airplane Directorate, modifying the Norton Sound Low and using a method approved in accordance with Aircraft Certification Service. Control 1234L Offshore Airspace Areas the procedures specified in paragraph (i) of [FR Doc. 2010–16046 Filed 7–1–10; 8:45 am] in Alaska. this AD. BILLING CODE 4910–13–P The Norton Sound Low Offshore Alternative Methods of Compliance Airspace Area will be modified by (AMOCs) lowering the offshore airspace floor to (i)(1) The Manager, Seattle ACO, FAA, has DEPARTMENT OF TRANSPORTATION 1,200 feet mean sea level (MSL) at the the authority to approve AMOCs for this AD, following airports; within 73 miles of if requested using the procedures found in 14 Federal Aviation Administration Clarks Point, King Salmon, Kivalina, CFR 39.19. Send information to ATTN: Ken Kwethluk, Napakiak, Scammon Bay, Paoletti, Aerospace Engineer, Airframe 14 CFR Part 71 Shaktooklik, and Tooksook Bay; within Branch, ANM–120S, FAA, Seattle Aircraft [Docket No. FAA–2010–0071; Airspace 74 miles of Elim and Manokotak, and Certification Office, 1601 Lind Avenue, SW., Docket No. 10–AAL–1] within 72.5 miles of Red Dog. Renton, Washington 98057–3356; telephone The Control 1234L Offshore Airspace (425) 917–6434; fax (425) 917–6590. RIN 2120–AA66 Area will be modified by lowering the Information may be e-mailed to: 9-ANM- [email protected]. Amendment of Norton Sound Low and offshore airspace floor to 1,200 feet (2) To request a different method of Control 1234L Offshore Airspace above the surface within 73 miles of compliance or a different compliance time Areas; Alaska Nikolski, and Toksook Bay Airports. for this AD, follow the procedures in 14 CFR Offshore airspace areas are published 39.19. Before using any approved AMOC on AGENCY: Federal Aviation in paragraph 2003 of FAA Order any airplane to which the AMOC applies, Administration (FAA), DOT. 7400.9T dated August 27, 2009 and notify your principal maintenance inspector ACTION: Final rule. effective September 15, 2009, which is (PMI) or principal avionics inspector (PAI), incorporated by reference in 14 CFR as appropriate, or lacking a principal SUMMARY: This action modifies the 71.1. The offshore airspace areas listed inspector, your local Flight Standards District Office. The AMOC approval letter must Norton Sound Low and Control 1234L in this document will be published specifically reference this AD. Offshore Airspace Areas in Alaska. This subsequently in the Order. (3) An AMOC that provides an acceptable action will lower the airspace floors to The FAA has determined that this level of safety may be used for any repair provide controlled airspace beyond 12 regulation only involves an established required by this AD if it is approved by the miles from the coast of the United States body of technical regulations for which

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frequent and routine amendments are ICAO. Annex 11 provisions apply when a line 12 miles from and parallel to the necessary to keep them operationally air traffic services are provided and a shoreline to lat. 68°00′00″ N., to lat. 68°00′00″ N., long. 168°58′23″ W., to lat. 65°00′00″ N., current. Therefore, this regulation: (1) Is contracting state accepts the ° ′ ″ ° ′ ″ not a ‘‘significant regulatory action’’ responsibility of providing air traffic long. 168 58 23 W., to lat. 62 35 00 N., long. 175°00′00″ W., to lat. 59°59′57″ N., under Executive Order 12866; (2) is not services over high seas or in airspace of long. 168°00′08″ W., to lat. 57°45′57″ N., a ‘‘significant rule’’ under Department of undetermined sovereignty. A long. 161°46′08″ W., to lat. 58°06′57″ N., Transportation (DOT) Regulatory contracting state accepting this long. 160°00′00″ W., to the point of Policies and Procedures (44 FR 11034; responsibility may apply the beginning; and that airspace extending February 26, 1979); and (3) does not International Standards and upward from 1,200 feet MSL north of the warrant preparation of a regulatory Recommended Practices that are Alaska Peninsula and east of 160° W. evaluation as the anticipated impact is consistent with standards and practices longitude within 73 miles of the Port Heiden NDB/DME, AK, and north of the Alaska so minimal. Since this is a routine utilized in its domestic jurisdiction. ° matter that will only affect air traffic In accordance with Article 3 of the Peninsula and east of 160 W. longitude within an 81.2-mile radius of the Perryville procedures and air navigation, it is Convention, state-owned aircraft are Airport, AK, and north of the Alaska certified that this rule, when exempt from the Standards and Peninsula and east of 160° W. longitude promulgated, will not have a significant Recommended Practices of Annex 11. within a 72.8-mile radius of the Chignik economic impact on a substantial The United States is a contracting state Airport, AK, and within a 35-mile radius of number of small entities under the to the Convention. Article 3(d) of the lat. 60°21′17″ N., long. 165°04′01″ W., and criteria of the Regulatory Flexibility Act. Convention provides that participating within a 73-mile radius of the Chevak The FAA’s authority to issue rules state aircraft will be operated in Airport, AK, and within a 73-mile radius of regarding aviation safety is found in international airspace with due regard the Clarks Point Airport, AK, and within a 73-mile radius of the Elim Airport, AK, and Title 49 of the United States Code. for the safety of civil aircraft. Since this Subtitle I, Section 106 describes the within a 45-mile radius of the Hooper Bay action involves, in part, the designation Airport, AK, and within a 73-mile radius of authority of the FAA Administrator. of navigable airspace outside the United the King Salmon Airport, AK, and within a Subtitle VII, Aviation Programs, States, the Administrator has consulted 73-mile radius of the Kivalina Airport, AK, describes in more detail the scope of the with the Secretary of State and the and within a 74-mile radius of the Kotzebue agency’s authority. Secretary of Defense in accordance with VOR/DME, AK, and within a 73-mile radius This rulemaking is promulgated the provisions of Executive Order of the Kwethluk Airport, AK, and within a under the authority described in 10854. 74-mile radius of the Manokotak Airport, AK, Subtitle VII, Part A, Subpart I, Section and within a 73-mile radius of the Napakiak 40103. Under that section, the FAA is List of Subjects in 14 CFR Part 71 Airport, AK, and within a 77.4-mile radius of charged with prescribing regulations to the Nome VORTAC, AK, and within a 71NM Airspace, Incorporation by reference, radius of the New Stuyahok Airport, AK, and assign the use of the airspace necessary Navigation (air). within a 73-mile radius of the Noatak to ensure the safety of aircraft and the The Amendment Airport, AK, and within a 72.5-mile radius of efficient use of airspace. This regulation the Red Dog Airport, AK, and within a 73- is within the scope of that authority as ■ In consideration of the foregoing, the mile radius of the Scammon Bay Airport, AK, it modifies offshore airspace areas in Federal Aviation Administration and within a 73-mile radius of the Shaktoolik Alaska. amends 14 CFR part 71 as follows: Airport, AK, and within a 74-mile radius of the Selawik Airport, AK, and within a 73- ICAO Considerations PART 71—DESIGNATION OF CLASS A, mile radius of the St. Michael Airport, AK, As part of this action relates to B, C, D, AND E AIRSPACE AREAS; AIR and within a 73-mile radius of the Toksook Bay Airport, AK, and within a 30-mile radius navigable airspace outside the United TRAFFIC SERVICE ROUTES; AND ° ′ ″ ° ′ ″ States, this rule is submitted in of lat. 66 09 58 N., long. 166 30 03 W., and REPORTING POINTS within a 30-mile radius of lat. 66°19′55″ N., accordance with the International Civil long. 165°40′32″ W., and that airspace Aviation Organization (ICAO) ■ 1. The authority citation for part 71 continues to read as follows: extending upward from 700 feet MSL within International Standards and 8 miles west and 4 miles east of the 339° Recommended Practices. Authority: 49 U.S.C. 106(g), 40103, 40113, bearing from the Port Heiden NDB/DME, AK, The application of International 40120; E.O. 10854, 24 FR 9565, 3 CFR, 1959– extending from the Port Heiden NDB/DME, Standards and Recommended Practices 1963 Comp., p. 389. AK, to 20 miles north of the Port Heiden NDB/DME, AK, and within a 25-mile radius by the FAA, Office of System § 71.1 [Amended] Operations Airspace and AIM, Airspace of the Nome Airport, AK. and Rules Group, in areas outside the ■ 2. The incorporation by reference in * * * * * 14 CFR 71.1 of FAA Order 7400.9T, United States domestic airspace, is Control 1234L, AK [Amended] governed by the Convention on Airspace Designations and Reporting Points, signed August 27, 2009, and That airspace extending upward from 2,000 International Civil Aviation. feet above the surface within an area Specifically, the FAA is governed by effective September 15, 2009, is ° ′ ″ amended as follows: bounded by a line beginning at lat. 58 06 57 Article 12 and Annex 11, which pertain N., long. 160°00′00″ W., then south along to the establishment of necessary air Paragraph 2003—Offshore Airspace Areas. 160°00′00″ W. longitude, until it intersects navigational facilities and services to * * * * * the Anchorage Air Route Traffic Control promote the safe, orderly, and Center (ARTCC) boundary; then southwest, expeditious flow of civil air traffic. The Norton Sound Low, AK [Amended] northwest, north, and northeast along the That airspace extending upward from 14,500 Anchorage ARTCC boundary to lat. 62°35′00″ purpose of Article 12 and Annex 11 is ° ′ ″ ° ′ ″ to ensure that civil aircraft operations feet MSL within an area bounded by a line N., long. 175 00 00 W., to lat. 59 59 57 N., ° ′ ″ long. 168°00′08″ W., to lat. 57°45′57″ N., on international air routes are beginning at lat. 56 42 59 N., long. 160°00′00″ W., north by a line 12 miles from long. 161°46′08″ W., to the point of performed under uniform conditions. and parallel to the U.S. coastline to the beginning; and that airspace extending The International Standards and intersection with 164°00′00″ W., longitude upward from 1,200 feet above the surface Recommended Practices in Annex 11 near the outlet to Kotzebue Sound, then within a 26.2-mile radius of Eareckson Air apply to airspace under the jurisdiction north to the intersection with a point 12 Station, AK, within an 11-mile radius of of a contracting state, derived from miles from the U.S. coastline, then north by Adak Airport, AK, and within 16 miles of

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Adak Airport, AK, extending clockwise from each side of the 360° bearing from the Dutch between 9 a.m. and 5 p.m., Monday the 033° bearing to the 081° bearing from the Harbor NDB, AK, extending from the 6.4-mile through Friday, except Federal holidays. Mount Moffett NDB, AK, and within a 10- radius of Unalaska Airport, AK, to 9.5 miles FOR FURTHER INFORMATION CONTACT: mile radius of Atka Airport, AK, and within north of Unalaska Airport, AK; and that If a 10.6-mile radius from Cold Bay Airport, airspace extending upward from the surface you have questions on this temporary AK, and within 9 miles east and 4.3 miles within a 4.6-mile radius of Cold Bay Airport, rule, call or e-mail LTJG Eunice James, west of the 321° bearing from Cold Bay AK, and within 1.7 miles each side of the Sector New York Waterways Airport, AK, extending from the 10.6-mile 150° bearing from Cold Bay Airport, AK, Management Division, Marine Events radius to 20 miles northwest of Cold Bay extending from the 4.6-mile radius to 7.7 Branch. Coast Guard; telephone (718) Airport, AK, and 4 miles each side of the miles southeast of Cold Bay Airport, AK, and ° 354–4163, e-mail 070 bearing from Cold Bay Airport, AK, within 3 miles west and 4 miles east of the [email protected]. If you have extending from the 10.6-mile radius to 13.6 ° 335 bearing from Cold Bay Airport, AK, questions on viewing the docket, call miles northeast of Cold Bay Airport, AK, and extending from the 4.6-mile radius to 12.2 within a 26.2-mile radius of Eareckson Air miles northwest of Cold Bay Airport, AK. Renee V. Wright, Program Manager, Station, AK, and west of 160° W. longitude Docket Operations, telephone 202–366– within an 81.2-mile radius of Perryville Issued in Washington, DC, June 23, 2010. 9826. Airport, AK, and within a 73-mile radius of Edith V. Parish, SUPPLEMENTARY INFORMATION: the Nikolski Airport, AK, within a 74-mile Manager, Airspace and Rules Group. radius of the Manokotak Airport, AK, and [FR Doc. 2010–16076 Filed 7–1–10; 8:45 am] Regulatory Information within a 73-mile radius of the Clarks Point Airport, AK and west of 160° W. longitude BILLING CODE 4910–13–P The Coast Guard is issuing this within a 73-mile radius of the Port Heiden temporary final rule without prior NDB/DME, AK, and within a 10-mile radius notice and opportunity to comment of St. George Airport, AK, and within a 73- DEPARTMENT OF HOMELAND pursuant to authority under section 4(a) mile radius of St. Paul Island Airport, AK, SECURITY of the Administrative Procedure Act and within a 20-mile radius of Unalaska (APA) (5 U.S.C. 553(b)). This provision Airport, AK, extending clockwise from the Coast Guard authorizes an agency to issue a rule 305° bearing from the Dutch Harbor NDB, ° without prior notice and opportunity to AK, to the 075 bearing from the Dutch 33 CFR Part 100 comment when the agency for good Harbor NDB, AK, and west of 160° W. cause finds that those procedures are longitude within a 25-mile radius of the [Docket No. USCG–2010–0114] Borland NDB/DME, AK, and west of 160° W. ‘‘impracticable, unnecessary, or contrary longitude within a 72.8-mile radius of RIN 1625–AA08 to the public interest.’’ Under 5 U.S.C. Chignik Airport, AK; and that airspace 553(b)(B), the Coast Guard finds that extending upward from 700 feet above the Special Local Regulations; Macy’s good cause exists for not publishing a surface within a 6.9-mile radius of Eareckson Fourth of July Fireworks Spectator notice of proposed rulemaking (NPRM) Air Station, AK, and within a 7-mile radius Vessels Viewing Areas, Hudson River, with respect to this rule because of Adak Airport, AK, and within 5.2 miles New York, NY ° sufficient information regarding the northwest and 4.2 miles southeast of the 061 event was not received in time to bearing from the Mount Moffett NDB, AK, AGENCY: Coast Guard, DHS. publish a NPRM followed by a final rule extending from the 7-mile radius of Adak ACTION: Temporary final rule. Airport, AK, to 11.5 miles northeast of Adak before the effective date, thus making the publication of a NPRM impractical. Airport, AK and within a 6.5-mile radius of SUMMARY: The Coast Guard is A delay or cancellation of the event in King Cove Airport, and extending 1.2 miles establishing a temporary special local either side of the 103° bearing from King order to allow for a notice and comment regulation on the Hudson River in the Cove Airport from the 6.5-mile radius out to period is contrary to the public interest vicinity of New York, NY, for the 8.8 miles, and within a 6.4-mile radius of the in having this event occur on July 4 as Macy’s July 4th fireworks display. This Atka Airport, AK, and within a 6.3-mile scheduled. temporary special local regulation is radius of Nelson Lagoon Airport, AK, and Under 5 U.S.C. 553(d)(3), the Coast within a 6.3-mile radius of the Nikolski intended to restrict certain vessels from Guard finds that good cause exists for Airport, AK, and within a 6.4-mile radius of designated portions of the Hudson River making this rule effective less than 30 Sand Point Airport, AK, and within 3 miles during the fireworks event. This ° days after publication in the Federal each side of the 172 bearing from the regulation is necessary to provide for Register. Delaying this rule would be Borland NDB/DME, AK, extending from the the safety of life on navigable waters by 6.4-mile radius of Sand Point Airport, AK, to contrary to the public interest of controlling vessel movement and 13.9 miles south of Sand Point Airport, AK, ensuring the safety of spectators and establishing public viewing areas for the and within 5 miles either side of the 318° vessels during the event and immediate fireworks event. bearing from the Borland NDB/DME, AK, action is necessary to prevent possible extending from the 6.4-mile radius of Sand DATES: This rule is effective from 7 p.m. loss of life or property. Also, a delay or Point Airport, AK, to 17 miles northwest of on July 4, 2010 until 11:30 p.m. on July cancellation of the fireworks event in Sand Point Airport, AK, and within 5 miles 5, 2010. either side of the 324° bearing from the order to allow for publication in the Borland NDB/DME, AK, extending from the ADDRESSES: Documents indicated in this Federal Register is contrary to the 6.4-mail radius of Sand Point Airport, AK, to preamble as being available in the public’s interest in having this event 17 miles northwest of the Sand Point Airport, docket are part of docket USCG–2010– occur as scheduled. AK, and within a 6.6-mile radius of St. 0114 and are available online by going George Airport, AK, and within an 8-mile to http://www.regulations.gov, inserting Basis and Purpose radius of St. Paul Island Airport, AK, and 8 USCG–2010–0114 in the ‘‘Keyword’’ This temporary special local ° miles west and 6 miles east of the 360 box, and then clicking ‘‘Search.’’ They regulation is necessary to ensure the bearing from St. Paul Island Airport, AK, to are also available for inspection or safety of vessels and spectators from 14 miles north of St. Paul Island Airport, AK, and within 6 miles west and 8 miles east of copying at the Docket Management hazards associated with fireworks the 172° bearing from St. Paul Island Airport, Facility (M–30), U.S. Department of display. Based on the inherent hazards AK, to 15 miles south of St. Paul Island Transportation, West Building Ground associated with fireworks, the Captain Airport, AK, and within a 6.4-mile radius of Floor, Room W12–140, 1200 New Jersey of the Port New York has determined Unalaska Airport, AK, and within 2.9 miles Avenue, SE., Washington, DC 20590, that fireworks launches proximate to

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watercraft pose significant risk to public All persons and vessels shall comply entities: The owners and operators of safety and property. The combination of with the instructions of the Coast Guard vessels intending to transit or anchor in increased numbers of recreation vessels, Captain of the Port New York or the a portion of the Hudson River, in the congested waterways, darkness designated on-scene representative. vicinity of New York City, NY from 7 punctuated by bright flashes of light, Entry into, transiting, or anchoring p.m. to 10:30 p.m. on July 4th, 2010. and debris falling into the water has the within the regulated area is prohibited This temporary special local potential to result in serious injuries or unless authorized by the Captain of the regulation will not have a significant fatalities. This special local regulation Port New York, or the designated on- economic impact on a substantial temporarily establishes a regulated area scene representative. The Captain of the number of small entities for the to restrict vessel movement around the Port New York or the on-scene following reasons: This rule will be in location of the launch platforms to representative may be contacted via effect for only four hours on a single day reduce the risk associated with the VHF Channel 16. during the late evening for this launch of fireworks. Public notifications will be made fireworks event. Although the special prior to the event via the Local Notice local regulation will apply to the entire Discussion of Rule to Mariners, and marine information width of the river, traffic will be MACY’s is sponsoring their 34th broadcasts. allowed to pass through the area with the permission of the Captain of the Port Annual Macy’s Fourth of July Fireworks Regulatory Analyses on the waters of the Hudson River. This New York or the designated on-scene temporary special local regulation is We developed this rule after representative. Before the effective necessary to ensure the safety of considering numerous statutes and period, we will issue maritime spectators and vessels from hazards executive orders related to rulemaking. advisories widely available to users of associated with the fireworks display. Below we summarize our analyses the waterway. The fireworks display will occur from based on 13 of these statutes or If you think that your business, 9:20 p.m. until 9:50 p.m. In order to executive orders. organization, or governmental coordinate the safe movement of vessels Regulatory Planning and Review jurisdiction qualifies as a small entity within the area and to ensure that the and that this rule would have a This rule is not a significant area is clear of unauthorized persons significant economic impact on it, regulatory action under section 3(f) of and vessels before and immediately please submit a comment (see Executive Order 12866, Regulatory after the fireworks launch, this rule is ADDRESSES) explaining why you think it Planning and Review, and does not effective and will be enforced from 7 qualifies and how and to what degree require an assessment of potential costs p.m. until 10:30 p.m. on July 4, 2010. this rule would economically affect it. and benefits under section 6(a)(3) of that If the event is cancelled due to Order. The Office of Management and Assistance for Small Entities inclement weather, then this special Budget has not reviewed it under that local regulation will be effective from 7 Under section 213(a) of the Small Order. p.m. until 11:30 p.m. on July 5, 2010. Business Regulatory Enforcement This determination is based on the Fairness Act of 1996 (Pub. L. 104–121), The special local regulation will limited time that vessels will be we offer to assist small entities in encompass all waters of the Hudson restricted from the fireworks display understanding the rule so that they can River south of a line drawn from Pier area. The temporary safety zone will better evaluate its effects on them and 11A, Weehawken, NJ, to West 70th only be in effect for approximately four participate in the rulemaking process. Street, New York, NY, and north of a hours during the evening hours. The Small businesses may send comments line drawn from the northwest corner of Coast Guard expects insignificant on the actions of Federal employees Pier 40, New York, NY to a point at adverse impact to mariners from the ° ′ ″ ° ′ ″ who enforce, or otherwise determine position 40 43 51.2 N, 074 01 41.5 W, zone’s activation as the event has been compliance with, Federal regulations to Jersey City Pier, NJ. All geographic extensively advertised in the public. the Small Business and Agriculture coordinates are North American Datum Also, affected mariners may request Regulatory Enforcement Ombudsman of 1983 (NAD 83). authorization from the Captain of the and the Regional Small Business The Captain of the Port New York will Port New York or the designated on- Regulatory Fairness Boards. The establish five limited access areas scene representative to transit the zone. Ombudsman evaluates these actions within the boundaries of the special Small Entities annually and rates each agency’s local regulation. Access to these areas responsiveness to small business. If you will be restricted to vessels of a certain Under the Regulatory Flexibility Act wish to comment on actions by size. The five limited access areas are: (5 U.S.C. 601–612), we have considered employees of the Coast Guard, call 1– (1) A ‘‘buffer zone’’ around the fireworks whether this rule would have a 888–REG–FAIR (1–888–734–3247). The launch barges, designated area ALPHA, significant economic impact on a Coast Guard will not retaliate against limited to all vessels tending the barges; substantial number of small entities. small entities that question or complain (2) a ‘‘spectator area’’ designated BRAVO The term ‘‘small entities’’ comprises about this rule or any policy or action in which access is limited to vessels less small businesses, not-for-profit of the Coast Guard. than 20 meters in length (65.6ft); (3) organizations that are independently ‘‘spectator area’’ designated CHARLIE in owned and operated and are not Collection of Information which access is limited to vessels dominant in their fields, and This rule calls for no new collection greater than 20 meters in length (65.6ft); governmental jurisdictions with of information under the Paperwork (4) ‘‘spectator area’’ designated DELTA populations of less than 50,000. Reduction Act of 1995 (44 U.S.C. 3501– in which access is limited to vessels The Coast Guard certifies under 5 3520). greater than 20 meters in length (65.6ft); U.S.C. 605(b) that this rule will not have and (5) a ‘‘spectator area’’ designated a significant economic impact on a Federalism ECHO in which access is limited to substantial number of small entities. A rule has implications for federalism vessels less than 20 meters in length This rule will affect the following under Executive Order 13132, (65.6ft). entities, some of which may be small Federalism, if it has a substantial direct

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effect on State or local governments and it is not a ‘‘significant regulatory action’’ PART 100—SAFETY OF LIFE ON would either preempt State law or under Executive Order 12866 and is not NAVIGABLE WATERS impose a substantial direct cost of likely to have a significant adverse effect ■ compliance on them. We have analyzed on the supply, distribution, or use of 1. The authority citation for part 100 this rule under that Order and have energy. The Administrator of the Office continues to read as follows: determined that it does not have of Information and Regulatory Affairs Authority: 33 U.S.C. 1233. implications for federalism. has not designated it as a significant ■ 2. Add § 100.35T0144 to read as energy action. Therefore, it does not Unfunded Mandates Reform Act follows: require a Statement of Energy Effects The Unfunded Mandates Reform Act under Executive Order 13211. § 100.35T0144 Special Local Regulation; of 1995 (2 U.S.C. 1531–1538) requires Macy’s July Fourth Fireworks Spectator Federal agencies to assess the effects of Technical Standards Vessel Viewing Area, Hudson River, New York, NY. their discretionary regulatory actions. In The National Technology Transfer particular, the Act addresses actions (a) Regulated Area. The regulated area and Advancement Act (NTTAA) (15 includes all waters of the Hudson River that may result in the expenditure by a U.S.C. 272 note) directs agencies to use State, local, or tribal government, in the within the following points (NAD 83): voluntary consensus standards in their all navigable waters of the Hudson River aggregate, or by the private sector of regulatory activities unless the agency $100,000,000 (adjusted for inflation) or bounded by a line drawn east from provides Congress, through the Office of approximate position 40°46′35.43″ N, more in any one year. Though this rule Management and Budget, with an ° ′ ″ will not result in such an expenditure, 074 00 7.53 W in New Jersey, to a point explanation of why using these in approximate position 40°46′16.98″ N, we do discuss the effects of this rule standards would be inconsistent with ° ′ ″ elsewhere in this preamble. 073 59 52.34 W in New York, thence applicable law or otherwise impractical. south along the Manhattan shoreline to Taking of Private Property Voluntary consensus standards are approximate position 40°44′48.98″ N, technical standards (e.g., specifications ° ′ ″ This rule will not cause a taking of 074 00 41.06 W, then west to of materials, performance, design, or ° ′ ″ private property or otherwise have approximate position 40 44 55.91 N, operation; test methods; sampling 074°01′24.94″ W, then north along the taking implications under Executive procedures; and related management Order 12630, Governmental Actions and New Jersey shoreline and back to the systems practices) that are developed or point of origin. Interference with Constitutionally adopted by voluntary consensus Protected Property Rights. (1) Area ALPHA: all navigable waters standards bodies. of the Hudson River bounded by a line Civil Justice Reform This rule does not use technical drawn east from approximate position ° ′ ″ ° ′ ″ This rule meets applicable standards standards. Therefore, we did not 40 46 35.43 N, 074 00 7.53 W in New in sections 3(a) and 3(b)(2) of Executive consider the use of voluntary consensus Jersey, to a point in approximate ° ′ ″ ° ′ ″ Order 12988, Civil Justice Reform, to standards. position 40 46 16.98 N, 073 59 52.34 W in New York, thence south along the minimize litigation, eliminate Environment ambiguity, and reduce burden. Manhattan shoreline to approximate We have analyzed this rule under position 40°44′48.98″ N, 074°00′41.06″ Protection of Children Department of Homeland Security W, then west to approximate position We have analyzed this rule under Management Directive 023–01 and 40°44′55.91″ N, 074°01′24.94″ W; then Executive Order 13045, Protection of Commandant Instruction M16475.lD, north along the New Jersey shoreline Children from Environmental Health which guide the Coast Guard in and back to the point of origin. (NAD Risks and Safety Risks. This rule is not complying with the National 83). an economically significant rule and Environmental Policy Act of 1969 (2) Area BRAVO: All navigable waters does not create an environmental risk to (NEPA)(42 U.S.C. 4321–4370f), and of the Hudson River bounded by a line health or risk to safety that may have concluded this action is one of a drawn east from approximate position disproportionately affect children. category of actions that do not 40°46′35.43″ N, 074°00′37.53″ W in New individually or cumulatively have a Jersey, across the Hudson River to a Indian Tribal Governments significant effect on the human point in approximate position This rule does not have tribal environment. This rule is categorically 40°46′16.98″ N, 073°59′52.34″ W in New implications under Executive Order excluded, under figure 2–1, paragraph York, thence north along the Manhattan 13175, Consultation and Coordination (34)(h), of the Instruction. This rule shoreline to approximate position with Indian Tribal Governments, involves the promulgation of a special 40°46′31.38″ N, 073°59′ 37.46″ W, then because it does not have a substantial local regulation regulating vessel traffic west to approximate position direct effect on one or more Indian on a portion of the lower Hudson River 40°46′47.71″ N, 074°00′19.73″ W, then tribes, on the relationship between the during the launching of fireworks. An south along the New Jersey shoreline Federal Government and Indian tribes, environmental analysis checklist and a and back to the point of origin.(NAD or on the distribution of power and categorical exclusion determination are 83). responsibilities between the Federal available in the docket where indicated (3) Area CHARLIE: All navigable Government and Indian tribes. under ADDRESSES. waters of the Hudson River bounded by a line drawn east from a point in New Energy Effects List of Subjects in 33 CFR Part 100 Jersey in approximate position ° ′ ″ ° ′ ″ We have analyzed this rule under Marine safety, Navigation (water), 40 46 47.71 N, 074 00 19.73 W in New Executive Order 13211, Actions Jersey to approximate position Reporting and recordkeeping ° ′ ″ ° ′ ″ Concerning Regulations That requirements, Waterways. 40 46 31.38 N, 073 59 37.46 W in New Significantly Affect Energy Supply, York, thence north along the Manhattan Distribution, or Use. We have ■ For the reasons discussed in the shoreline to approximate position determined that it is not a ‘‘significant preamble, the Coast Guard amends 33 40°46′47.60″ N, 073°59′22.26″ W, then energy action’’ under that order because CFR part 100 as follows: west to a point in New Jersey in

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approximate position 40°47′03.39″ N, warrant, and petty officers of the Coast Officer, First Coast Guard District, 074° 00′00.19″ W, then south along the Guard. Upon being hailed by a U.S. telephone (617) 223–8364, New Jersey shoreline back to the point Coast Guard vessel by siren, radio, [email protected]. If you have of origin.(NAD 83). flashing light or other means, the questions on viewing the docket, call (4) Area DELTA: All navigable waters operator of a vessel shall proceed as Renee V. Wright, Program Manager, of the Hudson River bounded by a line directed. Docket Operations, telephone 202–366– drawn east from approximate position (c) Enforcement Period: This section 9826. ° ′ ″ ° ′ ″ 40 44 55.56 N, 074 01 21.18 W in will be enforced from 7 p.m. to 10:30 SUPPLEMENTARY INFORMATION: The P.J. New Jersey, to a point in New York in p.m. on July 4, 2010, and if the McArdle Bridge, across the Chelsea ° ′ ″ approximate position 40 44 48.98 N, fireworks display is postponed, it will River at mile 0.3, between Chelsea and ° ′ ″ 074 00 41.06 W, then south along the be effective from 7 p.m. until 11:30 p.m. East Boston, Massachusetts, has a Manhattan shoreline to approximate on July 5, 2010. vertical clearance in the closed position ° ′ ″ ° ′ ″ position 40 44 21.84 N, 074 00 41.78 Dated: June 14, 2010. of 21 feet at mean high water and 30 feet N, then west to a point in approximate R.R. O’Brien, Jr., at mean low water. The bridge opens on position 40°44′23.91″ N, 074°01′29.05″ Captain, U.S. Coast Guard, Captain of the signal at all times as required by 33 CFR W in Hoboken, NJ, then north along the Port New York. 117.593. New Jersey shoreline back to the point The owner of the bridge, the City of of origin.(NAD 83). [FR Doc. 2010–16262 Filed 6–30–10; 11:15 am] BILLING CODE 9110–04–P Boston, requested a temporary deviation (5) Area ECHO: All navigable waters to facilitate a public event, the Chelsea of the Hudson River bounded by a line River Revel 5K Road Race. drawn east from a point in New Jersey DEPARTMENT OF HOMELAND This deviation allows the bridge to in approximate position 40°44′23.91″ N, SECURITY remain closed from 8 a.m. to 5 p.m. on 074°01′29.05″ W; to approximate ° ′ ″ ° ′ ″ July 24, 2010. Vessels able to pass under position 40 44 21.84 N, 074 00 41.78 Coast Guard the closed draw may do so at any time. W; then south along the Manhattan The commercial waterway users that shoreline to approximate position 33 CFR Part 117 transit the Chelsea River were advised 40°43′49.63″ N, 074°00′49.65″ W; then ° ′ ″ [Docket No. USCG–2010–0035] of the requested bridge closure period west to a point in 40 43 50.60 N, and offered no objection. 074°01′51.00″ W in Hoboken New Drawbridge Operation Regulations; In accordance with 33 CFR 117.35(e), Jersey, then north along the New Jersey Chelsea River, Chelsea and East the bridge must return to its regular shoreline back to the point of Boston, MA, Event—Road Race operating schedule immediately at the origin.(NAD 83). end of the designated time period. This (b) Special local regulations. (1) In AGENCY: Coast Guard, DHS. deviation from the operating regulations accordance with the general regulations ACTION: Notice of temporary deviation is authorized under 33 CFR 117.35. is § 100.35 of this part, entry into, from regulations. transiting, or anchoring within the Dated: June 22, 2010. regulated areas is prohibited unless the SUMMARY: The Commander, First Coast Gary Kassof, vessel is in an area designated for Guard District, has issued a temporary Bridge Program Manager, First Coast Guard vessels of that size or entry is otherwise deviation from the regulation governing District. authorized by the Captain of the Port the operation of the P.J. McArdle Bridge [FR Doc. 2010–16113 Filed 7–1–10; 8:45 am] New York, or the designated on-scene across the Chelsea River, mile 0.3, BILLING CODE 9110–04–P representative. between Chelsea and East Boston, (2) Vessels are authorized by the Massachusetts. This deviation allows Captain of the Port New York to enter the bridge to remain in the closed DEPARTMENT OF HOMELAND areas of this special location regulation position from 8 a.m. to 5 p.m. on July SECURITY in accordance with the following 24, 2010. This deviation is necessary to restrictions: facilitate a public event, the Chelsea Coast Guard (i) Area ALPHA is restricted to vessels River Revel 5K Road Race. 33 CFR Part 117 engaged in conducting the fireworks DATES: This deviation is effective from display and tending to the launch 8 a.m. through 5 p.m. on July 24, 2010. [Docket No. USCG–2010–0536] barges. ADDRESSES: Documents mentioned in (ii) Area BRAVO access is limited to this preamble as being available in the Drawbridge Operation Regulations; vessels greater than 20 meters (65.6ft) in docket are part of docket USCG–2010– Charles River, Boston, MA, Public length. Event (iii) Area CHARLIE access is limited 0035 and are available online at http:// to vessels less than 20 meters (65.6ft) in www.regulations.gov, inserting USCG– AGENCY: Coast Guard, DHS. 2010–0035 in the ‘‘Keyword’’ and then length. ACTION: Notice of temporary deviation ‘‘ ’’ (iv) Area DELTA access is limited to clicking Search . They are also from regulations. vessels greater than 20 meters (65.6ft) in available for inspection or copying at length. the Docket Management Facility (M–30), SUMMARY: The Commander, First Coast (v) Area ECHO access is limited to U.S. Department of Transportation, Guard District, has issued a temporary vessels less than 20 meters (65.6ft) in West Building Ground Floor, Room deviation from the regulations length. W12–140, 1200 New Jersey Avenue SE., governing the operation of the Craigie (3) All persons and vessels in the Washington, DC, 20590, between 9 a.m. Bridge across the Charles River, mile regulated areas shall comply with the and 5 p.m., Monday through Friday, 1.0, at Boston, Massachusetts. The instructions of the Coast Guard Captain except Federal holidays. deviation is necessary to facilitate of the Port New York or the designated FOR FURTHER INFORMATION CONTACT: If public safety during the Boston Pops on-scene representative. On-scene you have questions on this rule, call or Fireworks Spectacular, by allowing the representatives comprise commissioned, e-mail Mr. John McDonald, Project bridge to remain in the closed position

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to evacuate pedestrian traffic after the deviation from the operating regulations to http://www.regulations.gov, inserting conclusion of the public event. is authorized under 33 CFR 117.35. USCG–2010–0520 in the ‘‘Keyword’’ box DATES: This deviation is effective from Dated: June 22, 2010. and then clicking ‘‘Search’’. They are also available for inspection or copying 11 p.m. on July 4, 2010, through 1 a.m. Gary Kassof, on July 5, 2010. at the Docket Management Facility (M– Bridge Program Manager, First Coast Guard 30), U.S. Department of Transportation, ADDRESSES: District. Documents mentioned in West Building Ground Floor, Room this preamble as being available in the [FR Doc. 2010–16117 Filed 7–1–10; 8:45 am] W12–140, 1200 New Jersey Avenue SE., docket are part of docket USCG–2010– BILLING CODE 9110–04–P Washington, DC 20590, between 9 a.m. 0536 and are available online at and 5 p.m., Monday through Friday, http://www.regulations.gov, inserting except Federal holidays. USCG–2010–0536 in the ‘‘Keyword’’ and DEPARTMENT OF HOMELAND FOR FURTHER INFORMATION CONTACT: then clicking ‘‘Search’’. They are also SECURITY If available for inspection or copying at you have questions on this rule, call or the Docket Management Facility (M–30), Coast Guard e-mail Mr. Lee D. Soule, Bridge U.S. Department of Transportation, Management Specialist, Ninth Coast West Building Ground Floor, Room 33 CFR Part 117 Guard District; telephone 216–902– 6085, e-mail; [email protected]. If W12–140, 1200 New Jersey Avenue, SE., [Docket No. USCG–2010–0520] Washington, DC 20590, between 9 a.m. you have questions on viewing the and 5 p.m., Monday through Friday, Drawbridge Operation Regulations; docket, call Renee V. Wright, Program except Federal holidays. Chicago River, Chicago, IL Manager, Docket Operations, telephone 202–366–9826. FOR FURTHER INFORMATION CONTACT: If AGENCY: Coast Guard, DHS. SUPPLEMENTARY INFORMATION: The City you have questions on this rule, call or ACTION: Notice of temporary deviation of Chicago, Illinois, who owns and e-mail Mr. John W. McDonald, Project from regulations. operates these drawbridges, requested a Officer, First Coast Guard District, temporary deviation from the current [email protected], telephone SUMMARY: Commander, Ninth Coast operating regulations set forth in 33 CFR (617) 223–8364. If you have questions Guard District, issued a temporary 117.391. The purpose of this request is on viewing the docket, call Renee V. deviation from the regulation governing to facilitate efficient management of all Wright, Program Manager, Docket the operation of the Lake Shore Drive transportation needs and provide timely Operations, telephone 202–366–9826. Bridge at Mile 0.32, Columbus Drive public safety services during these SUPPLEMENTARY INFORMATION: The Bridge at mile 0.62, Michigan Avenue special events. The most updated and Craigie Bridge, across the Charles River Bridge at Mile 0.85, State Street Bridge detailed current marine information for at mile 1.0, at Boston, Massachusetts, at Mile 1.05, LaSalle Street Bridge at this event, and all bridge operations, is has a vertical clearance in the closed Mile 1.29, and the Franklin Street found in the Local Notice to Mariners position of 13.5 feet at normal pool Bridge at Mile 1.47 over the Main and Broadcast Notice to Mariners issued elevation above the Charles River Dam. Branch of the Chicago River, Monroe by the Ninth District Commander. In The existing drawbridge operation Street Bridge at Mile 1.99, Adams Street accordance with 33 CFR 117.35(e), the regulations are listed at 33 CFR Bridge at Mile 2.08, Halsted Street drawbridge must return to its regular 117.591(e). Bridge at Mile 4.47 over the South operating schedule immediately at the The waterway is predominantly a Branch of the Chicago River, at Chicago, end of the designated time periods. recreational waterway supporting IL. This deviation will temporarily These deviations from the operating various size vessels. This yearly holiday change the operating schedule of the regulations are authorized under 33 CFR event and the annual short term bridge bridges to accommodate the City’s Bank 117.35. of America Shamrock Shuffle 8K Run, closure necessary to facilitate the Date: June 16, 2010. evacuation of the large number of Rock N Roll Chicago Half Marathon, M.N. Parks, pedestrians viewing the fireworks Illinois Special Olympics Rubber Duck display are well known to local boating Race, Chicago Triathlon, Ready to Run Rear Admiral, U.S. Coast Guard, Commander, Ninth Coast Guard District. interests and no objections have been Chicago Marathon, Bank of America received in past years. Chicago Marathon, Men’s Health [FR Doc. 2010–16114 Filed 7–1–10; 8:45 am] The owner of the bridge, the Urbanathlon, and the Magnificent Mile BILLING CODE 9110–04–P Massachusetts Department of Lights Festival events. This temporary Transportation (Mass DOT), requested a deviation allows the bridges to remain secured to masted navigation on the DEPARTMENT OF HOMELAND temporary deviation to facilitate public SECURITY safety during this public event, the 2010 dates and times listed. Boston Pops Fireworks Spectacular. DATES: This deviation is effective on Coast Guard Under this temporary deviation, in August 1, 2010 from 6 a.m. to 9 a.m., effect from 11 p.m. on July 4, 2010 August 12, 2010 from noon to 1:30 p.m., 33 CFR Part 165 through 1 a.m. on July 5, 2010, the August 29, 2010 from 6 a.m. to 1 p.m., Craigie Bridge at mile 1.0, across the September 19, 2010 from 7 a.m. to 10 [Docket No. USCG–2010–0523] Charles River at Boston, Massachusetts, a.m., September 29, 2010 from 6 a.m. to RIN 1625–AA00 may remain in the closed position. 1 p.m., October 10, 2010 from 4:30 a.m. Vessels that can pass under the bridge to 11:30 a.m., October 16, 2010 from Safety Zone; San Diego POPS without a bridge opening may do so at 7:30 a.m. to 9:30 a.m., and on November Fireworks, San Diego, CA 20, 2010 from 6 p.m. to 8 p.m.. all times. AGENCY: Coast Guard, DHS. ADDRESSES: In accordance with 33 CFR 117.35(e), Documents mentioned in ACTION: Temporary final rule. the bridge must return to its regular this preamble as being available in the operating schedule immediately at the docket are part of docket USCG–2010– SUMMARY: The Coast Guard is end of the designated time period. This 0520 and are available online by going establishing a safety zone on the

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navigable waters of San Diego Bay in participants, and others in the vicinity Budget has not reviewed it under that support of the San Diego POPS of the marine event on the dates and Order. Fireworks. This safety zone is necessary times this rule will be in effect. We expect the economic impact of to provide for the safety of the Under 5 U.S.C. 553(d)(3), the Coast this proposed rule to be so minimal that participants, crew, spectators, Guard finds that good cause exists for a full Regulatory Evaluation is participating vessels, and other vessels making this rule effective less than 30 unnecessary. and users of the waterway. Persons and days after publication in the Federal This determination is based on the vessels will be prohibited from entering Register because delaying the effective size, location, and duration of the safety into, transiting through, or anchoring date would be impracticable, since zone. Vessel traffic will be able to pass within this safety zone unless immediate action is needed to ensure safely around the safety zone. authorized by the Captain of the Port or the public’s safety. Furthermore, the zone will be enforced his designated representative. only during certain periods of the Basis and Purpose DATES: Effective Date: This rule is effective period. Before the periods of effective in the CFR on July 2, 2010 The San Diego Symphony Orchestra enforcement, the Coast Guard will through 10 p.m. on September 5, 2010. and Copley Symphony Hall are publish a local notice to mariners (LNM) This rule is effective with actual notice sponsoring the San Diego POPS and will issue broadcast notice to for purposes of enforcement at 8:30 p.m. Fireworks, which will include fireworks mariners (BNM) alerts via marine on July 2, 2010. This rule will remain presentations conducted from a barge in channel 16 VHF. San Diego Bay. The barge will be in effect until 10 p.m. on September 5, Small Entities 2010. located near the navigational channel in Under the Regulatory Flexibility Act ADDRESSES: Documents indicated in this the vicinity of North Embarcadero. (5 U.S.C. 601–612), we have considered preamble as being available in the This safety zone is necessary to whether this rule would have a docket are part of docket USCG–2010– provide for the safety of the crew, significant economic impact on a 0523 and are available online by going spectators, and other vessels and users substantial number of small entities. to http://www.regulations.gov, inserting of the waterway. The term ‘‘small entities’’ comprises USCG–2010–0523 in the ‘‘Keyword’’ Discussion of Rule small businesses, not-for-profit box, and then clicking ‘‘Search.’’ They The Coast Guard is establishing a organizations that are independently are also available for inspection or safety zone to protect vessels and owned and operated and are not copying at the Docket Management persons during the fireworks dominant in their fields, and Facility (M–30), U.S. Department of presentations. The safety zone will be governmental jurisdictions with Transportation, West Building Ground enforced from 8:30 p.m. to 10 p.m. on populations of less than 50,000. Floor, Room W12–140, 1200 New Jersey the following days: July 2–3, July 9–11, The Coast Guard certifies under 5 Avenue, SE., Washington, DC 20590, July 16–17, July 23–24, July 30–31, U.S.C. 605(b) that this rule will not have between 9 a.m. and 5 p.m., Monday August 6–7, August 13–14, August 20– a significant economic impact on a through Friday, except Federal holidays. 21, August 27–28, and September 3–5, substantial number of small entities. FOR FURTHER INFORMATION CONTACT: If 2010. The limits of the safety zone will This rule will not have a significant you have questions on this temporary be a 400 foot radius around the economic impact on a substantial rule, call or e-mail Petty Officer Shane anchored firing barge in approximate number of small entities for the Jackson, Waterways Management, U.S. position 32°42′12″ N, 117°10′01″ W. following reasons. Vessel traffic can Coast Guard Sector San Diego, CA; The safety zone is necessary to pass safely around the safety zone. The telephone 619–278–7262, e-mail provide for the safety of the crews, Coast Guard will publish a local notice [email protected]. If you have spectators, and other vessels and users to mariners (LNM) and will issue questions on viewing the docket, call of the waterway. Persons and vessels broadcast notice to mariners (BNM) Renee V. Wright, Program Manager, will be prohibited from entering into, alerts via marine channel 16 VHF before Docket Operations, telephone 202–366– transiting through, or anchoring within the safety zone is enforced. 9826. the safety zone unless authorized by the Assistance for Small Entities SUPPLEMENTARY INFORMATION: Captain of the Port, or his designated Under section 213(a) of the Small Regulatory Information representative. Additionally, the sponsor will provide a chase boat to Business Regulatory Enforcement The Coast Guard is issuing this patrol the safety zone and inform Fairness Act of 1996 (Pub. L. 104–121), temporary final rule without prior vessels of the safety zone. we offer to assist small entities in notice and opportunity to comment understanding the rule so that they can pursuant to authority under section 4(a) Regulatory Analyses better evaluate its effects on them and of the Administrative Procedure Act We developed this rule after participate in the rulemaking process. (APA) (5 U.S.C. 553(b)). This provision considering numerous statutes and Small businesses may send comments authorizes an agency to issue a rule executive orders related to rulemaking. on the actions of Federal employees without prior notice and opportunity to Below we summarize our analyses who enforce, or otherwise determine comment when the agency for good based on 13 of these statutes and compliance with, Federal regulations to cause finds that those procedures are executive orders. the Small Business and Agriculture ‘‘impracticable, unnecessary, or contrary Regulatory Enforcement Ombudsman to the public interest.’’ Under 5 U.S.C. Regulatory Planning and Review and the Regional Small Business 553(b)(B), the Coast Guard finds that This rule is not a significant Regulatory Fairness Boards. The good cause exists for not publishing a regulatory action under section 3(f) of Ombudsman evaluates these actions notice of proposed rulemaking (NPRM). Executive Order 12866, Regulatory annually and rates each agency’s It would be impracticable to publish an Planning and Review, and does not responsiveness to small business. If you NPRM with respect to this rule because require an assessment of potential costs wish to comment on actions by immediate action is necessary to ensure and benefits under section 6(a)(3) of that employees of the Coast Guard, call 1– the safety of vessels, spectators, Order. The Office of Management and 888–REG–FAIR (1–888–734–3247). The

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Coast Guard will not retaliate against direct effect on one or more Indian determination are available in the small entities that question or complain tribes, on the relationship between the docket where indicated under about this rule or any policy or action Federal Government and Indian tribes, ADDRESSES. of the Coast Guard. or on the distribution of power and List of Subjects in 33 CFR Part 165 responsibilities between the Federal Collection of Information Government and Indian tribes. Harbors, Marine safety, Navigation This rule calls for no new collection (water), Reporting and recordkeeping Energy Effects of information under the Paperwork requirements, Security Measures, Reduction Act of 1995 (44 U.S.C. 3501– We have analyzed this rule under Waterways. 3520). Executive Order 13211, Actions ■ For the reasons discussed in the Concerning Regulations That preamble, the Coast Guard amends 33 Federalism Significantly Affect Energy Supply, CFR part 165 as follows: A rule has implications for federalism Distribution, or Use. We have under Executive Order 13132, determined that it is not a ‘‘significant PART 165—REGULATED NAVIGATION Federalism, if it has a substantial direct energy action’’ under that order because AREAS AND LIMITED ACCESS AREAS it is not a ‘‘significant regulatory action’’ effect on State or local governments and ■ 1. The authority citation for part 165 under Executive Order 12866 and is not would either preempt State law or continues to read as follows: impose a substantial direct cost of likely to have a significant adverse effect compliance on them. We have analyzed on the supply, distribution, or use of Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. energy. The Administrator of the Office Chapter 701, 3306, 3703; 50 U.S.C. 191, 195; this rule under that Order and have 33 CFR 1.05–1, 6.04–1, 6.04–6, 160.5; Pub. L. determined that it does not have of Information and Regulatory Affairs 107–295, 116 Stat. 2064; Department of implications for federalism. has not designated it as a significant Homeland Security Delegation No. 0170.1. energy action. Therefore, it does not ■ Unfunded Mandates Reform Act require a Statement of Energy Effects 2. Add § 165.T11–338 to read as The Unfunded Mandates Reform Act under Executive Order 13211. follows: of 1995 (2 U.S.C. 1531–1538) requires Technical Standards § 165.T11–338 Safety Zone; San Diego Federal agencies to assess the effects of POPS Fireworks, San Diego, CA their discretionary regulatory actions. In The National Technology Transfer (a) Location. The limits of the safety particular, the Act addresses actions and Advancement Act (NTTAA) (15 zone will be a 400 foot radius around that may result in the expenditure by a U.S.C. 272 note) directs agencies to use the anchored firing barge in State, local, or tribal government, in the voluntary consensus standards in their approximate position 32°42′13″ N., aggregate, or by the private sector of regulatory activities unless the agency 117°10′01″ W. $100,000,000 (adjusted for inflation) or provides Congress, through the Office of (b) Enforcement Period. This section more in any one year. Though this rule Management and Budget, with an will be enforced from 8:30 p.m. to 10 will not result in such an expenditure, explanation of why using these p.m. on July 2–3, July 9–11, July 16–17, we do discuss the effects of this rule standards would be inconsistent with July 23–24, July 30–31, August 6–7, elsewhere in this preamble. applicable law or otherwise impractical. August 13–14, August 20–21, August Voluntary consensus standards are 27–28, and September 3–5, 2010. Taking of Private Property technical standards (e.g., specifications (c) Definitions. The following This rule will not cause a taking of of materials, performance, design, or definition applies to this section: private property or otherwise have operation; test methods; sampling designated representative means any taking implications under Executive procedures; and related management commissioned, warrant, or petty officer Order 12630, Governmental Actions and systems practices) that are developed or of the Coast Guard on board a Coast Interference with Constitutionally adopted by voluntary consensus Guard, Coast Guard Auxiliary, or local, Protected Property Rights. standards bodies. state, or federal law enforcement vessel This rule does not use technical Civil Justice Reform who has been authorized to act on the standards. Therefore, we did not behalf of the Captain of the Port. This rule meets applicable standards consider the use of voluntary consensus (d) Regulations. (1) Entry into, transit in sections 3(a) and 3(b)(2) of Executive standards. through or anchoring within this safety Order 12988, Civil Justice Reform, to Environment zone is prohibited unless authorized by minimize litigation, eliminate the Captain of the Port of San Diego or ambiguity, and reduce burden. We have analyzed this rule under his designated representative on scene. Department of Homeland Security (2) Mariners requesting permission to Protection of Children Management Directive 023–01 and transit through the safety zone may We have analyzed this rule under Commandant Instruction M16475.lD, request authorization to do so from the Executive Order 13045, Protection of which guide the Coast Guard in Sector San Diego Command Center. The Children from Environmental Health complying with the National Command Center may be contacted on Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 VHF–FM Channel 16. an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and (3) All persons and vessels shall does not create an environmental risk to have concluded this action is one of a comply with the instructions of the health or risk to safety that may category of actions that do not Coast Guard Captain of the Port or his disproportionately affect children. individually or cumulatively have a designated representative. significant effect on the human Upon being hailed by U.S. Coast Indian Tribal Governments environment. This rule is categorically Guard patrol personnel by siren, radio, This rule does not have tribal excluded, under figure 2–1, paragraph flashing light, or other means, the implications under Executive Order (34)(g), of the Instruction. This rule operator of a vessel shall proceed as 13175, Consultation and Coordination involves the establishment of a safety directed. with Indian Tribal Governments, zone. An environmental analysis (4) The Coast Guard may be assisted because it does not have a substantial checklist and a categorical exclusion by other federal, state, or local agencies.

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Dated: June 22, 2010. Regulatory Information agencies in the enforcement of this T.H. Farris, safety zone. Captain, U.S. Coast Guard, Captain of the The Coast Guard is issuing this Due to the inherent dangers Port San Diego. temporary final rule without prior associated with such displays, the Coast [FR Doc. 2010–16116 Filed 7–1–10; 8:45 am] notice and opportunity to comment Guard is taking this action to help pursuant to authority under section 4(a) BILLING CODE 9110–04–P protect the maritime public by of the Administrative Procedure Act prohibiting entry into, transit through, (APA) (5 U.S.C. 553(b)). This provision or mooring within the safety zones DEPARTMENT OF HOMELAND authorizes an agency to issue a rule unless authorized by the Captain of the SECURITY without prior notice and opportunity to Port or his Designated Representative. comment when the agency for good This temporary final rule is necessary to Coast Guard cause finds that those procedures are protect the safety of life and property on ‘‘impracticable, unnecessary, or contrary navigable waters during these firework 33 CFR Part 165 to the public interest.’’ Under U.S.C. events and provide the marine 553(b)(B), the Coast Guard finds that [Docket No. USCG–2010–0591] community information on safety zone good cause exists for not publishing a locations, size and length of time the RIN 1625–AA00 notice of proposed rulemaking (NPRM) zones will be active. with respect to this rule because it is Safety Zones; Multiple Firework contrary to the public interest to delay Discussion of Rule Displays in Captain of the Port, Puget the effective date of this rule. Delaying This rule establishes three safety Sound Area of Responsibility, WA the effective date by first publishing an zones for the following firework AGENCY: Coast Guard, DHS. NPRM would be contrary to the safety displays: The first will encompass ACTION: Temporary final rule. zone’s intended objective since waters of Boston Harbor within a 200 immediate action is needed to protect yard radius around position 47°08.5′ N, SUMMARY: The Coast Guard is persons and vessels against the hazards 122°54.2′ W and will be enforced from establishing multiple temporary safety associated with fireworks displays on 5 p.m. on July 3, 2010 until 1 a.m. on zones restricting vessel movement in the navigable waters. Such hazards include July 4, 2010; the second will encompass proximity of firework discharge sites premature detonations, dangerous waters of Boston Harbor within a 200 being held in the Captain of the Port, detonations, dangerous projectiles and yard radius around position 47°08.5′ N, Puget Sound area of responsibility falling or burning debris. Additionally, 122°54.2′ W and will be enforced from (AOR). This action is necessary to help the zone should have negligible impact 5 p.m. on July 24, 2010 until 1 a.m. on protect the maritime public from the on vessel transits due to the fact that July 25, 2010; and the third will inherent dangers associated with vessels will be limited from the area for encompass waters near Stuart Island fireworks displays and will do so by a short time and vessels can still transit within a 700 yard radius around prohibiting entry into, transit through, in the majority of Puget Sound during position 48°37.5′ N, 121°12.0′ W and or mooring within the safety zones the event. Accordingly, under 5 U.S.C. will be enforced from 5 p.m. on August unless authorized by the Captain of the 553(b)(B), the Coast Guard finds that 6, 2010 until 1 a.m. on August 7, 2010. Port or Designated Representative. good cause exists for not publishing an Regulatory Analyses DATES: This rule is effective from 5 p.m. NPRM. on July 3, 2010 until 1 a.m. on August Under 5 U.S.C. 553(d)(3), the Coast We developed this rule after 7, 2010. Guard finds that good cause exists for considering numerous statutes and executive orders related to rulemaking. ADDRESSES: Documents indicated in this making this rule effective less than 30 preamble as being available in the days after publication in the Federal Below we summarize our analyses docket are part of docket USCG–2010– Register. Due to the need for immediate based on 13 of these statutes or 0591 and are available online by going action, the restriction of vessel traffic is executive orders. to http://www.regulations.gov, inserting necessary to protect life, property and Regulatory Planning and Review ‘‘ ’’ USCG–2010–0591 in the Keyword the environment; therefore, a 30-day This rule is not a significant ‘‘ ’’ box, and then clicking Search. They notice is impracticable. Delaying the regulatory action under section 3(f) of are also available for inspection or effective date would be contrary to the Executive Order 12866, Regulatory copying at the Docket Management safety zone’s intended objectives of Planning and Review, and does not Facility (M–30), U.S. Department of protecting persons and vessels involved require an assessment of potential costs Transportation, West Building Ground in the event, and enhancing public and and benefits under section 6(a)(3) of that Floor, Room W12–140, 1200 New Jersey maritime safety. Order. The Office of Management and Avenue, SE., Washington, DC 20590, Basis and Purpose Budget has not reviewed it under that between 9 a.m. and 5 p.m., Monday Order. Although this rule will restrict through Friday, except Federal holidays. The U.S. Coast Guard is proposing to access to the area, the effect of the rule FOR FURTHER INFORMATION CONTACT: If establish three temporary safety zones to will not be significant because it creates you have questions on this temporary ensure public safety during firework safety zones that are minimal in size rule, call or e-mail LTJG Wanzer, Coast shows occurring within the Captain of and short in duration. Guard Sector Seattle, Waterways the Port, Puget Sound AOR. These Management Division; telephone 206– events may result in a number of vessels Small Entities 217–6175, e-mail congregating near fireworks launching Under the Regulatory Flexibility Act [email protected]. If you barges and sites. These safety zones are (5 U.S.C. 601–612), we have considered have questions on viewing the docket, necessary to protect watercraft and their whether this rule would have a call Renee V. Wright, Program Manager, occupants from the hazards associated significant economic impact on a Docket Operations, telephone 202–366– with fireworks displays. The Captain of substantial number of small entities. 9826. the Port, Puget Sound may be assisted The term ‘‘small entities’’ comprises SUPPLEMENTARY INFORMATION: by other Federal, State and local small businesses, not-for-profit

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organizations that are independently their discretionary regulatory actions. In Technical Standards owned and operated and are not particular, the Act addresses actions The National Technology Transfer dominant in their fields, and that may result in the expenditure by a and Advancement Act (NTTAA) (15 governmental jurisdictions with State, local, or tribal government, in the U.S.C. 272 note) directs agencies to use populations of less than 50,000. aggregate, or by the private sector of voluntary consensus standards in their The Coast Guard certifies under 5 $100,000,000 (adjusted for inflation) or regulatory activities unless the agency U.S.C. 605(b) that this rule will not have more in any one year. Though this rule provides Congress, through the Office of a significant economic impact on a will not result in such an expenditure, Management and Budget, with an substantial number of small entities. we do discuss the effects of this rule explanation of why using these This rule will affect the following elsewhere in this preamble. standards would be inconsistent with entities, some of which may be small Taking of Private Property applicable law or otherwise impractical. entities: The owners or operators of Voluntary consensus standards are vessels intending to transit through the This rule will not cause a taking of technical standards (e.g., specifications affected waterways during the times of private property or otherwise have of materials, performance, design, or enforcement. This rule will not have a taking implications under Executive operation; test methods; sampling significant economic impact on a Order 12630, Governmental Actions and procedures; and related management substantial number of small entities Interference with Constitutionally systems practices) that are developed or because it creates safety zones that are Protected Property Rights. adopted by voluntary consensus minimal in size and short in duration. Civil Justice Reform standards bodies. Assistance for Small Entities This rule does not use technical standards. Therefore, we did not Under section 213(a) of the Small This rule meets applicable standards consider the use of voluntary consensus Business Regulatory Enforcement in sections 3(a) and 3(b)(2) of Executive standards. Fairness Act of 1996 (Pub. L. 104–121), Order 12988, Civil Justice Reform, to we offer to assist small entities in minimize litigation, eliminate Environment ambiguity, and reduce burden. understanding the rule so that they can We have analyzed this rule under better evaluate its effects on them and Protection of Children Department of Homeland Security participate in the rulemaking process. Management Directive 023–01 and Small businesses may send comments We have analyzed this rule under Commandant Instruction M16475.lD, on the actions of Federal employees Executive Order 13045, Protection of which guide the Coast Guard in who enforce, or otherwise determine Children from Environmental Health complying with the National compliance with, Federal regulations to Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 the Small Business and Agriculture an economically significant rule and (NEPA)(42 U.S.C. 4321–4370f), and Regulatory Enforcement Ombudsman does not create an environmental risk to have concluded this action is one of a and the Regional Small Business health or risk to safety that may category of actions that do not Regulatory Fairness Boards. The disproportionately affect children. individually or cumulatively have a Ombudsman evaluates these actions Indian Tribal Governments significant effect on the human annually and rates each agency’s environment. This rule is categorically responsiveness to small business. If you This rule does not have tribal excluded, under figure 2–1, paragraph wish to comment on actions by implications under Executive Order (34)(g), of the Instruction. This rule employees of the Coast Guard, call 1– 13175, Consultation and Coordination involves the establishment of temporary 888–REG–FAIR (1–888–734–3247). The with Indian Tribal Governments, safety zones. An environmental analysis Coast Guard will not retaliate against because it does not have a substantial checklist and a categorical exclusion small entities that question or complain direct effect on one or more Indian determination will be available in the about this rule or any policy or action tribes, on the relationship between the docket where indicated under of the Coast Guard. Federal Government and Indian tribes, ADDRESSES. Collection of Information or on the distribution of power and responsibilities between the Federal List of Subjects in 33 CFR Part 165 This rule calls for no new collection Government and Indian tribes. Harbors, Marine safety, Navigation of information under the Paperwork (water), Reporting and recordkeeping Reduction Act of 1995 (44 U.S.C. 3501– Energy Effects requirements, Security measures, 3520). We have analyzed this rule under Waterways. Federalism Executive Order 13211, Actions ■ For the reasons discussed in the A rule has implications for federalism Concerning Regulations That preamble, the Coast Guard amends 33 under Executive Order 13132, Significantly Affect Energy Supply, CFR part 165 as follows: Federalism, if it has a substantial direct Distribution, or Use. We have effect on State or local governments and determined that it is not a ‘‘significant PART 165—REGULATED NAVIGATION would either preempt State law or energy action’’ under that order because AREAS AND LIMITED ACCESS AREAS it is not a ‘‘significant regulatory action’’ impose a substantial direct cost of ■ 1. The authority citation for part 165 under Executive Order 12866 and is not compliance on them. We have analyzed continues to read as follows: this rule under that Order and have likely to have a significant adverse effect determined that it does not have on the supply, distribution, or use of Authority: 33 U.S.C. 1226, 1231; 46 U.S.C. implications for federalism. energy. The Administrator of the Office Chapters 701, 3306, 3703; 50 U.S.C. 191, 195; of Information and Regulatory Affairs 33 CFR 1.05–1, 6.04–1, 6.04–6, and 160.5; Unfunded Mandates Reform Act has not designated it as a significant Pub. L. 107–295, 116 Stat. 2064; Department of Homeland Security Delegation No. 0170.1 The Unfunded Mandates Reform Act energy action. Therefore, it does not of 1995 (2 U.S.C. 1531–1538) requires require a Statement of Energy Effects ■ 2. Add § 165.T13–148 to read as Federal agencies to assess the effects of under Executive Order 13211. follows:

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§ 165.T13–148 Safety Zones; Multiple tolerances for carbaryl under section environmental, human health, and Firework Displays in Captain of the Port, 408(d) of the Federal Food, Drug, and agricultural advocates; the chemical Puget Sound Area of Responsibility, WA Cosmetic Act (FFDCA). The petition industry; pesticide users; and members (a) Safety Zones. The following areas was filed on January 10, 2005 by the of the public interested in the sale, are designated as safety zones: Washington Toxics Coalition (WTC). distribution, or use of pesticides. Since (1) All waters of Boston Harbor This order also informs the public of the others also may be interested, the encompassed within a 200 yard radius availability of a response to WTC’s Agency has not attempted to describe all around position 47° 08.5′N, 122° 54.2′ petition to cancel all uses of carbaryl. the specific entities that may be affected W from 5 p.m. on July 3, 2010 until 1 DATES: This Order is effective July 2, by this action. If you have any questions a.m. on July 4, 2010. 2010. Objections and requests for regarding the applicability of this action (2) All waters of Boston Harbor hearings must be received on or before to a particular entity, consult the person encompassed within a 200 yard radius August 31, 2010, and must be filed in listed under FOR FURTHER INFORMATION around position 47° 08.5′ N, 122° 54.2′ accordance with the instructions CONTACT. W from 5 p.m. on July 24, 2010 until 1 provided in 40 CFR part 178 (see also a.m. on July 25, 2010. B. How Can I Access Electronic Copies Unit I.C. of the SUPPLEMENTARY of this Document? (3) All waters near Stuart Island INFORMATION). encompassed within a 700 yard radius In addition to accessing an electronic ADDRESSES: EPA has established a around position 48° 37.5′ N, 121° 12.0′ copy of this Federal Register document docket for this action under docket W from 5 p.m. on August 6, 2010 until through the electronic docket at http:// identification (ID) number EPA–HQ– 1 a.m. on August 7, 2010. www.regulations.gov, you may access OPP–2006–0801. To access the (b) Regulations. In accordance with this Federal Register document electronic docket, go to http:// the general regulations in § 165.23 of electronically through the EPA Internet www.regulations.gov, select ‘‘Advanced this Part, no person or vessel may enter, under the ‘‘Federal Register’’ listings at Search,’’ then ‘‘Docket Search.’’ Insert the transit, moor, or anchor within the http://www.epa.gov/fedrgstr. You may docket ID number where indicated and safety zones created in this section also access a frequently updated select the ‘‘Submit’’ button. Follow the unless authorized by the Captain of the electronic version of EPA’s tolerance instructions on the regulations.gov Port or his Designated Representative. regulations at 40 CFR part 180 through website to view the docket index or (c) Authorization. All persons or the Government Printing Office’s pilot access available documents. All vessels who desire to enter the safety e-CFR site at http://www.gpoaccess.gov/ documents in the docket are listed in zones created in this section must ecfr. the docket index available in obtain permission from the Captain of regulations.gov. Although listed in the the Port or his Designated C. Can I File an Objection or Hearing index, some information is not publicly Representative by contacting either the Request? available, e.g., Confidential Business on-scene patrol craft on VHF Ch 13 or Under section 408(g) of FFDCA, any Information (CBI) or other information Ch 16 or the Coast Guard Sector Seattle person may file an objection to any whose disclosure is restricted by statute. Joint Harbor Operations Center (JHOC) aspect of this order and may also Certain other material, such as via telephone at 206–217–6002. request a hearing on those objections. copyrighted material, is not placed on (d) Effective Period. The safety zones You must file your objection or request the Internet and will be publicly created in this section are effective on a hearing on this order in accordance available only in hard copy form. the dates and times noted in paragraph with the instructions provided in 40 Publicly available docket materials are (a) unless canceled sooner by the CFR part 178. To ensure proper receipt available in the electronic docket at Captain of the Port. by EPA, you must identify docket ID http://www.regulations.gov, or, if only number EPA–HQ–OPP–2006–0801 in Dated: June 22, 2010. available in hard copy, at the OPP the subject line on the first page of your S. W. Bornemann, Regulatory Public Docket in Rm. S– submission. All requests must be in Captain, U. S. Coast Guard, Captain of the 4400, One Potomac Yard (South Bldg.), writing, and must be mailed or Port, Puget Sound. 2777 S. Crystal Dr., Arlington, VA. The delivered to the Hearing Clerk as [FR Doc. 2010–16118 Filed 7–1–10; 8:45 am] Docket Facility is open from 8:30 a.m. required by 40 CFR part 178 on or BILLING CODE 9110–04–P to 4 p.m., Monday through Friday, before August 31, 2010. excluding legal holidays. The Docket Facility telephone number is (703) 305– In addition to filing an objection or hearing request with the Hearing Clerk ENVIRONMENTAL PROTECTION 5805. as described in 40 CFR part 178, please AGENCY FOR FURTHER INFORMATION CONTACT: submit a copy of the filing that does not Jacqueline Guerry, Pesticide Re- contain any CBI for inclusion in the 40 CFR Part 180 evaluation Division (7508P), Office of public docket that is described in Pesticide Programs, Environmental [EPA–HQ–OPP–2006–0801; FRL–8832–5] ADDRESSES. Information not marked Protection Agency, 1200 Pennsylvania confidential pursuant to 40 CFR part 2 Ave., NW., Washington, DC 20460– Carbaryl; Order Denying Washington may be disclosed publicly by EPA 0001; telephone number: (215) 814– Toxics Coalition Petition to Revoke without prior notice. Submit this copy, 2184; e-mail address: Tolerances and Notice of Availability of identified by docket ID number EPA– [email protected]. Denial of Request to Cancel Uses HQ–OPP–2006–0801, by one of the SUPPLEMENTARY INFORMATION: AGENCY: Environmental Protection following methods: • Agency (EPA). I. General Information Federal eRulemaking Portal: http:// ACTION: www.regulations.gov. Follow the on-line Order and Notice of A. Does this Action Apply to Me? Availability. instructions for submitting comments. This action is directed to the public • Mail: Office of Pesticide Programs SUMMARY: This order denies a petition in general, and may be of interest to a (OPP) Regulatory Public Docket (7502P), requesting that EPA revoke all pesticide wide range of stakeholders including Environmental Protection Agency, 1200

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Pennsylvania Ave., NW., Washington, III. Statutory and Regulatory residue, including all anticipated DC 20460–0001. Background dietary exposures and all other exposures for which there is reliable • Delivery: OPP Regulatory Public A. FFDCA/FIFRA and Applicable information.’’ (21 U.S.C. Docket (7502P), Environmental Regulations Protection Agency, Rm. S–4400, One 346a(b)(2)(A)(ii)). Section 408(b)(2)(D) 1. In general. EPA establishes directs EPA, in making a safety Potomac Yard (South Bldg.), 2777 S. maximum residue limits, or determination, to: Crystal Dr., Arlington, VA. Deliveries ‘‘tolerances,’’ for pesticide residues in consider, among other relevant factors— ... are only accepted during the Docket’s food and feed commodities under normal hours of operation (8:30 a.m. to section 408 of the FFDCA. (21 U.S.C. (v) available information concerning the 4 p.m., Monday through Friday, 346a). Without such a tolerance or an cumulative effects of such residues and other excluding legal holidays). Special exemption from the requirement of a substances that have a common mechanism arrangements should be made for tolerance, a food containing a pesticide of toxicity; and deliveries of boxed information. The residue is ‘‘adulterated’’ under section (vi) available information concerning the Docket Facility telephone number is 402 of the FFDCA and may not be aggregate exposure levels of consumers (and (703) 305–5805. legally moved in interstate commerce. major identifiable subgroups of consumers) (21 U.S.C. 331, 342). Monitoring and to the pesticide chemical residue and to other II. Introduction enforcement of pesticide tolerances are related substances, including dietary exposure under the tolerance and all other A. What Action Is the Agency Taking? carried out by the U.S. Food and Drug Administration (FDA) and the U.S. tolerances in effect for the pesticide chemical The WTC filed a petition dated Department of Agriculture (USDA). residue, and exposure from other non- occupational sources; January 10, 2005 (WTC Petition) with Section 408 was substantially rewritten by the Food Quality Protection Act of EPA which, among other things, (21 U.S.C. 346a(b)(2)(D)(v), (vi) and 1996 (FQPA), which added the requested that EPA cancel all (viii)). provisions discussed below establishing registrations for the pesticide carbaryl EPA must also consider, in evaluating and revoke all carbaryl tolerances a detailed safety standard for pesticides, additional protections for infants and the safety of tolerances, ‘‘safety factors established under section 408 of the which . . . are generally recognized as FFDCA, 21 U.S.C. 346a (Ref. 1). It children, and the estrogenic substances screening program. (Public Law 104- appropriate for the use of animal should be noted that the WTC Petition 170, 110 Stat. 1489 (1996)). experimentation data.’’ (21 U.S.C. generally raises a subset of identical EPA also regulates pesticides under 346a(b)(2)(D)(ix). issues raised by a petition submitted by the Federal Insecticide, Fungicide, and Risks to infants and children are given the Natural Resources Defense Council Rodenticide Act (FIFRA), (7 U.S.C. 136 special consideration. Specifically, (NRDC), which is also dated January 10, et seq). While the FFDCA authorizes the section 408(b)(2)(C) states that EPA: 2005 (Ref. 2). Indeed, most of the WTC establishment of legal limits for shall assess the risk of the pesticide Petition is virtually a verbatim recitation pesticide residues in food, FIFRA chemical based on— of the NRDC petition. The primary requires the approval of pesticides prior difference is that the WTC Petition does to their sale and distribution, (7 U.S.C. (II) available information concerning the not address any of the tolerance-related 136a(a)), and establishes a registration special susceptibility of infants and children issues raised in the NRDC petition; there regime for regulating the use of to the pesticide chemical residues, including pesticides. FIFRA regulates pesticide neurological differences between infants and is nothing in the WTC Petition which children and adults, and effects of in utero supports the request to revoke use in conjunction with its registration exposure to pesticide chemicals; and tolerances. Nonetheless, to the extent scheme by requiring EPA review and that the WTC Petition can be construed approval of pesticide labels and (III) available information concerning the to raise tolerance-related issues, this specifying that use of a pesticide cumulative effects on infants and children of Order relies on EPA’s response to the inconsistent with its label is a violation such residues and other substances that have a common mechanism of toxicity.... NRDC petition and denies that portion of Federal law. (7 U.S.C. 136j(a)(2)(G)). In the FQPA, Congress integrated action of the WTC Petition that seeks the under the two statutes by requiring that (21 U.S.C. 346a(b)(2)(C)(i)(II) and (III)). revocation of the carbaryl tolerances. the safety standard under the FFDCA be This provision also creates a This document also announces a notice used as a criterion in FIFRA registration presumptive additional safety factor for of availability for EPA’s response to actions as to pesticide uses which result the protection of infants and children. WTC’s Petition to cancel all uses of in dietary risk from residues in or on Specifically, it directs that ‘‘in the case carbaryl, which may be found in docket food, (7 U.S.C. 136(bb)), and directing of threshold effects, ... an additional number EPA–HQ–OPP–2006–0801. that EPA coordinate, to the extent tenfold margin of safety for the pesticide B. What Is the Agency’s Authority for practicable, revocations of tolerances chemical residue and other sources of Taking This Action? with pesticide cancellations under exposure shall be applied for infants FIFRA. (21 U.S.C. 346a(l)(1)). and children to take into account Under section 408(d)(4) of the 2. Safety standard for pesticide potential pre- and post-natal toxicity FFDCA, EPA is authorized to respond to tolerances. A pesticide tolerance may and completeness of the data with a section 408(d) petition to revoke only be promulgated or left in effect by respect to exposure and toxicity to tolerances either by issuing a final rule EPA if the tolerance is ‘‘safe.’’ (21 U.S.C. infants and children.’’ (21 U.S.C. revoking the tolerances, issuing a 346a(b)(2)(A)(i)). This standard applies 346a(b)(2)(C)). EPA is permitted to ‘‘use proposed rule, or issuing an order both to petitions to establish and a different margin of safety for the denying the petition. (21 U.S.C. petitions to revoke tolerances. ‘‘Safe’’ is pesticide chemical residue only if, on 346a(d)(4)). defined by the statute to mean that the basis of reliable data, such margin ‘‘there is a reasonable certainty that no will be safe for infants and children.’’ harm will result from aggregate (Id.). The additional safety margin for exposure to the pesticide chemical infants and children is referred to

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throughout this Order as the ‘‘FQPA Tolerance reassessment and OPP–2003–0376). EPA received Safety Factor.’’ reregistration decisions were generally numerous comments on the carbaryl 3. Procedures for establishing, combined in a Reregistration Eligibility IRED, including two nearly identical amending, or revoking tolerances. Decision (‘‘RED’’) document. petitions from the WTC and the NRDC Tolerances are established, amended, or requesting that EPA cancel all carbaryl revoked by rulemaking under the B. EPA’s Approach to Dietary Risk registrations and revoke all tolerances unique procedural framework set forth Assessment and Science Policy (Refs. 1 and 2). The Agency published in the FFDCA. Generally, a tolerance Considerations a Notice of Availability for the WTC rulemaking is initiated by the party EPA performs a number of analyses to Petition in the Federal Register, which seeking to establish, amend, or revoke a determine the risks from aggregate provided a public comment period. See tolerance by means of filing a petition exposure to pesticide residues. In ‘‘Petition to Revoke or Modify with EPA. (See 21 U.S.C. 346a(d)(1)). addition, EPA applies a number of Tolerances Established for Carbaryl; EPA publishes in the Federal Register a policy considerations with respect to Notice of Availability,’’ October 13, 2006 notice of the petition filing and requests determining the appropriate children’s (71 FR 60511). public comment. (21 U.S.C. 346a(d)(3)). safety factor, cholinesterase inhibition The 2004 Amended IRED for carbaryl After reviewing the petition, and any as a regulatory endpoint, and the use of specified mitigation of risks from comments received on it, EPA may issue a bench mark dose approach. EPA has residential uses including the following: a final rule establishing, amending, or discussed these in great detail in its Canceling liquid broadcast applications revoking the tolerance, issue a proposed response to an earlier and virtually to home lawns pending EPA review of rule to do the same, or deny the identical petition file by NRDC. EPA pharmacokinetic data to refine post– petition. (21 U.S.C. 346a(d)(4)). hereby incorporates and relies upon that application risk estimates; home garden/ Once EPA takes final action on the discussion. See Carbaryl: Order Denying ornamental dust products must be petition by establishing, amending, or NRDC’s Petition to Revoke Tolerances, packaged in ready-to-use shaker can revoking the tolerance or denying the dated September 30, 2008 (October 29, containers, with no more than 0.05 lbs. petition, any party may file objections 2008, 73 FR 64229). active ingredient per container; with EPA and seek an evidentiary cancellation of the following uses and hearing on those objections. (21 U.S.C. IV. Carbaryl Tolerances application methods: all pet uses (dusts 346a(g)(2)). Objections and hearing A. Regulatory Background and liquids) except collars, aerosol requests must be filed within 60 days. products for various uses, belly grinder (Id.). The statute provides that EPA shall Carbaryl is a carbamate insecticide applications of granular and bait ‘‘hold a public evidentiary hearing if and and molluscide that was first registered products for lawns, hand applications of to the extent the Administrator in 1959 for use on cotton. Carbaryl has granular and bait products for determines that such a public hearing is many trade names, but is most ® ornamentals and gardens. necessary to receive factual evidence commonly known as Sevin . In 1980, On March 9, 2005, EPA issued a relevant to material issues of fact raised the Agency published a position cancellation order for the liquid by the objections.’’ (21 U.S.C. document summarizing its conclusions broadcast use of carbaryl on residential 346a(g)(2)(B)). EPA regulations make from a Special Review of carbaryl, and turf to address post-application risk to clear that hearings will only be granted concluded that risk concerns, toddlers (Ref. 5). In March 2005, EPA where it is shown that there is ‘‘a particularly those related to also issued generic and product-specific genuine and substantial issue of fact,’’ teratogenicity, did not warrant data call-ins (DCIs) for carbaryl. The the requestor has identified evidence cancellation of the registration for carbaryl generic DCI required several ‘‘which, if established, resolve one or carbaryl. A Registration Standard, confirmatory studies of the active more of such issues in favor of the issued for carbaryl in 1984 and revised ingredient carbaryl, including requestor,’’ and the issue is in 1988, described the terms and additional toxicology, worker exposure ‘‘determinative’’ with regard to the relief conditions for continued registration of monitoring, data to support the use of requested. (40 CFR 178.32(b)). EPA’s carbaryl. At the time carbaryl was carbaryl in pet collars, and final order on the objections is subject assessed for purposes of reregistration, environmental fate data. The product- to judicial review. (21 U.S.C. carbaryl was registered for use on over specific DCI required acute toxicity and 346a(h)(1)). 400 agricultural and non-agricultural product chemistry data for all pesticide 4. Tolerance reassessment and FIFRA use sites, and there were more than 140 products containing carbaryl; these data reregistration. The FQPA required that tolerances for carbaryl in the Code of are being used for product labeling. EPA EPA reassess the safety of all pesticide Federal Regulations (40 CFR 180.169). has received numerous studies in tolerances existing at the time of its For example, carbaryl was registered for response to these DCIs, and, where enactment. (21 U.S.C. 346a(q)). EPA was domestic outdoor uses on lawns and appropriate, these studies were given 10 years to reassess the gardens, and indoors in kennels and on considered in the tolerance approximately 10,000 tolerances in pet sleeping quarters. It was also reassessment. existence in 1996. In this reassessment, registered for direct application to cats In response to the DCIs, many EPA was required to review existing and dogs (collar, powder, and dip) to carbaryl registrants chose to voluntarily pesticide tolerances under the new control fleas and ticks. cancel their carbaryl products, rather ‘‘reasonable certainty that no harm will EPA completed an Interim than revise their labels or conduct result’’ standard set forth in section Reregistration Eligibility Decision studies to support these products. EPA 408(b)(2)(A)(i). (21 U.S.C. (IRED) for carbaryl on June 30, 2003 published a notice of receipt of these 346a(b)(2)(A)(i)). This reassessment was (2003 IRED, Ref. 3). The Agency requests in the Federal Register on substantially completed by the August amended the IRED on October 22, 2004 October 28, 2005 (70 FR 62112), 3, 2006 deadline. Tolerance (2004 Amended IRED. Ref. 4), and followed by a cancellation order issued reassessment was generally handled in published a formal Notice of on July 3, 2006. One technical conjunction with a similar program Availability for the document which registrant, Burlington Scientific, chose involving reregistration of pesticides provided for a 60–day public comment to cancel its technical product, leaving under FIFRA. (7 U.S.C. 136a-1). period (69 FR 62663; docket EPA–HQ– Bayer CropScience (Bayer) as the sole

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technical registrant for carbaryl. resulting from registered uses of NMC from exposure to all NMC residues, Approximately two-thirds of all of the pesticides, including carbaryl. including carbaryl, was safe, the carbaryl products registered at the time In June 2006, EPA determined that the carbaryl RED relied upon the revised of the 2003 IRED were canceled through uses associated with 120 of the existing assessments and the mitigation that had this process. carbaryl tolerances were not significant already been implemented (e.g., In addition, Bayer, the sole remaining contributors to the overall NMC cancellation of pet uses except for technical registrant responsible for cumulative risk and, as a result, these collars). In addition, the RED included developing data, requested waivers of tolerances would have no effect on the additional mitigation with respect to required exposure monitoring or residue retention or revocation of other NMC granular turf products for residential studies because the following use tolerances. Therefore, EPA considered use; namely, that product labels direct these 120 tolerances for carbaryl as scenarios were not on any Bayer users to water the product immediately reassessed on June 29, 2006, and posted technical or product labels or were to be after application. Subsequently, on deleted from Bayer labels: Carbaryl use this decision on the Agency’s internet site. (See http://www.epa.gov/ August 25, 2008, EPA completed an in or on pea and bean, succulent shelled addendum to the Carbaryl RED, (subgroup 6B); millet; wheat; pre-plant pesticides/cumulative/ _ incorporating the results of a revised root dip for sweet potato; pre-plant root carbamates commodity.pdf). In late November 2006, EPA received occupational risk assessment and dip/drench for nursery stocks, vegetable modified mitigation measures for the transplants, bedding plants, and foliage data from a carbaryl comparative protection of workers (Ref. 8). plants; use of granular formulations on cholinesterase study conducted to leafy vegetables (except Brassica); ultra determine the comparative sensitivity of Subsequent to the completion of the low volume (ULV) application for adult adults and offspring to cholinesterase carbaryl RED addendum, EPA mosquito control; and dust applications inhibition by carbaryl. These data were completed a revised master label table in agriculture. used to revise the FQPA Safety Factor for carbaryl and a list of carbaryl uses for carbaryl for the NMC cumulative risk Bayer subsequently requested that all eligible for reregistration. These assessment and to select new toxicology of its carbaryl registrations bearing any materials, which summarized the endpoints or points of departure (PODs) of the uses just mentioned be amended changes necessary to implement the for the risk assessment. The Agency to delete these uses. EPA notified all carbaryl RED and addendum, were sent determined that it was appropriate to affected registrants that these uses and to all carbaryl end-use registrants on use the new FQPA Safety Factor and application methods must be deleted March 25, 2009. (See docket entry: revised PODs in both the NMC from their carbaryl product labels. EPA cumulative risk assessment and the EPA–HQ–OPP–2007–0941–0088.) All identified 34 product labels from 14 carbaryl-specific human health risk carbaryl end-use registrants were registrants (other than Bayer) bearing assessment. Because this necessitated a required to submit revised labels to EPA these end uses. All of these registrants revision of the carbaryl human health by April 30, 2009. EPA has completed requested that their affected carbaryl aggregate risk assessment, EPA also its review of these amended labels, and product registrations be amended to considered additional new data all acceptable carbaryl products are now delete these uses. EPA published generated in response to the DCI, new reregistered. Once again, some Notices of receipt of these requests from methodologies, and other new registrants chose to cancel their carbaryl Bayer and the other 14 registrants in the information in performing its most product registrations rather than submit Federal Register on August 20, 2008 recent assessment of carbaryl and in revised labels that incorporate the final and October 15, 2008. On March 18, responding to this Petition. EPA has RED mitigation. EPA has received 2009, the Agency published an order thus, in effect, revised the carbaryl voluntary cancellation requests for 19 granting the requests to delete uses (74 single chemical assessment in response additional carbaryl product FR 11553). to the issues raised during the public registrations, and 7 Special Local Need Further, in November 2009, Bayer comment process as well as based upon registrations, from 8 registrants, submitted a waiver request for the more recent data and analytical including the last remaining carbaryl dermal and inhalation exposure studies methods. products registered for use on pets – required for aerial application of On September 26, 2007, EPA issued carbaryl-treated dog and cat collars. The carbaryl bait used in the USDA the NMC cumulative risk assessment Agency has published Notice of Receipt Rangeland Grasshopper and Mormon (Ref. 6). EPA concluded that the of Requests for Cancellation and/or Cricket Suppression Program due to a cumulative risks associated with the Cancellation Notice for all 26 carbaryl recent reduction in the maximum NMC pesticides meet the safety product registrations as per sec. 6(f) of application rate, which eliminated standard set forth in section 408(b)(2) of FIFRA. The two carbaryl pet collar remaining uncertainties associated with the FFDCA, provided that the mitigation product registrations, specifically, will this use scenario. The Agency accepted specified in the NMC cumulative risk be canceled effective September 30, the waiver request in January 2010. assessment is implemented. EPA has 2010, with a reduced existing stock Carbaryl is a member of the N-methyl therefore terminated the tolerance provision of 3 months (74 FR 66642). carbamate (NMC) class of pesticides, reassessment process under 408(q) of which share a common mechanism of the FFDCA. (See 72 FR 54656). In Finally, EPA completed a response to toxicity by affecting the nervous system conjunction with the NMC cumulative NRDC’s January 10, 2005 petition to via cholinesterase inhibition. risk assessment, EPA completed a cancel all uses of carbaryl in a letter Specifically, carbaryl is a reversible Reregistration Eligibility Decision (RED) dated September 30, 2008 (Ref. 9). The inhibitor of Acetylcholinesterase for carbaryl on September 24, 2007 (Ref. Agency’s response to NRDC’s petition to (AChE). A cumulative risk assessment, 7) and issued this RED on October 17, revoke carbaryl tolerances is in an Order which evaluates exposures based on a 2007 with a formal Notice of also dated September 30, 2008 (Ref. 10). common mechanism of toxicity, was Availability in the Federal Register (72 This Order Denying NRDC’s Petition to conducted to evaluate risk from food, FR 58844). In addition to relying on the Revoke Tolerances was published in the drinking water, residential use, and NMC cumulative risk assessment to Federal Register on October 29, 2008 other non-occupational exposures determine that the cumulative effects (73 FR 64229).

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B. FFDCA Tolerance Reassessment and 2005. Indeed, to the extent they address details to substantiate this position). FIFRA Pesticide Reregistration the same issues, most of the WTC’s Another commenter, Northwest As required by the Food Quality petition is virtually a word-for-word Horticultural Council, submitted Protection Act of 1996, EPA reassessed copy of the NRDC petition. The primary comments stating that WTC’s claims are the safety of the carbaryl tolerances difference is that the WTC petition does often based on outdated information, under the safety standard established in not address any of the tolerance-related such as carbaryl residue levels on the FQPA. In the September 2007 RED issues raised in the NRDC petition. apples and pears reported in a 1967 for carbaryl, EPA evaluated the human Nonetheless, to the extent that anything monograph of the Food and Agricultural health risks associated with all currently in the WTC Petition could be construed Organization (FAO) of the United as raising a tolerance-related issue, EPA registered uses of carbaryl and Nations World Health Organization. The is relying on its response to the NRDC determined that there is a reasonable Northwest Horticultural Council states petition to revoke all carbaryl tolerances certainty that no harm will result from that the FAO Monograph is superseded in denying the WTC Petition to revoke aggregate, non-occupational exposure to by 2004 residue monitoring data from all carbaryl tolerances. USDA’s Pesticide Data Program (PDP), the pesticide chemical residue. In The issues raised by the WTC Petition making this determination, EPA which shows less than 10% of samples center around the ecological risk with detection, where carbaryl residues considered dietary exposure from food assessment that supported the 2004 and drinking water and all other non- ranged from 0.0005 to 0.49 ppm. In any IRED decision. Again, most of these event, the comments as a whole occupational sources of pesticide issues are identical to those raised by exposure for which there is reliable (including these particular comments) NRDC and have been addressed in a did not add any new information information. (Ref. 7). The Agency has response denying the NRDC petition to concluded that with the adoption of the pertaining to whether the tolerances cancel all carbaryl registrations, dated were in compliance with the FFDCA. risk mitigation measures identified in September 30, 2008. The ecological risk the NMC cumulative risk assessment, all assessment issues that are unique to the VII. Ruling on Petition of the tolerances for carbaryl meet the WTC Petition are addressed in a safety standard as set forth in section This Order responds to the WTC separate response, dated June 18, 2010. Petition to revoke carbaryl tolerances. 408(b)(2)(D) of the FFDCA. Therefore, EPA hereby announces the availability the tolerances established for residues of As noted above, this request was of this response in the public docket included as part of WTC’s comments on carbaryl in or on raw agricultural EPA–HQ–OPP–2006–0801. commodities were considered the carbaryl IRED. The WTC Petition reassessed as safe under section 408(q) VI. Public Comment contains a number of comments that do of FFDCA, as amended by FQPA, in In response to the statement that the not provide a basis upon which to either September 2007. These findings WTC Petition sought the revocation of cancel all carbaryl registrations or satisfied EPA’s obligation to review the the carbaryl tolerances, EPA published revoke all carbaryl tolerances. Moreover, carbaryl tolerances under the FQPA notice of the WTC Petition for comment the WTC Petition focuses solely on safety standard. on October 13, 2006 (71 FR 60511). EPA ecological issues. EPA is responding to To implement the carbaryl tolerance received 28 comments in response to WTC’s comments regarding the reassessment, EPA commenced with the notice of availability for the WTC ecological assessment supporting the rulemaking in 2008. The Agency Petition. These comments may be found carbaryl RED in a separate response, published a Notice of proposed in their entirety in docket EPA–HQ– which is available in docket EPA–HQ– tolerance actions in the May 21, 2008 OPP–2006–0801. A number of 2006–0801. However, EPA has not Federal Register (73 FR 29456). This commenters from land grant universities attempted to respond to every comment proposed rule provided for a 60–day mentioned the importance of carbaryl in or suggestion for improvement made in public comment period. No comments agriculture, especially in the production the comments provided by the WTC. relevant to carbaryl tolerances were of grapes, small fruit, and pecans. EPA hereby denies the WTC Petition received and EPA published a Notice of Several commenters from the U.S. to revoke all carbaryl tolerances. The final tolerance actions in the September Forest Service and state departments of WTC Petition has not demonstrated that 10, 2008 Federal Register (73 FR forestry commented on the importance carbaryl tolerances are unsafe. Again, 52607). This carbaryl tolerance rule is of carbaryl in controlling bark beetle. In the WTC Petition primarily raises a codified in 40 CFR 180.169. addition, the carbaryl registrant, Bayer subset of identical issues that were CropScience, submitted comments raised in the NRDC petition, and does V. The Petition to Revoke Tolerances opposing the claim by the WTC that not provide any factual support for the WTC filed a petition on January 10, carbaryl poses unreasonable risks to proposition that the carbaryl tolerances 2005, requesting, among other things, non–target organisms. In general, these do not meet the FFDCA safety standard. that EPA cancel all carbaryl registrations comments focus on the importance and To the extent that the WTC Petition can and revoke all carbaryl tolerances. This benefits of carbaryl, and are not specific be construed as raising any tolerance- January 10, 2005 submission is in the to carbaryl tolerances and, therefore, are related issues, in denying the WTC form of comments on and requests for not relevant to the requested revocation Petition, EPA is relying on and hereby changes to the Carbaryl IRED published of pesticide tolerances. EPA is incorporates its response to the NRDC in the Federal Register on October 27, responding to the WTC Petition insofar petition. (See 73 FR 64229). 2004. (70 FR 62663) (Ref. 1). as it seeks cancellation of all carbaryl VIII. Regulatory Assessment Nevertheless, in the introduction to the products separately, and, therefore, Requirements comments, WTC included a statement these comments are not directly relevant that it is also petitioning the Agency to here. As indicated previously, this action revoke all carbaryl tolerances. It should In addition, one comment from a announces the Agency’s order denying be noted that the WTC petition private citizen supported WTC’s a petition filed, in part, under section primarily raises a subset of identical petition, asserting that all carbaryl 408(d) of FFDCA. As such, this action issues raised by a petition submitted by tolerances should be revoked (but is an adjudication and not a rule. The NRDC, which is also dated January 10, without, however, providing sufficient regulatory assessment requirements

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imposed on rulemaking do not, Dated: June 18, 2010. propose to extend the implementation therefore, apply to this action. Steven Bradbury, date to January 1, 2011. IX. Submission to Congress and the Director, Office of Pesticide Programs. Discussion of Comments to the Docket [FR Doc. 2010–15751 Filed 7–1–2010; 8:45 am] Comptroller General There were fifteen commenters, BILLING CODE 6560–50–S The Congressional Review Act, (5 including alcohol testing device U.S.C. 801 et seq.), as added by the manufacturers and suppliers, third party Small Business Regulatory Enforcement administrators, a medical facility, DEPARTMENT OF TRANSPORTATION Fairness Act of 1996, does not apply individuals and a trade association. The because this action is not a rule for Office of the Secretary commenters unanimously agreed to purposes of 5 U.S.C. 804(3). extend the mandatory use date to January 1, 2011, citing that the extra 49 CFR Part 40 X. References time to use the old form will enable 1. Washington Toxics Coalition [Docket OST–2008–0088] them to reduce their inventory of Comments to Carbaryl IRED and alcohol testing forms and give them the RIN OST 2105–AD84 petition to cancel registrations. January necessary time to design, print and 10, 2005. Procedures for Transportation distribute the new form. The 2. National Resources Defense Workplace Drug and Alcohol Testing commenters also appreciated the Council (NRDC) Comments to Carbaryl Programs Department’s sensitivity to minimizing IRED and petition to cancel the unnecessary waste of paper and registrations. January 10, 2005. AGENCY: Office of the Secretary, DOT. expense that would have been caused 3. U.S. EPA. Office of Pesticide ACTION: Final rule. by throwing away forms that could no Programs. 2003. Interim Reregistration longer be used. One commenter Eligibility Decision for Carbaryl. June SUMMARY: The Department of suggested for the Department to permit 30, 2003. Transportation published a final rule the use of the old ATF past the 4. U.S. EPA. Office of Pesticide authorizing the use of an updated proposed mandatory use date of January Programs. 2004. Amended Interim Alcohol Testing Form with a mandatory 1, 2011. Two commenters asked for Reregistration Eligibility Decision for start date of August 1, 2010. The guidance on what would happen if an Carbaryl. October 22, 2004. Department subsequently learned the old ATF was used past the January 1, 5. U.S. EPA. Office of Pesticide industry might not use all the forms by 2011 mandatory use date. Programs. 2005. Letter to Peg Cherney, that mandatory use date. To avoid The Department agrees with the Bayer CropScience, Final Cancellation wasting the forms, the Department is commenters that extending the Order for Carbaryl Liquid Broadcast extending the mandatory use date to mandatory use date from August 1, 2010 Application to Lawns/Turf; EPA January 1, 2011. to January 1, 2011 will enable regulated Registration Numbers 264–324, 264– DATES: This rule is effective July 2, employers and their service agents to 325, and 264–328. March 9, 2005. 2010. reduce their inventory of old alcohol 6. U.S. EPA Office of Pesticide testing forms and give them sufficient Programs. 2007. Revised N-methyl FOR FURTHER INFORMATION CONTACT: For time to design, print, and distribute the Carbamate Cumulative Risk Assessment. program issues, Bohdan Baczara, Office new ATF. As such, the final rule will September 24, 2007. Docket EPA–HQ– of Drug and Alcohol Policy and reflect this new date. Regarding the use OPP–2007–0935–0003. Compliance, 1200 New Jersey Avenue, of the old ATF past the January 1, 2011 7. U.S. EPA. Office of Pesticide SE., Washington, DC 20590; (202) 366– date, the Department expects that the Programs. Reregistration Eligibility 3784 (voice), (202) 366–3897 (fax), or ten month transition period from using Decision (RED) for Carbaryl. September [email protected] (e-mail). the old ATF to the new ATF will be 24, 2007. SUPPLEMENTARY INFORMATION: sufficient time for employers and TPAs 8. U.S. EPA. Office of Pesticide Background and Purpose to ensure the breath alcohol technicians Programs. 2008. Amended (BATs) that service them are aware of Reregistration Eligibility Decision (RED) On February 25, 2010, the Department the new form and have the new form for for Carbaryl. Revised August 24, 2008. published a final rule [75 FR 8528] use by the January 1, 2011 date. The 9. U.S. EPA. Office of Pesticide updating the Alcohol Testing Form Department does not see the need to Programs. 2008. Letter to Jennifer Sass, (ATF). The Department anticipated that make a provision for use of the old ATF Natural Resources Defense Council, Re: employers and alcohol testing past the January 1, 2011. NRDC’s comments on the Carbaryl IRED technicians could have a supply of old and petition to cancel registrations ATFs and, to avoid unnecessarily Regulatory Analyses and Notices dated January 10, 2005 as well as wasting these forms, the Department The statutory authority for this petition to cancel carbaryl registrations permitted the use of the old ATF until proposed rule derives from the Omnibus dated November 26, 2007 and submitted August 1, 2010. Employers were Transportation Employee Testing Act of as part of NRDC’s comments to N- authorized to begin using the updated 1991 (49 U.S.C. 102, 301, 322, 5331, methyl carbamate cumulative. ATF immediately. 20140, 31306, and 45101 et seq.) and the September 30, 2008. Since the final rule was published, Department of Transportation Act (49 10. U.S. EPA. Office of Pesticide the Department became aware that some U.S.C. 322). Programs. Carbaryl: Order Denying vendors of the ATF might not be able to This proposed rule is a non- NRDC’s Petition to Revoke Tolerances. deplete their current supply of the ATFs significant rule both for purposes of September 20, 2008. Docket EPA–HQ– before the August 1, 2010 Executive Order 12886 and the OPP–2007–0941–0031. implementation date. In light of this Department of Transportation’s new information and to avoid wasting Regulatory Policies and Procedures. The List of Subjects in 40 CFR Part 180 already printed forms, on May 11, 2010, Department certifies that it will not have Environmental protection, Carbaryl, the Department published a notice of a significant economic effect on a Pesticides and pests. proposed rulemaking [75 FR 26183] to substantial number of small entities, for

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purposes of the Regulatory Flexibility SUMMARY: The FMCSA amends its IBC—Insurance Bureau of Canada Act. The Department makes these regulations concerning minimum levels Leaders—President of the United States, statements on the basis that by of financial responsibility for motor Prime Minister of Canada, and the carriers to allow Canada-domiciled President of Mexico extending the implementation date of L&I—Licensing and Insurance Database the new form, this rule will not impose motor carriers and freight forwarders to MCMIS—Motor Carrier Management any significant costs on anyone. The maintain, as acceptable evidence of Information System costs of the underlying Part 40 final rule financial responsibility, insurance NAFTA—North American Free Trade were analyzed in connection with its policies issued by Canadian insurance Agreement issuance in December 2000. Therefore, companies legally authorized to issue NAIC—National Association of Insurance it has not been necessary for the such policies in the Canadian Province Commissioners Department to conduct a regulatory or Territory where the motor carrier or NIIC—National Interstate Insurance freight forwarder has its principal place Company evaluation or Regulatory Flexibility NPRM—Notice of Proposed Rulemaking Analysis for this proposed rule. The of business. This final rule does not OSFI—Office of the Superintendent of alcohol testing form complies with the change the required minimum levels of Financial Institutions Paperwork Reduction Act. It has no financial liability coverage that all PAU—Power of Attorney and Undertaking Federalism impacts that would warrant motor carriers and freight forwarders PACICC—Property and Casualty Insurance a Federalism assessment. must maintain under the existing Compensation Corporation regulations. This final rule responds to PCI—Property Casualty Insurers Association List of Subjects in 49 CFR Part 40 a petition for rulemaking filed by the of America Administrative practice and RIA—Regulatory Impact Analysis Government of Canada. SPP—The Security and Prosperity procedures, Alcohol abuse, Alcohol DATES: Effective Date: The effective date Partnership of North America testing, Drug abuse, Drug testing, of the amendments made by this final Laboratories, Reporting and rule is August 2, 2010. Table of Contents recordkeeping requirements, Safety, ADDRESSES: Internet users may Transportation. I. Background download and print this final rule from Legal Basis for the Rulemaking Issued June 25, 2010, at Washington DC. today’s edition of the Federal Register’s The Government of Canada (Canada) Jim L. Swart, online system at: http:// Petition for Rulemaking Director. www.gpoaccess.gov/fr/index.html. You The Security and Prosperity Partnership of may access this final rule and all related North America ■ For reasons discussed in the Advance Notice of Proposed Rulemaking preamble, the Department of documents and material from the (ANPRM) Transportation is amending 49 CFR part Federal eRulemaking Portal through the Notice of Proposed Rulemaking (NPRM) 40, Code of Federal Regulations, as Federal Docket Management System II. Discussion of Comments Received on follows: (FDMS) at http://www.regulations.gov, NPRM by searching Docket ID number General Comments PART 40—PROCEDURES FOR FMCSA–2006–26262. The FDMS is Specific Comments from PCI and IBC TRANSPORTATION WORKPLACE available 24 hours each day, 365 days Specific Comments from the ATA DRUG AND ALCOHOL TESTING each year. For persons who do not have ATA Comment 1 ATA Comment 2 PROGRAMS access to the Internet, all documents in ATA Comment 3 the docket may be examined, and/or ■ ATA Comment 4 1. The authority citation for 49 CFR copied for a fee, at the U.S. Department part 40 continues to read as follows: Specific Comments from the National of Transportation’s Dockets Room, 1200 Association of Insurance Commissioners Authority: 49 U.S.C. 102, 301, 322, 5331, New Jersey Avenue, SE., on the ground (NAIC) 20140, 31306, and 45101 et seq. floor in Room W12–140, Washington, III. Regulatory Analyses IV. The Final Rule ■ 2. In Appendix G to Part 40—Alcohol DC, between 9 a.m. and 5 p.m., e.t., Testing Form, the paragraph is amended Monday through Friday, except Federal I. Background holidays. by removing the text ‘‘August 1, 2010’’ Legal Basis for the Rulemaking and adding in its place ‘‘January 1, FOR FURTHER INFORMATION CONTACT: Ms. 2011.’’ Dorothea Grymes, Commercial Section 30 of the Motor Carrier Act of Enforcement Division (MC–ECC), 1980 (1980 Act) (Pub. L. 96–296, 94 [FR Doc. 2010–16159 Filed 7–1–10; 8:45 am] Federal Motor Carrier Safety Stat. 793, 820, July 1, 1980) authorized BILLING CODE 4910–9X–P Administration, 1200 New Jersey the Secretary of Transportation Avenue, SE., Washington, DC 20590, or (Secretary) to prescribe regulations DEPARTMENT OF TRANSPORTATION telephone (202) 385–2400. establishing minimum levels of SUPPLEMENTARY INFORMATION: financial responsibility covering public Federal Motor Carrier Safety liability, property damage, and Acronyms and Abbreviated References Administration environmental restoration for the transportation of property for ANPRM—Advance Notice of Proposed 49 CFR Part 387 Rulemaking compensation by motor vehicles in interstate or foreign commerce. Section [Docket No. FMCSA–2006–26262] ATA—American Trucking Associations, Inc AIA—American Insurance Association 30(c) of the 1980 Act provided that RIN 2126–AB05 Canada—Government of Canada motor carrier financial responsibility CCIR—Canadian Council of Insurance may be established by evidence of one Minimum Levels of Financial Regulators or a combination of the following if Responsibility for Motor Carriers CFR—Code of Federal Regulations acceptable to the Secretary: (1) CMV—Commercial Motor Vehicle AGENCY: Federal Motor Carrier Safety FMCSA—Federal Motor Carrier Safety Insurance; (2) a guarantee; (3) a surety Administration (FMCSA), DOT. Administration bond issued by a bonding company authorized to do business in the United ACTION: Final rule. FMCSRs—Federal Motor Carrier Safety Regulations States; and (4) qualification as a self-

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insurer (49 U.S.C. 31139(f)(1)). Section or a surety bond per MCS–82B. (See 49 The combined effects of §§ 387.7 and 30(c) required the Secretary to establish, CFR 387.39.) 387.11 required Canada-domiciled by regulation, methods and procedures This final rule is based on the motor carriers operating in the United to ensure compliance with these Secretary’s authority to establish States to either: (1) Obtain insurance requirements. methods and procedures to ensure that through a Canada-licensed insurer, In June 1981, the Secretary issued certain motor carriers of property and which enters into a ‘‘fronting agreement’’ regulations implementing Section 30, passengers maintain the minimum with a U.S.-licensed insurer, whereby which are codified at 49 CFR part 387, financial responsibility liability the U.S. insurer permits the Canadian subpart A. The implementing coverage mandated by 49 U.S.C. insurer to sign the Form MCS–90 as its regulations provide that for-hire motor 31138(c)(1) and 31139(f)(1). This agent, and the entire risk is carriers operating motor vehicles authority was delegated to FMCSA by contractually ‘‘reinsured’’ back to the transporting property in interstate or the Secretary pursuant to 49 CFR 1.73(f). Canadian insurer by the U.S. insurer; or foreign commerce or transporting (2) obtain two separate insurance hazardous materials in intrastate, The Government of Canada (Canada) policies, one valid in Canada written by interstate, or foreign commerce, must Petition for Rulemaking a Canadian insurer and one valid in the obtain and have in effect minimum On September 29, 2005, Canada United States written by a U.S. insurer. levels of financial responsibility submitted a petition for rulemaking to Canada indicated that the first option is through, as applicable here, an amend 49 CFR part 387. Canada by far the most common. Canada insurance policy or a surety bond. The specifically requested that FMCSA contended that the results of these regulations further provide the specific amend § 387.11, which provides that a requirements posed an additional forms for an endorsement to the policy of insurance or surety bond does administrative burden, inconvenience, insurance policy and for the surety not satisfy FMCSA’s financial and cost not faced by U.S.-domiciled bond. These forms, entitled Form MCS– responsibility requirements unless the motor carriers operating in Canada. As 90 ‘‘Endorsement for Motor Carrier insurer or surety furnishing the policy Canada stated, U.S. motor carriers and Policies of Insurance for Public Liability or bond is— their insurers do not face these under Sections 29 and 30 of the Motor (a) Legally authorized to issue such additional costs in transporting goods Carrier Act of 1980,’’ and Form MCS–82, policies or bonds in each State in which the into Canada. FMCSA estimated that ‘‘Motor Carrier Surety Bond for Public motor carrier operates; or there are approximately 9,000 Canada- Liability under Section 30 of the Motor (b) Legally authorized to issue such domiciled, for-hire motor carriers of Carrier Act of 1980,’’ were required to be policies or bonds in the State in which the property and passengers, and freight maintained at the motor carrier’s motor carrier has its principal place of forwarders actively operating principal place of business as proof that business or domicile, and is willing to commercial motor vehicles (CMVs) in it satisfied the financial responsibility designate a person upon whom process, the United States that are subject to requirement. (See 49 CFR 387.7 and issued by or under the authority of any court FMCSA’s current Federal motor carrier 387.15.) having jurisdiction of the subject matter, may financial responsibility rules. Section 18 of the Bus Regulatory be served in any proceeding at law or equity Canada requested that FMCSA amend Reform Act of 1982 (Bus Act) (Pub. L. brought in any State in which the motor carrier operates; or 49 CFR part 387 so that an insurance 97–261, 96 Stat. 1102, 1120, September (c) Legally authorized to issue such policy issued by a Canadian insurance 20, 1982), codified at 49 U.S.C. 31138, policies or bonds in any State of the United company satisfies the Agency’s financial directed the Secretary to prescribe States and eligible as an excess or surplus responsibility requirements. Canada regulations establishing the minimum lines insurer in any State in which business asserted that the insurance company levels of financial responsibility is written, and is willing to designate a will be legally authorized to issue such covering public liability and property person upon whom process, issued by or a policy in the Province or Territory of damage for the transportation of under the authority of any court having Canada in which the Canadian motor passengers for compensation by motor jurisdiction of the subject matter, may be carrier has its principal place of vehicle in interstate or foreign served in any proceeding at law or equity business or domicile. Furthermore, the commerce. Section 18(d) of the Bus Act brought in any State in which the motor carrier operates. insurance company should also be provided that such motor carrier required to designate a person upon financial responsibility may be Canada asked FMCSA to consider whom process, issued by or under the established by evidence of one or a amending this provision to permit authority of any court having combination of the following if insurance companies, licensed either jurisdiction over the subject matter, may acceptable to the Secretary: (1) provincially or territorially in Canada, be served in any proceeding at law or Insurance, including high self-retention; to write motor vehicle liability equity brought in any State in which the (2) a guarantee; and (3) a surety bond insurance policies for Canada-domiciled motor carrier operates. issued by a bonding company motor carriers of property operating in This change would eliminate the need authorized to do business in the United the United States and to issue the Form for Canadian insurance companies to States (49 U.S.C. 31138(c)(1)). Section MCS–90 endorsement for public link with a U.S. insurance company to 18(d) required the Secretary to establish, liability to meet FMCSA’s financial legally insure Canada-domiciled motor by regulation, methods and procedures responsibility requirements. Form carriers operating in the United States. to ensure compliance with these MCS–90 is the endorsement for motor It should be noted that although requirements. carrier policies of insurance for public Canada’s petition only requested to In November 1983, the Secretary liability, which for-hire motor carriers of amend 49 CFR 387.11, its proposal issued regulations implementing section property must maintain at their would require changes in other sections 18 of the Bus Act. The regulations principal place of business. Under 49 of part 387 for the sake of consistency. implementing that law are found at 49 CFR 387.7(f), motor carriers domiciled Section 387.35 applies § 387.11 CFR part 387, subpart B, and contain the in Canada and Mexico must also carry requirements to motor passenger same requirements found in Subpart A a copy of the Form MCS–90 on board carriers, who must obtain a Form MCS– for an insurance policy, as applicable each vehicle operated in the United 90B endorsement. Furthermore, here, with Form MCS–90B endorsement States. § 387.315 imposes the same

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requirements on motor carriers who Safety Administration Regulation to allow Notice of Proposed Rulemaking (NPRM) must file evidence of insurance with Canadian insurers to directly sign the MCS– 90 form concerning endorsement for motor FMCSA published an NPRM on June FMCSA, and § 387.409 applies similar 10, 2009, concerning Canada’s proposal financial responsibility requirements on carrier policies of insurance for public liability: by June 2006.’’ to amend 49 CFR 387.11 to allow freight forwarders. Therefore, FMCSA Canadian insurance companies, Canada advocated a change to part has amended those sections for licensed in the province or territory 387 to assist in meeting the stated goals consistency as well. where the motor carrier has its principal of the SPP. Canada stated, ‘‘Achieving a Canada pointed out that, for many place of business, to issue proof of seamless motor vehicle liability years, it has recognized and accepted financial responsibility for Canada- insurance policy between Canada and non-commercial motor vehicle liability domiciled motor carriers by executing the United States for motor carriers’’ will policies issued in either country as the Forms MCS–90 and MCS–90B contribute to enhancing the competitive acceptable proof of financial directly rather than as the agent of a and efficient position of North responsibility. Furthermore, all U.S. insurer. FMCSA also proposed to American businesses. FMCSA jurisdictions in Canada accept the amend other sections of part 387 recognized the importance of signing and filing of a Power of Attorney (§§ 387.35, 387.315, and 387.409) for considering these requests and granted and Undertaking (PAU) by U.S.-licensed consistency. insurers as valid proof of financial the petition by initiating a rulemaking responsibility for U.S.-domiciled motor proceeding to solicit public comment on II. Discussion of Comments Received on vehicles of all categories. The PAU Canada’s proposal. NPRM provides that the U.S. insurer will Advance Notice of Proposed FMCSA provided a 60-day comment comply with and meet the minimum Rulemaking (ANPRM) period for the NPRM that ended on coverage and policy limits required in August 10, 2009. In response, nine On December 15, 2006, FMCSA any Canadian jurisdiction in which a organizations and one individual filed published an ANPRM (71 FR 75433) in crash involving its insured occurs. comments as follows: the Insurance response to Canada’s petition for Canada stated that the PAU is similar to Bureau of Canada (IBC); the Insurance rulemaking. The ANPRM also requested the MCS–90 endorsement required Corporation of British Columbia; the public comment on a petition for under part 387. Canada also noted that Canadian Trucking Alliance; Canada; rulemaking from the Property Casualty the PAU is filed with the Canadian NAIC; the American Insurance Insurers of America (PCI), which Council of Insurance Regulators (CCIR), Association(AIA); the American requested that FMCSA make revisions which is the Canadian equivalent to the Trucking Associations, Inc. (ATA); the to the Forms MCS–90 and MCS–90B U.S. National Association of Insurance National Interstate Insurance Company endorsements to clarify that language in Commissioners (NAIC). (NIIC); PCI; and Mr. Michael Stanley. the endorsements imposing liability for Canada and the NAIC filed additional The Security and Prosperity Partnership negligence ‘‘on any route or in any comments in the docket on September of North America territory authorized to be served by the 23, 2009, and on November 23, 2009, The Security and Prosperity insured or elsewhere’’ does not include respectively. The Agency reviewed and Partnership of North America (SPP) was liability connected with transportation considered all comments submitted to dedicated to increasing security and within Mexico. enhancing prosperity among the United The PCI petition was the result of a this docket. States, Canada, and Mexico through Federal District Court decision holding General Comments greater cooperation and information that the Form MCS–90B endorsement Seven commenters supported the sharing. The President of the United applied to a crash that occurred in NPRM; two commenters were also States, the Prime Minister of Canada, Mexico. As a result, PCI requested that supportive of the NPRM if certain and the President of Mexico (the the endorsement be amended by concerns were addressed. Leaders) announced this initiative on inserting the phrase: ‘‘within the United March 23, 2005. Among other things, States of America, its territories, Specific Comments From PCI and IBC the initiative reflects the goal of possessions, Puerto Rico, and Canada’’ PCI and IBC stated that a ‘‘U.S.-only’’ improving the availability and following the words ‘‘or elsewhere.’’ coverage territory definition should be affordability of insurance coverage for However, in September 2007, the U.S. added to the MCS–90 and MCS–90B motor carriers engaged in cross-border Court of Appeals for the Fifth Circuit forms. commerce in North America. issued a decision, Lincoln General FMCSA Response: On June 27, 2005, a Report to the Insurance Co. v. De La Luz Garcia, 501 FMCSA disagrees with this comment. Leaders was signed on behalf of the F.3d 436 (5th Cir., 2007), effectively As noted previously and described more United States by the Secretaries of overturning the District Court decision fully in the NPRM (74 FR 27487), the Homeland Security, Commerce, and that had prompted PCI to file its September 2007 Fifth Circuit decision State. (See http://www.spp.gov, and petition. Because the Court of Appeals addressed this issue and essentially click on link to ‘‘2005 Report to decision provided PCI with the relief provided PCI with the legal resolution Leaders.’’) One of the Prosperity requested in its petition and because the requested in its petition for rulemaking. Priorities of the SPP is to ‘‘[s]eek ways issues raised in the PCI petition are Therefore, FMCSA concluded that it to improve the availability and different from the issues raised in was unnecessary to add the territorial affordability of insurance coverage for Canada’s petition, FMCSA decided that definition to the MCS–90 and MCS–90B carriers engaged in cross-border a regulatory change need not be forms. As PCI and IBC did not provide commerce in North America.’’ At considered, and the issue would not be any new arguments to support adding http://www.spp.gov/report_to_leaders/ addressed further in this rulemaking. _ _ the territorial definition, FMCSA will prosperity annex.pdf?dName=report to FMCSA received comments on the not address it further in this final rule. _leaders, the following key milestone is ANPRM from six commenters. FMCSA stated for this initiative: addressed the issues raised by the six Specific Comments From the ATA ‘‘U.S. and Canada to work towards possible commenters in its June 10, 2009, notice ATA was generally supportive of the amendment of the U.S. Federal Motor Carrier of proposed rulemaking (74 FR 27485). NPRM but requested that the Agency

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respond to its concerns. ATA believed Reports 1 or by going online to http:// This final rule amends §§ 387.11, that several issues still needed to be www.ambest.com. FMCSA leaves it up 387.35, 387.315, and 387.409 to allow a resolved and addressed, as follows: to the States to monitor U.S.-based Canadian insurer to submit an insurance ATA Comment 1: insurance companies and, if this rule is policy on behalf of a Canada-based implemented, would leave it up to the motor carrier that will satisfy the ATA argued that Canadian insurance Canadian government and its Provinces financial responsibility requirements if companies should be required to and Territories to monitor Canada-based the insurer is: legally authorized to issue comply with all FMCSA’s requirements insurance companies in the same a policy of insurance in the Province or for U.S.-based insurers (i.e., as required manner (see RIA, pages 14 and 15).2 Territory of Canada in which a motor by FMCSA under 49 CFR 387.11(b)). Thus, the Agency disagrees with ATA carrier has its principal place of ATA also contended that Canadian about the need for requiring licensing in business or domicile; and is willing to insurance companies should comply the U.S. FMCSA can readily verify if the designate a person upon whom process, with any other applicable U.S. companies are solvent and duly issued by or under the authority of any insurance regulations on a State-by- licensed in the jurisdictions where the court having jurisdiction of the subject State basis. ATA suggested that this insurance is issued. matter, may be served in any proceeding could prove to be difficult for Canadian Likewise, FMCSA does not agree with at law or equity in any State in which insurers because they would need to ATA that it is necessary to require, the motor carrier operates. Thus, any register in each State and be subject to indirectly, that Canada-based insurance Canadian insurance policy submitted on a variety of additional requirements in companies comply with U.S.-based behalf of a Canada-based motor carrier each jurisdiction. ATA also suggested insurance regulations. As noted above, must designate an agent in each State that these aspects of the U.S. financial the Canadian federal government and its upon whom service of process may be responsibility requirements would tend Provinces and Territories share served as required by FMCSA to discourage Canadian carriers and jurisdiction over the insurance regulations under part 387. insurance companies from participating regulation of Canada-based motor ATA Comment 2: in the U.S. market. carriers. Indeed, FMCSA is engaged in ATA also argued that the oversight of Canada-based insurance companies FMCSA Response: an on-going process with its Canadian counterparts to identify opportunities must be at least as stringent as that over Under part 387 of the FMCSRs, the for establishing reciprocity U.S.-based companies. Agency has authority to prescribe the FMCSA Response: arrangements to achieve a seamless Prior to this rule, Canadian insurers minimum levels of financial motor vehicle liability insurance policy responsibility required to be maintained providing coverage to Canadian motor for adequate protection of the public carriers operating in the U.S. were by motor carriers, freight forwarders and between the two nations, but it does not property brokers. In terms of making already responsible for the insurance regulate the insurance industry in this coverage limits in the U.S. when they determinations about what laws and country or any other. regulations will apply to U.S.-based were arranging insurance through a insurers, that is a State process. FMCSA U.S.-based insurance company. The 1 For most insurance companies domiciled in the Agency believes Canada has a very does not intend to enter into that U.S., the data in the Best Insurance Reports is based process as part of this rule. However, on each insurance company’s sworn annual and strong, prudential Federal regulator of FMCSA indirectly imposes requirements quarterly financial statement as prescribed by the its financial institutions, as evident from National Association of Insurance Commissioners on U.S. insurers by not accepting the the comments submitted by IBC and (NAIC) and as filed with the Insurance NAIC. NAIC stated that the financial Forms MCS–90 and MCS–90B unless Commissioners of the States in which the the insurer meets certain requirements. companies are licensed to do business. This source responsibility levels required in Canada The Agency could impose a requirement also provides data related to companies operating for commercial vehicles are comparable outside of the U.S., but it is presented in accordance to those requirements in the U.S. The for Canada-based insurance companies with customs or regulatory requirements of the Office of the Superintendent of as a condition of accepting their country of domicile. Financial Institutions (OSFI) is policies. Such a requirement would be 2 The Canadian federal government and the responsible for monitoring the solvency contrary to the purpose of this Provinces/Territories share jurisdiction over insurance regulation in Canada. Property and of Canadian federal financial rulemaking, however, given that if the casualty (P&C) insurers can be incorporated under institutions, including banks and companies were licensed by a State, either level of government. The Canadian federal insurance companies (i.e., those which they would already satisfy the existing and provincial governments share jurisdiction over are licensed at the federal level and in rule. Furthermore, based on the insurance matters in Canada; therefore both levels of government are involved in the regulation and each Province and Territory in which information reviewed by the Agency, supervision of participants in Canada’s P&C they undertake insurance activities), such a requirement is unnecessary, insurance industry. Canadian federal authorities and ensuring that these companies are look after the solvency of companies incorporated considering that the Canada-based in sound financial condition. NAIC insurers must be licensed in the federally, as well as Canadian branch operations of firms incorporated outside Canada. Provincial noted that, similar to the NAIC insurer’s Canadian Province or Territory where authorities are responsible for the solvency of quarterly financial filing requirements, the motor carrier or freight forwarder provincially incorporated insurers, for reviewing OSFI posts extensive financial and interpreting insurance contracts and for has its principle place of business. information (e.g., balance sheet, income Currently, the Agency has an internal licensing and supervising agents and adjusters. Approximately three-quarters of the P&C insurers statement, some operating information, process to verify that U.S-based insurers active in Canada are supervised by the federal and solvency calculation) for each are solvent and duly licensed in the government through the Office of the federally regulated Canadian insurer on State(s) where they write and issue Superintendent of Financial Institutions (OSFI), as its Web site each quarter at http:// insurance policies for the motor carrier they operate in more than one province or are branches of foreign companies. These federally www.osfi-bsif.gc.ca/osfi/ entities that must comply with part 387. regulated insurers make up more than 80 per cent index_easpx?ArticleID=3. FMCSA verifies the name of the of the total business of the P&C insurance industry NAIC also stated there are significant insurance company, its home office in Canada. Federally regulated companies must, similarities between the States’ address and telephone number, and its however, also be licensed in each Province and Territory in which they undertake insurance insurance regulations and Canadian solvency by checking the Best Insurance activities. Federal, Provincial, and Territorial

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insurance regulations. In Canada, there that coverage will remain in effect RIA, pages 14–15). The Agency will also is a guarantee fund mechanism in case continuously until terminated as continue to invite comments from an insurer becomes insolvent. This required by the law (see 49 CFR 387.15). members of the public and encourage mechanism is the Property and Casualty With regard to ATA’s argument that them to keep FMCSA informed of any Insurance Compensation Corporation every Canadian insurance policy must problems they incur with Canadian (PACICC), which is an industry- contain an endorsement stating that the insurers that fail to honor their financial financed policyholder protection insurance company complies with U.S. obligations to U.S. claimants against scheme for most insurance policies that laws and 49 CFR part 387, FMCSA Canada-domiciled carriers. are issued by property and casualty believes this type of endorsement is Specific Comments From the National insurance companies in Canada. unnecessary because the MCS–90 forms Association of Insurance PACICC, which is approved by already fulfill this purpose. Commissioners (NAIC) government regulators, is the national ATA Comment 4: guarantee fund that protects insurance FMCSA must require Canadian In its initial comment letter dated customers from undue financial loss in insurance companies to acknowledge August 7, 2009, NAIC expressed the event that a member insurer fails. It and give ‘‘full faith and credit’’ to any concern that FMCSA would defer to the guarantees payments up to $250,000 per final and non-appealable judgment OSFI to monitor the solvency of the claim, less deductibles, should an rendered against their insured Canadian Canadian insurers executing the MCS– insurer become insolvent. More carriers who operate in the U.S. 90 forms without ensuring the information about PACICC is available FMCSA Response: comparability of the Canadian insurer at http://www.pacicc.com/english/ Pursuant to the terms of the MCS–90 solvency system to our U.S. insurer sub_contents.htm. endorsement, Canadian insurance solvency standards. NAIC submitted The Canadian government and the companies would have to pay, within another letter to the docket, dated insurance companies it regulates have the limits of the stated liability in the November 23, 2009, which states: ‘‘As a demonstrated that they have the ability MCS–90 forms, any final judgment result of ongoing dialogue with OSFI, and willingness to honor their financial rendered by a U.S. court with competent NAIC now has greater confidence that obligations without the need for any jurisdiction against their insured there are significant similarities between additional oversight. Therefore, FMCSA Canadian carriers. Additionally, U.S. the U.S. State insurance regulatory believes that Canada has a satisfactory consumers have access to the mandatory system and Canadian federal insurance oversight system in place to ensure the third-party dispute resolution regulation. NAIC has also learned that, solvency of Canada-based insurance mechanism required of Canadian similar to the NAIC’s insurer quarterly companies. insurers and therefore could raise their financial filing requirements, OSFI posts In addition, FMCSA believes that disputes directly with Canadian extensive financial information (e.g., Canadian insurers are seeking the same insurers. If the U.S. consumer is not balance sheet, income statement, some level of fair and equal treatment that is satisfied with this alternative, the operating information, and solvency afforded to U.S insurers that insure consumer could seek a judicial calculation) for each federally regulated U.S.-domiciled carriers operating in resolution through the Canadian court Canadian insurer on its Web site each Canada. The objective of this system. The traditional common law quarter[.]’’ at http://www.osfi-bsif.gc.ca/ _ rulemaking initiative is to provide rule is clear. In order to be recognizable osfi/index easpx?ArticleID=3. Based on reciprocity between the U.S. and and enforceable, a foreign judgment this additional information, NAIC Canada. As noted previously in this must be: (a) For a debt, or definite sum indicates that it and State Insurance final rule, FMCSA would leave it up to of money (not being a sum payable in Regulators now support the rulemaking, the Canadian government and its respect of taxes or other charges of a like but made two recommendations to Provinces and Territories to monitor nature or in respect of a fine or other FMCSA as follows: Canada-based insurance companies in penalty); and (b) final and conclusive, (1) NAIC contends that FMCSA the same manner as the States monitor but not otherwise. Pro Swing Inc. v. Elta should develop an early warning system U.S.-based insurance companies (See Golf Inc., 2006 Can. Sup. Ct. LEXIS 52; to notify the NAIC of any financial FMCSA response to ATA comment 1.) 2006 SCC 52; [2006] S.C.J. No. 52. Thus, difficulty arising with any Canadian ATA Comment 3: a Canadian-insurance company would insurer operating on a cross-border ATA contended that every Canadian be legally bound to make payments to basis. Furthermore, FMCSA should have insurance policy must contain an U.S. claimants based on a final the authority to require the affected endorsement stating that the insurance judgment issued by a U.S. court.3 motor carriers to find an alternate company complies with U.S. laws and We realize that pursuing these matters insurance provider. Once the Canadian 49 CFR part 387. through the Canadian court system regulators certify that the Canadian FMCSA Response: could be an inconvenience for most U.S. insurer is no longer in financial In an effort to garner the claimants, but FMCSA does not regulate difficulty, then that insurer could again transportation and insurance industries’ the insurance industry. FMCSA will, become eligible to execute the MCS–90 compliance with the 1980 Act’s and MCS–90B forms; and (2) In the however, continue to monitor Canadian mandated levels of financial interest of true reciprocity, NAIC insurers that submit insurance policies responsibility, FMCSA established the contends that FMCSA should require on behalf of Canada-based motor MCS–90 endorsement to make the Canadian insurers executing the Form carriers to ensure that these companies insurer a surety to the public. The Act MCS–90 to file a duly executed Power are in sound financial condition (see requires the MCS–90 endorsement be of Attorney and Undertaking (PAU) attached to any liability policy issued to 3 In furtherance of this principle, IBC also notes with the NAIC, since existing motor carriers operating commercial that legislation pertaining to automobile insurance regulations require U.S.-based insurers motor vehicles in interstate or foreign in each of Canada’s Provinces and Territories to file a PAU with the Canadian Council commerce. It ensures that members of mandates the coverage that is required under of Insurance Regulators (CCIR) for their automobile insurance policies that are provided the public are protected when injured when the vehicles are being operated in Canada or cross-border activities. The PAU would by members of the transportation in the U.S. while being transported between these give U.S. State insurance regulators— industry. The motor carrier must specify countries. and U.S. claimants—equivalent

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reassurance that there would be a III. Regulatory Analyses are approximately five). In addition, the Canadian insurer agent/representative RIA examined the functional impact of Comments on FMCSA’s Regulatory within that State to accept notice and rule compliance under this option from Impact Analysis (RIA) service of process on behalf of the the perspectives of the FMCSA’s Canadian insurer and, more The National Interstate Insurance enforcement program and the Canadian importantly, preserve necessary Company (NIIC) requested information motor carriers.4 protections to U.S. consumers. on how the Agency derived the annual The RIA also examined the benefits of FMCSA Response: effect of the rule on the U.S. economy. this rulemaking, which are largely the First, developing a notification system Also, NIIC asked what portion of the relief from a disproportional cost and for NAIC is unnecessary because current revenue was attributed to NIIC. administrative burden and FMCSA informally monitors the FMCSA Response: inconvenience currently borne by financial solvency of U.S-based insurers As stated in the RIA, the potential Canada-domiciled motor carriers in and will work with OSFI in the future costs and benefits of this rule largely comparison to their U.S. counterparts. to perform the same level of monitoring apply to Canada-based entities. The Other benefits include the elimination of Canada-based insurers. Thus, FMCSA analysis addressed trade benefits (i.e., of trade barriers (i.e., disproportionate will not develop a system to notify the elimination of trade barriers) pursuant cost burden) in accordance with the NAIC of any solvency problems arising to the NAFTA and increased goals of NAFTA, and increased from Canadian insurers operating on a cooperation among the U.S. and Canada cooperation between the U.S. and cross-border basis. pursuant to the SPP. Canada pursuant to the SPP. As to NIIC’s question, FMCSA could Second, FMCSA does not have the This analysis was conducted under not obtain revenue information on the authority to require Canadian insurers the assumption that there are impact of Canada’s petition for 5 executing the Form MCS–90 to file a approximately 9,000 active Canada- rulemaking on U.S.-domiciled insurance duly executed PAU with NAIC. domiciled motor carriers and freight companies, but the Agency estimates However, we are exploring non- forwarders conducting CMV operations that the effects of forgone revenues, per 6 regulatory alternative processes, such as in the U.S. company, will likely be insignificant. facilitating reciprocity agreements The RIA finds that the final rule This is due to the following reasons: (1) between the parties so that Canada- yields a discounted net benefit of $273 Canadian motor carriers are only a small based insurers could agree in the future million estimated over a 10-year period. proportion of total clients; (2) only to file a PAU with U.S. insurance These quantified net benefits accrue to certain U.S. insurance companies do, regulators for their cross-border the Canada-domiciled for-hire motor and wish to, contract with foreign activities. While these reciprocity carriers and freight forwarders which entities; and (3) transportation arrangements have not yet been are impacted by this rulemaking . This insurance is only one of many types of established, FMCSA will keep the amounts to approximately $30,000 per insurance. public informed of any new carrier over that period. developments in this area. Summary of Regulatory Impact Analysis Executive Order 12866 (Regulatory Other comment(s): In examining the economic impact of Planning and Review) and DOT Mr. Stanley generally opposed the this rulemaking, FMCSA considered Regulatory Policies and Procedures NPRM because, he stated, FMCSA two options: (1) The Agency’s proposed The DOT and the Office of should keep the current requirements in amendments to 49 CFR part 387 that Management and Budget (OMB) do not place, and because it is impossible to would permit Canadian insurance consider this action to be a significant receive compensation from a Canadian companies to issue insurance policies regulatory action under Executive Order insurer. He did not, however, provide for Canada-domiciled carriers and 12866 (Regulatory Planning and any substantiated data or evidence to freight forwarders operating CMVs in Review) and the DOT’s Regulatory support his opposition. the U.S., and (2) maintaining the status Policies and Procedures (44 FR 11034, FMCSA Response: quo. February 26, 1979). No changes have Based on the existing practice of the Under the first option, FMCSA been made to this rule subsequent to its two nations to enter into insurance included active, Canada-domiciled, for- review by DOT and OMB, and therefore fronting arrangements, the additional hire motor carriers of property and data submitted to the docket showing passengers and freight forwarders. It is 4 The FMCSA notes that cost information used in the willingness of Canadian insurance assumed that a small proportion of its analyses was obtained from the Agency’s data companies to honor their financial Canada-domiciled motor carriers and base, Canada Finance, the American Insurance obligations and the Canadian freight forwarders will elect to continue Association, the Property Casualty Insurers government’s mandate to ensure their Association of America and publicly available with the status quo, at least in the short information. solvency, including Agency research term, and will not seek direct insurance 5 Licensing and Insurance database, at http://li- that shows Canadian courts give full representation by a Canadian insurance public.fmcsa.dot.gov, and the Motor Carrier faith and credit to U.S. judgments, company for their U.S. operations. Management Information System (MCMIS) FMCSA has no reason to believe that Those carriers and freight forwarders are database, at http://MCMIS.fmcsa.dot.gov, as of Canadian insurance companies will not February 20, 2009. assumed to be a negligible percentage of 6 The FMCSA Licensing and Insurance (L&I) be responsive to claims filed by U.S. the total affected entities and are thus system provides up-to-date information about citizens or businesses against Canada- not considered in the analysis. authorized for-hire motor carriers who must register domiciled carriers. The RIA examined the direct costs of with FMCSA under 49 U.S.C. 13901 and 13902. FMCSA utilized the L&I database as its primary In view of the preceding implementing the final rule in terms of source for its RIA because it does not include consideration of comments and administrative costs incurred by the overlapping carrier data. Under MCMIS, a motor responsive analysis, FMCSA amends its FMCSA in processing insurance filings carrier may have multiple carrier classifications and regulations regarding the minimum and in forgone revenue by U.S.-based thus may be counted more than once. The Agency did, however, use MCMIS as a source to obtain the levels of financial responsibility for insurance companies currently number of Canada-domiciled, for-hire carriers motor carriers and freight forwarders, as representing Canadian motor carriers exempt from registration under 49 U.S.C. 13901 and proposed. and freight forwarders (of which there 13902 since they are not found in the L&I database.

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it is not subject to OMB review. A final firms doing business in the United an environmental assessment or an regulatory evaluation is available in the States because, in accordance with the environmental impact statement. docket. goals of NAFTA, the rule merely The FMCSA also analyzed the final While the Agency expects a positive relieves the Canada-domiciled carriers rule under the Clean Air Act (CAA), as discounted net benefit of approximately from a disproportional cost and amended, section 176(c), (42 U.S.C. $273 million over a 10-year period, the administrative burden that was not 7401 et seq.) and implementing net benefits are for Canada-domiciled borne by their U.S. counterparts. regulations promulgated by the motor carriers. Because the benefits Environmental Protection Agency. pertain to foreign entities, they are not Unfunded Mandates Reform Act of 1995 Approval of this final action is exempt considered for the purposes of The Unfunded Mandates Reform Act from the CAA’s general conformity determining whether the rulemaking is of 1995 (UMRA) (Pub. L. 104–4; 2 U.S.C. requirement since it involves policy significant under Executive Order 1532) requires that each agency assess development and civil enforcement 12866, as amended. Therefore, the the effects of its regulatory actions on activities, such as investigations, Agency determined this action is not an State, local, and tribal governments and inspections, examinations, and the economically significant regulatory the private sector. This final rule does training of law enforcement personnel. action under section 3(f), Regulatory not impose unfunded mandates under See 40 CFR 93.153(c)(2). It will not Planning and Review, because it will UMRA. It does not result in costs of result in any emissions increase or not have an annual effect on the United $140.8 million (as adjusted by DOT result in emissions that are above the States’ economy of $100 million. Guidance, April 28, 2010, to reflect general conformity rule’s de minimis Regulatory Flexibility Act inflation) to either State, local, or tribal emission threshold levels, because the governments, or to the private sector in action merely relates to insurance The FMCSA determined that this final any one year. Therefore, FMCSA has coverage across international borders rule will not have a significant impact determined that this rule will not have between the U.S. and Canada. on a substantial number of small entities an impact of $140.8 million in any one under the Regulatory Flexibility Act (5 Environmental Justice year. U.S.C. 601–612), as amended by the The FMCSA considered the Small Business Regulatory Enforcement Paperwork Reduction Act environmental effects of this final rule and Fairness Act (RFA) (Pub. L. 104– Under the Paperwork Reduction Act in accordance with Executive Order 121). Small entities are defined in the of 1995 (44 U.S.C. 3501–3520), a Federal 12898 and DOT Order 5610.2 on Act to include small businesses, small agency must obtain approval from OMB addressing Environmental Justice for non-profit organizations, and small for each collection of information it Minority Populations and Low-Income governmental entities. This rule conducts, sponsors, or requires through Populations, published April 15, 1997 provides relief primarily to foreign regulations. This final rule contains no (62 FR 18377). The Agency has entities, which are not considered for new information collection determined that there are no the purposes of determining whether requirements or additional paperwork environmental justice issues associated the rule is significant under Executive burdens on existing OMB Control with this final rule, nor any collective Order 12866, as amended. In addition, Number 2126–0008, ‘‘Financial environmental impact resulting from its no significant adverse comments were Responsibility for Motor Carriers of promulgation. Environmental justice received from small entities during the Passengers and Motor Carriers of issues would be raised if there were NPRM comment period. Property,’’ an information collection ‘‘disproportionate’’ and ‘‘high and Federalism (Executive Order 13132) burden which is currently approved at adverse impact’’ on minority or low- income populations. Neither of the The FMCSA analyzed this final action 4,529 annual burden hours per year through March 31, 2013. regulatory alternatives considered in in accordance with the principles and this final rule will result in high and criteria contained in Executive Order National Environmental Policy Act adverse environmental impacts. 13132 (64 FR 43255, August 10, 1999), and determined that this final rule will The Agency analyzed this final rule Executive Order 12630 (Taking of not affect the States’ ability to discharge for the purpose of the National Private Property) traditional State government functions. Environmental Policy Act of 1969 The FMCSA analyzed this final rule (NEPA) (42 U.S.C. 4321 et seq.), the International Trade and Investment under Executive Order 12630, Council on Environmental Quality Governmental Actions and Interference The Trade Agreement Act of 1979 (19 Regulations Implementing NEPA (40 with Constitutionally Protected Property U.S.C. 2531–2533) prohibits Federal CFR parts 1500 to 1508), and FMCSA’s Rights, and we do not believe that this agencies from establishing standards NEPA Implementation Order 5610.1 final action will effect a taking of private that create unnecessary obstacles to the (issued on March 1, 2004, 69 FR 9680). property or otherwise have implications foreign commerce of the United States. This action is categorically excluded under the Executive Order. Legitimate domestic objectives such as from further environmental safety are not considered unnecessary documentation under Appendix 2.6.v. Executive Order 12372 obstacles. In developing rules, the Trade of Order 5610.1, which contains (Intergovernmental Review) Act requires agencies to consider categorical exclusions (CEs) for The regulations implementing international standards and, where regulations prescribing the minimum Executive Order 12372 regarding appropriate, requires that those levels of financial responsibility intergovernmental consultation on standards be the basis of U.S. standards. required to be maintained by motor Federal programs and activities do not FMCSA assessed the potential effect of carriers operating in interstate, foreign, apply to this final rule. this final rule and determined that the or intrastate commerce. In addition, expected economic impact of this rule is FMCSA believes this final action does Executive Order 13211 (Energy Supply, minimal and should not affect trade not involve circumstances that would Distribution, or Use) opportunities for U.S. firms doing affect the quality of the environment. The FMCSA analyzed this final action business in Canada or for Canadian Thus, this final action does not require under Executive Order 13211, Actions

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Concerning Regulations That and recordkeeping requirements, Surety competent jurisdiction, may be served Significantly Affect Energy Supply, bonds. in any proceeding at law or equity Distribution, or Use. The Agency brought in any State in which the carrier IV. The Final Rule determined that it is not a significant operates. ■ energy action within the meaning of For the reasons stated in the preamble, ■ section 4(b) of the Executive Order and 5. Amend § 387.409 to add paragraph FMCSA amends 49 CFR part 387 in title (d) to read as follows: will not likely have a significant adverse 49, Code of Federal Regulations, chapter effect on the supply, distribution, or use III, subchapter B, as follows: § 387.409 Insurance and surety of energy. Therefore, the Agency has companies. determined that a Statement of Energy PART 387—MINIMUM LEVELS OF * * * * * Effects is not required. FINANCIAL RESPONSIBILITY FOR (d) In the Province or Territory of MOTOR CARRIERS Executive Order 12988 (Civil Justice Canada in which a Canadian freight Reform) ■ 1. The authority citation for part 387 forwarder has its principal place of continues to read as follows: business or domicile, and will designate The FMCSA has determined that this in writing upon request by FMCSA, a final rule meets applicable standards in Authority: 49 U.S.C. 13101, 13301, 13906, person upon whom process, issued by 14701, 31138, and 31139; and 49 CFR 1.73. sections 3(a) and 3(b)(2) of Executive or under the authority of a court of Order 12988, Civil Justice Reform, to ■ 2. Amend § 387.11 to add paragraph competent jurisdiction, may be served minimize litigation, eliminate (d) to read as follows: in any proceeding at law or equity ambiguity, and reduce burden. brought in any State in which the freight § 387.11 State authority and designation of forwarder operates. Privacy Impact Assessment agent. Issued on: June 18, 2010. The FMCSA conducted a privacy * * * * * impact assessment of this final rule as (d) A Canadian insurance company Anne S. Ferro, required by section 522(a)(5) of the legally authorized to issue a policy of Administrator. Transportation, Treasury, Independent insurance in the Province or Territory of [FR Doc. 2010–16009 Filed 7–1–10; 8:45 am] Agencies, and General Government Canada in which the Canadian motor BILLING CODE 4910–EX–P Appropriations Act, 2005, Public Law carrier has its principal place of 108–447, div. H, 118 Stat. 2809, 3268, business or domicile, and that is willing (December 8, 2004) [set out as a note to to designate a person upon whom DEPARTMENT OF COMMERCE 5 U.S.C. 552a]. The assessment process, issued by or under the considered any impacts of the final rule authority of any court having National Oceanic and Atmospheric on the privacy of information in an jurisdiction over the subject matter, may Administration identifiable form and related matters. be served in any proceeding at law or FMCSA determined this final rule equity brought in any State in which the 50 CFR Part 679 contains no privacy impacts. motor carrier operates. [Docket No. 0910131363–0087–02] Executive Order 13045 (Protection of ■ 3. Amend § 387.35 to add paragraph RIN 0648–XX19 Children) (d) to read as follows: The FMCSA analyzed this final rule § 387.35 State authority and designation of Fisheries of the Exclusive Economic under Executive Order 13045, entitled agent. Zone Off Alaska; Greenland Turbot in the Aleutian Islands Subarea of the ‘‘Protection of Children from * * * * * Bering Sea and Aleutian Islands Environmental Health Risks and Safety (d) A Canadian insurance company Management Area Risks.’’ The Agency determined that this legally authorized to issue a policy of final rule will not cause any insurance in the Province or Territory of AGENCY: National Marine Fisheries environmental risk to health or safety Canada in which a Canadian motor Service (NMFS), National Oceanic and that may disproportionately affect carrier has its principal place of Atmospheric Administration (NOAA), children. business or domicile, and that is willing Commerce. Executive Order 13175 (Tribal to designate a person upon whom ACTION: Temporary rule; apportionment Consultation) process, issued by or under the of reserves; request for comments. authority of any court having The FMCSA analyzed this action jurisdiction over the subject matter, may SUMMARY: NMFS apportions amounts of under Executive Order 13175, dated be served in any proceeding at law or the non-specified reserve to the initial November 6, 2000, and determined that equity brought in any State in which the total allowable catch of Greenland this final rule will not have substantial motor carrier operates. turbot in the Aleutian Islands subarea of direct effects on one or more Indian the Bering Sea and Aleutian Islands tribes; will not impose substantial ■ 4.Amend § 387.315 to add paragraph management area (BSAI). This action is compliance costs on Indian tribal (d) to read as follows: necessary to allow fishing operations to governments; and will not preempt continue. It is intended to promote the tribal law. Therefore, a tribal summary § 387.315 Insurance and surety goals and objectives of the fishery impact statement will not be required. companies. * * * * * management plan for the BSAI. List of Subjects in 49 CFR Part 387 (d) In the Province or Territory of DATES: Effective July 1, 2010 through Buses, Freight, Freight forwarders, Canada in which a Canadian motor 2400 hrs, Alaska local time, December Hazardous materials transportation, carrier has its principal place of 31, 2010. Comments must be received at Highway safety, Insurance, business or domicile, and will designate the following address no later than 4:30 Intergovernmental relations, Motor in writing upon request by FMCSA, a p.m., Alaska local time, July 16, 2010. carriers, Motor vehicle safety, Moving of person upon whom process, issued by ADDRESSES: Send comments to Sue household goods, Penalties, Reporting or under the authority of a court of Salveson, Assistant Regional

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Administrator, Sustainable Fisheries appear at subpart H of 50 CFR part 600 opportunity for public comment Division, Alaska Region, NMFS, Attn: and 50 CFR part 679. pursuant to the authority set forth at 5 Ellen Sebastian. You may submit The 2010 initial total allowable catch U.S.C. 553(b)(B) and comments, identified by RIN 0648- (ITAC) of Greenland turbot in the § 679.20(b)(3)(iii)(A) as such a XX19, by any one of the following Aleutian Islands subarea was requirement is impracticable and methods: established as 1,615 metric tons (mt) by contrary to the public interest. This • Electronic Submissions: Submit all the final 2010 and 2011 harvest requirement is impracticable and electronic public comments via the specifications for groundfish of the contrary to the public interest as it Federal eRulemaking Portal website at BSAI (75 FR 11788, March 12, 2010). In would prevent NMFS from responding http://www.regulations.gov. accordance with § 679.20(a)(3) the to the most recent fisheries data in a • Mail: P. O. Box 21668, Juneau, AK Regional Administrator, Alaska Region, timely fashion and would delay the 99802. NMFS, has reviewed the most current apportionment of the non-specified • Fax: (907) 586–7557. • available data and finds that the ITAC reserves of groundfish to the Greenland Hand delivery to the Federal for Greenland turbot in the Aleutian turbot fishery in the Aleutian Islands Building: 709 West 9th Street, Room Islands subarea needs to be subarea. Immediate notification is 420A, Juneau, AK. supplemented from the non-specified necessary to allow for the orderly All comments received are a part of reserve in order to promote efficiency in conduct and efficient operation of this the public record and will generally be the utilization of fishery resources in the fishery, to allow the industry to plan for posted to http://www.regulations.gov BSAI and allow fishing operations to the fishing season, and to avoid without change. All Personal Identifying continue. potential disruption to the fishing fleet Information (e.g., name, address) Therefore, in accordance with voluntarily submitted by the commenter and processors. NMFS was unable to § 679.20(b)(3), NMFS apportions from may be publicly accessible. Do not publish a notice providing time for the non-specified reserve of groundfish submit Confidential Business public comment because the most 285 mt to the Greenland turbot ITAC in Information or otherwise sensitive or recent, relevant data only became the Aleutian Islands subarea. This protected information. available as of June 28, 2010. NMFS will accept anonymous apportionment is consistent with The AA also finds good cause to comments (enter N/A in the required § 679.20(b)(1)(i) and does not result in waive the 30–day delay in the effective fields, if you wish to remain overfishing of a target species because date of this action under 5 U.S.C. anonymous). Attachments to electronic the revised ITAC is equal to or less than 553(d)(3). This finding is based upon comments will be accepted in Microsoft the specifications of the acceptable the reasons provided above for waiver of Word, Excel, WordPerfect, or Adobe biological catch in the final 2010 and prior notice and opportunity for public portable document file (pdf) formats 2011 harvest specifications for comment. only. groundfish in the BSAI (75 FR 11788, March 12, 2010). Under § 679.20(b)(3)(iii), interested FOR FURTHER INFORMATION CONTACT: The harvest specification for the 2010 persons are invited to submit written Obren Davis, 907–586–7228. Greenland turbot ITAC included in the comments on this action (see SUPPLEMENTARY INFORMATION: NMFS harvest specifications for groundfish in ADDRESSES) until July 16, 2010. manages the groundfish fishery in the the BSAI is revised as follows: 1,900 mt This action is required by § 679.20 BSAI exclusive economic zone for Greenland turbot in the Aleutian and is exempt from review under according to the Fishery Management Islands subarea. Executive Order 12866. Plan for Groundfish of the Bering Sea Authority: 16 U.S.C. 1801, et seq. and Aleutian Islands Management Area Classification (FMP) prepared by the North Pacific This action responds to the best Dated: June 29, 2010. Fishery Management Council under available information recently obtained Carrie Selberg, authority of the Magnuson-Stevens from the fishery. The Assistant Acting Director, Office of Sustainable Fishery Conservation and Management Administrator for Fisheries, NOAA, Fisheries, National Marine Fisheries Service. Act. Regulations governing fishing by (AA) finds good cause to waive the [FR Doc. 2010–16196 Filed 7–1–10; 8:45 am] U.S. vessels in accordance with the FMP requirement to provide prior notice and BILLING CODE 3510–22–S

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Proposed Rules Federal Register Vol. 75, No. 127

Friday, July 2, 2010

This section of the FEDERAL REGISTER without incurring additional delay or SE., Mail Stop 10, Washington, DC contains notices to the public of the proposed expense. 20590 (telephone 202–493–6001), issuance of rules and regulations. The (2) FRA anticipates being able to [email protected]. purpose of these notices is to give interested resolve this rulemaking without a SUPPLEMENTARY INFORMATION: persons an opportunity to participate in the public, oral hearing. However, if FRA rule making prior to the adoption of the final I. General rules. receives a specific request for a public, oral hearing prior to August 31, 2010 The Association of American one will be scheduled and FRA will Railroads (AAR) submitted a petition to DEPARTMENT OF TRANSPORTATION publish a supplemental notice in the amend 49 CFR part 231 on March 28, Federal Register to inform interested 2006. The AAR petition requested that Federal Railroad Administration parties of the date, time, and location of FRA adopt new Railroad Safety any such hearing. Appliance Standards to incorporate 49 CFR Part 231 ADDRESSES: You may submit comments changes in railcar design that have identified by the docket number FRA– occurred since the safety appliance [Docket No. FRA–2008–0116] 2008–0116 by any one of the following regulations were promulgated in their RIN 2130–AB97 methods: current form. FRA proposes to act on • Fax: 1–202–493–2251; AAR’s request by amending 49 CFR part Railroad Safety Appliance Standards, • Mail: U.S. Department of 231 to add sections 231.33 and 231.35 Miscellaneous Revisions Transportation, Docket Operations, M– to the existing regulatory language. 30, West Building Ground Floor, Room These new sections will create a special AGENCY: Federal Railroad W12–140, 1200 New Jersey Avenue, SE., approval process similar to what is Administration (FRA), Department of Washington, DC 20590; found in parts 232 and 238. The Transportation (DOT). • Hand Delivery: U.S. Department of proposed special approval process will ACTION: Notice of proposed rulemaking Transportation, Docket Operations, enable the railroad industry to submit (NPRM). West Building Ground Floor, Room new rail equipment designs to FRA for W12–140, 1200 New Jersey Avenue, SE., approval with respect to the placement SUMMARY: FRA is proposing to amend Washington, DC 20590, between 9 a.m. and securement of safety appliances on the regulations related to safety and 5 p.m., Monday through Friday, appliance arrangements on rail the designs. FRA anticipates that the except Federal holidays; or proposed sections will have multiple equipment in a manner that is expected • Electronically through the Federal to promote the safe placement and benefits, including allowing for greater eRulemaking Portal. Go to http:// flexibility within the railroad industry securement of safety appliances on www.regulations.gov. Follow the online modern rail equipment by establishing a and increasing rail safety by instructions for submitting comments. incorporating modern ergonomic design process for the review and approval of Instructions: All submissions must existing industry standards. This standards and technological include the agency name, docket name advancements in construction. process will permit railroad industry and docket number or Regulatory representatives to submit requests for Identification Number (RIN) for this II. Statutory and Regulatory History the approval of existing industry rulemaking. Note that all comments The Railroad Safety Appliance standards relating to the safety received will be posted without change Standards set forth in 49 CFR part 231 appliance arrangements on newly to http://www.regulations.gov, including arose out of an extended legislative and constructed railroad cars, locomotives, any personal information provided. regulatory effort, beginning in the 19th tenders, or similar vehicles in lieu of the Please see the Privacy Act section of this century, to improve the safety of specific provisions currently contained document. railroad employees and the public. As in part 231. It is anticipated that the Docket: For access to the docket to railroads rapidly began to grow and proposed special approval process will read background documents or develop following the Civil War, it further railroad safety. It will allow FRA comments received, go to http:// became increasingly apparent that new to consider technological advancements www.regulations.gov at any time or to measures were needed to protect train and ergonomic design standards for new the U.S. Department of Transportation, service employees who were directly car construction and ensure that modern Docket Operations, M–30, West involved in the movement of trains. rail equipment complies with the Building Ground Floor, Room W12–140, Most vehicles did not have adequate applicable statutory and safety-critical 1200 New Jersey Avenue, SE., safety mechanisms and many of the regulatory requirements related to safety Washington, DC 20590, between 9 a.m. practices and procedures used by train appliances while providing the and 5 p.m., Monday through Friday, service employees were not safe. flexibility to efficiently address safety except Federal holidays. Employees regularly controlled the appliance requirements on new designs FOR FURTHER INFORMATION CONTACT: speed of (and sometimes stopped) trains in the future for railroad cars, Stephen J. Carullo, Railroad Safety by using the handbrakes. In many cases, locomotives, tenders, or similar Specialist, Office of Safety, FRA, 1200 this required train service employees to vehicles. New Jersey Avenue, SE., Washington, perch themselves on top of freight cars DATES: (1) Written comments must be DC 20590 (telephone 202–493–6480), while the cars were moving at high rates received by August 31, 2010. Comments [email protected] or Stephen N. of speed over rough track. Additionally, received after that date will be Gordon, Trial Attorney, Office of Chief use of the ‘‘link and pin’’ coupler, which considered to the extent possible Counsel, FRA, 1200 New Jersey Avenue, was the standard method for coupling

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railcars, required employees to go present day regulations found in part Another problem for modern railcar between the ends of railcars to operate 231. Indeed, although FRA supplanted designs is that part 231 defines the or adjust the coupler. These practices the ICC as the agency responsible for location of many safety appliances by and others of like type led to excessive promulgating and enforcing railroad reference to the side or end of the car. numbers of deaths and injuries among safety programs in 1966, see Department While this worked well for the car types train service employees during the of Transportation Act of 1966, 49 U.S.C. that were in existence when the ICC expansion of the railroad system 103, the general framework established issued its March 13, 1911 order, it often following the Civil War. Indeed, during by the order of March 13, 1911 is still is difficult to define exactly what parts the eight (8) years prior to the passage in existence today. on modern railcars constitute the side or of the first Safety Appliance Act in end. This results in ambiguity regarding 1893, the number of employees killed or III. FRA’s Approach to the Railroad what is the appropriate location for injured was equal to the total number of Safety Appliance Standards in This certain safety appliances, such as people employed by the railroad in a NPRM handholds and sill steps. single year. The Railroad Safety Appliance Together these factors can make The rate at which railroad employees Standards encompassed in part 231 compliance with the Railroad Safety were killed or injured during this time serve the purpose of increasing railroad Appliance Standards difficult and frame spurred efforts to increase safety by identifying the applicable inefficient when dealing with modern workplace safety in at least two areas safety appliance requirements for railcar designs. In addition the current related to appliances on railroad cars, various individual car types. See, e.g., regulations do not contemplate locomotives, tenders, and other 49 CFR 231.1, box and other house cars advancements in the design of such vehicles. New technologies such as built or placed into service before vehicles. This means the current power brakes and automatic couplers October 1, 1966. While these regulations regulations can operate to preclude the were pursued, but also there were continue to serve their purpose, FRA application of technological innovations increased calls for regulation. Between recognizes the railroad industry has and modern ergonomic design 1890 and 1892, Congress responded evolved over time. The industry has principles that would increase the safety with the introduction of seventeen (17) created and continues to create new of persons who work on and around rail bills designed to promote the safety of railcar types to satisfy the demands for equipment and use safety appliances on employees and travelers on the railroad. transporting freight as well as a regular basis. The AAR Safety Appliance Task Ultimately, the first Safety Appliance passengers on the present-day railroad. Force (Task Force) consists of Act was passed by Congress and signed Many of the modern railcar types that representatives from the Class I into law on March 2, 1893. Among other are presently being built to handle railroads, labor unions, car builders, and things, the first Safety Appliance Act railroad traffic do not fit neatly within government (FRA and Transport Canada required the use of power brakes on all any of the specific car body types participate as non-voting members), as trains engaged in interstate commerce as identified in the existing regulations well as requiring all railcars engaged in well as ergonomics experts. The Task and ambiguities sometimes arise interstate commerce to be equipped Force is developing new industry regarding the placement of safety with automatic couplers, drawbars, and standards for safety appliance appliances on these car types. handholds. In 1903, Congress passed the arrangements on new car construction. second Safety Appliance Act, which Because modern designs often cannot At this time, the Task Force has extended the requirements of the first be considered a car type that is developed a base safety appliance Act to any rail equipment operated by explicitly listed in part 231, they are standard as well as industry safety a railroad engaged in interstate typically treated as cars of special appliance standards for modern boxcars, commerce. Finally, in 1910 the third construction. See 49 CFR 231.18. The covered hopper cars, and bulkhead flat Safety Appliance Act was passed ‘‘cars of special construction’’ provision cars, which FRA expects to serve as the requiring that all vehicles be equipped does not identify specific guidelines core safety appliance criteria that can be with hand brakes, sill steps, and, where that can be used by the railroad industry used to guide the safety appliance appropriate, running boards, ladders, to assist it in the construction and arrangements on railcars that are more and roof handholds. The third Safety maintenance of the safety appliances on specialized in design. The Task Force’s Appliance Act also directed the modern railcar designs. Instead, new standards incorporate ergonomic Interstate Commerce Commission (ICC) § 231.18 directs the industry to use the design principles that increase the to designate the number, dimensions, requirements, as nearly as possible, of safety and comfort for persons working locations, and manner of application of the nearest approximate car type. on and around safety appliance the various safety appliances identified Problems arise because modern designs apparatuses. For example, the Task in the Act. are often combinations of multiple car Force standards establish minimum foot The ICC complied with this mandate types, and the design of any particular clearance guidelines for end platforms by issuing its order of March 13, 1911. car may appear to be one type or that allow for wider and stiffer sill steps The March 13, 1911 order established another depending on the position of to support a person’s weight. the initial Railroad Safety Appliance the individual viewing the car. As an The AAR petition to amend part 231 Standards. This order, as amended, example, a bulkhead flat car appears to requested that FRA adopt these new designated the number, dimensions, be a box car when viewed from the A- industry standards and amend its location, and manner of application for end or B-end of the car, but appears to regulations to recognize changes in safety appliances on box cars, hopper be a flat car when viewed from either railcar design since the safety appliance cars, gondola cars, tank cars, flat cars, side. As a result, the industry is forced regulations were promulgated in their cabooses, and locomotives. It also to use bits and pieces from multiple current form. Because the standards contained a catch-all section for ‘‘cars of sections of part 231 in an effort to submitted by AAR in connection with special construction’’ that were not ensure compliance with the Railroad its petition require some modification specifically covered in the order. In Safety Appliance Standards on before they can be approved and many ways, the March 13, 1911 order bulkhead flatcars and other modern rail adopted by FRA, FRA is not proposing continues to serve as the basis for the equipment. to incorporate the standards into part

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231 at this time. FRA prefers to utilize IV. Section-by-Section Analysis equivalent level of safety as the existing FRA standards. The public will be given the process being proposed in this Section 231.33 Procedure for Special notice of and opportunity to comment NPRM to fully evaluate and assess the Approval of Existing Industry Safety on any changes to existing regulations industry standards developed by the Appliance Standards Task Force to ensure that they are that are contained in a special approval complete and enforceable. Thus, FRA This proposed section establishes a petition before FRA acts on the petition process through which a representative proposes to act on AAR’s petition for in accordance with the Administrative of the railroad industry may petition rulemaking by establishing a special Procedure Act. See 5 U.S.C. 553(b). FRA for special approval of an existing approval process similar to that Where FRA determines that a petition industry safety appliance standard. FRA complies with the requirements of this currently contained in 49 CFR parts 232 anticipates that this special approval section and the existing industry safety and 238. process will minimize uncertainty in appliance standard provides an Existing § 232.17 allows railroads to vehicle design and maintenance by equivalent level of safety to existing adopt an alternative standard for single allowing the industry, through its AAR FRA standards, FRA may grant approval car air brake tests and use new brake Task Force, to create clear industry to the industry standard for use in new system technology where the alternative standards that identify the appropriate car construction. FRA expects that the standard or new technology is shown to safety appliance arrangements on special approval process will allow the provide at least the equivalent level of railroad cars, locomotives, tenders, or rail industry to incorporate new railcar safety. Similarly, § 238.21 allows similar vehicles. This should lessen the designs as well as technological and railroads to adopt alternative standards extensive reliance on § 231.18, cars of ergonomic advancements with greater related to passenger equipment safety in special construction, under which much speed and efficiency. of the modern rail equipment presently a wide range of areas such as Proposed paragraph (b) establishes the is built. While AAR’s petition for performance criteria for flammability process for submission of a petition for rulemaking requests that FRA adopt special approval of an existing industry and smoke emission characteristics, fuel new Railroad Safety Appliance standard for new car construction. tank design and positioning, single car Standards incorporating changes based Petitions will only be accepted from an air brake testing, and suspension system on modern railcar design, FRA expects industry representative and must design, where the alternative standards that the proposed special approval contain standard(s) that will be enforced or new technologies are demonstrated to process will better serve the goal of industry-wide. Each petition for special provide at least the equivalent level of adapting to changes in modern railcar approval must include the name, title, safety. Section 238.230 borrows the design while also facilitating address, and telephone number of the process set out in § 238.21. It allows a compliance with statutory and safety- primary person to be contacted with recognized representative of the critical regulatory requirements. regard to review of the petition. railroads to request special approval of FRA recognizes that a necessary Proposed paragraph (b)(2) sets forth industry-wide alternative standards adjunct to developing industry the minimum requirements of the relating to the safety appliance standards for new car types that would petition for special approval of an arrangements on any passenger car type otherwise fall under § 231.18 is to existing industry safety appliance considered to be a car of special update the standards for cars that are standard. The petition must identify the construction. already covered under part 231. The type(s) of car to which the standard core criteria in these standard car types would be applicable as well as the The special approval process being can then be used as guidelines for other section or sections within the safety proposed for part 231 establishes a types of cars with more specialized appliance regulations that the existing process for submitting, reviewing, and designs. It is FRA’s understanding that industry standard would act as an approving the use of new standards as the industry standards developed by the alternative to for new car construction. they are developed by the industry. It AAR Task Force include a new base The standard contained in the petition would also allow for an industry industry safety appliance standard as must, as nearly as possible, based upon representative to submit modifications well as standards for modern boxcars the design of the equipment, provide for of industry-approved safety appliance and covered hopper cars, each of which the same complement of handholds, sill standards for FRA’s review and is specifically covered in part 231. It is steps, ladders, hand or parking brakes, approval. The proposed regulation anticipated that AAR will petition running boards, and other safety closely follows the processes set forth in through the proposed special approval appliances as are required for a piece of §§ 232.17, 238.21, and 238.230. FRA process to have the industry standards equipment of the nearest approximate anticipates that the proposed for these car types approved by FRA type(s) already identified in part 231. amendment to part 231 will benefit since such standards must be approved Because the Railroad Safety railroad safety by: (1) Allowing FRA to by FRA prior to going into effect. The Appliance Standards encompassed in take into account technological use of industry standards for new car part 231 were promulgated to enforce specific statutory provisions, proposed advancements and ergonomic design construction related to these car types paragraph (b)(2) requires that the standards for new car construction, (2) will ensure consistency in the application of FRA-approved industry industry standard comply with the ensuring that modern railcar designs standards when applied to other types requirements contained at 49 U.S.C. comply with applicable statutory and of rail equipment while also serving as 20301 and 20302. The specific number, safety-critical regulatory requirements the building blocks towards recognizing dimension, location, and manner of related to safety appliances, and (3) safer, more efficient designs. application of each safety appliance also providing flexibility to efficiently The regulatory relief contemplated by must be contained in the industry address safety appliance requirements this proposed section will allow FRA to standard in the petition. Any such on new railcar and locomotive designs review existing industry safety industry standard must provide at least in the future. appliance standards created by the the equivalent level of safety as would railroad industry to ensure that the otherwise be provided under FRA’s standards will provide at least an current regulations.

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Under proposed paragraph (b)(2), the 231 in which the person has an interest. provided with 60 days from the date of industry representative submitting the FRA will post any such statement of FRA’s written notice of return for petition also must include sufficient interest that complies with the additional consideration to reply. The information through data or analysis, or regulation in the docket to ensure that petitioner’s reply must address the both, for FRA to consider in making its each statement is accessible to the item(s) identified by FRA in the written determination of whether the existing public. notice of the return of the petition for industry standard will provide the Proposed paragraph (d) provides that additional consideration as well as requisite level of safety. This would FRA will publish a notice in the Federal complying with the submission include identifying where the industry Register announcing the receipt of each requirements of § 231.33(b) and the standard deviates from the existing FRA petition for special approval an existing service requirements in § 231.33(c). If regulation and providing an explanation industry standard for new car petitioner fails to submit a response for any such deviation. Additionally, construction. within the prescribed time period, the drawings, sketches, or other visual aids Proposed paragraph (e) establishes a petition will be deemed withdrawn, that provide detailed information 60-day comment period from the date of unless good cause is shown. relating to the design, location, publication of the notice in the Federal Proposed paragraph (f)(5) provides placement, and attachment of the safety Register concerning a petition. Due to that when a petition is granted, it will appliances must be included in the the nature of the special approval go into effect on January 1st, not less petition to assist FRA in its decision process and the fact that the industry than one (1) year and not more than two making process. standards, if approved, will have an (2) years from the date of FRA’s written Finally, proposed paragraph (b)(2) industry-wide effect, FRA seeks to notice granting the petition. For requires a demonstration of the provide sufficient time for all interested example, if FRA were to approve a ergonomic suitability of the proposed parties to comment prior to making its petition on July 1, 2010, the industry arrangements in normal use. Given that decision disposing of a petition. All standard would become effective on the AAR Task Force regularly includes comments must set forth the specific January 1, 2012, for regulatory at least one ergonomic expert, FRA basis upon which the comments are enforcement purposes. This will allow expects that such factors will be made and contain a concise statement of the industry appropriate time to considered during the development the interest of the commenter in the incorporate the standard, train process of the industry standards that proceeding. employees, and fit facilities to meet the are being submitted for approval. Proposed paragraph (f) sets up the new requirements. Also, a copy of the FRA requests comments concerning process for disposing of petitions for approved industry safety appliance the information required in proposed special approval. Under this paragraph, standard will be placed in the related paragraph (b)(2). Specifically, FRA FRA may grant the petition, deny the public docket by FRA where it can be requests comments about whether the petition, or return it for additional accessed by all interested parties. information required in this paragraph consideration. Normally, FRA will act Proposed paragraph (f)(6) establishes is necessary and sufficient to allow FRA on a petition within 90 days of the close the standard for reopening a granted to make an informed decision regarding of the comment period related to the petition for special approval. A granted a petition for approval. petition; however, if the petition is petition may be re-opened only where Proposed paragraph (b)(3) requires neither granted nor denied within the there is a showing of good cause. Good that the petitioner include a statement 90-day period, then it will remain cause requires the submission of affirming that a copy of the petition has pending unless withdrawn by the subsequent evidence that was not been served on the designated labor petitioner. previously considered. The subsequent representatives of the employees Proposed paragraph (f)(3) sets forth evidence must demonstrate that a responsible for the equipment’s that a petition may be granted where granted petition fails to comply with the operation, inspection, testing, and FRA determines that the petition requirements of § 231.33; that the maintenance under part 231. The complies with the requirements of existing industry safety appliance statement must include a list of the § 231.33 and that the existing industry standard does not provide at least an names and addresses of each person safety appliance standard provides at equivalent level of safety as the served. least an equivalent level of safety to corresponding FRA regulation for the Proposed paragraph (c) sets up the existing FRA standards. Alternatively, a nearest car type; or that further service requirements for the petition for petition will be denied where FRA information is required to make such a special approval of an existing industry determines that it does not comply with determination. standard for new car construction. The the requirements of § 231.33 or that the Proposed paragraph (g) provides that petitioner is required to submit the existing industry safety appliance any industry standard approved petition to FRA’s Docket Clerk. The standard does not provide at least an pursuant to § 231.33 will be enforced petitioner is also required to serve a equivalent level of safety as the existing against any person, as defined in 49 CFR copy of the petition on the appropriate FRA standard. 209.3, who violates any provision of the labor representatives and the In instances where FRA determines approved standard or causes the organizations or bodies to which the that further information is required or violation of any such provision. Civil special approval pertains or that issued that the petition may be amended in a penalties associated with the failure to the industry standard that is proposed reasonable manner to comply with the follow an approved industry safety in the petition. The petitioner also must requirements of § 231.33 or to ensure appliance standard will be assessed serve any other person who at least 30 that the existing industry standard under part 231 by using the applicable days, but not more than 5 years prior to provides an equivalent level of safety to defect code contained in Appendix A. the filing of the petition, has filed with existing FRA standards; the petition FRA a current statement of interest in may be returned to the petitioner. In Section 231.35 Procedure for reviewing special approvals under the such circumstances, FRA will provide Modification of an Approved Industry particular requirement of part 231. Any written notice to the petitioner of the Safety Appliance Standard such statement of interest shall item(s) requiring additional This proposed section contains the reference the specific section(s) of part consideration. The petitioner is proposed procedural requirements for

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modifying industry safety appliance requested modification. If an objection impact of this proposed rule, and standards that previously have been to the requested modification is raised certifies that this proposed rule is not approved by FRA. As in proposed by either an interested party or FRA, the expected to have a significant economic § 231.33, FRA believes that notice to the requested modification will be treated impact on a substantial number of small public and an opportunity to comment as a petition for special approval of an entities. is necessary under the Administrative existing industry safety appliance Document inspection and copying Procedure Act. If the petition for standard and disposition of the petition facilities are available at the DOT modification is minor and there is no will fall under the procedures provided Central Docket Management Facility objection to the petition for in § 231.33(f). Similarly, a petition for located in Room W12–140 on the modification by FRA or any other modification that has been granted may Ground level of the West Building, 1200 interested party, the modified industry be re-opened where good cause is New Jersey Avenue, SE., Washington, safety appliance standard will shown, as discussed above. DC 20590. Docket material is also automatically become effective fifteen Proposed paragraph (g) provides that available for inspection electronically (15) days after the close of the comment any modification of an industry through the Federal eRulemaking Portal period. In those circumstances where standard approved by FRA under at http://www.regulations.gov. FRA or any other interested party § 231.35 will be enforced against any Photocopies may also be obtained by objects to the modification petition FRA person, as defined in 49 CFR 209.3, who submitting a written request to the FRA proposes disposing of the petition violates any provision of the approved Docket Clerk at the Office of Chief through the process laid out in proposed standard or causes the violation of any Counsel, RCC–10, Mail Stop 10, Federal § 231.33(f). FRA expects that using the such provision. As with § 231.33, civil Railroad Administration, 1200 New framework in proposed § 231.33(f) will penalties will be assessed using the Jersey Avenue, SE., Washington, DC allow for a more thorough review by the applicable defect code contained in 20590; please refer to Docket No. FRA– agency to ensure that the proposed appendix A to part 231. 2008–0116. modification provides at least an The U.S. Small Business equivalent level of safety as the V. Regulatory Impact Administration (SBA) stipulates in its corresponding FRA regulation for the A. Executive Order 12866 and DOT ‘‘Size Standards’’ that the largest a nearest car type(s) prior to disposing of Regulatory Policies and Procedures railroad business firm that is ‘‘for-profit’’ the petition for modification. may be, and still be classified as a Proposed paragraph (a) provides that This rule has been evaluated in ‘‘small entity,’’ is 1,500 employees for an industry representative may seek accordance with existing policies and ‘‘Line-Haul Operating Railroads,’’ and modification of an existing industry procedures. It is not considered a 500 employees for ‘‘Switching and safety appliance standard for new car significant regulatory action under Terminal Establishments.’’ ‘‘Small construction after it has been approved section 3(f) of Executive Order 12866, entity’’ is defined in the Act as a small under § 231.33. Any such petition for 58 FR 51735 (September 30, 1993), and, business that is independently owned modification must include each of the therefore, was not reviewed by the and operated, and is not dominant in its elements identified in § 231.33(b). Office of Management and Budget. This field of operation. SBA’s ‘‘Size Proposed paragraph (b) covers service rule is not significant under the Standards’’ may be altered by Federal of petitions for modification. The Regulatory Policies and Procedures of agencies after consultation with SBA procedures for service of petitions for the Department of Transportation. 44 FR and in conjunction with public modification is the same as proposed in 11034 (February 26, 1979). It merely comment. Pursuant to that authority, § 231.33(c). seeks to add an alternative method of FRA has published a final policy that Proposed paragraph (c) provides that compliance into the existing regulatory formally establishes ‘‘small entities’’ as FRA will publish a notice in the Federal requirements contained in 49 CFR part railroads which meet the line haulage Register announcing the receipt of each 231. The alternative method of revenue requirements of a Class III petition for modification received under compliance is expected to be in the form railroad. The revenue requirements are § 231.35(a). of a special approval process that will currently $20 million or less in annual Proposed paragraph (d) provides for allow FRA to accept new railcar designs operating revenue. The $20 million the same 60-day comment period as incorporating ergonomic design limit (which is adjusted by applying the proposed in § 231.33(e). standards and technological railroad revenue deflator adjustment) is Proposed paragraph (e) establishes the advancements. FRA anticipates that the based on the Surface Transportation process for FRA review of petitions for implementation of the special approval Board’s threshold for a Class III railroad modification. It is expected that FRA process in the railroad industry will carrier. FRA uses the same revenue will review the petition for modification generate a beneficial effect on the dollar limit to determine whether a during the 60-day comment period. In National economy and will not have an railroad or shipper or contractor is a instances where FRA has an objection to economically adverse impact of over small entity. the requested modification, it will $100 million per annum, as adjusted for There are approximately 700 small provide written notification to the party inflation. railroads that could be affected by the requesting the modification detailing proposed regulation. Consequently, this B. Regulatory Flexibility Determination FRA’s objection. regulation could affect a substantial Proposed paragraph (f) sets up the The Regulatory Flexibility Act of number of small entities. However, FRA procedure for FRA’s disposition of 1980, 5 U.S.C. 601 et seq., and Executive does not anticipate that this regulation petitions for modification. A Order 13272, 67 FR 53461 (August 16, would impose a significant economic modification proposed in a petition for 2002), require agency review of impact on such entities. modification will become effective proposed and final rules to assess their The proposed rule would also apply fifteen (15) days after the close of the 60- impact on small entities. Pursuant to the to governmental jurisdictions or transit day comment period if FRA does not Regulatory Flexibility Act of 1980, 5 authorities that provide commuter rail receive any comments objecting to the U.S.C. 605(b), FRA has prepared and service—none of which is small for requested modification or if FRA does placed in the docket a Certification purposes of the SBA (i.e., no entity not issue a written objection to the Statement that assesses the small entity serves a locality with a population less

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than 50,000). These entities also receive on the relationship between the national respect to railroad security matters), Federal transportation funds. Intercity government and the States, or on the except when the State law, regulation, rail service providers Amtrak and the distribution of power and or order qualifies under the ‘‘local safety Alaska Railroad Corporation would also responsibilities among the various or security hazard’’ exception to section be subject to this rule, but they are not levels of government.’’ Under Executive 20106. Moreover, the former SAA has small entities and likewise receive Order 13132, the agency may not issue been interpreted by the Supreme Court Federal transportation funds. a regulation with federalism as totally preempting the field ‘‘of The proposed rule, if promulgated, implications that imposes substantial equipping cars with appliances will not have a significant economic direct compliance costs and that is not intended for the protection of impact on a substantial number of small required by statute, unless the Federal employees.’’ See Southern Ry. Co. v. entities, as there are no direct costs to government provides the funds R.R. Commission of Indiana, 236 U.S. small entities. Small entities will not be necessary to pay the direct compliance 439, 446, 35 S.Ct. 304, 305 (1915). responsible for preparing the petitions costs incurred by State and local In sum, FRA has analyzed this for special approval. Furthermore, FRA governments, the agency consults with proposed rule in accordance with the does not believe there will not be any State and local governments, or the principles and criteria contained in significant costs to implementing any agency consults with State and local Executive Order 13132. As explained approved industry standard as any such government officials early in the process above, FRA has determined that this standard will likely be a repositioning of of developing the regulation. Where a proposed rule has no federalism existing safety appliances and will only regulation has federalism implications implications, other than the possible be applicable to newly manufactured and preempts State law, the agency preemption of State laws under the units. FRA believes that these seeks to consult with State and local former FRSA and the former SAA. construction costs, if any, will be officials in the process of developing the Accordingly, FRA has determined that negligible. Moreover, few small entities regulation. preparation of a federalism summary purchase newly manufactured This NPRM has been analyzed in impact statement for this proposed rule equipment; generally, these operators accordance with the principles and is not required. acquire used equipment from larger criteria contained in Executive Order D. International Trade Impact railroads. Accordingly, FRA does not 13132. This proposed rule would not Assessment consider this impact of this proposal to have a substantial effect on the States or be significant for small entities. their political subdivisions; it would not The Trade Agreement Act of 1979, FRA invites comments from all impose any compliance costs; and it Public Law 96–39 (July 26, 1979), interested parties on this Certification. would not affect the relationships prohibits Federal agencies from FRA particularly encourages small between the Federal government and engaging in any standards or related entities that could potentially be the States or their political subdivisions, activities that create unnecessary impacted by the proposed amendment or the distribution of power and obstacles to the foreign commerce of the to participate in the public comment responsibilities among the various United States. Legitimate domestic process by submitting comments on this levels of government. Therefore, the objectives, such as safety, are not assessment or this rulemaking to the consultation and funding requirements considered unnecessary obstacles. The official U.S. Department of of Executive Order 13132 do not apply. statute also requires consideration of Transportation (DOT) docket. A draft of However, this proposed rule could international standards and where the proposed rule has not been have preemptive effect by operation of appropriate, that they be the basis for submitted to the Small Business law under certain provisions of the U.S. standards. This rulemaking is Administration (SBA) for formal review. Federal railroad safety statutes, purely domestic in nature and is not However, FRA will consider any specifically the former Federal Railroad expected to affect trade opportunities comments submitted by the SBA in Safety Act of 1970 (former FRSA), for U.S. firms doing business overseas or developing the final rule. repealed and recodified at 49 U.S.C. for foreign firms doing business in the 20106, and the former Safety Appliance United States. C. Federalism Acts (former SAA), repealed and Executive Order 13132, 64 FR 43255 recodified at 49 U.S.C. 20301–20304, E. Paperwork Reduction Act (August 10, 1999), requires FRA to 20306. See Public Law 103–272 (July 5, The information collection develop an accountable process to 1994). The former FRSA provides that requirements in this proposed rule have ensure ‘‘meaningful and timely input by States may not adopt or continue in been submitted for approval to the State and local officials in the effect any law, regulation, or order Office of Management and Budget development of regulatory policies that related to railroad safety or security that (OMB) under the Paperwork Reduction have federalism implications.’’ ‘‘Policies covers the subject matter of a regulation Act of 1995, 44 U.S.C. 3501 et seq. The that have federalism implications’’ are prescribed or order issued by the sections that contain the new defined in the Executive Order to Secretary of Transportation (with information collection requirements, include regulations that have respect to railroad safety matters) or the and the estimated time to fulfill each ‘‘substantial direct effects on the States, Secretary of Homeland Security (with requirement are as follows:

Total annual CFR section Respondent universe Total annual responses Average time per burden response hours

231.33—Special Approval Petitions of an Existing AAR ...... 5 petitions ...... 160 hours ...... 800 Industry Safety Appliance Standard for New Car Construction. —Statement Affirming Copy of Special Approval AAR ...... 5 statements ...... 30 minutes ...... 3 Petition Has Been Served on RR Employee Representatives.

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Total annual CFR section Respondent universe Total annual responses Average time per burden response hours

—Special Approval Petition Copies to RR Em- AAR ...... 565 copies ...... 2 hours ...... 1,130 ployee Representative/Other Parties. —Statements of Interest to FRA ...... 5 Labor Groups/Public .. 15 statements ...... 7 hours ...... 105 —Comments on Special Approval Petitions ...... 728 Railroads/5 Labor 25 comments ...... 6 hours ...... 150 Groups/Public. —Disposition of Petitions: Hearings ...... AAR/5 Labor Groups/ 1 hearing ...... 8 hours ...... 8 Public. —Disposition of Petitions: Further Information AAR ...... 1 document ...... 3 hours ...... 3 Needed. 231.35—Petitions for Modification of an Ap- AAR ...... 5 petitions ...... 160 hours ...... 800 proved Existing Industry Safety Appliance Standard for New Car Construction. —Statement Affirming Copy of Modification Peti- AAR ...... 5 statements ...... 30 minutes ...... 3 tion Has Been Served on RR Employee Rep- resentatives. —Modification Petition Copies to RR Employee AAR ...... 565 copies ...... 2 hours ...... 1,130 Representative/Other Parties. —Statements of Interest to FRA ...... 5 Labor Groups/Public .. 15 statements ...... 7 hours ...... 105 —Comments on Modification Approval Petitions 728 Railroads/5 Labor 25 comments ...... 6 hours ...... 150 Groups/Public. —Disposition of Petitions: Further Information AAR ...... 1 document ...... 3 hours ...... 3 Needed.

All estimates include the time for OMB is required to make a decision designees) of State, local, and tribal reviewing instructions; searching concerning the collection of information governments on a ‘‘significant existing data sources; gathering or requirements contained in this proposed intergovernmental mandate.’’ A maintaining the needed data; and rule between 30 and 60 days after ‘‘significant intergovernmental mandate’’ reviewing the information. publication of this document in the under the Act is any provision in a Pursuant to 44 U.S.C. 3506(c)(2)(B), Federal Register. Therefore, a comment Federal agency regulation that would FRA solicits comments concerning: to OMB is best assured of having its full impose an enforceable duty upon State, whether these information collection effect if OMB receives it within 30 days local, and tribal governments in the requirements are necessary for the of publication. The final rule will aggregate of $100 million (adjusted proper performance of the functions of respond to any OMB or public annually for inflation) (currently $140.8 FRA, including whether the information comments on the information collection million) in any one year. Section 203 of has practical utility; the accuracy of requirements contained in this proposal. the Act, 2 U.S.C. 1533, which FRA’s estimates of the burden of the FRA is not authorized to impose a supplements section 204(a), provides information collection requirements; the penalty on persons for violating that, before establishing any regulatory quality, utility, and clarity of the information collection requirements requirements that might significantly or information to be collected; and which do not display a current OMB uniquely affect small governments, the whether the burden of collection of control number, if required. FRA agency shall have developed a plan, information on those who are to intends to obtain current OMB control which, among other things, must respond, including through the use of numbers for any new information provide for notice to potentially affected automated collection techniques or collection requirements resulting from small governments, if any, and for a other forms of information technology, this rulemaking action prior to the meaningful and timely opportunity for may be minimized. effective date of the final rule. The OMB these small governments to provide control number, when assigned, will be input in the development of regulatory For information or a copy of the announced by separate notice in the proposals. The proposed amendment paperwork package submitted to OMB, Federal Register. does not contain any Federal contact Mr. Robert Brogan, FRA Office intergovernmental or private sector of Safety, Information Clearance Officer, F. Compliance With the Unfunded Mandates Reform Act of 1995 mandates. Therefore, the requirements at 202–493–6292, or Ms. Kimberly of Title II of the Unfunded Mandates Toone, FRA Office of Administration, Pursuant to Section 201 of the Reform Act of 1995 do not apply. Information Clearance Officer, at 202– Unfunded Mandates Reform Act of 493–6132. 1995, Public Law 104–4 (March 22, G. Environmental Assessment Organizations and individuals 1995), 2 U.S.C. 1531, each Federal FRA has evaluated this proposed rule desiring to submit comments on the agency ‘‘shall, unless otherwise in accordance with its ‘‘Procedures for collection of information requirements prohibited by law, assess the effects of Considering Environmental Impacts’’ should direct them to Mr. Robert Brogan Federal regulatory actions on State, (FRA’s Procedures), 64 FR 28545 (May or Ms. Kimberly Toone, Federal local, and tribal governments, and the 26, 1999), as required by the National Railroad Administration, 1200 New private sector (other than to the extent Environmental Policy Act, 42 U.S.C. Jersey Avenue, SE., 3rd Floor, that such regulations incorporate 4321 et seq., other environmental Washington, DC 20590. Comments may requirements specifically set forth in statutes, Executive Orders, and related also be submitted via e-mail to Mr. law).’’ Section 204(a) of the Act, 2 U.S.C. regulatory requirements. FRA has Brogan or Ms. Toone at the following 1534(a), requires the Federal agency to determined that this proposed rule is addresses: [email protected]; develop an effective process to permit not a major FRA action (requiring the [email protected]. timely input by elected officers (or their preparation of an environmental impact

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statement or environmental assessment) comments received into any agency ladders, hand or parking brakes, because it is categorically excluded from docket by the name of the individual running boards, and other safety detailed environmental review pursuant submitting the comment (or signing the appliances as are required for a piece of to section 4(c)(20) of FRA’s Procedures. comment, if submitted on behalf of an equipment of the nearest approximate See 64 FR 28547 (May 26, 1999). association, business, labor union, etc.). type(s) already identified in this part; Section 4(c)(20) reads as follows: You may review DOT’s complete (iii) Complies with all statutory (c) Actions categorically excluded. Certain Privacy Act Statement in the Federal requirements relating to safety classes of FRA actions have been determined Register published on April 11, 2000, 65 appliances contained at 49 U.S.C. 20301 to be categorically excluded from the FR 19477–78, or you may visit http:// and 20302; requirements of these Procedures as they do www.regulations.gov/search/footer/ (iv) Addresses the specific number, not individually or cumulatively have a privacyanduse.jsp. dimension, location, and manner of significant effect on the human environment. application of each safety appliance * * * * * List of Subjects in 49 CFR Part 231 contained in the industry standard; The following classes of FRA actions are Penalties, Railroad safety, Railroad (v) Provides appropriate data or categorically excluded: safety appliances, Special approval analysis, or both, for FRA to consider in * * * * * process. determining whether the existing (20) Promulgation of railroad safety rules industry standard will provide at least and policy statements that do not result in Proposed Rule an equivalent level of safety; significantly increased emissions or air or For the reasons discussed in the (vi) Includes drawings, sketches, or water pollutants or noise or increased traffic preamble, FRA proposes to amend part other visual aids that provide detailed congestion in any mode of transportation. 231 of subtitle B, chapter II of title 49 information relating to the design, In accordance with section 4(c) and of the Code of Federal Regulations as location, placement, and attachment of (e) of FRA’s Procedures, the agency has follows: the safety appliances; and further concluded that no extraordinary (vii) Demonstrates the ergonomic circumstances exist with respect to this PART 231—[AMENDED] suitability of the proposed arrangements regulation that might trigger the need for in normal use. a more detailed environmental review. 1. The authority citation for part 231 (3) A statement affirming that the As a result, FRA finds that this continues to read as follows: petitioner has served a copy of the proposed rule is not a major Federal Authority: 49 U.S.C. 20102–20103, 20107, petition on designated representatives of action significantly affecting the quality 20131, 20301–20303, 21301–21302, 21304; the employees responsible for the of the human environment. 28 U.S.C. 2461, note; and 49 CFR 1.49. equipment’s operation, inspection, testing, and maintenance under this H. Energy Impact 2. Add §§ 231.33 and 231.35 to read as follows: part, together with a list of the names Executive Order 13211 requires and addresses of the persons served. Federal agencies to prepare a Statement § 231.33 Procedure for special approval of (c) Service. of Energy Effects for any ‘‘significant existing industry safety appliance (1) Each petition for special approval energy action.’’ 66 FR 28355 (May 22, standards. under paragraph (b) of this section shall 2001). Under the Executive Order, a (a) General. The following procedures be submitted to the FRA Docket Clerk, ‘‘significant energy action’’ is defined as govern the submission, consideration West Building Third Floor, Office of any action by an agency (normally and handling of any petition for special Chief Counsel, 1200 New Jersey published in the Federal Register) that approval of an existing industry safety Avenue, SE., Washington, DC 20590. promulgates or is expected to lead to the appliance standard for new construction (2) Service of each petition for special promulgation of a final rule or of railroad cars, locomotives, tenders, or approval of an existing industry safety regulation, including notices of inquiry, similar vehicles. appliance standard under paragraph (b) advance notices of proposed (b) Submission. An industry of this section shall be made on the rulemaking, and notices of proposed representative may submit a petition for following: rulemaking: (1)(i) That is a significant special approval of an existing industry (i) Designated representatives of the regulatory action under Executive Order safety appliance standard for new employees responsible for the 12866 or any successor order, and (ii) is construction. A petition for special equipment’s operation, inspection, likely to have a significant adverse effect approval of an industry standard for testing, and maintenance under this on the supply, distribution, or use of safety appliances shall include the part; energy; or (2) that is designated by the following: (ii) Any organizations or bodies that Administrator of the Office of (1) The name, title, address, and either issued the standard to which the Information and Regulatory Affairs as a telephone number of the primary special approval pertains or issued the significant energy action. FRA has individual to be contacted with regard industry standard that is proposed in evaluated this NPRM in accordance to review of the petition. the petition; and with Executive Order 13211. FRA has (2) An existing industry-wide (iii) Any other person who has filed determined that this NPRM is not likely standard that, at a minimum: with FRA a current statement of interest to have a significant adverse effect on (i) Identifies the type(s) of equipment in reviewing special approvals under the supply, distribution, or use of to which the standard would be the particular requirement of this part at energy. Consequently, FRA has applicable and the section or sections least 30 days but not more than 5 years determined that this NPRM is not a within the safety appliance regulations prior to the filing of the petition. If filed, ‘‘significant energy action’’ within the that the existing industry standard a statement of interest shall be filed meaning of Executive Order 13211. would operate as an alternative to for with the FRA Docket Clerk, West new car construction; Building Third Floor, Office of Chief I. Privacy Act (ii) Ensures, as nearly as possible, Counsel, 1200 New Jersey Avenue, SE., FRA wishes to inform all potential based upon the design of the equipment, Washington, DC 20590, and shall commenters that anyone is able to that the standard provides for the same reference the specific section(s) of this search the electronic form of all complement of handholds, sill steps, part in which the person has an interest.

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A statement of interest that properly standard provides at least an equivalent (g) Enforcement. Any industry references the specific section(s) in level of safety as the existing FRA standard approved pursuant to this which the person has an interest will be standards; section will be enforced against any posted in the docket to ensure that each (ii) Denied where it is determined that person, as defined at 49 CFR 209.3, who statement is accessible to the public. the petition does not comply with the violates any provision of the approved (d) Federal Register notice. FRA will requirements of this section or that the standard or causes the violation of any publish a notice in the Federal Register existing industry safety appliance such provision. Civil penalties will be announcing the receipt of each petition standard does not provide at least an assessed under this part by using the received under paragraph (b) of this equivalent level of safety as the existing applicable defect code contained in section. The notice will identify the FRA standards; or appendix A to this part. public docket number in the Federal (iii) Returned to the petitioner for eRulemaking Portal (FeP) where the additional consideration where it is § 231.35 Procedure for modification of an contents of each petition can be determined that further information is approved industry safety appliance standard for new car construction. accessed and reviewed. The FeP can be required or that the petition may be accessed 24 hours a day, seven days a amended in a reasonable manner to (a) Petitions for modification of an week, via the Internet at the docket’s comply with the requirements of this approved industry safety appliance Web site at http://www.regulations.gov. section or to ensure that the existing standard. An industry representative All documents in the FeP are available industry standard provides at least an may seek modification of an existing for inspection and copying on the equivalent level of safety as the existing industry safety appliance standard for website or are available for examination FRA standards. Where the petition is new construction of railroad cars, at the DOT Docket Management Facility, returned to the petitioner, FRA will locomotives, tenders, or similar vehicles West Building Ground Floor, Room provide written notice to the petitioner after the petition for special approval W12–140, 1200 New Jersey Avenue, SE., of the item(s) identified by FRA as has been approved pursuant to § 231.33. Washington, DC 20590, during regular requiring additional consideration. The petition for modification shall business hours (9 a.m.-5 p.m.). Petitioner shall reply within 60 days include each of the elements identified (e) Comment. Not later than 60 days from the date of FRA’s written notice of in § 231.33(b). from the date of publication of the return for additional consideration or (b) Service. notice in the Federal Register the petition will be deemed withdrawn, (1) Each petition for modification of concerning a petition received pursuant unless good cause is shown. Petitioner’s an approved industry standard under to paragraph (b) of this section, any reply shall: paragraph (a) of this section shall be person may comment on the petition. (A) Address the item(s) raised by FRA submitted to the FRA Docket Clerk, Any such comment shall: in the written notice of the return of the West Building Third Floor, Office of (1) Set forth specifically the basis petition for additional consideration; Chief Counsel, 1200 New Jersey upon which it is made and contain a (B) Comply with the submission Avenue, SE., Washington, DC 20590. concise statement of the interest of the requirements of paragraph (b) of this (2) Service of each petition for commenter in the proceeding; and section; and modification of an existing industry (2) Be submitted by mail or hand- (C) Comply with the service safety appliance standard under delivery to the Docket Clerk, DOT requirements in paragraph (c) of this paragraph (a) of this section shall be Docket Management Facility, West section. made on the following: Building Ground Floor, Room W12–140, (4) When FRA grants or denies a (i) Designated representatives of the 1200 New Jersey Avenue, SE., petition, or returns a petition for employees responsible for the Washington, DC 20590, or electronically additional consideration, written notice equipment’s operation, inspection, via the Internet at http:// will be sent to the petitioner and other testing, and maintenance under this www.regulations.gov. Any comments or interested parties. part; information sent directly to FRA will be (5) If a petition is granted, it shall go (ii) Any organizations or bodies that immediately provided to the DOT FeP into effect on January 1st, not less than either issued the standard incorporated for inclusion in the public docket one (1) year and not more than two (2) in the section(s) of the rule to which the related to the petition. All comments years from the date of FRA’s written modification pertains or issued the should identify the appropriate docket notice granting the petition. FRA will industry standard that is proposed in number for the petition to which they place a copy of the approved industry the petition for modification; and are commenting. safety appliance standard in the related (iii) Any other person who has filed (f) Disposition of petitions. public docket where it can be accessed with FRA a current statement of interest (1) FRA will conduct a hearing on a by all interested parties. in reviewing special approvals under petition in accordance with the (6) A petition, once approved, may be the particular requirement of this part at procedures provided in § 211.25 of this re-opened upon good cause shown. least 30 days but not more than 5 years chapter, if necessary. Good cause exists where subsequent prior to the filing of the petition. If filed, (2) FRA will normally act on a evidence demonstrates that an approved a statement of interest shall be filed petition within 90 days of the close of petition does not comply with the with FRA’s Associate Administrator for the comment period related to the requirements of this section; that the Safety and shall reference the specific petition. If the petition is neither existing industry safety appliance section(s) of this part in which the granted nor denied within that standard does not provide at least an person has an interest. timeframe, the petition will remain equivalent level of safety as the (c) Federal Register document. Upon pending unless withdrawn by the corresponding FRA regulation for the receipt of a petition for modification, petitioner. nearest car type(s); or that further FRA will publish a notice in the Federal (3) A petition may be: information is required to make such a Register announcing the receipt of each (i) Granted where it is determined that determination. When a petition is re- petition received under paragraph (a) of the petition complies with the opened for good cause shown, it shall this section. The notice will identify the requirements of this section and that the return to pending status and shall not be public docket number in the Federal existing industry safety appliance considered approved or denied. eRulemaking Portal (FeP) where the

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contents of each petition can be (3) A petition for modification, once revisions to one subunit, and the accessed and reviewed. The FeP can be approved, may be re-opened upon good amended Required Determinations accessed 24 hours a day, seven days a cause shown. Good cause exists where section of the preamble. We are also week, via the Internet at the docket’s subsequent evidence demonstrates that announcing the location and time of a Web site at http://www.regulations.gov. an approved petition does not comply public hearing to receive public All documents in the FeP are available with the requirements of this section; comments on the proposal. If you for inspection and copying on the Web that the existing industry safety submitted comments previously, you do site or are available for examination at appliance standard does not provide at not need to resubmit them because we the DOT Docket Management Facility, least an equivalent level of safety as the have already incorporated them into the West Building Ground Floor, Room corresponding FRA regulation for the public record and will fully consider W12–140, 1200 New Jersey Avenue, SE., nearest car type(s); or that further them in preparation of the final rule. Washington, DC 20590, during regular information is required to make such a DATES: Written comments: You may business hours (9 a.m.–5 p.m.). determination. When a petition is re- submit comments by one of the (d) Comment. Not later than 60 days opened for good cause shown, it shall following methods: We will consider from the date of publication of the return to pending status and shall not be comments that we receive on or before notice in the Federal Register considered approved or denied. August 2, 2010. concerning a petition for modification (g) Enforcement. Any modification of Public hearing: We will hold a public under paragraph (a) of this section, any an industry standard approved pursuant hearing on this proposed rule on July person may comment on the petition. to this section will be enforced against 21, 2010, from 1 p.m. to 3 p.m. and from Any such comment shall: any person, as defined at 49 CFR 209.3, 6 p.m. to 8 p.m. (1) Set forth specifically the basis who violates any provision of the ADDRESSES: Written comments: You may upon which it is made, and contain a approved standard or causes the submit comments by one of the concise statement of the interest of the violation of any such provision. Civil following methods: commenter in the proceeding; and penalties will be assessed under this • Federal eRulemaking Portal: http:// (2) Be submitted by mail or hand- part by using the applicable defect code www.regulations.gov. Follow the delivery to the Docket Clerk, DOT contained in appendix A to this part. instructions for submitting comments to Docket Management Facility, West Issued in Washington, DC, on June 29, Docket No. FWS-R8-ES-2009-0072. Building Ground Floor, Room W12–140, 2010. • U.S. mail or hand-delivery: Public 1200 New Jersey Avenue, SE., Joseph C. Szabo, Comments Processing, Attn: FWS-R8- Washington, DC 20590, or electronically Administrator, Federal Railroad ES-2009-0072; Division of Policy and via the Internet at http:// Administration. Directives Management; U.S. Fish and www.regulations.gov. Any comments or [FR Doc. 2010–16153 Filed 7–1–10; 8:45 am] Wildlife Service; 4401 N. Fairfax Drive, information sent directly to FRA will be BILLING CODE 4910–06–P Suite 222; Arlington, VA 22203. immediately provided to the DOT FeP Public hearing: We will hold a public for inclusion in the public docket hearing at Ayres Suites Corona West, related to the petition. All comments DEPARTMENT OF THE INTERIOR 1900 W Frontage Road, Corona, CA should identify the appropriate docket 92882. number for the petition to which they Fish and Wildlife Service We will post all comments on http:// are commenting. www.regulations.gov. This generally (e) FRA Review. During the 60 days 50 CFR Part 17 means that we will post any personal provided for public comment, FRA will information you provide us (see the review the petition. If FRA objects to the [Docket No. FWS–R8–ES–2009–0072] Public Comments section below for [92210–1117–0000–B4] requested modification, written more information). notification will be provided within this RIN 1018–AW23 FOR FURTHER INFORMATION CONTACT: Jim 60-day period to the party requesting Bartel, Field Supervisor, U.S. Fish and the modification detailing FRA’s Endangered and Threatened Wildlife Wildlife Service, Carlsbad Fish and objection. and Plants; Revised Critical Habitat for Wildlife Office, 6010 Hidden Valley (f) Disposition of petitions for Santa Ana Sucker Road, Suite 101, Carlsbad, CA 92011; modification. AGENCY: Fish and Wildlife Service, telephone (760) 431–9440; facsimile (1) If no comment objecting to the Interior. (760) 431–5901. If you use a requested modification is received ACTION: Proposed rule; reopening of telecommunications device for the deaf during the 60-day comment period, comment period. (TDD) you may call the Federal provided by paragraph (d) of this Information Relay Service (FIRS) at section, or if FRA does not issue a SUMMARY: We, the U.S. Fish and (800) 877–8339. written objection to the requested Wildlife Service, are reopening the SUPPLEMENTARY INFORMATION: modification, the modification will comment period on our December 9, become effective fifteen (15) days after 2009, proposed revised designation of Public Comments the close of the 60-day comment period. critical habitat for Santa Ana sucker We intend that any final action (2) If an objection is raised by an (Catostomus santaanae) under the resulting from the proposed rule will be interested party, during the 60-day Endangered Species Act of 1973, as based on the best scientific data comment period, or if FRA issues a amended (Act). We are reopening the available and will be as accurate and written objection to the requested comment period for an additional 30 effective as possible. Therefore, we modification, the requested days to allow all interested parties an request comments or information from modification will be treated as a petition opportunity to comment simultaneously other concerned government agencies, for special approval of an existing on the proposed revised critical habitat the scientific community, industry, and industry safety appliance standard and designation, the draft economic analysis other interested parties during this handled in accordance with the (DEA) associated with the proposed reopened comment period on the procedures provided in § 231.33(f). critical habitat designation, proposed proposed rule to revise critical habitat

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for Santa Ana sucker that was published Santa Ana sucker to augment the Santa 4(b)(2) of the Act based on the benefits in the Federal Register on December 9, Ana sucker population in the Santa Ana to the species provided by 2009 (74 FR 65056), including the DEA River. See Critical Habitat Units section implementation of the Western of the proposed revised critical habitat of the revised proposed rule (74 FR Riverside County Multiple Species designation, the changes to proposed 65056), for further discussion. Habitat Conservation Plan and Santa critical habitat in Subunit 1A, the (6) Specific information on Santa Ana Ana Sucker Conservation Program and, considered exclusion of critical habitat sucker, habitat conditions, and the whether the benefits of exclusion of in Subunits 1B and 1C, and the presence of physical and biological these areas outweigh the benefits of amended required determinations features essential to the conservation of including this area as critical habitat, section provided in this document. We the species in Subunit 1B below Prado and why. See Additional Areas are particularly interested in comments Dam. Currently Considered for Exclusion concerning: (7) Specific information on the Under Section 4(b)(2) of the Act section (1) The reasons we should or should sediment contribution from tributaries below and Exclusions section of the not revise the designation of habitat as to the Santa Ana River below Prado December 9, 2009, revised proposed ‘‘critical habitat’’ for Santa Ana sucker Dam (Subunit 1B). rule (74 FR 65056) for further under section 4 of the Endangered (8) Specific information on the Santa discussion. Species Act of 1973, as amended (Act; Ana sucker, habitat conditions, and the (15) Specific conservation that has 16 U.S.C. 1531 et seq.), including presence of potential permanent barriers been achieved for Santa Ana sucker or whether the benefit of designation to movement in Big Tujunga Wash its habitat as a result of the Santa Ana would outweigh any threats to the (Subunit 3A), particularly between the Sucker Conservation Program, Western species caused by the designation, such Big Tujunga Canyon Road Bridge and Riverside County Multiple Species that the designation of critical habitat is the Big Tujunga Dam. See Critical Habitat Conservation Plan, or other prudent. Habitat Units section of the December 9, conservation or management programs (2) Specific information on: 2009, revised proposed rule ((74 FR within proposed revised critical habitat. • Areas that provide habitat for Santa 65056), for further discussion. (16) Information on any quantifiable Ana sucker that we did not discuss (9) Land-use designations and current economic costs or benefits of the in the proposed revised critical or planned activities in the areas proposed revised designation of critical habitat rule; proposed as critical habitat, as well as habitat. • Areas within the geographical area their possible effects on the proposed (17) Information on the extent to occupied by the species at the time critical habitat. which the description of potential of listing that contain the physical (10) Information that may assist us in economic impacts in the DEA is and biological features essential to identifying or clarifying the PCEs. See complete and accurate. the conservation of the species the Primary Constituent Elements (18) Whether our approach to which may require special (PCEs) section of the revised proposed designating critical habitat could be management considerations or rule (74 FR 65056), for further improved or modified in any way to protection, that we should include discussion. provide an opportunity for greater in the revised designation and (11) Specific information on instream public participation and understanding, reason(s) why (see the Physical and gradient (slope) limitations of the or to assist us in accommodating public Biological Features section of the species. In the proposed rule, we concerns and comments. revised proposed rule published assume that Santa Ana suckers are If you submitted comments or December 9, 2009 (74 FR 65056), for unable to occupy stream sections where information on the proposed rule (74 FR further discussion); the instream slope exceeds 7 degrees. 65056) during the initial comment • Areas outside the geographical area See the PCEs section of the December 9, period from December 9, 2009, to occupied by the species at the time 2009, proposed rule (74 FR 65056), for February 8, 2010, please do not of listing that are essential for the further discussion. resubmit them. These comments are conservation of the species and (12) Any probable economic, national included in the public record for this why; and security, or other impacts of designating rulemaking, and we will fully consider • Special management considerations or particular areas as critical habitat, and, them in the preparation of our final protections that may be required for in particular, any impacts on small determination. Our final determination the features essential to the entities (e.g., small businesses or small concerning the revised critical habitat conservation of the Santa Ana governments), and the benefits of for Santa Ana sucker will take into Sucker identified in the proposed including or excluding areas that exhibit consideration all written comments and revised rule, including managing these impacts. any additional information we receive for the potential effects of climate (13) Whether any specific areas being during both comment periods. On the change. proposed as critical habitat should be basis of public comments, we may, (3) Information on the projected and excluded under section 4(b)(2) of the during the development of our final reasonably likely impacts of climate Act, and whether the benefits of determination, find that areas within the change on this species and the critical potentially excluding any particular proposed revised critical habitat habitat areas we are proposing. area outweigh the benefits of including designation do not meet the definition (4) How the proposed revised critical that area under section 4(b)(2) of the of critical habitat, that some habitat boundaries could be refined to Act. See the Exclusions section of the modifications to the described more closely circumscribe the areas December 9, 2009, the revised proposed boundaries are appropriate, or that areas identified as containing the features rule (74 FR 65056), and the Additional may or may not be appropriate for essential to the species’ conservation. Areas Currently Considered for exclusion under section 4(b)(2) of the (5) Specific information on our Exclusion Under Section 4(b)(2) of the Act. proposed designation of City Creek, Act section of this document for further You may submit your comments and Plunge Creek, and the Santa Ana River discussion. materials concerning our proposed above Seven Oaks Dam to provide (14) The potential exclusion of revised rule, the associated DEA, and habitat for future reintroduction of Subunits 1B and 1C under section our amended required determinations

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by one of the methods listed in the January 4, 2005 (70 FR 426); taking into consideration the economic ADDRESSES section. respectively; and the second proposed impact, impact on national security, or If you submit a comment via http:// revision of critical habitat for Santa Ana any other relevant impact of specifying www.regulations.gov, your entire sucker published in the Federal any particular area as critical habitat. submission—including any personal Register on December 9, 2009 (74 FR We prepared a DEA (Industrial identifying information—will be posted 65056), or the Carlsbad Fish and Economics, Inc. (IEC) 2010) that on the website. If your submission is Wildlife Office (see the FOR FURTHER identifies and analyzes the potential made via a hard copy that includes INFORMATION CONTACT section). impacts associated with the proposed personal identifying information, you California Trout, Inc., et al. filed suit revised critical habitat designation for may request at the top of your document against the Service on November 15, Santa Ana sucker published in the that we withhold this information from 2007, alleging that the January 4, 2005, Federal Register on December 9, 2009 public review. However, we cannot final designation of critical habitat (74 FR 65056). The DEA looks guarantee that we will be able to do so. violated provisions of the Act and retrospectively at costs incurred since We will post all hard copy comments on Administrative Procedure Act the April 12, 2000 (65 FR 19686), listing http://www.regulations.gov. Please [(California Trout, Inc., et al., v. United of Santa Ana sucker as a threatened include sufficient information with your States Fish and Wildlife, et al., Case No. species. The DEA quantifies the comments to allow us to verify any 07–CV–05798 (N.D. Cal.) transferred economic impacts of all potential scientific or commercial information Case No. CV 08-4811 (C.D. Cal.)]. The conservation efforts for Santa Ana you include. plaintiffs alleged that our January 4, sucker. However, some of these costs Comments and materials we receive, 2005, revised critical habitat designation will likely be incurred regardless of as well as supporting documentation we for Santa Ana sucker was insufficient whether or not we finalize the revised used to prepare this notice, will be for various reasons and should include critical habitat. The economic impact of available for public inspection at http:// the Santa Clara River population. We the proposed revised critical habitat www.regulations.gov, or by entered into a stipulated settlement designation is analyzed by comparing appointment, during normal business agreement with plaintiffs that was scenarios both ‘‘with critical habitat’’ hours, at the U.S. Fish and Wildlife approved by the District Court on and ‘‘without critical habitat.’’ The Service’s Carlsbad Fish and Wildlife January 21, 2009. Pursuant to the ‘‘without critical habitat’’ scenario Office (see the FOR FURTHER INFORMATION District Court Order, we committed to represents the baseline for the analysis, CONTACT section). You may obtain submit a proposed revised critical considering protections that are already copies of the proposed revised critical habitat designation for Santa Ana sucker in place for the species (such as habitat (74 FR 65056) and the DEA on to the Federal Register by December 1, protections under the Act and other the Internet at http:// 2009, and submit a revised critical Federal, State, and local regulations). www.regulations.gov at Docket No. habitat designation to the Federal The baseline, therefore, represents costs FWS-R8-ES-2009-0072, or by mail from Register by December 1, 2010. We incurred regardless of whether critical the Carlsbad Fish and Wildlife Office published the proposed revised critical habitat is designated. The ‘‘with critical (see the FOR FURTHER INFORMATION habitat designation in the Federal habitat’’ scenario describes the CONTACT section). Register on December 9, 2009 (74 FR incremental impacts associated 65056). specifically with the designation of Public Hearings Section 3 of the Act defines critical critical habitat for the species. The public hearings will take place on habitat as ‘‘(i) the specific areas within Incremental conservation efforts and July 21, 2010, from 1 p.m. to 3 p.m. and the geographical area occupied by a associated impacts are those not from 6 p.m. to 8 p.m. at Ayres Suites species, at the time it is listed in expected to occur absent the critical Corona West, 1900 W. Frontage Road, accordance with [the Act], on which are habitat designation for Santa Ana Corona, CA 92882. The public hearing found those physical or biological sucker. In other words, incremental location is wheelchair-accessible. If you features (I) essential to the conservation costs are those attributable solely to the plan to attend the public hearing and of the species and (II) which may designation of critical habitat above and need special assistance such as sign require special management beyond the baseline costs. The DEA also language interpretation or other considerations or protection; and (ii) qualitatively discusses the potential reasonable accommodation, please specific areas outside the geographical incremental economic benefits notify the US FWS (see FOR FURTHER area occupied by the species at the time associated with the designation of INFORMATION CONTACT) at least 3 it is listed in accordance with [the Act], critical habitat. The incremental impacts business days in advance. Include your upon a determination by the Secretary are the impacts we may consider in the contact information as well as that such areas are essential for the revised designation of critical habitat information about your specific needs. conservation of the species’’ (16 U.S.C. relative to areas that may be excluded 1532(5)(A)(i) and (ii)). If the proposed under section 4(b)(2) of the Act. The Background rule is made final, section 7 of the Act analysis forecasts both baseline and It is our intent to discuss only those will prohibit destruction or adverse incremental impacts likely to occur if topics directly relevant to the proposed modification of critical habitat by any we finalize the proposed revised critical revised designation of critical habitat for activity funded, authorized, or carried habitat designation. Santa Ana sucker in this document. For out by any Federal agency. Federal The revised DEA (made available with more detailed information on the agencies proposing actions that may the publication of this notice and taxonomy, biology, and ecology of Santa affect critical habitat must consult with referred to throughout this document Ana sucker, please refer to the final us on the effects of their proposed unless otherwise noted) estimates the listing rule published in the Federal actions under section 7(a)(2) of the Act. foreseeable economic impacts of the Register on April 12, 2000 (65 FR proposed revised critical habitat 19686); the designation and revision of Draft Economic Analysis designation for Santa Ana sucker. The critical habitat for Santa Ana sucker Section 4(b)(2) of the Act requires that DEA describes economic impacts of published in the Federal Register on we designate critical habitat based upon Santa Ana sucker conservation efforts February 26, 2004 (69 FR 8839); and on the best scientific data available after associated with the following categories

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of activities: (1) Water management; (2) impacts when a 7 percent discount rate and described in the proposed revised residential and commercial is used. The DEA estimates total critical habitat designation that development; (3) transportation-related potential incremental economic impacts published in the Federal Register on projects; (4) point sources of pollution in areas proposed as revised critical December 9, 2009 (74 FR 65056). We including the Santa Ana Regional habitat over the next 20 years (2011 to received a public comment that Interceptor line; (5) recreational 2030) to be $6.87 million to $9.45 identified specific areas outside the activities; and (6) commercial and million ($606,000 to $834,000 geographical area occupied by the recreational mining. annualized) in present value terms species at the time it was listed that may Baseline economic impacts are those applying a 7 percent discount rate (IEC be essential for the conservation of impacts that result from listing and 2010, p. ES-2). Santa Ana sucker. The purpose of the other conservation efforts for Santa Ana The DEA considers both economic revision described below is to ensure sucker. Conservation efforts related to efficiency and distributional effects. In that all areas are evaluated uniformly water management, transportation, and the case of habitat conservation, and equally to determine the areas that development activities constitute the efficiency effects generally reflect the meet the definition of critical habitat for majority of total baseline costs ‘‘ ’’ opportunity costs associated with the Santa Ana sucker. The area we are (approximately 90 percent of post- commitment of resources to comply proposing to add to Subunit 1A contains designation upper-bound baseline with habitat protection measures (such the physical and biological features impacts when a 7 percent discount rate as lost economic opportunities essential for the conservation of the is used) in areas of proposed revised associated with restrictions on land species. The change we propose to critical habitat. Conservation efforts use). The DEA also addresses how Subunit 1A does not alter the related to point source pollution and potential economic impacts are likely to description of this subunit (see ‘‘Critical off-highway vehicle recreation comprise be distributed, including an assessment ’’ the remaining approximate 10 percent of any local or regional impacts of Habitat Units section in the proposed of post-designation upper-bound habitat conservation and the potential revised rule (74 FR 65070)); however, a baseline impacts when a 7 percent effects of conservation activities on revised map including this new area is discount rate is used. Total future government agencies, private included in this document. We briefly baseline impacts are estimated to be businesses, and individuals. The DEA describe the change made for Subunit $22.6 to $29.8 million ($1.99 to $2.62 measures lost economic efficiency 1A below. As a result of this revision, million annualized) in present value associated with residential and the overall area proposed for critical terms using a 7 percent discount rate commercial development and public habitat, including all units and over the next 20 years (2011 to 2030) in projects and activities, such as subunits, is approximately 9,643 acres areas proposed as revised critical habitat economic impacts on water (ac) (3,902 hectares (ha)), an increase of (IEC 2010, p. ES-3). management and transportation approximately 38 ac (15 ha) from the Conservation efforts related to water projects, Federal lands, small entities, 9,605 ac (3,887 ha) that we proposed as management activities, transportation and the energy industry. Decision critical habitat in the December 9, 2009, projects, and residential and makers can use this information to proposed revised critical habitat commercial development projects assess whether the effects of the revised designation (74 FR 65056). A summary comprise most (90 percent) of the critical habitat designation might of the total area of each proposed quantified incremental impacts for the unduly burden a particular group or subunit is presented in Table 1. proposed revised critical habitat rule. economic sector. Additionally, we are considering for Impacts associated with transportation exclusion lands covered by the Western projects make up the largest portion of Changes to Proposed Revised Critical Riverside County Multiple Species post-designation upper-bound Habitat Habitat Conservation Plan (Western incremental impacts, accounting for 38 In this document, we are proposing Riverside County MSHCP), described to 53 percent of the forecast incremental revisions to Subunit 1A as identified below in detail.

TABLE 1. Summary of subunits proposed as critical habitat. Area estimates and land ownership for Santa Ana sucker proposed revised critical habitat.

Ownership 2 Unit Counties State or Local Total Area Federal Government Private

Unit 1: Santa Ana River

Subunit 1A: Upper San Bernardino 284 ac (115 ha) 95 ac (38 ha) 1559 ac (631 ha) 1,938 ac (784 ha) Santa Ana River

Subunit 1B: Santa Ana San Bernardino and 13 ac (5 ha) 2,390 ac (967 ha) 2,301 ac (931 ha) 4,704 ac1 (1,903 ha) River Riverside

Subunit 1C: Lower Riverside and Orange 0 ac (0 ha) 56 ac (23 ha) 711 ac (288 ac) 767 ac1 (311 ha) Santa Ana River

Unit 1 Total 287 ac (116 ha) 2,541 ac (1,028 ha) 4,570 ac (1,849 ha) 7,409 ac (2,998 ha)

Unit 2: San Gabriel River

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TABLE 1. Summary of subunits proposed as critical habitat. Area estimates and land ownership for Santa Ana sucker proposed revised critical habitat.—Continued

Ownership 2 Unit Counties State or Local Total Area Federal Government Private

Unit 2: San Gabriel Los Angeles 917 ac (371 ha) 0 ac (0 ha) 83 ac (34 ha) 1,000 ac (405 ha) River

Unit 3: Big Tujunga Creek

Subunit 3A: Big Los Angeles 242 ac (98 ha) 0 ac (0 ha) 947 ac (383 ha) 1,189 ac (481 ha) Tujunga and Haines Creeks

Subunit 3B: Gold, Los Angeles 44 ac (18 ha) 0 ac (0 ha) 0 ac (0 ha) 44 ac (18 ha) Delta, and Stone Creeks

Unit 3 Total 286 ac (116 ha) 0 ac (0 ha) 947 ac (383 ha) 1,233 ac (499 ha)

Total 1,490 ac (603 ha) 2,541 ac (1,028 ha) 5,600 ac (2,266 ha) 9,643 ac (3,902 ha) 1 Contains areas being considered for exclusion in the final critical habitat rule under section 4(b)(2) of the Act. 2 Values in this table may not sum due to rounding.

Subunit 1A: Upper Santa Ana River are proposing for critical habitat the addition of the Plunge Creek area as designation maintains a perennial flow proposed critical habitat in Subunit 1A We received a comment indicating of cool and clear (not turbid) water, has (see Public Comments section above). that we did not include in the proposed a diverse composition of substrates, and revised critical habitat designation a a complex system of riffles, runs, pools, Additional Areas Currently Considered portion of the upper Santa Ana River and shallow marginal areas covered For Exclusion Under Section 4(b)(2) of watershed that meets the definition of with native riparian vegetation that the Act critical habitat, is essential for the would provide highly suitable habitat Western Riverside County Multiple conservation of the species, and is a site for reintroduction or establishment of a for possible reintroduction or refugia Species Habitat Conservation Plan refugia population of Santa Ana sucker (MSHCP) (i.e., area that provides for (OCWD 2009, pp. 5-66–69, 6-2, 6-6). establishment of populations with In addition to including the Plunge The Western Riverside County minimal to no threats) for Santa Ana Creek area as proposed revised critical MSHCP is a regional, multi- sucker. We reviewed aerial imagery, habitat, we are clarifying the description jurisdictional HCP encompassing about topographic maps, and information in of Subunit 1A, (Upper Santa Ana River). our files for this area and verified that 1.26 million ac (510,000 ha) in western The area proposed for critical habitat Riverside County. The Western a portion of Plunge Creek meets the designation (74 FR 65056) in the upper definition of critical habitat for Santa Riverside County MSHCP addresses 146 Santa Ana River includes approximately listed and unlisted ‘‘covered species,’’ Ana sucker. Plunge Creek, a tributary of 0.2 mi (0.32 km) of Bear Creek including the Santa Ana sucker. the Santa Ana River, is located in San (identified as the Santa Ana River in the Participants in the Western Riverside Bernardino County upstream of the December 9, 2009, proposed rule) above County MSHCP include 16 cities; the Santa Ana River’s confluence with City its confluence with the Santa Ana River. Creek. Plunge Creek above Greenspot As stated in the December 9, 2009, County of Riverside, including the Road and north into the foothills of the proposed revised critical habitat Riverside County Flood Control and San Bernardino Mountains is relatively designation (74 FR 65056), it is essential Water Conservation Agency (County unmodified, as are the other areas to maintain areas of suitable habitat in Flood Control), Riverside County proposed for critical habitat designation the Santa Ana River watershed where Transportation Commission, Riverside in Subunit 1A. The approximate 3-mi Santa Ana suckers could be County Parks and Open Space District, (4.83-km) section of Plunge Creek that reintroduced or areas that provide and Riverside County Waste we are now proposing as critical habitat refugia necessary to decrease the risk of Department; California Department of encompasses 11.1 ac (4.5 ha) of land extirpation in the Santa Ana River or Parks and Recreation; and the California owned by the U.S. Forest Service and extinction due to stochastic events and Department of Transportation. The 26.6 ac (10.7 ha) of privately owned provide for species’ recovery. Like other Western Riverside County MSHCP was land. areas proposed for designation as designed to establish a multi-species We determined that this area contains critical habitat for the purpose of conservation program that minimizes PCEs 1–7 and is essential for the reintroduction or establishment of a and mitigates the effects of expected conservation of the species. While we refugia population of Santa Ana sucker, habitat loss and associated incidental do not have information indicating this Plunge Creek is also likely to require take of covered species. The Service creek is currently occupied, we believe active management to transport issued a single incidental take permit on it is reasonable to assume that Santa individuals back to the upstream areas June 22, 2004 (Service 2004), under Ana sucker could have inhabited these if they were flushed downstream during section 10(a)(1)(B) of the Act, to 22 waters before the existing barriers to a flood event (74 FR 65071). We permittees under the Western Riverside dispersal were present. The area that we encourage public comment regarding County MSHCP for a period of 75 years.

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Specifically, the Secretary is exclusion in each subunit). We are ha) in Subunit 1C that are within the considering whether to exercise his considering the exclusion of non- plan boundary of Western Riverside discretion to exclude 3,048 ac (1,234 ha) Federal lands that are either owned by County MSHCP but are not being in Unit 1 (portions of Subunits 1B and or under the jurisdiction of permittees considered for exclusion because they 1C) within the Western Riverside under the Western Riverside County are owned by non-permittees of the County MSHCP plan area (see table 2 for MSHCP. There are approximately 1,036 Western Riverside County MSHCP or the acreage of land being considered for ac (420 ha) in Subunit 1B and 23 ac (10 are federally owned.

TABLE 2. Santa Ana sucker proposed critical habitat areas considered for exclusion under section 4(b)(2) of the Act under the Western Riverside County MSHCP, presented per land ownership.

Permittees under the Western Riverside County MSHCP Subunit 1B Subunit 1C

County of Riverside 428 ac (173 ha) 19 ac (8 ha)

City of Norco 234 ac (95 ha)

City of Riverside 52 ac (21 ha)

Riverside County Flood Control and Water Conservation Agency (County Flood Control) 324 ac (131 ha) 13 ac (5 ha)

Riverside County Parks and Open Space District 215 ac (87 ha)

California Department of Parks and Recreation 54 ac (22 ha)

California Department of Transportation 3 ac (1 ha)

State of California (Wildlife Conservation Board in collaboration with California Department of Fish and Game and Riverside County Parks and Open Space District) 1,125 ac (455 ha)

Private 577 ac (234 ha) 6 ac (2 ha)

Total land considered for exclusion* 2,957 ac (1,197 ha) 91 ac (37 ha) * Values in this table may not sum due to rounding.

The Western Riverside County Santa Ana River within the natural river connectivity to be implemented as MSHCP will establish approximately bottom and banks; feasible; and 153,000 ac (61,917 ha) of new (2) Include within the MSHCP (5) Within the MSCHP Conservation conservation lands (Additional Reserve Conservation Area the following areas Area, the Reserve Managers responsible Lands) to complement the (known as core areas for this species in for the areas identified in Objectives 2 approximately 347,000 ac (140,426 ha) the Western Riverside County MSHCP): and 3 will assess threats to the sucker of pre-existing natural and open space Upstream of River Road, between River from degraded habitat (such as reduced areas (Public/Quasi-Public (PQP) lands). Road and Prado Dam, and downstream water quality, loss of habitat, presence These PQP lands include those under of Prado Dam; the known spawning of nonnative predators and vegetation), ownership of public or quasi-public areas at Sunnyslope Creek and within identify areas of the watershed that are agencies, and also permittee-owned or the area just below Mission Boulevard necessary for successful sucker controlled open-space areas. upstream to the Rialto Drain; and spawning, identify areas for creation of Collectively, the Additional Reserve refugia and dispersal areas including the stream meanders, and pool riffle Lands and PQP lands form the overall Market Street Seep, Mount Rubidoux complexes and reestablishment of Western Riverside County MSHCP Creek, Anza Park Drain, Arroyo native riparian vegetation as appropriate Conservation Area. The configuration of Tequesquite, Hidden Valley Drain, and and feasible, and identify and the 153,000 acres (61,916 ha) of Evans Lake Drain; implement management measures to Additional Reserve Lands is based on (3) Include within the MSHCP address threats and protect critical areas textual descriptions of habitat Conservation Area the natural river (Dudek and Associates, Inc. 2003, pp. F- conservation necessary to meet the bottom and banks of the Santa Ana 19–20; Service 2004, p. 258). conservation goals for all covered River from the Orange County and Additionally, riparian and riverine species within the bounds of the Riverside County line to the upstream areas located within and outside of the approximately 310,000-ac (125,453-ha) boundary of the Western Riverside Western Riverside County MSHCP Criteria Area and is determined as County MSHCP plan area, including the Conservation Area are subject to the implementation of the Western adjacent upland habitat, where ‘‘Protection of Species Associated with Riverside County MSHCP takes place. available, to provide shade and suitable Riparian/Riverine Areas and Vernal The Western Riverside County microclimate conditions (such as Pools’’ policy presented in Section 6.1.2 MSHCP identifies five conservation alluvial terraces and riparian of the Western Riverside County objectives that will be implemented to vegetation); MSHCP, Volume I. This policy provides provide long-term conservation of the (4) Within the MSHCP Conservation for the avoidance and minimization of Santa Ana sucker: Area, the Reserve Managers responsible impacts to riparian and riverine (1) Include within the Western for the areas identified in Objectives 2 habitats, if feasible. According to the Riverside County MSHCP Conservation and 3 will assess barriers to sucker plan, unavoidable impacts will be Area 3,480 ac (1,408 ha) of habitat for movement and the need for connectivity mitigated such that the lost habitat the Santa Ana sucker, including the and identify measures to restore functions and values related to covered

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species will be replaced (Dudek and Sunnyslope Creek and within the area Service on development of a long-term Associates, Inc. 2003, pp. 6-24). just below Mission Boulevard upstream management and monitoring plan that The goal of conserving 3,480 ac (1,408 to the Rialto Drain; and refugia and addresses covered species; (2) ha) of habitat for the Santa Ana sucker dispersal areas including the Market submission of annual monitoring in the Western Riverside County Street Seep, Mount Rubidoux Creek, reports; (3) annual status meetings with MSHCP Conservation Area relies Anza Park Drain, Arroyo Tequesquite, the Service; and (4) submission of primarily on coordinated management Hidden Valley Drain, and Evans Lake annual implementation reports to the of existing PQP lands and to a lesser Drain (Dudek and Associates, Inc. 2003, Service (Service 2004, pp. 9–10). extent on acquisition or other p. F-20; Service 2004, p. 258). The majority of the lands that are dedications of land assembled from The Western Riverside County being considered for exclusion within within the Criteria Area (i.e., the MSHCP has several measures in place the Western Riverside County MSHCP Additional Reserve Lands). We intended to ensure the plan is are PQP lands that could be conserved internally mapped a ‘‘Conceptual implemented in a way that conserves through the implementation of the plan. Reserve Design,’’ which illustrates Santa Ana sucker in accordance with Lands within Subunit 1B that are being existing PQP lands and predicts the the species-specific criteria and considered for exclusion (2,957 ac geographic distribution of the objectives for this species. Permittee- (1,197 ha)) are owned by the County of Additional Reserve Lands based on our owned PQP lands are to be managed in Riverside, the cities of Norco and interpretation of the textual descriptions a manner that contributes to the Riverside, the Riverside County Open of habitat conservation necessary to conservation of the covered species. In Space and Parks, the Riverside County meet conservation goals. Our the event that a permittee elects to alter Flood Control District, the California Conceptual Reserve Design is intended their PQP lands such that they would Department of Parks and Recreation, the to predict one possible future not contribute to the conservation of California Department of configuration of the eventual covered species, lands would need to be Transportation, the State of California approximately 153,000 ac (61,916 ha) of replaced at a minimum 1:1 ratio. The Wildlife Conservation Board (which Additional Reserve Lands in proposed critical habitat designation manages the area known as the Hidden conjunction with the existing PQP includes lands owned by non- Valley Wildlife Area and is comprised lands, including the approximate 3,480 permittees of the Western Riverside of the California Department of Fish and ac (1,408 ha) of Santa Ana sucker County MSHCP in Subunit 1B and Game and Riverside County Open Space habitat, intended to be conserved to portions of Subunit 1C. The Western and Parks) and private land owners (see meet the goals and objectives of the plan Riverside County MSHCP states that Table 2). Lands (91 ac (37 ha)) within (Service 2004, pp. 257–258). In our non-permitteeowned lands will be Subunit 1C that are being considered for analysis of conservation for the Santa managed through Memorandums of exclusion are owned by the County of Ana sucker under the Western Riverside Understanding or other appropriate Riverside, the Riverside County Flood County MSHCP, we anticipate that, over agreements (MSHCP Implementation Control District, the California the term of the permit, up to 443 ac (179 Agreement 2003, p. 60). Additional Department of Parks and Recreation, ha) of Santa Ana sucker habitat will be Reserve Lands would be acquired and private land owners (see Table 2). impacted within the plan area (Service consistent with the plan criteria and Within the proposed revised critical 2004, p. 260). conserved. The collective management habitat designation, no Additional The preservation and management of of PQP and Additional Reserve Lands in Reserve Lands have been secured since approximately 3,480 ac (1,408 ha) of accordance with the plan is intended to the time of the approval of the Western Santa Ana sucker habitat under the contribute to conservation of Santa Ana Riverside County MSHCP. Under the Western Riverside County MSHCP is sucker. incidental take permit for the Western intended to contribute to the The Western Riverside County Riverside County MSHCP (Service 2004, conservation and ultimate recovery of MSHCP permittees are required to pp. 253-261), impacts to Santa Ana this species. The Santa Ana sucker is at implement management and monitoring sucker habitat within the plan area are risk due to its small population sizes activities within the Additional Reserve limited to a total of 443 acres (179 ha). and specifically threatened by habitat Lands and PQP-owned lands. They In summary, the Secretary is destruction, degradation, and must conduct baseline surveys at known considering exercising his discretion fragmentation; dewatering; reductions occupied locations within the first 5 under section 4(b)(2) of the Act to in water quality; fire; recreational years of the plan and conduct additional exclude 3,048 ac (1,234 ha) of proposed activities; and competition and surveys every 8 years to verify critical habitat for the Santa Ana sucker predation from nonnative species occupancy at a minimum of 75 percent within Western Riverside County within the plan area (Service 2004, pp. of the MSHCP Conservation Area the MSHCP permittee-owned or controlled 254–255). The Western Riverside Core Areas (listed above). Additionally, lands in Subunits 1B and 1C. County MSHCP is intended to reduce permittees and Reserve Managers must The 2000 final listing rule for the threats to this species and the physical work cooperatively with Federal, State, Santa Ana sucker identified the and biological features essential to its and local agencies on conservation following primary threats to the Santa conservation as the plan is implemented measures addressing connectivity and Ana sucker: Habitat destruction, natural by placing large blocks of habitat into movement, nonnative predator and human-induced changes in preservation throughout the removals, and riparian and instream streamflows, urban development and Conservation Area. The plan also vegetation maintenance or enhancement related land-use practices, intensive generates funding for long-term (Dudek and Associates, Inc. 2003, pp. F- recreation, introduction of nonnative management of conserved lands for the 23–25; Service 2004, p. 259). competitors and predators, and benefit of the species it protects. Core The Western Riverside County demographics associated with small Areas identified for preservation and MSHCP incorporates several processes populations (65 FR 19686; April 12, conservation include upstream of River that allow for Service oversight and 2000). Implementation of the Western Road, between River Road and Prado participation in program Riverside County MSHCP is intended to Dam, and downstream of Prado Dam; implementation. These processes help alleviate these threats through a the known spawning areas at include: (1) Consultation with the regional planning effort rather than

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through a project-by-project approach, whether the proposed designation habitat would be incorporated into the and outlines species-specific objectives would result in a significant economic existing consultation process due to the and criteria for the conservation of the impact on a substantial number of small current status of Santa Ana sucker Santa Ana sucker. In the final revised entities follows. Based on comments we under the Act as a threatened species. critical habitat rule for the Santa Ana receive, we may revise this In the DEA, we evaluate the potential sucker, we will analyze the benefits of determination as part of a final economic effects on small business inclusion and exclusion of this area rulemaking. entities resulting from implementation from critical habitat under section According to the Small Business of conservation actions related to the 4(b)(2) of the Act. We encourage public Administration, small entities include proposed revision to critical habitat for comment regarding our consideration of small organizations, such as Santa Ana sucker. The DEA is based on areas in Subunits 1B and 1C for independent nonprofit organizations; the estimated incremental impacts exclusion (see Public Comments section small governmental jurisdictions, associated with the proposed above). including school boards and city and rulemaking as described in Chapters 3 town governments that serve fewer than through 7 of the DEA. The SBREFA Required Determinations—Amended 50,000 residents; and small businesses analysis evaluates the potential for In our proposed revised rule (13 CFR 121.201). Small businesses economic impacts related to several published in the Federal Register on include manufacturing and mining categories, including: (1) Water December 9, 2009 (74 FR 65056), we concerns with fewer than 500 management, (2) residential and indicated that we would defer our employees, wholesale trade entities commercial development, and (3) determination of compliance with with fewer than 100 employees, retail transportation activities (IEC 2010, p. A- several statutes and Executive Orders and service businesses with less than $5 7). On the basis of our draft analysis, we until the information concerning million in annual sales, general and have determined that no incremental potential economic impacts of the heavy construction businesses with less impacts attributed to water management designation and potential effects on than $27.5 million in annual business, or transportation activities are expected landowners and stakeholders became special trade contractors doing less than to be borne by entities that meet the available in the DEA. We have now $11.5 million in annual business, and definition of small entities (IEC 2010, p. made use of the DEA to make these agricultural businesses with annual A-7–8). Potential impact in these sectors determinations. In this document, we sales less than $750,000. To determine are expected to be borne by water affirm the information in our proposed if potential economic impacts to these management agencies, States, Federal rule concerning Executive Order (E.O.) small entities are significant, we agencies and other governmental non- 12866 (Regulatory Planning and considered the types of activities that governmental agencies that are not Review), EO 13132 (Federalism), E.O. might trigger regulatory impacts under considered to be small business entities. 12988 (Civil Justice Reform), E.O. 12630 this designation as well as types of However, the DEA concludes that the (Takings), the Paperwork Reduction Act, project modifications that may result. In proposed rulemaking potentially may the National Environmental Policy Act, general, the term significant economic affect small entities in the residential and the President’s memorandum of impact is meant to apply to a typical and commercial development sector April 29, 1994, ‘‘Government-to- small business firm’s business (IEC 2010, p. A-8). There are 25,300 Government Relations with Native operations. businesses involved in development American Tribal Governments’’ (59 FR To determine if the proposed revised activities within San Bernardino, 22951). However, based on the DEA designation of critical habitat for Santa Riverside, Orange, and Los Angeles data, we are amending our required Ana sucker would affect a substantial Counties and, of these, 24,800 are determinations concerning the number of small entities, we consider considered small. The DEA estimates Regulatory Flexibility Act (5 U.S.C. 601 the number of small entities affected that 67 small entities may be affected, et seq.), E.O. 13211 (Energy Supply, within particular types of economic with estimated revenues of $2.8 million Distribution, or Use), and the Unfunded activities, such as residential and per entity. Assuming impacts are shared Mandates Reform Act (2 U.S.C. 1501 et commercial development. In order to equally among entities, the analysis seq.). determine whether it is appropriate for concludes that the annualized impacts our agency to certify that this rule Regulatory Flexibility Act (5 U.S.C. 601 may represent approximately 0.16 would not have a significant economic et seq.) percent of annual revenues. However, impact on a substantial number of small this assumption is likely to overstate the Under the Regulatory Flexibility Act entities, we considered each industry or actual impacts to small development (RFA) (5 U.S.C. 601 et seq., as amended category individually. If we finalize this firms because some or all of the costs of by the Small Business Regulatory proposed revised critical habitat Santa Ana sucker conservation efforts to Enforcement Fairness Act (SBREFA) (5 designation, Federal agencies must development activities may ultimately U.S.C. 802(2)), whenever an agency is consult with us under section 7 of the be borne by current landowners in the required to publish a notice of Act if their activities may affect form of reduced land values. Many of rulemaking for any proposed or final designated critical habitat. Incremental these landowners may be individuals or rule, it must prepare and make available impacts to small entities may occur as families that are not legally considered for public comment a regulatory a result of a required consultation under to be businesses. No NAICS code exists flexibility analysis that describes the section 7 of the Act. Additionally, even for landowners, and the SBA does not effect of the rule on small entities (i.e., in the absence of a Federal nexus, provide a definition of a small small businesses, small organizations, incremental impacts may still result landowner. and small government jurisdictions), as because, for example, a city may request To evaluate whether this proposed described below. However, no project modifications due to the rule will result in a significant effect on regulatory flexibility analysis is required designation of critical habitat via its a substantial number of small business if the head of an agency certifies the rule review under the California entities, we first determined whether will not have a significant economic Environmental Quality Act (CEQA). the proposed regulation will likely impact on a substantial number of small Consultations to avoid the destruction affect a substantial number of entities. entities. Our analysis for determining or adverse modification of critical Guidance from the Small Business

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Administration (SBA) indicates that if Executive Order 13211—Energy Supply, Federal Government entities or private ‘‘more than just a few’’ small business Distribution, and Use parties. Under the Act, the only entities in a given sector are affected by On May 18, 2001, the President issued regulatory effect is that Federal agencies a proposed regulation, then a substantial E.O. 13211 on regulations that must ensure that their actions do not number of entities may be affected. significantly affect energy supply, destroy or adversely modify critical ‘‘More than just a few’’ is not defined, distribution, and use. Executive Order habitat under section 7. Designation of and SBA suggests that a case-by-case 13211 requires agencies to prepare critical habitat may indirectly impact evaluation be done. The DEA prepared Statements of Energy Effects when non-Federal entities that receive Federal for the proposed designation of critical undertaking certain actions. The OMB’s funding, assistance, or permits, or that habitat for the Santa Ana sucker guidance for implementing this otherwise require approval or predicts that 67 out of 24,800 small Executive Order outlines nine outcomes authorization from a Federal agency. business entities in the residential and that may constitute ‘‘a significant However, the legally binding duty to commercial development sector may be adverse effect’’ when compared to no avoid destruction or adverse affected by the rule. Adopting a regulatory action. Based on an analysis modification of critical habitat rests conservative approach in our analysis, conducted for this designation, we squarely on the Federal agency. we conclude that 67 entities equate to determined that the final designation of Furthermore, to the extent that non- ‘‘more than just a few’’ small entities critical habitat for Santa Ana Sucker is Federal entities are indirectly impacted and, therefore, a substantial number of not expected to significantly affect because they receive Federal assistance small business entities may be affected energy supplies, distribution, or use. or participate in a voluntary Federal aid by the rule. Therefore, this action is not a significant program, the Unfunded Mandates Next, we determined if the proposed energy action, and no Statement of Reform Act would not apply, nor would revised designation of critical habitat Energy Effects is required. critical habitat shift the costs of the large would result in a significant economic effect on those 67 small business Unfunded Mandates Reform Act (2 entitlement programs listed above on to entities. There is no specific guidance U.S.C. 1501 et seq.) State governments. under the RFA as to what constitutes a In accordance with the Unfunded (b) As discussed in the DEA of the significant effect or at what scale the Mandates Reform Act, the Service proposed revised designation of critical effect is measured – nationally or makes the following findings: habitat for Santa Ana sucker, we do not regionally. In implementing the RFA, (a) This rule will not produce a believe that this rule would significantly the Service evaluates potential effects Federal mandate. In general, a Federal or uniquely affect small governments on a regional or local scale which, in mandate is a provision in legislation, because it would not produce a Federal most instances, results in a more statute, or regulation that would impose mandate of $100 million or greater in conservative analysis. For the proposed an enforceable duty upon State, local, or any year; that is, it is not a ‘‘significant revised critical habitat rule the Service Tribal governments, or the private regulatory action’’ under the Unfunded relied on a threshold of three percent of sector, and includes both ‘‘Federal Mandates Reform Act. The DEA annual revenues to evaluate whether the intergovernmental mandates’’ and concludes incremental impacts may potential economic impacts of the ‘‘Federal private sector mandates.’’ occur due to administrative costs of designation on small business entities in These terms are defined in 2 U.S.C. section 7 consultations for development, the residential and commercial 658(5)-(7). ‘‘Federal intergovernmental transportation, and flood control development sector may be significant. mandate’’ includes a regulation that projects activities; however, these are The DEA estimates that the annualized ‘‘would impose an enforceable duty not expected to affect small impacts of the proposed revised rule on upon State, local, or Tribal governments. Incremental impacts the 67 potentially affected entities governments,’’ with two exceptions. stemming from various species would be of 0.16 percent of their annual First, it excludes ‘‘a condition of federal conservation and development control sales revenue. We have determined that assistance.’’ Second, it also excludes ‘‘a activities are expected to be borne by a potential economic impact of a duty arising from participation in a the Federal Government, California fraction of one percent of annual voluntary Federal program,’’ unless the Department of Transportation, revenues is not significant. regulation ‘‘relates to a then-existing California Department of Fish and In summary, we considered whether Federal program under which Game, Riverside County, Riverside the proposed revised critical habitat $500,000,000 or more is provided County Flood Control and Water designation would result in a significant annually to State, local, and Tribal Conservation District, and City of Perris, economic impact on a substantial governments under entitlement which are not considered small number of small entities. On the basis authority,’’ if the provision would governments. Consequently, we do not of our draft economic analysis, we ‘‘increase the stringency of conditions of believe that the revised critical habitat determined that there would be a assistance’’ or ‘‘place caps upon, or designation would significantly or substantial number of small business otherwise decrease, the Federal uniquely affect small government entities potential affected by the Government’s responsibility to provide entities. As such, a Small Government proposed designation (67 entities), but funding’’ and the State, local, or Tribal that the estimated economic effect of governments ‘‘lack authority’’ to adjust Agency Plan is not required. less than one percent of annual accordingly. ‘‘Federal private sector References Cited revenues is not significant. For the mandate’’ includes a regulation that above reasons and based on currently ‘‘would impose an enforceable duty A complete list of all references we available information, we certify that, if upon the private sector, except (i) a cited in the proposed rule and in this promulgated, the proposed revised condition of Federal assistance; or (ii) a document is available on the Internet at critical habitat for Santa Ana sucker duty arising from participation in a http://www.regulations.gov or by would not have a significant economic voluntary Federal program.’’ contacting the Carlsbad Fish and impact on a substantial number of small Critical habitat designation does not Wildlife Office (see FOR FURTHER entities. impose a legally binding duty on non- INFORMATION CONTACT section).

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Author at 74 FR 65056, December 9, 2009, as b. By removing the map of subunit follows: 1A; and The primary authors of this notice are c. By adding a new map of subunit 1A the staff members of the Carlsbad Fish PART 17—[AMENDED] in its place, as set forth below. and Wildlife Office (see FOR FURTHER 1. The authority citation for part 17 INFORMATION CONTACT section). § 17.95 Critical habitat—fish and wildlife. continues to read as follows: * * * * * List of Subjects in 50 CFR Part 17 Authority: 16 U.S.C. 1361–1407; 16 U.S.C. 1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99– (e) Fishes. Endangered and threatened species, 625, 100 Stat. 3500; unless otherwise noted. * * * * * Exports, Imports, Reporting and recordkeeping requirements, 2. Critical habitat for the Santa Ana Santa Ana sucker (Catostomus Transportation. sucker (Catostomus santaanae) in § santaanae) 17.95(e), which was proposed to be * * * * * Proposed Regulation Promulgation revised on December 9, 2009, at 74 FR 65056, is proposed to be further (6) * * * Accordingly, we propose to further amended by revising paragraph (i) * * * amend part 17, subchapter B of chapter (e)(6)(i)(B) as follows: (B) Map of Subunit 1A (Plunge Creek) I, title 50 of the Code of Federal a. By revising the introductory text of follows: Regulations, as proposed to be amended paragraph (e)(6)(i)(B); BILLING CODE 4310–55–S

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* * * * * Dated: June 18, 2010 Will Shafroth, Acting Assistant Secretary for Fish and Wildlife and Parks. [FR Doc. 2010–15953 Filed 7–1–10; 8:45 am] BILLING CODE 4310–55–C

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DEPARTMENT OF COMMERCE • Hand delivery to the Federal and the LLP was implemented on Building: 709 West 9th Street, Room January 1, 2000. National Oceanic and Atmospheric 420A, Juneau, AK. The LLP for groundfish established Administration All comments received are a part of specific criteria that must be met to the public record and will generally be allow a person to fish in federally 50 CFR Part 679 posted to http://www.regulations.gov managed groundfish fisheries. Under the LLP, NMFS issued LLP licenses to RIN 0648–AY42 without change. All personal identifying information (e.g., name, address) vessel owners based on the catch history Fisheries of the Exclusive Economic voluntarily submitted by the commenter of their vessels in federal groundfish Zone Off Alaska; Central Gulf of Alaska may be publicly accessible. Do not fisheries during the mid 1990s. LLP License Limitation Program; submit confidential business licenses: (1) endorse fishing activities in Amendment 86 information or otherwise sensitive or specific regulatory areas in the GOA; (2) protected information. restrict the length of the vessel, the AGENCY: National Marine Fisheries NMFS will accept anonymous maximum length overall (MLOA), on which the LLP license may be used; (3) Service (NMFS), National Oceanic and comments (enter N/A in the required designate the fishing gear (trawl or non- Atmospheric Administration (NOAA), fields, if you wish to remain trawl gear) that may be used on a vessel; Commerce. anonymous). Attachments to electronic (4) designate the type of vessel ACTION: Notification of availability of comments will be accepted in Microsoft operation permitted (catcher vessel or fishery management plan amendment; Word, Excel, WordPerfect, or Adobe catcher/processor); and (5) are issued so request for comments. portable document file (pdf) formats that the endorsements for specific only. SUMMARY: The North Pacific Fishery regulatory areas, gear designations, or Management Council submitted Copies of Amendment 86 to the vessel operational types are non- Amendment 86 to the Fishery Fishery Management Plan for severable from the LLP license (i.e., Management Plan for Groundfish of the Groundfish of the Gulf of Alaska, and once issued, the components of the LLP Gulf of Alaska (FMP) to NMFS for the Environmental Assessment (EA), license cannot be transferred review. If approved, Amendment 86 Regulatory Impact Review (RIR), and independently). By creating LLP would add a Pacific cod endorsement Initial Regulatory Flexibility Analysis licenses with these characteristics, the on licenses issued under the license (IRFA) prepared for Amendment 86 are Council and NMFS limited the ability of limitation program (LLP) if those available from the NMFS Alaska website a person to transfer an LLP license that licenses have been used on vessels that at http://www.alaskafisheries.noaa.gov. was derived from the historic fishing meet minimum recent landing FOR FURTHER INFORMATION CONTACT: activity of a vessel and use it on another requirements using non-trawl gear, Glenn Merrill, 907–586–7228. vessel in a manner that could expand commonly known as fixed gear. This SUPPLEMENTARY INFORMATION: The fishing capacity. In 2000, NMFS issued LLP licenses proposed action would exempt vessels Magnuson-Stevens Fishery endorsed for trawl gear, and over 800 that use jig gear from the requirement to Conservation and Management Act licenses for non-trawl gear for use in the hold an LLP license, modify the (Magnuson-Stevens Act) requires that GOA. Non-trawl gear is commonly maximum length designation on a each regional fishery management known as ‘‘fixed gear’’ which includes specific set of fixed gear LLP licenses, council submit any fishery management hook-and-line, pot, and jig gear. A and allow entities representing specific plan amendment it prepares to NMFS vessel owner received an LLP license communities to receive a limited for review and approval, disapproval, or endorsed for the Southeast Outside number of fixed gear licenses with partial approval by the Secretary of District (SEO), Central Gulf of Alaska Pacific cod endorsements for use on Commerce (Secretary). The Magnuson- vessels designated by entities which includes the West Yakutat Stevens Act also requires that NMFS, District (CG), or Western Gulf of Alaska representing the communities. This upon receiving a fishery management proposed action is intended to promote (WG) regulatory area if that vessel met plan amendment, immediately publish a specific landing requirements in that the goals and objectives of the notice in the Federal Register Magnuson-Stevens Fishery specific regulatory area. The minimum announcing that the amendment is landing requirements differed Conservation and Management Act, the available for public review and FMP, and other applicable law. depending on the regulatory area, size of comment. This notice announces that the vessel, and the operational type of DATES: Comments on the amendment proposed Amendment 86 to the Fishery the vessel. must be received on or before August Management Plan for Groundfish of the In late 2007, the Council began a 31, 2010. Gulf of Alaska (FMP) is available for process of reviewing the use of LLP ADDRESSES: Send comments to Sue public review and comment. licenses endorsed for fixed gear in the Salveson, Assistant Regional The groundfish fisheries in the GOA. This review was initiated Administrator, Sustainable Fisheries exclusive economic zone of the Gulf of primarily at the request of active GOA Division, Alaska Region, NMFS, Attn: Alaska are managed under the FMP. The fixed gear fishery participants who were Ellen Sebastian. You may submit FMP was prepared by the North Pacific concerned that vessel owners holding comments, identified by ‘‘RIN 0648– Fishery Management Council (Council) fixed gear-endorsed LLP licenses that AY42,’’ by any one of the following under the Magnuson-Stevens Act. had not been assigned to vessels methods: The license limitation program (LLP) actively fishing could resume fishing • Electronic Submissions: Submit all for Gulf of Alaska (GOA) groundfish under the licenses in the future and electronic public comments via the fisheries was recommended by the adversely affect their fishing operations. Federal eRulemaking Portal website at North Pacific Fishery Management Specifically, fixed gear participants http://www.regulations.gov. Council (Council) in June 1995 as were concerned about the potential • Mail: P. O. Box 21668, Juneau, AK Amendment 41 to the FMP. NMFS effects of additional effort in the GOA 99802. published a final rule to implement the Pacific cod fishery that could increase • Fax: 907–586–7557. LLP on October 1, 1998 (63 FR 52642), competition and overcapacity in the

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fishery. This overcapacity could have GOA during 2006, 2007, or 2008. This number of LLP licenses known to be adverse affects on management of the exemption would allow LLP license held by community residents would be fisheries if additional effort in the holders to receive a Pacific cod eligible for a Pacific cod endorsement. fishery made it more difficult for NMFS endorsement if they chose not to use LLP licenses issued to a community to close fisheries in a timely manner, their vessels in the GOA during 2006, would have an MLOA of 60 feet to limit thereby exceeding the total allowable 2007, or 2008 to minimize halibut PSC the potential that communities could catch for a fishery. Pacific cod is the through voluntary private contractual assign those LLP licenses to large primary species targeted by vessels arrangements. vessels with potentially greater harvest Second, Amendment 86 would using fixed gear in the GOA. During the capacity than the vessels traditionally exempt vessels using jig gear from the process of developing this proposed used by residents of these communities. action, the Council also received input requirement to be assigned an LLP from the public requesting modification license provided those vessels did not The RIR/IRFA prepared for this action to the LLP to establish minimum use more than five jigging machines, describes the costs and benefits of the landing requirements that must be met more than one line per machine, and proposed amendment (see ADDRESSES to allow a vessel to continue to more than 30 hooks on any one line. for availability). All of the directly participate in the Pacific cod fixed gear This exemption from the requirements regulated entities would be expected to fisheries in the GOA. In April 2009, of the LLP is intended to provide a benefit from this action relative to the after more than a year of review and limited opportunity for entry level status quo because the proposed extensive public comment, the Council vessel operators to participate in the amendment would limit the potential recommended modifications to the LLP federal fisheries without incurring the for participants without historic or to revise eligibility criteria for fixed gear obligations and costs of the LLP. Pacific recent participation to enter the Central endorsements on LLP licenses. cod is the species most frequently and Western GOA Pacific cod fisheries. caught by jig gear vessels, and it Proposed Amendment 86 would represents a small portion of the overall Public comments are being solicited implement four distinct actions. First, a TAC, and few of the vessels using jig on proposed Amendment 86 to the GOA Pacific cod fishery endorsement would gear fish in federal waters. FMP through the end of the comment be added to LLP licenses based on Third, Amendment 86 would modify period (see DATES). NMFS intends to landings in the directed Pacific cod the MLOA of an LLP license if it is publish in the Federal Register and seek fishery in the GOA from 2002 through assigned a Pacific cod endorsement. The public comment on a proposed rule that December 8, 2008. NMFS would assign first modification would reduce the would implement Amendment 86, Pacific cod endorsements that are MLOA of LLP licenses that are greater following NMFS’ evaluation of the designated for (1) pot, hook-and-line, than 60 feet in length, but that have proposed rule under the Magnuson- and jig gear; (2) specific GOA regulatory been consistently assigned to a vessel Stevens Act. Public comments on the areas (i.e., CG and WG); (3) specific under 60 feet in length overall from operational types (i.e., catcher vessels or proposed rule must be received by the 2002 through December 8, 2008; and (2) end of the comment period on catcher/processors); and (4) specific the vessel to which that LLP license was landing requirements based on the Amendment 86 to be considered in the assigned did not meet the landing approval/disapproval decision on MLOA designated on the LLP license thresholds applicable for an LLP license Amendment 86. All comments received (e.g., different landing requirements with an MLOA greater than or equal to by the end of the comment period on would need to be met for LLP licenses 60 feet, but did meet the landing with an MLOA of under 60 feet than thresholds applicable to LLP licenses Amendment 86, whether specifically those equal to or greater than 60 feet). with an MLOA under 60 feet. The directed to the GOA FMP amendment or This proposed action does not include second modification would allow a the proposed rule, will be considered in modifications to SEO endorsed licenses small increase in MLOA up to 50 feet the FMP approval/disapproval decision. because fishing in this regulatory area is for a limited number of LLP licenses Comments received after that date will currently limited and the risk of that had been assigned to smaller sized not be considered in the approval/ additional effort in the fishery from vessels during the qualifying period for disapproval decision on the latent fixed gear LLP license holders the proposed action. These amendment. To be considered, was deemed to be unlikely by the modifications would allow owners of comments must be received, not just Council. The landing criteria selected smaller vessels to continue to use LLP postmarked or otherwise transmitted, by would represent a minimal, but licenses historically associated with the close of business on the last day of sufficient, amount of participation in their vessels and would not the comment period. the Pacific cod fishery to indicate some substantially increase fishing capacity level of dependence on the fishery. An in the fishery. Authority: 16 U.S.C. 1801 et seq. exemption from catcher/processor Fourth, Amendment 86 would allow Dated: June 29, 2010. landing requirements would be entities representing specific Carrie Selberg, provided only for LLP licenses that met communities in the WG and CG to Acting Director, Office of Sustainable the following criteria: (1) they have a request a limited number of non- Fisheries, National Marine Fisheries Service. catcher/processor endorsement; (2) they transferrable Pacific cod endorsed LLP [FR Doc. 2010–16195 Filed 7–1–10; 8:45 am] were assigned to vessels that did not licenses to be endorsed for hook-and- meet minimum landing requirements to line or pot gear with an MLOA of less BILLING CODE 3510–22–S qualify for a Pacific cod endorsement for than 60 feet. Once the community entity catcher/processors using hook-and-line receives an LLP license, the community gear in either regulatory area where entity may assign that LLP license for those LLP licenses are endorsed; and (3) use on a vessel designated by the entity. they were assigned to vessels that The number of LLP licenses and the participated in industry efforts to reduce specific gear type of those licenses halibut prohibited species catch (PSC) would be limited for each community to in the directed Pacific cod fishery in the ensure that approximately the same

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DEPARTMENT OF COMMERCE Federal eRulemaking Portal at http:// species within the ‘‘target species’’ group www.regulations.gov. through the stock assessment and National Oceanic and Atmospheric • Mail: P.O. Box 21668, Juneau, AK Council process, allowing for fishery Administration 99802. management of individual species. The • Fax: (907) 586–7557. FMP currently provides for setting 50 CFR Part 679 • Hand delivery to the Federal harvest specifications that apply to all RIN 0648–AY48 Building: 709 West 9th Street, Room species identified in the ‘‘other species’’ 420A, Juneau, AK. category in the aggregate. NMFS trawl Fisheries of the Exclusive Economic All comments received are a part of survey and catch information show that Zone Off Alaska; Skates Management the public record. No comments will be 15 skate species occur in the BSAI. In in the Bering Sea and Aleutian Islands posted to http://www.regulations.gov for the Bering Sea, the most abundant Management Area; Groundfish Annual public viewing until after the comment species is the Alaska skate, while in the Catch Limits for the Bering Sea and period has closed. Comments will Aleutian Islands the most abundant Aleutian Islands Management Area and generally be posted without change. All species is the whiteblotched skate. Gulf of Alaska Personal Identifying Information (for Amendments 96 and 87 example, name, address) voluntarily wereunanimously adopted by the AGENCY: National Marine Fisheries submitted by the commenter may be Council in April 2010. If approved by Service (NMFS), National Oceanic and publicly accessible. Do not submit the Secretary, these amendments would Atmospheric Administration (NOAA), Confidential Business Information or revise the FMPs to meet the Magnuson- Commerce. otherwise sensitive or protected Stevens Act requirements to establish ACTION: Notification of availability of information. annual catch limits (ACLs) and fishery management plan amendments; NMFS will accept anonymous accountability measures (AMs) and request for comments. comments (enter N/A in the required conform to the National Standard 1 fields, if you wish to remain (NS1) guidelines (74 FR 3178, January SUMMARY: The North Pacific Fishery anonymous). You may submit 16, 2009). The Magnuson-Stevens Management Council submitted attachments to electronic comments in Fishery Conservation and Management Amendments 95 and 96 to the Fishery Microsoft Word, Excel, WordPerfect, or Reauthorization Act of 2006 (MSRA), Management Plan (FMP) for Groundfish Adobe PDF file formats only. which was signed into law on January of the Bering Sea and Aleutian Islands Electronic copies of Amendments 95, 12, 2007, included new requirements Management Area (BSAI)-as well as 96, and 87 to the FMPs, the regarding ACLs and AMs, which Amendment 87 to the FMP for Environmental Assessments (EAs), and reinforce existing requirements to Groundfish of the Gulf of Alaska (GOA)- the Regulatory Impact Review (RIR) prevent overfishing and rebuild to NMFS for review. If approved, prepared for this action are available fisheries. NMFS revised the NS1 Amendment 95 would move skates from from the Alaska Region NMFS website guidelines at 50 CFR 600.310 to the other species category to the target at http://www.alaskafisheries.noaa.gov. integrate these new requirements with existing provisions related to species category in the FMP for FOR FURTHER INFORMATION CONTACT: overfishing, rebuilding overfished Groundfish of the BSAI. Amendments Melanie Brown, 907–586–7228. 96 and 87 would revise the FMPs to stocks, and achieving optimum yield. SUPPLEMENTARY INFORMATION: meet the National Standard 1 guidelines The Section 104(a)(10) of the MSRA, for annual catch limits and Magnuson-Stevens Fishery codified as section 303(a)(15) of the accountability measures. These Conservation and Management Act Magnuson-Stevens Act, requires FMPs amendments would move all remaining (Magnuson-Stevens Act) requires that to establish mechanisms for specifying species groups from the ‘‘other species’’ each regional fishery management ACLs, including AMs. The provision category to the ‘‘target species’’ category, council submit any fishery management states that FMPs shall ‘‘establish a remove the ‘‘other species’’ category plan amendment it prepares to NMFS mechanism for specifying annual catch from the FMPs, establish an ecosystem for review and approval, disapproval, or limits in the plan (including a multiyear component category, and describe the partial approval by the Secretary of plan), implementing regulations, or current practices for groundfish Commerce (Secretary). The Magnuson- annual specifications, at a level such fisheries management in the FMPs, as Stevens Act also requires that NMFS, that overfishing does not occur in the required by the guidelines. This action upon receiving an FMP amendment, fishery, including measures to ensure is intended to promote the goals and immediately publish a notice in the accountability.’’ ACLs and AMs are objectives of the Magnuson-Stevens Federal Register announcing that the required by fishing year 2011 in Fishery Conservation and Management amendment is available for public fisheries where overfishing is not Act, the FMPs and other applicable review and comment. This notice occurring. None of the Alaska laws. announces that proposed Amendments groundfish fisheries have overfishing 95, 96, and 87 to the FMPs are available occurring, and therefore the groundfish DATES: Comments on Amendments 95, for public review and comment. ACLs and AMs must be implemented by 96, and 87 must be received by August Amendment 95 was unanimously January 1, 2011. 31, 2010. adopted by the Council in October 2009. Skate, shark, sculpin, and octopus ADDRESSES: Send comments to Sue If approved by the Secretary, this groups are currently managed as a Salveson, Assistant Regional amendment would move the skates complex in the ‘‘other species’’ category Administrator, Sustainable Fisheries group from the ‘‘other species’’ category in the BSAI. In the GOA, shark, sculpin, Division, Alaska Region, NMFS, Attn: to the ‘‘target species’’ list in the BSAI, octopus, and squid groups are currently Ellen Sebastian. You may submit allowing the management of skates as a managed as a complex in the ‘‘other comments, identified by RIN 0648– target species complex or as individual species’’ category. Each year, the AY48, by any one of the following skates species. The FMP currently overfishing limit (OFL), acceptable methods: provides for setting harvest biological catch (ABC), and total • Electronic Submissions: Submit all specifications either for a complex of allowable catch (TAC) are specified for electronic public comments via the several species or for each individual the ‘‘other species’’ category as a whole

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in each management area. National fishery, a vessel’s harvest of sharks and • Specification of minimum stock Standard 1 guidelines require species octopuses would be limited to a size thresholds (MSSTs) or a reasonable managed in a stock complex to have maximum retainable amount, proxy; similar life histories, but the current representing a percentage of the amount • Measures that are taken if and ‘‘other species’’ category combines the of ‘‘target species’’ harvested by that when a stock drops below MSST; management of short-lived invertebrates vessel. If closing directed fishing for • AMs that are employed to prevent (squids and octopuses) with long-lived sharks and octopuses is not sufficient to ACLs from being exceeded and those fish (sharks and skates). prevent reaching the ABCs and OFLs for that will be triggered if an ACL is If approved, Amendment 95 would these groups, NMFS inseason exceeded; move BSAI skates from the ‘‘other management would use observed catch, • Ecological factors that are species’’ category to the ‘‘target species’’ fish ticket, and vessel monitoring considered by the Council in reducing category and require annual system data to determine the most optimum yield from maximum specification of OFL, ABC, and TAC for effective actions to prevent overfishing and minimize adverse economic sustainable yield; the skate group as a whole or for • individual skate species. Amendments impacts to fishing communities, to the How the tier levels for ABC and 96 and 87 would remove the remaining extent practicable. Controlling OFL are based on the scientific species groups from the ‘‘other species’’ incidental harvests of BSAI and GOA knowledge about the stock/complex, the categories in each FMP and place these octopuses may require temporary scientific uncertainty in the estimate of groups in the ‘‘target species’’ category. closure of areas of high octopus OFL, and any other scientific The ‘‘other species’’ category would be retention to Pacific cod pot gear vessels. uncertainty; and removed from the FMPs. Managing If necessary, BSAI and GOA shark • How the stock assessments skates, sculpins, sharks, octopuses, and incidental harvest would likely be account for all catch. squids as separate groups or as constrained by temporarily restricting Details on each of these proposed individual species, each with its own harvesting locations for hook-and-line revisions to the FMPs are contained in OFL, ABC, ACL, and TAC, would sablefish and Pacific cod fisheries and the EA and its appendix for enhance NMFS’ ability to control the the trawl pollock fishery. Because BSAI Amendments 96 and 87 (see harvest of these species groups based on and GOA octopus may be sold, ADDRESSES). the best available scientific information, estimated decreased revenue is Public comments are being solicited and would reduce the potential for $110,000 to $155,000 based on the on proposed Amendments 95, 96, and retrospective harvest and inseason overfishing these groups. The 87 to the FMPs through the end of the management methods. Increased costs susceptibility of skates to fishing comment period stated (see DATES). may occur if harvest locations are pressure has been well documented in NMFS intends to publish in the Federal restricted and fishing operations have to the EA for Amendment 95 (see Register and seek public comment on a travel further to reach alternative fishing ADDRESSES). While no target fishery proposed rule that partially implements grounds, or if they must fish in areas has been developed yet for groups Amendments 95, 96, and 87 following with lower catch-per-unit of effort (and currently in the ‘‘other species’’ category, NMFS’s evaluation of the proposed rule thus incur increased costs of fishing without the proposed amendments, the under the Magnuson-Stevens Act. effort to catch the same amount of fish). potential exists for the entire ‘‘other Public comments on the proposed rule Decreased revenues may occur if species’’ TAC to be taken as the harvest must be received by the end of the of a single group. Such a harvest could increased travel or fishing time requirements makes it impossible to comment period on Amendments 95, represent an unsustainable level of 96, and 87 in order to be considered in fishing mortality for that group, even catch the same amount of fish in the time available. Decreased revenues also the approval/disapproval decision on though the harvest may not exceed the may occur if shifts in fishing activity these amendments. All comments aggregate OFL for all groups in the also make it harder to deliver a quality received by the end of the comment ‘‘other species’’ category. Amendment 63 product. period on Amendments 95, 96, and 87, to the FMP for Groundfish of the GOA Specific changes to the FMPs under whether specifically directed to the was a similar precautionary measure Amendments 96 and 87 include: FMPs or to the proposed rule, will be that removed skates from the ‘‘other • Identifying ‘‘target species’’ as considered in the approval/disapproval species’’ category in response to a stocks in the fishery and establishing an decision on the amendments. To be rapidly developing directed fishery (69 ‘‘ecosystem component’’ category that is considered, comments must be received, FR 26313, May 12, 2004). comprised of stocks that are not in the not just postmarked or otherwise A retrospective analysis in the EA for fishery and would contain ‘‘prohibited transmitted, by 5 p.m., Alaska time, on Amendments 96 and 87 of past shark species’’ and ‘‘forage fish’’ species; the last day of the comment period. • and octopus harvest compared to the Moving the species groups Authority: 16 U.S.C. 1801 et seq. 2010 ABCs and OFLs showed that managed in the ‘‘other species’’ category potential harvests of these species may to the ‘‘target species’’ category and Dated: June 29, 2010. exceed ABCs and OFLs without NMFS eliminating the ‘‘other species’’ category; Carrie Selberg, inseason management to control • Removing the ‘‘nonspecified Acting Director, Office of Sustainable incidental catch (see ADDRESSES). If species’’ category; and Fisheries, National Marine Fisheries Service. the TACs for these groups are • Providing housekeeping changes [FR Doc. 2010–16197 Filed 7–1–10; 8:45 am] insufficient to support a directed that add text to the FMPs to describe: BILLING CODE 3510–22–S

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Notices Federal Register Vol. 75, No. 127

Friday, July 2, 2010

This section of the FEDERAL REGISTER control number 0551–0004). The Division, Office of Trade Programs, contains documents other than rules or information collection for the FGP Foreign Agricultural Service, U.S. proposed rules that are applicable to the differs primarily from GSM–102 as Department of Agriculture, Stop 1025, public. Notices of hearings and investigations, follows: Washington, DC 20250; or by e-mail to: committee meetings, agency decisions and (1) The applicant, in order to receive [email protected], or to the Desk rulings, delegations of authority, filing of a payment guarantee, provides petitions and applications and agency Officer for Agriculture, Office of statements of organization and functions are information evidencing that the Information and Regulatory Affairs, examples of documents appearing in this exported goods and services used to Office of Management and Budget section. develop improved infrastructure will (OMB), Washington, DC 20503. Persons primarily benefit exports of U.S. with disabilities who require an agricultural commodities and products; alternative means for communication of DEPARTMENT OF AGRICULTURE and information (Braille, large print, (2) The applicant is required to certify audiotape, etc.) should contact USDA’s Commodity Credit Corporation that the value of non-U.S. components Target Center at (202) 720–2600 (voice of goods and services is less than 50 and TDD). Notice of Request for Extension of a percent of the contract value covered All responses to this notice will be Currently Approved Information under the payment guarantee. summarized and included in the request Collection In addition, each exporter and for OMB approval. All comments will exporter’s assignee (U.S. financial AGENCY: Commodity Credit Corporation, also become a matter of public record. institution) must maintain records on all USDA. information submitted to CCC and in Dated: June 25, 2010. ACTION: Notice and request for connection with sales made under the John D. Brewer, comments. FGP. The information collected is used Administrator, Foreign Agricultural Service. SUMMARY: In accordance with the by CCC to manage, plan, evaluate and [FR Doc. 2010–16109 Filed 7–1–10; 8:45 am] Paperwork Reduction Act of 1995, this account for government resources. The BILLING CODE 3410–10–P notice announces the Commodity Credit reports and records are required to Corporations (CCC) intention to request ensure the proper and judicious use of DEPARTMENT OF AGRICULTURE an extension for a currently approved public funds. Estimate of Burden: The public information collection in support of the Forest Service CCC Facility Guarantee Program (FGP) reporting burden for these collections is based on re-estimates. estimated to average 12 hours per response. Collaborative Forest Landscape DATES: Comments on this notice must be Respondents: Exporters of U.S. Restoration Program Advisory received by August 31, 2010. agricultural commodities, banks or other Committee ADDITIONAL INFORMATION OR COMMENTS: financial institutions, producer AGENCY: Forest Service, USDA. Contact P. Mark Rowse, Director, Credit associations, export trade associations, ACTION: Notice of meeting. Programs Division, Foreign Agricultural and U.S. Government agencies. Service, U.S. Department of Agriculture, Estimated Number of Respondents: 5 SUMMARY: The Collaborative Forest AgStop 1035, Washington, DC 20250– per annum. Landscape Restoration Program (CFLRP) 1025; or by telephone (202) 720–0624; Estimated Number of Responses per Advisory Committee will meet in or by e-mail: [email protected]. Respondent: 6 per annum. Washington, DC. The purpose of the SUPPLEMENTARY INFORMATION: Estimated Total Annual Burden of meeting is to review proposed CFLRP Title: CCC Facility Guarantee Respondents: 360 hours. projects and make recommendations for Program. Requests for Comments: Send project selection to the Secretary of OMB Number: 0551–0032. comments regarding: (a) Whether the Agriculture. Expiration Date of Approval: proposed collection of information is November 30, 2010. necessary for the proper performance of DATES: The meeting will be held July Type of Request: Extension of a the functions of the agency, including 20–22, 2010. currently approved information whether the information will have ADDRESSES: The meeting will be held at collection. practical utility; (b) the accuracy of the the Holiday Inn Capitol, 550 C Street, Abstract: The primary objective of the agency’s estimate of the burden of the SW., Washington, DC 20024. Written FGP is to expand U.S. agricultural proposed collection of information; (c) comments should be sent to USDA exports by improving agricultural ways to enhance the quality, utility and Forest Service, Forest Management, infrastructure in importing countries. clarity of the information to be Mailstop-1103, 1400 Independence The FGP makes available export credit collected; and (d) ways to minimize the Avenue, SW., Washington, DC 20250– guarantees to encourage U.S. private burden of the collection of information 1103. Comments may also be sent via e- sector financing of foreign purchases of on those who are to respond, including mail to [email protected] or via facsimile U.S. goods and services on credit terms. through the use of automated, to 202–205–1045. The CCC has not yet made electronic, mechanical, or other All comments, including names and announcements for the FGP this year. technological collection techniques or addresses when provided, are placed in The FGP information collection is other forms of information technology. the record and are available for public similar to those for the Export Credit Comments may be sent to P. Mark inspection and copying. The public may Guarantee Program (GSM–102) (OMB Rowse, Director, Credit Programs inspect comments received at USDA

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Forest Service, Forest Management, 201 comments should be sent to David ADDRESSES: The application and related 14th Street, SW., Yates Building, Whittekiend, Designated Federal documents are available for review Washington, DC 20024–1103. Visitors Official, Mark Twain National Forest, upon written request or by appointment are encouraged to call ahead to 202– 401 Fairgrounds Road, Rolla, MO. in the following office(s): 205–1688 to facilitate entry into the Comments may also be sent via e-mail Permits, Conservation and Education Forest Service building. to [email protected] or via Division, Office of Protected Resources, FOR FURTHER INFORMATION CONTACT: Bill facsimile to 573–364–6844. NMFS, 1315 East-West Highway, Room Timko, Deputy Director, Forest All comments, including names and 13705, Silver Spring, MD 20910; phone Management, 202–205–1688. addresses when provided, are placed in (301) 713–2289; fax (301) 713–0376; and Individuals who use the record and are available for public Southwest Region, NMFS, 501 West telecommunication devices for the deaf inspection and copying. The public may Ocean Blvd., Suite 4200, Long Beach, (TDD) may call the Federal Information inspect comments received at Mark CA 90802–4213; phone (562) 980–4001; Relay Service (FIRS) at 1–800–877–8339 Twain National Forest Supervisors fax (562) 980–4018. between 8 a.m. and 8 p.m., Eastern Office, 401 Fairgrounds Road, Rolla, Written comments or requests for a Standard Time, Monday through Friday. MO. Visitors are encouraged to call public hearing on these applications SUPPLEMENTARY INFORMATION: The ahead to 573–341–7404 to facilitate should be submitted to the Chief, meeting is open to the public. Council entry into the building. Permits, Conservation and Education discussion is limited to Forest Service FOR FURTHER INFORMATION CONTACT: Division, at the address listed above. staff and Council members. However, Richard Hall, Eleven Point Resource Comments may also be submitted by persons who wish to bring Collaborative Advisory Committee Coordinator, Mark facsimile to (301) 713–0376, or by email Forest Landscape Restoration Program Twain National Forest, 573–341–7404. to [email protected]. matters to the attention of the Council Individuals who use Please include File No. 15511 in the may file written statements with the telecommunication devices for the deaf subject line of the email comment. Council staff before or after the meeting. (TDD) may call the Federal Information Those individuals requesting a hearing Public input sessions will be provided Relay Service (FIRS) at 1–800–877–8339 should set forth the specific reasons and individuals who made written between 8 a.m. and 8 p.m., Eastern why a hearing on this particular request requests by July 19, 2010, will have the Standard Time, Monday through Friday. would be appropriate. opportunity to address the Council at SUPPLEMENTARY INFORMATION: The FOR FURTHER INFORMATION CONTACT: those sessions. meeting is open to the public. The Jennifer Skidmore or Kristy Beard, (301) following business will be conducted: 713–2289. Dated: June 28, 2010. The meeting will begin to focus on the SUPPLEMENTARY INFORMATION: The Thomas A. Peterson, potential projects that the RAC will be subject permit is requested under the Acting Associate Deputy Chief, NFS. reviewing. Persons who wish to bring authority of the Marine Mammal [FR Doc. 2010–16110 Filed 7–1–10; 8:45 am] related matters to the attention of the Protection Act of 1972, as amended BILLING CODE 3410–11–P Committee may file written statements (MMPA; 16 U.S.C. 1361 et seq.), and the with David Whittekiend (address above) regulations governing the taking and before or after the meeting. importing of marine mammals (50 CFR DEPARTMENT OF AGRICULTURE Dated: June 28, 2010. part 216). Forest Service David Whittekiend, SeaWorld, LLC. requests Forest Supervisor. authorization to import one male short- Eleven Point Resource Advisory [FR Doc. 2010–16130 Filed 7–1–10; 8:45 am] finned pilot whale to SeaWorld California for the purpose of public Committee BILLING CODE 3410–11–P display. This animal was rescued by the AGENCY: Forest Service, USDA. Southern Caribbean Cetacean Network ACTION: Notice of meeting. in Curacao, Netherlands Antilles, and DEPARTMENT OF COMMERCE was imported to SeaWorld California on SUMMARY: The Eleven Point Resource January 4, 2010, under Cooperative Advisory Committee will meet in National Oceanic and Atmospheric Administration Agreement No. 2009–02. The animal has Winona, Missouri. The committee is been determined to be non-releaseable meeting as authorized under the Secure RIN 0648–XX14 to the wild and will be maintained at Rural Schools and Community Self- SeaWorld California for public display. Marine Mammals; File No. 15511 Determination Act (Pub. L. 110–343) SeaWorld California: (1) is open to the and in compliance with the Federal AGENCY: National Marine Fisheries public on a regularly scheduled basis Advisory Committee Act. The purpose Service (NMFS), National Oceanic and with access that is not limited or of the meeting is initiate review of Atmospheric Administration (NOAA), restricted other than by charging for an proposed forest management projects so Commerce. admission fee; (2) offers an educational that recommendations may be made to ACTION: Notice; receipt of application. program based on professionally the Forest Service on which should be accepted standards of the Alliance of funded through Title II of the Secure SUMMARY: Notice is hereby given that Marine Mammal Parks and Aquariums; Rural Schools and Community Self SeaWorld, LLC., 9205 South Center and (3) holds an Exhibitor’s License, Determination Act of 2000, as amended Loop, Suite 400 Orlando, FL 32819, has number 93–C–0069, issued by the U.S. in 2008. applied in due form for a permit to Department of Agriculture under the DATES: The meeting will be held import one short-finned pilot whale Animal Welfare Act (7 U.S.C. §§ 2131 - Thursday, July 15, 2010, 6:30 p.m. (Globicephala macrorhynchus) for 59). ADDRESSES: The meeting will be held at public display. In addition to determining whether the Twin Pines Conservation Education DATES: Written, telefaxed, or e-mail the applicant meets the three public Center located on U.S. Highway 60, Rt comments must be received on or before display criteria, NMFS must determine 1, Box 1998, Winona, MO. Written August 2, 2010. whether the applicant has demonstrated

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that the proposed activity is humane The participating vessel will be standard lobster traps which meet the and does not represent any unnecessary exempted from the prohibitions relative Atlantic Large Whale Take Reduction risks to the health and welfare of marine to the possession, transportation and Plan gear specifications, and will be mammals; that the proposed activity by shipping of egg-bearing lobsters until harvested from conventional traps set itself, or in combination with other the six egg-bearing lobsters are obtained between Block and Hudson Canyons activities, will not likely have a for use by the researchers. The lobsters (NMFS Statistical Areas 537, 616, and significant adverse impact on the are needed for the purpose of studying 613) in Lobster Management Area 3. All species or stock; and that the applicant’s lobster larval settlement by comparing six egg-bearing lobsters will likely be expertise, facilities and resources are settlement behavior of inshore and obtained over the course of a single adequate to accomplish successfully the offshore lobster populations being lobster trawl comprised of about 20–40 objectives and activities stated in the conducted by Boston University in traps set for approximately one week. It applications. conjunction with the Woods Hole is expected that the vessel will be able In compliance with the National Oceanographic Institution. Environmental Policy Act of 1969 (42 Further review and consultation may to obtain all the lobsters needed under U.S.C. 4321 et seq.), an initial be necessary before a final this exemption during one multi-day determination has been made that the determination is made to issue an EFP. fishing trip during July 2010. The activity proposed is categorically NMFS announces that the Assistant researchers will take possession of the excluded from the requirement to Regional Administrator proposes to egg-bearing lobsters when the vessel prepare an environmental assessment or issue an EFP and, therefore, invites reaches port at the end of the fishing environmental impact statement. comments on the issuance of this EFP. trip during which the lobsters were Concurrent with the publication of DATES: Comments must be received on harvested. this notice in the Federal Register, or before July 19, 2010. Obtaining the egg-bearing lobster is NMFS is forwarding copies of this ADDRESSES: You may submit written most effectively done through application to the Marine Mammal comments by any of the following coordinating with a commercial lobster Commission and its Committee of methods: vessel since lobsters representative of Scientific Advisors. • Email: [email protected]. the offshore population are needed to Dated: June 28, 2010. Include in the subject line ‘‘Comments conduct the study. The participating P. Michael Payne, on BU Lobster Larval Settlement EFP.’’ vessel will be exempted from the • Chief, Permits, Conservation and Education Mail: Patricia A. Kurkul, Regional prohibitions in §§ 697.20(d)(3) and (4) Division, Office of Protected Resources, Administrator, NMFS, NE Regional relative to the possession, transportation National Marine Fisheries Service. Office, 55 Great Republic Drive, and shipping of egg-bearing lobsters [FR Doc. 2010–16193 Filed 7–1–10; 8:45 am] Gloucester, MA 01930. Mark the outside until the six egg-bearing lobsters are of the envelope ‘‘Comments on BU BILLING CODE 3510–22–S obtained for use by the researchers. Lobster Larval Settlement EFP.’’ • Fax: (978) 281–9117. The applicant may request minor DEPARTMENT OF COMMERCE FOR FURTHER INFORMATION CONTACT: modifications and extensions to the EFP Peter Burns, Fishery Management throughout the year. EFP modifications National Oceanic and Atmospheric Specialist, 978–281–9144, and extensions may be granted without Administration [email protected]. further notice if they are deemed RIN 0648–XX07 SUPPLEMENTARY INFORMATION: Boston essential to facilitate completion of the University, in conjunction with the proposed research and have minimal Atlantic Coastal Fisheries Cooperative Woods Hole Oceanographic Institute, impacts that do not change the scope or Management Act Provisions; General submitted a complete application for an impact of the initially approved EFP Provisions for Domestic Fisheries; EFP on May 28, 2010, to conduct request. Any fishing activity conducted Application for Exempted Fishing commercial fishing activities that the outside the scope of the exempted Permits (EFP) regulations would otherwise restrict. fishing activity would not be covered by AGENCY: National Marine Fisheries The EFP would authorize one vessel to the exemption and would have to Service (NMFS), National Oceanic and harvest, retain, and bring to port, six otherwise comply with all applicable Atmospheric Administration (NOAA), egg-bearing, legal-sized, female lobsters. laws. The researchers are studying Commerce. Authority: 16 U.S.C. 1801 et seq. ACTION: Notice; request for comments. settlement behavior of larval lobsters. Recent genetic work indicates that Dated: June 29, 2010. SUMMARY: The Assistant Regional lobster populations which are relatively James P. Burgess Administrator for Sustainable Fisheries, close in proximity (for example, only 30 Acting Director, Office of Sustainable Northeast Region, NMFS (Assistant miles apart), are morphologically and Fisheries, National Marine Fisheries Service. Regional Administrator), has made a genetically distinct from one another. [FR Doc. 2010–16194 Filed 7–1–10; 8:45 am] preliminary determination that an EFP The researchers believe settlement of BILLING CODE 3510–22–S application contains all of the required the larvae may play a role in information and warrants further maintaining this population structure consideration. This EFP would allow and have planned experiments to one commercial fishing vessel to compare settlement behavior of different harvest, retain, and bring to port, six larval stages between inshore and egg-bearing, legal-sized, female offshore populations. American lobster (lobster) taken from The researchers request to obtain six conventional lobster traps in between egg-bearing, legal-sized female lobsters Block and Hudson Canyons in Lobster from an offshore commercial lobster Management Area 3 during the summer trap vessel during the summer of 2010. of 2010. The lobsters will be harvested using

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DEPARTMENT OF COMMERCE and subsequently issued revised cash additional information to interested deposit instructions to CBP.2 parties.5 International Trade Administration In response to the Department’s Analysis of Comments Received [A–570–951] invitation to comment on the All of the issues raised in the case and Preliminary Determination, on April 1, rebuttal briefs submitted in this Certain Woven Electric Blankets From 2010, Jarden Consumer Solutions the People’s Republic of China: Final investigation are addressed in the (hereinafter, ‘‘Petitioner’’) and Hung Kuo ‘‘Issues and Decision Memorandum for Determination of Sales at Less Than filed case briefs. Petitioner and Hung Fair Value the Final Determination’’ dated June 25, Kuo filed rebuttal briefs on April 6, 2010, which is hereby adopted by this AGENCY: Import Administration, 2010. On April 20, 2010, the notice (‘‘Issues and Decision International Trade Administration, Department rejected rebuttal surrogate Memorandum’’). Appendix I to this Department of Commerce. value information, case briefs, and notice contains a list of the issues DATES: Effective Date: July 2, 2010. rebuttal briefs filed by Hung Kuo addressed in the Issues and Decision SUMMARY: The Department of Commerce because they contained untimely filed Memorandum. The Issues and Decision (‘‘the Department’’) has determined that new factual information, including the Memorandum, which is a public certain woven electric blankets (‘‘woven 2008–2009 financial statement of Bawa document, is on file in the Central electric blankets’’) from the People’s Woollen and Spinning Mills Limited Records Unit (‘‘CRU’’) at the Main Republic of China (‘‘PRC’’) are being, or (‘‘Bawa’’), an Indian producer of non- Commerce Building, Room 1117, and is are likely to be, sold in the United States electric blankets, which Hung Kuo accessible on the Web at http:// at less than fair value (‘‘LTFV’’) as proposed as a surrogate value source for ia.ita.doc.gov/frn. The paper copy and provided in section 735 of the Tariff Act manufacturing overhead, selling, electronic version of the memorandum of 1930, as amended (‘‘the Act’’). The general, and administrative expenses, are identical in content. and profit. Hung Kuo refiled versions of final dumping margins for this Changes Since the Preliminary ‘‘ these submissions without the new investigation are listed in the Final Determination Determination Margins’’ section below. factual information on April 22, 2010. The period covered by the investigation On May 7, 2010, Hung Kuo submitted Based on our analysis of the is October 1, 2008 through March 31, a written request that the Department comments received, we have made the 2009 (the ‘‘POI’’). reconsider its decision to reject the following changes to our preliminary determination: FOR FURTHER INFORMATION CONTACT: 2008–2009 Bawa financial statement. 1. We have based Hung Kuo’s final Howard Smith or Drew Jackson, AD/ On May 26, 2010, the Department notified Hung Kuo that it would not margin on partial adverse facts available CVD Operations, Office 4, Import ‘‘ ’’ accept the untimely filed 2008–2009 ( AFA ). Administration, International Trade 2. Pursuant to a recent decision by the Bawa statement. Administration, U.S. Department of CAFC, we have calculated a revised Commerce, 14th Street and Constitution On June 9, 2010, the Department hourly wage rate to use in valuing Hung Avenue, NW., Washington, DC 20230; notified interested parties that it would Kuo’s reported labor input by averaging telephone: (202) 482–5193 and 482– be reconsidering its valuation of the earnings and/or wages in countries that 4406, respectively. labor wage rate in this investigation, as are economically comparable to the PRC SUPPLEMENTARY INFORMATION: a result of the recent decision in Dorbest and that are significant producers of Background Limited et al. v. United States, 2009– comparable merchandise.6 1257, –1266, issued by the United States 3. In our final margin calculation we The Department published its Court of Appeals for the Federal Circuit have revised the unit of measure preliminary determination of sales at (‘‘CAFC’’) on May 14, 2010. On June 9, conversion for certain inputs reported 1 LTFV on February 3, 2010. Between 2010,3 and June 11, 2010,4 the by Hung Kuo and limited the deduction February 1, 2010 and February 12, 2010, Department placed export data, which of ocean freight expenses to the the Department conducted a verification the Department was considering in appropriate sales. of the sole respondent in this connection with the valuation of the Scope of Investigation investigation, Hung Kuo Electronics labor wage rate, on the record of this (Shenzhen) Company Limited (‘‘Hung investigation and invited interested The scope of this investigation covers Kuo’’) and its U.S. affiliate, Biddeford parties to comment on the narrow issue finished, semi-finished, and Blankets LLC (‘‘Biddeford Blankets’’). of the labor wage value in light of the unassembled woven electric blankets, See the ‘‘Verification’’ section below for CAFC’s decision. On June 16, 2010, including woven electric blankets additional information. Hung Kuo and Petitioner submitted commonly referred to as throws, of all On March 5, 2010, Hung Kuo comments on the export data. On June sizes and fabric types, whether made of submitted a written request that the 21, 2010, the Department released man-made fiber, natural fiber or a blend Department issue revised cash deposit of both. Semi-finished woven electric instructions to U.S. Customs and Border blankets and throws consist of shells of 2 See Memorandum to John M. Andersen, Acting Protection (‘‘CBP’’) indicating that Hung Deputy Assistant Secretary for Antidumping and woven fabric containing wire. Kuo Electronics (Shenzhen) Company Countervailing Duty Operations, from Abdelali Unassembled woven electric blankets Limited can also be translated as Ongain Elouaradia, Director, AD/CVD Operations, Office 4, and throws consist of a shell of woven Electronics (Shenzhen) Company concerning ‘‘Request to Modify Customs fabric and one or more of the following Limited. On March 30, 2010, the Instructions, dated March 30, 2010. 3 See Memorandum to the File, through Howard components when packaged together or Department granted Hung Kuo’s request Smith, Program Manager, AD/CVD Operations, Office 4, concerning, ‘‘Export Data,’’ dated June 9, 5 See Memorandum to the File, through Howard 1 See Certain Woven Electric Blankets From the 2010. Smith, Program Manager, AD/CVD Operations, People’s Republic of China: Preliminary 4 See Memorandum to the File, through Howard Office 4, concerning, ‘‘Wage Data,’’ dated June 11, Determination of Sales at Less Than Fair Value and Smith, Program Manager, AD/CVD Operations, 2010. Postponement of Final Determination, 75 FR 5567 Office 4, concerning, ‘‘Export Data,’’ dated June 11, 6 See Issues and Decision Memorandum at (February 3, 2010) (‘‘Preliminary Determination’’). 2010. Comment 13.

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in a kit: (1) wire; (2) controller(s). The Verification (D) of the Act, we find that the use of shell of woven fabric consists of two As provided in section 782(i) of the facts otherwise available for these items sheets of fabric joined together forming Act, we conducted verifications of Hung is warranted. a ‘‘shell.’’ The shell of woven fabric is Kuo’s information.8 In conducting the Furthermore, in selecting from among manufactured to accommodate either verifications, we used standard the facts otherwise available, we have the electric blanket’s wiring or a verification procedures, including determined, pursuant to section subassembly containing the electric examination of relevant accounting and 776(b)(2) of the Act, that it is blanket’s wiring (e.g., wiring mounted production records, as well as original appropriate to apply an adverse on a substrate). source documents provided by Hung inference because Hung Kuo failed to cooperate by not acting to the best of its A shell of woven fabric that is not Kuo and Biddeford Blankets. packaged together, or in a kit, with ability to comply with a request for either wire, controller(s), or both, is not Adverse Facts Available information. Specifically, Hung Kuo covered by this investigation even Section 776(a) of the Act provides that made misstatements to the Department though the shell of woven fabric may be subject to section 782(d) of the Act, the regarding its methodology for reporting dedicated solely for use as a material in Department may base its determinations FOP data for electronic controller parts the production of woven electric on facts otherwise available if: (1) and Hung Kuo failed to provide blankets. necessary information is not available verifiable information concerning certain ocean freight expenses, and the The finished, semi-finished and on the record of a proceeding; or (2) an interested party (A) Withholds quantity of heating wire and integrated unassembled woven electric blankets circuits purchased from its market and throws subject to this investigation information requested by the Department, (B) fails to provide such economy suppliers. The information are currently classifiable under sought by the Department regarding subheading 6301.10.0000 of the information by the deadline, or in the form or manner requested, (C) Hung Kuo’s ocean freight expenses and Harmonized Tariff Schedule of the market economy purchases was within United States (‘‘HTSUS’’). Although the significantly impedes a proceeding, or (D) provides information that cannot be Hung Kuo’s control and could have HTSUS subheading is provided for been reported to the Department. convenience and customs purposes, verified as provided in section 782(i) of the Act. Section 782(d) of the Act allows Accordingly, we have determined that only the written description of the scope Hung Kuo failed to cooperate by putting is dispositive. the Department, subject to section 782(e) of the Act, to disregard all or part forth its maximum effort to obtain the data and, hence, has not acted to the Scope Comments of a deficient or untimely response from best of its ability to comply with a a respondent. On August 3, 2009, Perfect Fit request for information. Therefore, we Industries (‘‘Perfect Fit’’), a U.S. importer Pursuant to section 782(e) of the Act, the Department shall not decline to have determined that it is appropriate to of knitted electric blankets, submitted use adverse inferences in selecting the comments on the scope of this consider submitted information if all of the following requirements are met: (1) facts otherwise available on which to investigation. Perfect Fit requested that base Hung Kuo’s dumping margin. the Department amend the scope of this The information is submitted by the established deadline; (2) the information Accordingly, we applied adverse facts investigation to include the following available to the aforementioned data. can be verified; (3) the information is two statements: (1) ‘‘knitted electric Specifically, as adverse facts available not so incomplete that it cannot serve as blankets in any form, whether finished, we selected: (1) Electronic controller a reliable basis for reaching the semi-finished, or assembled, are not part consumption data obtained at applicable determination; (4) the within the scope of this investigation;’’ verification; 9 (2) the highest appropriate interested party has demonstrated that it and (2) electric mattress pads in any per-unit value on the record of this acted to the best of its ability; and (5) form, whether finished, semi-finished, proceeding to value Hung Kuo’s inputs the information can be used by the or assembled, are not within the scope which were sourced, in part, from of this investigation.’’ Perfect Fit argued Department without undue difficulties. 10 Section 776(b) of the Act authorizes market economy suppliers, and (3) that this exclusionary language was record evidence of ocean-freight the Department to apply an adverse warranted because Petitioner’s counsel expenses incurred by Hung Kuo.11 For inference to the facts otherwise acknowledged that knitted electric further discussion concerning the available with respect to an interested blankets and electric mattress pads are Department’s analysis, see Comment 1 party if the Department finds that the not within the scope of the U.S. of the Issues and Decision party failed to cooperate by not acting International Trade Commission’s Memorandum accompanying this to the best of its ability to comply with (‘‘ITC’’) investigation of woven electric notice. blankets from the PRC.7 No other parties a request for information. We find that Hung Kuo: (1) withheld Surrogate Country commented on this issue. actual consumption quantities for all The Department finds that Perfect In the Preliminary Determination, electronic controller parts which had pursuant to section 773(c) of the Act, we Fit’s suggested scope amendment is been requested by the Department; and unnecessary and has made no revision selected India as the appropriate (2) reported factors of production surrogate country noting that it was on to the scope of this investigation for the (‘‘FOP’’) data for all electronic controller final determination. We note that the parts, certain market economy expenses 9 The Department has used these data to adjust scope of this investigation explicitly relating to ocean freight, and certain Hung Kuo’s reported per-unit consumption for all covers woven electric blankets, and find market economy purchase quantity data controller parts. that the addition of Perfect Fit’s that could not be verified. Therefore, 10 In valuing Hung Kuo’s heating wire and proposed exclusionary language to be pursuant to sections 776(a)(2)(A) and integrated circuit inputs, the Department has superfluous and unwarranted. selected the highest value on the record (i.e, an Indian surrogate value, or the reported market 8 See the Department’s verification reports for the economy purchase price). 7 See Perfect Fit’s August 3, 2010 submission Hung Kuo, including the verification of its U.S. 11 The Department has adjusted Hung Kuo’s (citing the ITC’s preliminary conference transcript sales affiliate, Biddeford Blankets, on file in the ocean freight using information contained in ocean at 16 and 111.) CRU. freight invoices submitted by Hung Kuo.

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the Department’s list of countries that additional information regarding these Corroboration are at a level of economic development entities has been placed on the record Section 776(c) of the Act provides comparable to the PRC and that India is since the publication of the Preliminary that, when the Department relies on a significant producer of merchandise Determination. Since the PRC-wide secondary information, rather than on comparable to subject merchandise; entity did not provide the Department information obtained in the course of an additionally, we determined that with requested information, pursuant to investigation as facts available, it must, reliable Indian data for valuing FOPs are section 776(a)(2)(A) of the Act, we to the extent practicable, corroborate 12 readily available. No party has continue to find it appropriate to base that information from independent commented on our selection of India as the PRC-wide rate on facts otherwise sources reasonably at its disposal. the appropriate surrogate country. Thus, available. Moreover, given that the PRC- Secondary information is described in we continue to find India to be the wide entity did not respond to our the Statement of Administrative Action appropriate surrogate country in this request for information, we continue to (‘‘SAA’’) as ‘‘information derived from investigation. find that it failed to cooperate to the best the petition that gave rise to the of its ability to comply with a request Separate Rates investigation or review, the final for information. Thus, pursuant to determination concerning subject In proceedings involving non-market- section 776(b) of the Act, and consistent merchandise, or any previous review economy (‘‘NME’’) countries, the with the Department’s practice, we have under section 751 of the Act concerning Department begins with a rebuttable continued to use an adverse inference in the subject merchandise.’’ 19 The SAA presumption that all companies within selecting from among the facts provides that to ‘‘corroborate’’ means the country are subject to government 16 otherwise available. simply that the Department will satisfy control and, thus, should be assigned a Pursuant to section 776(b) of the Act, itself that the secondary information to single antidumping duty deposit rate. It the Department may select, as AFA, be used has probative value.20 The SAA is the Department’s policy to assign all information derived from: (1) The also states that independent sources exporters of merchandise subject to an petition; (2) the final determination used to corroborate may include, for investigation in an NME country this from the LTFV investigation; (3) a example, published price lists, official single rate unless an exporter can previous administrative review; or (4) import statistics and customs data, and demonstrate that it is sufficiently any other information placed on the information obtained from interested independent so as to be entitled to a record. To induce respondents to 13 parties during the particular separate rate. provide the Department with complete 21 In the Preliminary Determination, we investigation. To corroborate and accurate information in a timely secondary information, the Department found that Hung Kuo, and separate rate manner, the Department’s practice is to applicants, Ningbo V.K. Industry & will, to the extent practicable, examine select, as AFA, the higher of: (a) the the reliability and relevance of the Trading Co., Ltd., and Ningbo Jifa highest margin alleged in the petition; 22 Electrical Appliances Co., Ltd./Ningbo information used. or (b) the highest calculated rate for any As total AFA the Department Jinchun Electric Appliances Co., Ltd. 17 respondent in the investigation. preliminarily selected the rate of 174.85 demonstrated their eligibility for, and Since we begin with the presumption percent from the Petition. In the were hence assigned, separate rate that all companies within an NME Preliminary Determination, we status. No party has commented on the country are subject to government preliminarily found the rate of 174.85 eligibility of these companies for control and only the exporters listed percent to be the highest Petition margin separate rate status. Therefore, for the under the ‘‘Final Determination that could be corroborated within the final determination, we continue to find Margins’’ section below have overcome meaning of section 776(c) of the Act. For that the evidence placed on the record that presumption, consistent with the the final determination, we find that the of this investigation by these companies Department’s practice, we are applying rate is within the range of the margins demonstrates both a de jure and de facto a single antidumping rate (i.e., the PRC- calculated on individual sales by Hung absence of government control with wide rate) to all exporters of subject Kuo, the cooperative respondent. respect to their exports of the merchandise from the PRC, other than Therefore, we continue to find that the merchandise under investigation and the exporters listed in the ‘‘Final that these companies are thus eligible margin of 174.85 percent has probative Determination Margins’’ section of this value. Accordingly, we find that the rate for separate rate status.14 18 notice. of 174.85 percent is corroborated within The PRC-Wide Rate the meaning of section 776(c) of the Act. 16 See, e.g., Notice of Final Determination of Sales In the Preliminary Determination, the at Less Than Fair Value: Certain Cold-Rolled Flat- Department considered certain non- Rolled Carbon-Quality Steel Products From the companies that failed to respond to the responsive PRC producers/exporters to Russian Federation, 65 FR 5510, 5518 (February 4, Department’s questionnaire were controlled by the 2000) (where the Department applied an adverse PRC government). be part of the PRC-wide entity because inference in determining the Russia-wide rate); 19 See SAA, accompanying the Uruguay Round they did not respond to our requests for Final Determination of Sales at Less Than Fair Agreements Act, H.R. Doc. 103–316, Vol. 1 at 870. information and did not demonstrate Value: Certain Artists Canvas from the People’s 20 See id. that they operated free of government Republic of China, 71 FR 16116, 16118–19 (March 21 See id. control over their export activities.15 No 30, 2006) (where the Department applied an adverse 22 See, e.g., Tapered Roller Bearings and Parts inference in determining the PRC-wide rate). Thereof, Finished and Unfinished, From Japan, and 17 See, e.g., Final Determination of Sales at Less Tapered Roller Bearings, Four Inches or Less in 12 See Preliminary Determination, 75 FR at 5569. Than Fair Value: Certain Cold-Rolled Flat-Rolled Outside Diameter, and Components Thereof, From 13 See, e.g., Final Determination of Sales at Less Carbon Quality Steel Products From the People’s Japan; Preliminary Results of Antidumping Duty Than Fair Value: Sparklers From the People’s Republic of China, 65 FR 34660 (May 31, 2000), and Administrative Reviews and Partial Termination of Republic of China, 56 FR 20588 (May 6, 1991), as accompanying Issues and Decisions Memorandum Administrative Reviews, 61 FR 57391, 57392 amplified by Notice of Final Determination of Sales at ‘‘Facts Available.’’ (November 6, 1996), unchanged in Tapered Roller at Less Than Fair Value: Silicon Carbide From the 18 See, e.g., Synthetic Indigo From the People’s Bearings and Parts Thereof, Finished and People’s Republic of China, 59 FR 22585 (May 2, Republic of China; Notice of Final Determination of Unfinished, From Japan, and Tapered Roller 1994); see also 19 C.F.R. § 351.107(d). Sales at Less Than Fair Value, 65 FR 25706 (May Bearings, Four Inches or Less in Outside Diameter, 14 See Preliminary Determination, 75 FR at 5569– 3, 2000) (applying the PRC-wide rate to all and Components Thereof, From Japan; Final Results 71. exporters of subject merchandise in the PRC based of Antidumping Duty Administrative Reviews and 15 See id., 75 FR at 5571. on the presumption that the export activities of the Termination in Part, 62 FR 11825 (March 13, 1997).

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Combination Rates [w]hile continuing the practice of assigning referred to as the application of ‘‘combination separate rates only to exporters, all separate rates’’ because such rates apply to specific In the Initiation Notice, the rates that the Department will now assign in combinations of exporters and one or more Department stated that it would its [non-market economy] investigations will producers. The cash-deposit rate assigned to be specific to those producers that supplied calculate combination rates for an exporter will apply only to merchandise the exporter during the period of respondents that are eligible for a investigation. Note, however, that one rate is both exported by the firm in question and separate rate in this investigation.23 This calculated for the exporter and all of the produced by a firm that supplied the exporter practice is described in Department producers which supplied subject during the period of investigation.24 merchandise to it during the period of Policy Bulletin 05.1, ‘‘Separate-Rates Final Determination Margins Practice and Application of investigation. This practice applies both to mandatory respondents receiving an Combination Rates in Antidumping individually calculated separate rate as well We determine that the following Investigations involving Non-Market as the pool of non-investigated firms weighted-average dumping margins Economy Countries,’’ which states: receiving the weighted-average of the exist for the period October 1, 2008, individually calculated rates. This practice is through March 31, 2009:

Weighted-aver- Exporter and producer age margin

Hung Kuo Electronics (Shenzhen) Company Limited ...... 77.75% Produced by: Hung Kuo Electronics (Shenzhen) Company Limited. Ningbo V.K. Industry & Trading Co., Ltd...... 77.75% Produced by: Ningbo V.K. Industry & Trading Co., Ltd.. Ningbo Jifa Electrical Appliances Co., Ltd. or ...... 77.75% Ningbo Jinchun Electric Appliances Co., Ltd.. Produced by: Ningbo Jifa Electrical Appliances Co., Ltd. or Ningbo Jinchun Electric Appliances Co., Ltd.. PRC–Wide Rate ...... 174.85%

Disclosure exporter/producer combination that disposition of proprietary information supplied that non-PRC exporter. These disclosed under APO in accordance We will disclose to parties the suspension-of-liquidation instructions with 19 CFR 351.305. Timely calculations performed within five days will remain in effect until further notice. notification of return or destruction of of the date of public announcement of APO materials or conversion to judicial this determination in accordance with ITC Notification protective order is hereby requested. 19 CFR 351.224(b). In accordance with section 735(d) of Failure to comply with the regulations Continuation of Suspension of the Act, we have notified the ITC of our and the terms of an APO is a Liquidation final determination of sales at LTFV. As sanctionable violation. This our final determination is affirmative, in determination and notice are issued and In accordance with section accordance with section 735(b)(2) of the published in accordance with sections 735(c)(1)(B) of the Act, the Department Act, the ITC will determine whether the 735(d) and 777(i)(1) of the Act. will instruct CBP to continue to suspend domestic industry in the United States liquidation of all entries of woven is materially injured, or threatened with Dated: June 25, 2010. electric blankets from the PRC, as material injury, by reason of imports or Paul Piquado, described in the ‘‘Scope of Investigation’’ sales (or the likelihood of sales) for Acting Deputy Assistant Secretary for Import section, entered, or withdrawn from importation of the subject merchandise Administration. warehouse, for consumption on or after, within 45 days of this final Appendix I February 3, 2010, the date of publication determination. If the ITC determines of the Preliminary Determination in the that material injury or threat of material Comment 1: Application of Partial Adverse Facts Available—Hung Kuo Federal Register. The Department will injury does not exist, the proceeding Comment 2: Financial Statements Used to instruct CBP to require a cash deposit or will be terminated and all securities the posting of a bond equal to the Derive Manufacturing Overhead, Selling, posted will be refunded or canceled. If General and Administrative Expenses, and weighted-average dumping margin the ITC determines that such injury Profit amount by which the normal value does exist, the Department will issue an Comment 3: The Classification of Certain exceeds U.S. price, as follows: (1) The antidumping duty order directing CBP Expenses Contained in the Bawa Financial rate for the exporter/producer to assess, upon further instruction by Statement Used to Derive Manufacturing combinations listed in the chart above the Department, antidumping duties on Overhead, Selling, General and will be the rate the Department has all imports of the subject merchandise Administrative Expenses, and Profit determined in this final determination; entered, or withdrawn from warehouse, Comment 4: The Treatment of Certain (2) for all PRC exporters of subject for consumption on or after the effective Movement Expenses Contained in the Prakash Surrogate Financial Statement merchandise which have not received date of the suspension of liquidation. their own rate, the cash-deposit rate will Comment 5: Surrogate Value for Notification Regarding APO Alphanumeric LEDs be the PRC-wide entity rate; and (3) for Comment 6: International Movement all non-PRC exporters of subject This notice also serves as a reminder Expenses merchandise which have not received to the parties subject to administrative Comment 7: Calculation of Normal Value their own rate, the cash-deposit rate will protective order (‘‘APO’’) of their Using FOP Data That Reflect both Semi- be the rate applicable to the PRC responsibility concerning the Finished and Finished Goods

23 See Certain Woven Electric Blankets From the Antidumping Duty Investigation, 74 FR 37001 (July 24 Policy Bulletin 05.1 can be found on the Import People’s Republic of China: Initiation of 27, 2009) (‘‘Initiation Notice’’). Administration website at the following address: http://ia.ita.doc.gov/policy/bull05–1.pdf.

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Comment 8: Unit of Measure Conversion for domestic interested party intends to sunset review. Therefore, consistent Certain Inputs participate in the sunset review, and on with 19 CFR 351.222(i)(1)(i) and section Comment 9: Surrogate Value for Acrylic/ May 24, 2010, we notified the 751(c)(3)(A) of the Act, we are revoking Polyester Blend Woven Textile Comment 10: Calculation of Indirect Selling International Trade Commission, in this antidumping duty order. The Expenses Applied to Hung Kuo’s CEP Sales writing, that we intended to issue a final effective date of revocation is June 27, Comment 11: Surrogate Value for Power determination revoking this 2010, the fifth anniversary of the date of Cords antidumping duty order. See 19 CFR publication in the Federal Register of Comment 12: Hung Kuo’s Reported FOP for 351.218(d)(1)(iii)(B)(2). the most recent notice of continuation of Woven Textile Used to Produce King Size Scope of the Order: The merchandise this antidumping duty order. Electric Blankets subject to this antidumping order is Effective Date of Revocation: Pursuant Comment 13: Valuation of Labor greige polyester cotton printcloth, other to section 751(c)(3)(A) of the Act and 19 [FR Doc. 2010–16198 Filed 7–1–10; 8:45 am] than 80 x 80 type. Greige polyester CFR 351.222(i)(2)(i), the Department BILLING CODE 3510–DS–P cotton printcloth is of chief weight intends to issue instructions to U.S. cotton,1 unbleached and uncolored Customs and Border Protection, 15 days printcloth. The term ‘‘printcloth’’ refers after publication of this notice, to DEPARTMENT OF COMMERCE to plain woven fabric, not napped, not terminate the suspension of liquidation International Trade Administration fancy or figured, of singles yarn, not of the merchandise subject to this order combed, of average yarn number 43 to entered, or withdrawn from warehouse, [A–570–101] 68,2 weighing not more than 6 ounces on or after June 27, 2010. Entries of per square yard, of a total count of more subject merchandise prior to the Greige Polyester Cotton Printcloth than 85 yarns per square inch, of which effective date of revocation will From the People’s Republic of China: the total count of the warp yarns per continue to be subject to suspension of Final Results of Sunset Review and inch and the total count of the filling liquidation and antidumping duty Revocation of Order yarns per inch are each less than 62 deposit requirements. The Department AGENCY: Import Administration, percent of the total count of the warp will complete any pending International Trade Administration, and filling yarns per square inch. This administrative reviews of this order and Department of Commerce. merchandise is currently classifiable will conduct administrative reviews of SUMMARY: On May 3, 2010, the under Harmonized Tariff Schedule subject merchandise entered prior to the Department of Commerce (‘‘the (‘‘HTSUS’’) item 5210.11.6060. The effective date of revocation in response Department’’) initiated the sunset review HTSUS item number is provided for to appropriately filed requests of review. of the antidumping duty order on greige convenience and customs purposes; This five-year (sunset) review and polyester cotton printcloth from the however, the written description notice are published in accordance with People’s Republic of China (‘‘PRC’’). remains dispositive. sections 751(c) and 777(i)(1) of the Act. Because the domestic interested parties Determination to Revoke: Pursuant to Dated: June 25, 2010. did not participate in this sunset review, section 751(c)(3)(A) of the Tariff Act of the Department is revoking this 1930, as amended (‘‘the Act’’) and 19 John M. Andersen, antidumping duty order. CFR 351.218(d)(1)(iii)(B)(3), if no Acting Deputy Assistant Secretary for domestic interested party files a notice Antidumping and Countervailing Duty FOR FURTHER INFORMATION CONTACT: Operations. Jennifer Moats, AD/CVD Operations, of intent to participate, the Department [FR Doc. 2010–16205 Filed 7–1–10; 8:45 am] Import Administration, International shall, within 90 days after the initiation Trade Administration, U.S. Department of the review, issue a final BILLING CODE 3510–DS–P of Commerce, 14th Street and determination revoking the order. Because the domestic interested parties Constitution Avenue, NW., Washington, DEPARTMENT OF COMMERCE DC 20230; telephone: (202) 482–5047. did not file a notice of intent to SUPPLEMENTARY INFORMATION: On participate in this sunset review, the National Oceanic and Atmospheric September 16, 1983, the Department Department finds that no domestic Administration issued an antidumping duty order on interested party is participating in this greige polyester cotton printcloth from 1 RIN 0648–XX21 the PRC. See Greige Polyester Printcloth In the scope from the original investigation, the Department defined the subject merchandise by From the People’s Republic of China— chief value (i.e., the subject merchandise was of New England Fishery Management Antidumping Duty Order, 48 FR 41614 chief value cotton). In later reviews of this Order, Council; Public Meeting (September 16, 1983). On June 27, 2005, the Department has incorporated the U.S Customs the Department published its most Service’s conversion to chief weight (i.e., the subject AGENCY: National Marine Fisheries merchandise is of chief weight cotton). See Service (NMFS), National Oceanic and recent continuation of the order. See Continuation of the Antidumping Duty Order; Continuation of the Antidumping Duty Greige Polyester Cotton Printcloth from the People’s Atmospheric Administration (NOAA), Order; Greige Polyester Cotton Republic of China, 70 FR 36927 (June 27, 2005). Commerce. 2 Printcloth from the People’s Republic of Under the English system, this average yarn ACTION: Notice; public meeting. number count translates to 26 to 40. The average China, 70 FR 36927 (June 27, 2005). On yarn number counts reported in previous scope May 3, 2010, the Department initiated a descriptions by the Department are based on the SUMMARY: The New England Fishery sunset review of this order. See English system of yarn number counts. Per phone Management Council (Council) is Initiation of Five-Year (‘‘Sunset’’) conversations with U.S. Customs and Border scheduling a public meeting of its Protection (‘‘CBP’’) officials, CBP now relies on the Review, 75 FR 23240 (May 3, 2010). metric system to establish average yarn number Herring Oversight Committee, on July We did not receive a notice of intent counts. Thus, the 26 to 40 average yarn number 27–28, 2010, to consider actions to participate from domestic interested count under the English system translates to a 43 affecting New England fisheries in the parties in this sunset review by the to 68 average yarn number count under the metric exclusive economic zone (EEZ). system. See Continuation of the Antidumping Duty deadline date. As a result, in accordance Order; Greige Polyester Cotton Printcloth from the Recommendations from this group will with 19 CFR 351.218(d)(1)(iii)(A), the People’s Republic of China, 70 FR 36927 (June 27, be brought to the full Council for formal Department determined that no 2005). consideration and action, if appropriate.

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DATES: This meeting will be held on notified of the Council’s intent to take goals and objectives, and a draft range Tuesday, July 27 at 9:30 a.m. and final action to address the emergency. of options on the geographic range, Wednesday, July 28, 2010 at 9 a.m. managed species, and regulatory scope Special Accommodations ADDRESSES: The meeting will be held at of the EFMP. The EAS met on May 4, the Holiday Inn by the Bay, 88 Spring This meeting is physically accessible 2010 to review a draft of the report and Street, Portland, ME 04101; telephone: to people with disabilities. Requests for to provide comments to the EPDT. The (207) 775–2311; fax: (207) 761–8224. sign language interpretation or other final report is scheduled to be presented Council address: New England auxiliary aids should be directed to Paul to the Council at its September 2010 Fishery Management Council, 50 Water J. Howard, Executive Director, at (978) meeting in Boise, ID. Street, Mill 2, Newburyport, MA 01950. 465–0492, at least 5 days prior to the Although non-emergency issues not meeting date. FOR FURTHER INFORMATION CONTACT: Paul contained in the meeting agenda may J. Howard, Executive Director, New Authority: 16 U.S.C. 1801 et seq. come before the EPDT for discussion, those issues may not be the subject of England Fishery Management Council; Dated: June 29, 2010. telephone: (978) 465–0492. formal EPDT action during this meeting. Tracey L. Thompson, EPDT action will be restricted to those SUPPLEMENTARY INFORMATION: Acting Director, Office of Sustainable issues specifically listed in this notice Tuesday, July 27, 2010 Fisheries, National Marine Fisheries Service. and any issues arising after publication [FR Doc. 2010–16157 Filed 7–1–10; 8:45 am] The Herring Committee will continue of this notice that require emergency BILLING CODE 3510–22–S development of catch monitoring action under Section 305(c) of the alternatives for inclusion in Magnuson-Stevens Fishery Conservation and Management Act, Amendment 5 to the Atlantic Herring DEPARTMENT OF COMMERCE Fishery Management Plan (FMP). provided the public has been notified of Alternatives may include management National Oceanic and Atmospheric the intent to take final action to address measures to: improve quota monitoring Administration the emergency. and reporting; standardize/certify RIN 0648–XX24 Special Accommodations volumetric measures of catch; address This meeting is physically accessible vessel-to-vessel transfers of Atlantic Pacific Fishery Management Council; to people with disabilities. Requests for herring; address requirements for catch Public Meeting sign language interpretation or other monitoring and control plans (CMCPs); auxiliary aids should be directed to Ms. address maximized retention; maximize AGENCY: National Marine Fisheries Carolyn Porter at (503) 820–2280 at least sampling and address net slippage; Service (NMFS), National Oceanic and 5 days prior to the meeting date. address at-sea monitoring; address Atmospheric Administration (NOAA), portside sampling; require electronic Commerce. Dated: June 29, 2010. monitoring, and address other elements ACTION: Notice of a public meeting. Tracey L. Thompson, of catch monitoring in the Atlantic Acting Director, Office of Sustainable herring fishery. The Committee will also SUMMARY: The Pacific Fishery Fisheries, National Marine Fisheries Service. discuss the potential applicability of Management Council (Pacific Council) [FR Doc. 2010–16160 Filed 7–1–10; 8:45 am] flow scales, hopper scales and truck will convene a meeting of the Ecosystem BILLING CODE 3510–22–S scales in the herring fishery and develop Plan Development Team (EPDT) which Committee recommendations. is open to the public. DATES: DEPARTMENT OF COMMERCE Wednesday, July 28, 2010 The EPDT will meet Wednesday, July 21, 2010 beginning at 10 a.m. and The agenda will continue from the concluding at 5 p.m. or when business National Oceanic and Atmospheric previous day with additional discussion for the day is completed. The EPDT Administration related to developing catch monitoring meeting will include a working lunch RIN 0648–XX22 alternatives for inclusion in session. Amendment 5 to the Atlantic Herring ADDRESSES: The EPDT meeting will be Mid-Atlantic Fishery Management FMP; develop management measures Council; Public Meetings and alternatives to address river herring held at the Pacific Council Office, Large bycatch for consideration in Conference Room, 7700 NE Ambassador AGENCY: National Marine Fisheries Amendment 5 to the Herring FMP; Place, Suite 101, Portland, OR 97220; Service (NMFS), National Oceanic and discuss elements of Amendment 5 catch telephone: (503) 820–2280. Atmospheric Administration (NOAA), monitoring alternatives that relate to FOR FURTHER INFORMATION CONTACT: Commerce. documenting and monitoring river Mike Burner, Staff Officer; telephone: ACTION: Notice of public meetings. herring bycatch; and address other (503) 820–2280. elements of Amendment 5 as time SUPPLEMENTARY INFORMATION: Please SUMMARY: The Mid-Atlantic Fishery permits. note, this is not a public hearing; it is Management Council’s (Council) Although non-emergency issues not a work session for the primary purpose Scientific and Statistical Committee contained in this agenda may come of reviewing comments of the (SSC) and the Summer Flounder, Scup, before this group for discussion, those Ecosystem Advisory Subpanel (EAS) Black Sea Bass and Bluefish Monitoring issues may not be the subject of formal and drafting a report to the Pacific Committees will hold public meetings. action during this meeting. Action will Council on initial stages of developing DATES: The SSC meeting will be held be restricted to those issues specifically an Ecosystem Fishery Management Plan Wednesday and Thursday, July 28–29, listed in this notice and any issues (EFMP). The EPDT has taken the lead in 2010 and will begin at 9 a.m. on July 28 arising after publication of this notice preparing a Pacific Council-requested and at 8:30 a.m. on July 29. These that require emergency action under report on developing an EFMP that meetings will conclude by 5 p.m. each section 305(c) of the Magnuson-Stevens includes a draft statement of purpose day. The Summer Flounder, Scup, Black Act, provided the public has been and need, a draft list of possible initial Sea Bass and Bluefish Monitoring

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Committees will be held on Friday July Dated: June 29, 2010. not intentional, taking of small numbers 30, 2010 from 8:30 a.m. to 5 p.m. Tracey L. Thompson, of marine mammals by U.S. citizens Acting Director, Office of Sustainable who engage in a specified activity (other ADDRESSES: All meetings will be held at Fisheries, National Marine Fisheries Service. than commercial fishing) within a the Hilton Baltimore, 401 West Pratt [FR Doc. 2010–16158 Filed 7–1–10; 8:45 am] specified geographical region if certain Street, Baltimore, MD 21201; telephone: BILLING CODE 3510–22–S findings are made and regulations are (410) 573–8700. issued. Under the MMPA, the term Council address: Mid-Atlantic Fishery ‘‘take’’ means to harass, hunt, capture, or Management Council, 800 North State DEPARTMENT OF COMMERCE kill or to attempt to harass, hunt, Street, Suite 201, Dover, DE 19901; capture, or kill marine mammals. telephone: (302) 674–2331. National Oceanic and Atmospheric Authorization may be granted for Administration periods up to 5 years if NMFS finds, FOR FURTHER INFORMATION CONTACT: RIN 0648–XQ80 after notification and opportunity for Daniel T. Furlong, Executive Director, public comment, that the taking will Mid-Atlantic Fishery Management Taking and Importing Marine have a negligible impact on the species Council, 800 North State Street, Suite Mammals; Taking Marine Mammals or stock(s) of marine mammals and will 201, Dover, DE 19901; telephone: (302) Incidental to the Port of Anchorage not have an unmitigable adverse impact 674–2331, extension 255. Marine Terminal Redevelopment on the availability of the species or Project stock(s) for subsistence uses. In SUPPLEMENTARY INFORMATION: The addition, NMFS must prescribe agenda items for SSC meeting include: AGENCY: National Marine Fisheries regulations that include permissible (1) review stock assessment information Service, National Oceanic and methods of taking and other means of and specify overfishing level and Atmospheric Administration, effecting the least practicable adverse acceptable biological (ABC) for summer Commerce. impact on the species and its habitat, flounder, scup, black sea bass and ACTION: Notice of issuance of a Letter paying particular attention to rookeries, bluefish for 2011; (2) review and of Authorization. mating grounds, and areas of similar comment on proposed 2011 quota significance, and on the availability of specifications and management SUMMARY: In accordance with the the species for subsistence uses. The measures for summer flounder, scup, Marine Mammal Protection Act regulations must include requirements black sea bass and bluefish for 2011; (3) (MMPA), as amended and implementing for monitoring and reporting of such review Management Strategy Evaluation regulations, notification is hereby given taking. study; (4) discuss potential role of that the National Marine Fisheries Regulations governing the taking of Industry Advisors in determining of Service (NMFS) has issued a Letter of Cook Inlet beluga whales OFL and ABC, especially in data poor Authorization (LOA) to the Port of (Delphinapterus leucas), harbor situations. Anchorage (POA) and the U.S. porpoises (Phocoena phocoena), killer Department of Transportation Maritime whales (Orcinus orca), and harbor seals The topics to be discussed at the Administration (MARAD), to take four (Phoca vitulina), by Level B harassment, Summer Flounder, Scup, Black Sea Bass species of marine mammals incidental incidental to in-water pile driving were and Bluefish Monitoring Committees to the POA’s Marine Terminal issued on July 15, 2009 (74 FR 35136), include 2011 annual quota Redevelopment Project (MTRP). and remain in effect until July 14, 2014. recommendations and associated DATES: Effective July 15, 2010, through These regulations may be found in 50 management measures for summer July 14, 2011. CFR 217 subpart U. For detailed flounder, scup, black sea bass and information on this action, please refer ADDRESSES: The LOA and supporting to that document. These regulations bluefish. documentation are available for review include mitigation, monitoring, and Although non-emergency issues not by writing to P. Michael Payne, Chief, reporting requirements for the contained in this agenda may come Permits, Conservation, and Education incidental take of marine mammals Division, Office of Protected Resources, before these groups for discussion, those during the specified activity. issues may not be the subject of formal National Marine Fisheries Service action during this meeting. Action will (NMFS), 1315 East-West Highway, Summary of Request be restricted to those issues specifically Silver Spring, MD 20910–3225 or by On April 23, 2010, NMFS received a listed in this notice and any issues telephoning one of the contacts listed request for an LOA renewal pursuant to arising after publication of this notice below. Documents cited in this notice the aforementioned regulations that that require emergency action under may be viewed, by appointment, during would authorize, for a period not to section 305(c) of the Magnuson-Stevens regular business hours, at the exceed 1 year, take of marine mammals, Fishery Conservation and Management aforementioned address and at the by Level B harassment only, incidental Act, provided the public has been Alaska Regional Office, 222 West 7th to the POA MTRP. In compliance with notified of the Council’s intent to take Avenue, Anchorage, AK 99513. the 2009 LOA, POA and MARAD final action to address the emergency. FOR FURTHER INFORMATION CONTACT: submitted an annual report on POA Jaclyn Daly or Brian D. Hopper, Office construction activites, covering the Special Accommodations of Protected Resources, NMFS, (301) period of July 15 through December 31, 713–2289. 2009. The report also covers the period The meeting is physically accessible SUPPLEMENTARY INFORMATION: of January 1 through July 15, 2009, to people with disabilities. Requests for pursuant to the U.S. Army Corps of sign language interpretation or other Background Engineers’ reporting requirement under auxiliary aids should be directed to M. Section 101(a)(5)(A) of the MMPA (16 their permit issued under Section 10 of Jan Saunders at the Mid-Atlantic U.S.C. 1361 et seq.) directs the National the Rivers and Harbors Act and Section Council Office, (302) 526–5251, at least Marine Fisheries Service (NMFS) to 404 of the Clean Water Act. The report 5 days prior to the meeting date. allow, upon request, the incidental, but can be found on the NMFS website at

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http://www.nmfs.noaa.gov/pr/permits/ therefore, no MMOs have been required In summary, the scientific monitoring incidental.htm. at the POA in 2010. team found that beluga whale habitat use, distribution and movements, and Summary of Activity and Monitoring Independent Scientific Monitoring behavior during 2009 were consistent Under the 2009 LOA POA regulations (50 CFR 217 subpart with previous years (2007–2008) with During the reporting period covered U) stipulate that the POA and MARAD whales primarily traveling through the by the 2009 LOA, in-water construction employ a scientific marine mammal study area on the incoming and activities were conducted in the North monitoring team separate from the on- outgoing tides to and from likely Extension and Barge Berth areas. In- site MMOs to characterize beluga whale foraging areas further up Knik Arm. water construction and construction frequency, abundance, group Similar to accounts from the MMOs monitoring for the 2009 season ended composition, movements, behavior, and stationed at the POA, no observed on December 14, 2009, when ice habitat use around the POA and behavioral changes (e.g., abrupt formation and poor visibility impeded observe, analyze, and document behavioral changes, rapid descents) or further activity. These activities were potential changes in behavior in other indicators of response to in-water within the scope of those analyzed in response to in-water construction work. pile driving or other MTRP in-water the final rule and included in the 2009 The POA and MARAD complied with construction activities were noted by LOA. this requirement by assembling a the APU observers. On-site POA Monitoring monitoring team from the Alaska Pacific Take Summary for 2009 Construction University (APU) to implement a As required by the 2009 LOA, the Season NMFS-approved scientific monitoring POA and MARAD established safety plan. The scientific marine mammal During the 2009 LOA reporting and harassment zones at the project site, period, the following numbers of marine which were monitored for the presence monitoring 2009 annual report was attached as an appendix to the annual mammals were identified as taken from of marine mammals before, during, and in-water pile driving: 20 beluga whales; after in-water pile driving. If the report submitted by POA and MARAD. This report covers the period of May five harbor seals; four harbor porpoises; applicable safety and harassment zones and zero killer whales. Of the 20 beluga were not visible because of fog, poor through November, 2009 (ICRC, 2010). A summary of that report follows. whale takes recorded, three were in light, darkness, sea state, or any other August, one in September, one in The APU observers conducted reason, in-water construction activities October, and 15 in November (during were shut down until the area was once scientific monitoring from the Cairn one sighting). The 15 beluga whales again visible. From July 15 to December Point Station on Elmendorf Air Force sighted in November were initially seen 14, 2009, 45 pile driving shutdowns Base, which directly overlooks the POA. south of Cairn Point, approximately 950 were documented due to marine For 86 days, from May 4 through m from in-water pile driving. As a mammal sightings. The peak month for November 18, 2009, trained graduate result, pile driving was shut down for shutdowns and delays during the 2009 and undergraduate marine biology 40 minutes while the animals were in construction season was August, when students conducted approximately 783 view and no behavioral changes were 25 shutdown/delays were recorded. hours of scientific monitoring and recorded. The animals were resighted Most of these occurred when marine documented approximately 166 beluga north of Cairn Point heading north along mammals were sighted approaching or whales, comprising 54 groups, and one the shoreline and away from the action surfacing just inside the harassment harbor seal traveling through the study area. The number of animals, by species, zone. area. Spatial distribution analysis taken under the 2009 LOA was within According to the POA’s annual report, indicates that approximately 52 percent the amount authorized. within the LOA reporting period (July of all groups sighted occurred within The POA has implemented a robust 15- December 14, 2009), MMOs (n=25) or adjacent to (n=3) the MRTP monitoring program so that pile driving stationed at the POA recorded 122 footprint. There were significant is shut down before marine mammals marine mammal sightings for a total of differences in the number of whales enter into the designated Level A and B 1,127 total animals sighted (Table 2). observed across tidal stages (F8,45 = 2.94, isopleths; thereby minimizing There were 1,094 beluga whales (516 p = .02). There were significant peaks in harassment, as demonstrated by the white, 481 gray, and 97 dark gray); 17 sightings during low (p = .01) and high number of sightings vs. the number of harbor seals (15 adults and 2 juveniles); (p = .03) flood tides and during high ebb takes. The POA has also developed a 15 harbor porpoises (10 adults and 5 tides (p = .03). successful communication system unknown age); and one unidentified Mean beluga whale group size was 3.0 between MMOs and engineers’ to shut pinniped. The highest number of plus or minus .36 individuals. Only four down pile driving before whales enter sightings (51) and number of marine groups contained individuals identified into designated harassment zones, mammals sighted (576) occurred in as calves, and groups with calves were avoiding take. August (572 of this number were beluga larger on average (5.4 plus or minus 1.9 whales: 234 white; 277 gray; and 61 individuals) than those without. All Planned Activities and Mitigation for dark gray). The fewest number of four groups containing calves were 2010 sightings for a 30–day period were sighted within or adjacent to the MTRP As stated in the regulations and LOA, recorded in April, when only 8 marine footprint. The number of beluga whales take of marine mammals will be mammals were sighted. In general, sighted, group size, and size of groups minimized through implementation of beluga whales showed no observable with calves in 2009 decreased from the following mitigation measures: (1) if reaction to pile driving. The only those sighted in 2008; however, this a marine mammal is detected within or observable reaction which has been difference was not considered approaching the Level A or impact and documented is beluga whale groups significant. The APU team will continue vibratory pile driving Level B splitting momentarily on three to monitor and report on beluga whale harassment isopleths (200 m, 350 m and occasions as they maneuver around abundance and the various parameters 1,300 m, respectively) prior to in-water barges or vessels. In-water pile driving discussed here within lower Knik Arm pile driving, operations shall be has yet to begin this year, to date; for the duration of POA construction. immediately delayed or suspended until

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the marine mammal moves outside on-site 4 days per week, weather that will be furnished by nonprofit these designated zones or the animal is permitting. The on-site MMOs and this agencies employing persons who are not detected within 15 minutes of the marine mammal monitoring team shall blind or have other severe disabilities. last sighting; (2) if a marine mammal is remain in contact to alert each other to Comments Must Be Received On or detected within or approaching 200 m marine mammal presence when both Before: August 2, 2010. prior to chipping, this activity shall be teams are working. ADDRESSES: Committee for Purchase immediately delayed or suspended until The POA and MARAD shall submit From People Who Are Blind or Severely the marine mammal moves outside monthly reports summarizing all in- Disabled, Jefferson Plaza 2, Suite 10800, these designated zones or the animal is water construction activities and marine 1421 Jefferson Davis Highway, not detected within 15 minutes of the mammal sightings. In addition, an Arlington, Virginia 22202–3259. last sighting; (3) in-water impact pile annual report shall be due sixty days FOR FURTHER INFORMATION OR TO SUBMIT driving shall not occur during the before expiration of the LOA. This COMMENTS CONTACT: Barry S. Lineback, period from two hours before low tide report shall summarize monthly reports Telephone: (703) 603–7740, Fax: (703) until two hours after low tide; (4) in- and any apparent long or short term 603–0655, or e-mail water piles will be driven with a impacts the MTRP may be having on [email protected]. vibratory hammer to the maximum marine mammals. This LOA will be SUPPLEMENTARY INFORMATION: extent possible (i.e., until a desired renewed annually based on review of This depth is achieved or to refusal) prior to the annual monitoring report. notice is published pursuant to 41 U.S.C. 47(a)(2) and 41 CFR 51–2.3. Its using an impact hammer; (5) in-water Authorization pile driving or chipping shall not occur purpose is to provide interested persons when conditions restrict clear, visible The POA and MARAD have complied an opportunity to submit comments on detection of all waters within with the requirements of the 2009 LOA, the proposed actions. and NMFS has determined that marine harassment zones; (6) A ’’soft start’’ Additions mammal take during the 2009 technique shall be used at the beginning If the Committee approves the of each day’s in-water pile driving construction season is within the amount authorized. Accordingly, NMFS proposed additions, the entities of the activities or if pile driving has ceased Federal Government identified in this for more than one hour to allow any has issued a LOA to POA and MARAD authorizing take by harassment of notice will be required to procure the marine mammal that may be in the products listed below from nonprofit immediate area to leave before pile marine mammals incidental to the marine terminal redevelopment project agencies employing persons who are driving reaches full energy; (7) if a blind or have other severe disabilities. group of more than 5 beluga whales or at the POA. Issuance of the 2010–2011 group with a calf is sighted within the LOA is based on NMFS’ review of the Regulatory Flexibility Act Certification annual report submitted by the POA and Level B harassment isopleths, in-water I certify that the following action will pile driving shall be suspended; and (8) MARAD, and determination that the observed impacts were within the scope not have a significant impact on a for operated in-water heavy machinery substantial number of small entities. work other than pile driving or chipping of the analysis and authorization contained in the final rule and The major factors considered for this (i.e., dredging, dump scowles, linetug certification were: boats used to move barges, barge previously issued LOA. Specifically, NMFS found that the total taking of 1. If approved, the action will not mounted hydraulic excavators, or result in any additional reporting, clamshell equipment used to place or marine mammals, in consideration of the required mitigation, monitoring, and recordkeeping or other compliance remove material), if a marine mammal requirements for small entities other comes within 50 m, those operations reporting measures, will have no more than a negligible impact on the affected than the small organizations that will will cease and vessels will reduce to the furnish the products to the Government. slowest speed practicable while still species or stocks and will not have an unmitigable adverse impact on their 2. If approved, the action will result maintaining control of the vessel and in authorizing small entities to furnish safe working conditions. availability for taking for subsistence uses. the products to the Government. NMFS-approved marine mammal 3. There are no known regulatory observers (MMOs) will be stationed at Dated: June 25, 2010. alternatives which would accomplish the port during all in-water pile driving James H. Lecky, the objectives of the Javits-Wagner- and chipping and blasting associated Director, Office of Protected Resources, O’Day Act (41 U.S.C. 46–48c) in with dock demolition, if it occurs. These National Marine Fisheries Service. connection with the products proposed observers will be responsible for [FR Doc. 2010–16189 Filed 7–1–10; 8:45 am] for addition to the Procurement List. documenting take, marine mammal BILLING CODE 3510–22–S Comments on this certification are behavior, and, if necessary, notifying the invited. Commenters should identify the resident engineer when shut down is statement(s) underlying the certification necessary. In addition, the POA and COMMITTEE FOR PURCHASE FROM on which they are providing additional MARAD shall employ a scientific PEOPLE WHO ARE BLIND OR information. marine mammal monitoring team SEVERELY DISABLED End of Certification separate from the on-site MMOs to characterize beluga whale abundance, Procurement List: Proposed Additions The following products are proposed for addition to Procurement List for frequency, movements, behavior, group AGENCY: Committee for Purchase From dynamics, and habitat use around the production by the nonprofit agencies People Who Are Blind or Severely listed: POA and observe, analyze, and Disabled. document potential changes in behavior ACTION: Proposed Additions to the Products in response to in-water construction Procurement List. NSN: 7220–00–NIB–0367—Disposable Urinal work. This monitoring team is not Floor Mat. required to be present during all in- SUMMARY: The Committee is proposing NSN: 7220–00–NIB–0368—Disposable Toilet water pile driving operations but will be to add products to the Procurement List Floor Mat.

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NPA: NewView Oklahoma, Inc., Oklahoma Committee for Purchase From People Requirement as aggregated by the City, OK. Who Are Blind or Severely Disabled General Services Administration. Contracting Activity: Federal Acquisition published notices of proposed additions NSN: 7510–01–504–8940—Tape, Service, GSA/FAS Southwest Supply Correction—4 Pk. Center (QSDAC), Fort Worth, TX. to the Procurement List. After consideration of the material NPA: Industries for the Blind, Inc., West Coverage: B—List for the Broad Government Allis, WI. Requirement as aggregated by the presented to it concerning capability of Contracting Activity: Federal Acquisition General Services Administration. qualified nonprofit agencies to provide Service, GSA/FSS OFC SUP CTR—Paper NSN: 7520–01–377–9534—Cord Connector/ the products and service and impact of Products, New York, NY. Rotator, Telephone, Twisstop, Black. the additions on the current or most Coverage: A—List for the Total Government NSN: 7520–00–NIB–2084—Shoulder Rest, recent contractors, the Committee has Requirement as aggregated by the Telephone, Black, Softak II. determined that the products and General Services Administration. NSN: 7520–00–NIB–2085—Shoulder Rest, service listed below are suitable for NSN: 8415–01–579–9276—ACU Sun Hat— Telephone, Black. procurement by the Federal Government Multi Cam. Coverage: A—List for the Total Government NSN: 8415–01–579–9272—ACU Sun Hat— Requirement as aggregated by the under 41 U.S.C. 46–48c and 41 CFR 51– Multi Cam. General Services Administration. 2.4. NSN: 8415–01–579–9267—ACU Sun Hat— NSN: 7520–01–253–1283—Shoulder Rest, Regulatory Flexibility Act Certification Multi Cam. Telephone, Beige, 21⁄4 W × 7″ L. NSN: 8415–01–579–9260—ACU Sun Hat— NSN: 7520–01–377–9533—Cord Connector/ I certify that the following action will Multi Cam. Rotator, Telephone, Twisstop, Clear. not have a significant impact on a NSN: 8415–01–579–9219—ACU Sun Hat— Coverage: B—List for the Broad Government substantial number of small entities. Multi Cam. Requirement as aggregated by the The major factors considered for this NSN: 8415–01–579–9210—ACU Sun Hat— General Services Administration. certification were: Multi Cam. NPA: Bestwork Industries for the Blind, Inc., 1. The action will not result in any NSN: 8415–01–579–9197—ACU Sun Hat— Runnemede, NJ additional reporting, recordkeeping or Multi Cam. Contracting Activity: Federal Acquisition NSN: 8415–01–579–9189—ACU Sun Hat— other compliance requirements for small Multi Cam. Service, GSA/FSS OFC SUP CTR—Paper entities other than the small Products, New York, NY. NSN: 8415–01–579–9182—ACU Sun Hat— organizations that will furnish the Multi Cam. Barry S. Lineback, products and service to the Government. NSN: 8415–01–579–9175—ACU Sun Hat— Director, Business Operations. 2. The action will result in Multi Cam. [FR Doc. 2010–16104 Filed 7–1–10; 8:45 am] authorizing small entities to furnish the NSN: 8415–01–579–9172—ACU Sun Hat— Multi Cam. BILLING CODE 6353–01–P products and service to the Government. 3. There are no known regulatory NSN: 8415–01–579–9163—ACU Sun Hat— alternatives which would accomplish Multi Cam. the objectives of the Javits-Wagner- NSN: 8415–01–579–9152—ACU Sun Hat— COMMITTEE FOR PURCHASE FROM Multi Cam. PEOPLE WHO ARE BLIND OR O’Day Act (41 U.S.C. 46–48c) in NSN: 8415–01–579–9147—ACU Sun Hat— SEVERELY DISABLED connection with the products and Multi Cam. service proposed for addition to the NSN: 8415–01–519–8682—ACU Sun Hat— Procurement List; Additions and Procurement List. Universal. Deletions NSN: 8415–01–519–8681—ACU Sun Hat— End of Certification Universal. AGENCY: Committee for Purchase From Accordingly, the following products NSN: 8415–01–519–8680—ACU Sun Hat— People Who Are Blind or Severely and service are added to the Universal. Disabled. Procurement List: NSN: 8415–01–519–8678—ACU Sun Hat- ACTION: Additions to and deletions from Universal. the Procurement List. Products NSN: 8415–01–519–8684—ACU Sun Hat— NSN: 8415–00–NIB–0810—Glove, Vinyl, Universal. SUMMARY: This action adds products and Industrial/Non-Medical Grade, 100 NSN: 8415–01–519–8687—ACU Sun Hat— a service to the Procurement List that Gloves/Box, Small. Universal. will be furnished by nonprofit agencies NSN: 8415–00–NIB–0811—Glove, Vinyl, NSN: 8415–01–519–8696—ACU Sun Hat— employing persons who are blind or Industrial/Non-Medical Grade, 100 Universal. have other severe disabilities and Gloves/Box, Medium. NSN: 8415–01–519–8698—ACU Sun Hat— NSN: 8415–00–NIB–0812—Glove, Vinyl, Universal. deletes services from the Procurement Industrial/Non-Medical Grade, 100 NSN: 8415–01–519–8699—ACU Sun Hat— List previously furnished by such Gloves/Box, Large. Universal. agencies. NSN: 8415–00–NIB–0813—Glove, Vinyl, NSN: 8415–01–519–8702—ACU Sun Hat— DATES: Effective Date: 8/2/2010. Industrial/Non-Medical Grade, 100 Universal. Gloves/Box, XLarge. NSN: 8415–01–519–8704—ACU Sun Hat— ADDRESSES: Committee for Purchase NPA: Bosma Industries for the Blind, Inc., Universal. From People Who Are Blind or Severely Indianapolis, IN. NSN: 8415–01–519–8705—ACU Sun Hat— Disabled, Jefferson Plaza 2, Suite 10800, Contracting Activity: Veterans Affairs, Universal. 1421 Jefferson Davis Highway, Department of, NAC, Hines, IL. NSN: 8415–01–519–8708—ACU Sun Hat— Arlington, Virginia 22202–3259. Coverage: C—list for 100% of the Universal. FOR FURTHER INFORMATION CONTACT: requirements for the Department of NSN: 8415–01–519–8706—ACU Sun Hat— Barry S. Lineback, Telephone: (703) Veterans Affairs, NAC, Hines, Il. Universal. 603–7740, Fax: (703) 603–0655, or e- NSN: 8105–01–284–2923—Bag, Waste NPA: Southeastern Kentucky Receptacle. Rehabilitation Industries, Inc., Corbin, KY mail [email protected]. NPA: Portland Habilitation Center, Inc., Contracting Activity: Dept of the Army, XR SUPPLEMENTARY INFORMATION: Portland, OR. W2DF RDECOM ACQ CTR NATICK, Additions Contracting Activity: Federal Acquisition Natick, MA. Service, GSA/FSS OFC SUP CTR—Paper Coverage: C—list for 100% of the On 4/30/2010 (75 FR 22744–22745) Products, New York, NY. requirements for initial fielding for the and 5/7/2010 (75 FR 25210–25211), the Coverage: B—List for the Broad Government U.S. Army, as aggregated by the

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Department of the Army Research, 165, 170, 170A and 170B, Fort 1155 21st Street, NW., Washington, DC Development, and Engineering McPherson, GA. 20581. Telephone: (202) 418–5515. E- Command. NPA: WORKTEC, Jonesboro, GA. mail: [email protected]; or Susan Nathan, NSN: 7510–00–272–9804—Envelope, Contracting Activity: Dept of the Army, XR Senior Special Counsel, Division of Transparent. W40M NATL REGION CONTRACT OFC, NPA: Bestwork Industries for the Blind, Inc., Washington, DC. Market Oversight, same address. Runnemede, NJ. Telephone: (202) 418–5133. E-mail: Contracting Activity: Federal Acquisition Barry S. Lineback, [email protected]. Service, GSA/FSS OFC SUP CTR—Paper Director, Business Operations. SUPPLEMENTARY INFORMATION: Products, New York, NY. [FR Doc. 2010–16103 Filed 7–1–10; 8:45 am] Coverage: B—List for the Broad Government BILLING CODE 6353–01–P I. Introduction Requirement as aggregated by the General Services Administration. The CFTC Reauthorization Act of 4 Service COMMODITY FUTURES TRADING 2008 (‘‘Reauthorization Act’’) significantly broadened the CFTC’s Service Type/Location: Janitorial, Customs COMMISSION and Border Protection, B.P. Sector regulatory authority with respect to Maintenance, 398 E. Aurora Drive, El Orders Finding That the Mid-C ECMs by creating, in section 2(h)(7) of Centro, CA. Financial Peak Contract and Mid-C the CEA, a new regulatory category— NPA: ARC–Imperial Valley, El Centro, CA. Financial Off-Peak Contract, Offered ECMs on which significant price Contracting Activity: Bureau of Customs and for Trading on the discovery contracts (‘‘SPDCs’’) are Border Protection, Office of IntercontinentalExchange, Inc., traded—and treating ECMs in that Procurement, Washington, DC. Perform a Significant Price Discovery category as registered entities under the Deletions Function CEA.5 The legislation authorizes the CFTC to designate an agreement, On 5/7/2010 (75 FR 25210–25211), AGENCY: Commodity Futures Trading contract or transaction as a SPDC if the the Committee for Purchase From Commission. Commission determines, under criteria People Who Are Blind or Severely ACTION: Final orders. established in section 2(h)(7), that it Disabled published notice of proposed performs a significant price discovery deletions from the Procurement List. SUMMARY: On October 6, 2009, the After consideration of the relevant Commodity Futures Trading function. When the Commission makes matter presented, the Committee has Commission (‘‘CFTC’’ or ‘‘Commission’’) such a determination, the ECM on determined that the services listed published for comment in the Federal which the SPDC is traded must assume, below are no longer suitable for Register 1 a notice of its intent to with respect to that contract, all the procurement by the Federal Government undertake a determination whether the responsibilities and obligations of a under 41 U.S.C. 46–48c and 41 CFR 51– Mid-C 2 Financial Peak (‘‘MDC’’) contract registered entity under the Act and 2.4. and Mid-C Financial Off-Peak (‘‘OMC’’) Commission regulations, and must contract,3 which are listed for trading on comply with nine core principles Regulatory Flexibility Act Certification the IntercontinentalExchange, Inc. established by new section 2(h)(7)(C). I certify that the following action will (‘‘ICE’’), an exempt commercial market On March 16, 2009, the CFTC not have a significant impact on a (‘‘ECM’’) under sections 2(h)(3)–(5) of promulgated final rules implementing substantial number of small entities. the Commodity Exchange Act (‘‘CEA’’ or the provisions of the Reauthorization The major factors considered for this the ‘‘Act’’), perform a significant price Act.6 As relevant here, rule 36.3 certification were: discovery function pursuant to section imposes increased information reporting 1. The action will not result in 2(h)(7) of the CEA. The Commission requirements on ECMs to assist the additional reporting, recordkeeping or undertook this review based upon an Commission in making prompt other compliance requirements for small initial evaluation of information and assessments whether particular ECM entities. data provided by ICE as well as other contracts may be SPDCs. In addition to 2. The action may result in available information. The Commission filing quarterly reports of its contracts, authorizing small entities to furnish the has reviewed the entire record in this an ECM must notify the Commission services to the Government. matter, including all comments promptly concerning any contract 3. There are no known regulatory received, and has determined to issue traded in reliance on the exemption in alternatives which would accomplish orders finding that the MDC and OMC section 2(h)(3) of the CEA that averaged the objectives of the Javits-Wagner- contracts perform a significant price five trades per day or more over the O’Day Act (41 U.S.C. 46–48c) in discovery function. Authority for this most recent calendar quarter, and for connection with the services deleted action is found in section 2(h)(7) of the which the exchange sells its price from the Procurement List. CEA and Commission rule 36.3(c) information regarding the contract to End of Certification promulgated thereunder. market participants or industry DATES: Effective date: June 25, 2010. publications, or whose daily closing or Accordingly, the following services settlement prices on 95 percent or more are deleted from the Procurement List: FOR FURTHER INFORMATION CONTACT: Gregory K. Price, Industry Economist, of the days in the most recent quarter Services Division of Market Oversight, were within 2.5 percent of the Service/Location: Medical Transcription, Commodity Futures Trading contemporaneously determined closing, Veterans Affairs Medical Center, 7305 N. Commission, Three Lafayette Centre, settlement or other daily price of Military Trail, West Palm Beach, FL. another contract. NPA: Gulfstream Goodwill Industries, Inc., 1 74 FR 51261 (October 6, 2009). West Palm Beach, FL. 2 The acronym ‘‘Mid-C’’ stands for Mid-Columbia. 4 Incorporated as Title XIII of the Food, Contracting Activity: Department of Veterans 3 The Federal Register notice also requested Conservation and Energy Act of 2008, Pub. L. 110– Affairs, Nac, Hines, IL. comment on the Mid-C Financial Peak Daily 246, 122 Stat. 1624 (June 18, 2008). Service Type/Location: Janitorial/Custodial, (‘‘MPD’’) contract and Mid-C Financial Off-Peak 5 7 U.S.C. 1a(29). Fort McPherson: U.S. Army Health Daily (‘‘MXO’’) contract. Those contracts will be 6 74 FR 12178 (Mar. 23, 2009); these rules became Clinic, Buildings 100, 101, 105, 162, 163, reviewed in a separate Federal Register release. effective on April 22, 2009.

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Commission rule 36.3(c)(3) Comments were received from the contract’s significant price discovery established the procedures by which the Federal Energy Regulatory Commission function: Commission makes and announces its (‘‘FERC’’), Financial Institutions Energy • Price Linkage—the extent to which determination whether a particular ECM Group (‘‘FIEG’’), Working Group of the agreement, contract or transaction contract serves a significant price Commercial Energy Firms (‘‘WGCEF’’), uses or otherwise relies on a daily or discovery function. Under those Edison Electric Institute (‘‘EEI’’), ICE, final settlement price, or other major procedures, the Commission will Western Power Trading Forum price parameter, of a contract or publish notice in the Federal Register (‘‘WPTF’’) and Public Utility contracts listed for trading on or subject that it intends to undertake an Commission of Texas (‘‘PUCT’’).11 The to the rules of a designated contract evaluation whether the specified comment letters from FERC 12 and market (‘‘DCM’’) or derivatives agreement, contract or transaction PUCT did not directly address the issue transaction execution facility (‘‘DTEF’’), performs a significant price discovery of whether or not the subject contracts or a SPDC traded on an electronic function and to receive written views, are SPDCs. The remaining comment trading facility, to value a position, data and arguments relevant to its letters raised substantive issues with transfer or convert a position, cash or determination from the ECM and other respect to the applicability of section financially settle a position, or close out interested persons. Upon the close of 2(h)(7) to the MDC and OMC contracts a position. the comment period, the Commission and generally expressed the opinion • Arbitrage—the extent to which the will consider, among other things, all that the contracts are not SPDCs because price for the agreement, contract or relevant information regarding the they do not meet the material price transaction is sufficiently related to the subject contract and issue an order reference or material liquidity criteria price of a contract or contracts listed for announcing and explaining its for SPDC determination. These trading on or subject to the rules of a determination whether or not the comments are more extensively DCM or DTEF, or a SPDC traded on or contract is a SPDC. The issuance of an discussed below, as applicable. subject to the rules of an electronic affirmative order signals the III. Section 2(h)(7) of the CEA trading facility, so as to permit market effectiveness of the Commission’s participants to effectively arbitrage regulatory authorities over an ECM with The Commission is directed by between the markets by simultaneously respect to a SPDC; at that time such an section 2(h)(7) of the CEA to consider maintaining positions or executing ECM becomes subject to all provisions the following criteria in determining a trades in the contracts on a frequent and of the CEA applicable to registered recurring basis. entities.7 The issuance of such an order 11 FERC is an independent federal regulatory • Material price reference—the extent agency that, among other things, regulates the also triggers the obligations, interstate transmission of natural gas, oil and to which, on a frequent and recurring requirements and timetables prescribed electricity. FIEG describes itself as an association of basis, bids, offers or transactions in a in Commission rule 36.3(c)(4).8 investment and commercial banks who are active commodity are directly based on, or are participants in various sectors of the natural gas determined by referencing or II. Notice of Intent To Undertake SPDC markets, ‘‘including acting as marketers, lenders, Determination underwriters of debt and equity securities, and consulting, the prices generated by proprietary investors.’’ WGCEF describes itself as ‘‘a agreements, contracts or transactions On October 6, 2009, the Commission diverse group of commercial firms in the domestic being traded or executed on the published in the Federal Register notice energy industry whose primary business activity is electronic trading facility. of its intent to undertake a the physical delivery of one or more energy commodities to customers, including industrial, • Material liquidity—the extent to determination whether the MDC and commercial and residential consumers’’ and whose which the volume of agreements, OMC contracts 9 perform a significant membership consists of ‘‘energy producers, contracts or transactions in a ’’ ‘‘ price discovery function and requested marketers and utilities. EEI is the association of commodity being traded on the 10 shareholder-owned electric companies, comment from interested parties. international affiliates and industry associates electronic trading facility is sufficient to worldwide.’’ ICE is an ECM, as noted above. WPTF have a material effect on other 7 Pub. L. 110–246 at 13203; Joint Explanatory describes itself as a ‘‘broad-based membership agreements, contracts or transactions Statement of the Committee of Conference, H.R. organization dedicated to encouraging competition Rep. No. 110–627, 110 Cong., 2d Sess. 978, 986 in the Western power markets * * * WTPF strives listed for trading on or subject to the (Conference Committee Report). See also 73 FR to reduce the long-run cost of electricity to rules of a DCM, DTEF or electronic 75888, 75894 (Dec. 12, 2008). consumers throughout the region while maintaining trading facility operating in reliance on 8 For an initial SPDC, ECMs have a grace period the current high level of system reliability.’’ PUCT the exemption in section 2(h)(3). of 90 calendar days from the issuance of a SPDC is the independent organization that oversees the determination order to submit a written Electric Reliability Council of Texas (‘‘ERCOT’’) to Not all criteria must be present to demonstration of compliance with the applicable ‘‘ensure nondiscriminatory access to the support a determination that a core principles. For subsequent SPDCs, ECMs have transmission and distribution systems, to ensure the particular contract performs a a grace period of 30 calendar days to demonstrate reliability and adequacy of the regional electrical significant price discovery function, and core principle compliance. network, and to perform other essential market 9 As noted above, the Federal Register notice also functions.’’ The comment letters are available on the one or more criteria may be inapplicable requested comment on the Mid-C Financial Peak Commission’s website: http://www.cftc.gov/lawand to a particular contract.13 Moreover, the Daily (‘‘MPD’’) contract and Mid-C Financial Off- regulation/federalregister/federalregistercomments/ statutory language neither prioritizes the Peak Daily (‘‘MXO’’) contract. The MPD and MXO 2009/09-011.html criteria nor specifies the degree to contracts will be addressed in a separate Federal 12 FERC expressed the opinion that a Register release. determination by the Commission that either of the which a SPDC must conform to the 10 The Commission’s Part 36 rules establish, subject contracts performs a significant price various criteria. In Guidance issued in among other things, procedures by which the discovery function ‘‘would not appear to conflict connection with the Part 36 rules Commission makes and announces its with FERC’s exclusive jurisdiction under the governing ECMs with SPDCs, the determination whether a specific ECM contract Federal Power Act (FPA) over the transmission or serves a significant price discovery function. Under sale for resale of electric energy in interstate those procedures, the Commission publishes a commerce or with its other regulatory 13 In its October 6, 2009, Federal Register release, notice in the Federal Register that it intends to responsibilities under the FPA’’ and further that the Commission identified material price reference undertake a determination whether a specified ‘‘FERC staff will monitor proposed SPDC and material liquidity as the possible criteria for agreement, contract or transaction performs a determinations and advise the CFTC of any SPDC determination of the MDC and OMC significant price discovery function and to receive potential conflicts with FERC’s exclusive contracts. Arbitrage and price linkage were not written data, views and arguments relevant to its jurisdiction over RTOs, [(regional transmission identified as possible criteria. As a result, arbitrage determination from the ECM and other interested organizations)], ISOs [(independent system and price linkage will not be discussed further in persons. operators)] or other jurisdictional entities.’’ this document and the associated Orders.

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Commission observed that these criteria Northwest.15 With another three dams quotes offered in advance. Because the do not lend themselves to a mechanical in British Columbia, Canada, and many quotes are based on supply and demand checklist or formulaic analysis. more on its various tributaries, the estimates, electricity needs usually are Accordingly, the Commission has Columbia River is the largest power- not perfectly satisfied in the day-ahead indicated that in making its producing river in North America. A market. On the day the electricity is determinations it will consider the major goal of the participants in the transmitted and used, auction circumstances under which the Mid-C electricity market is to maximize participants typically realize that they presence of a particular criterion, or the Columbia River’s potential, along bought or sold either too much or too combination of criteria, would be with protecting and enhancing the non- little power. A real-time auction is sufficient to support a SPDC power uses of the river. The reliability operated in the Mid-C market to determination.14 For example, for of the electricity grid in the Northwest alleviate this problem by servicing as a contracts that are linked to other is coordinated by the Northwest balancing mechanism. In this regard, contracts or that may be arbitraged with PowerPool (‘‘NWPP’’), which is a electricity traders use the real-time other contracts, the Commission will voluntary organization comprised of market to sell excess electricity and buy consider whether the price of the major generating utilities serving the additional power to meet demand. Only potential SPDC moves in such harmony Northwestern United States as well as a relatively small amount of electricity with the other contract that the two British Columbia and Alberta, Canada. is traded in the real-time market markets essentially become One stretch of the Columbia River compared with the day-ahead market. between the Grand Coulee Dam and interchangeable. This co-movement of 1. Material Price Reference Criterion prices would be an indication that Priests Rapids Dam is governed by the The Commission’s October 6, 2009, activity in the contract had reached a Mid-Columbia Hourly Coordination Agreement (‘‘MCHCA’’). The MCHCA Federal Register notice identified level sufficient for the contract to includes seven dams 16 and nearly material price reference and material perform a significant price discovery 13,000 MW of generation. Specifically, liquidity as the potential basis for a function. In evaluating a contract’s price the agreement defines how the Chelan, SPDC determination with respect to the discovery role as a price reference, the Douglas and Grant PUDs coordinate MDC contract. The Commission Commission the extent to which, on a their operations with the Bonneville considered the fact that ICE sells its frequent and recurring basis, bids, offers Power Administration so as to maximize price data to market participants in a or transactions are directly based on, or power generation while reducing number of different packages which are determined by referencing, the fluctuations in the river’s flow. A vary in terms of the hubs covered, time prices established for the contract. number of other utilities that buy power periods, and whether the data are daily IV. Findings and Conclusions from the PUDs have also signed onto the only or historical. For example, ICE agreement. The MCHCA was signed into offers the ‘‘West Power of Day’’ package The Commission’s findings and effect in 1972 and renewed in 1997 for with access to all price data or just conclusions with respect to the MDC another 20 years.17 current prices plus a selected number of and OMC contracts are discussed In general, electricity is bought and months (i.e., 12, 24, 36 or 48 months) of separately below: sold in an auction setting on an hourly historical data. This package includes basis at various point along the price data for the MDC contract. a. The Mid-C Financial Peak (MDC) electrical grid. The price of electricity at The Commission also noted that its Contract and the SPDC Indicia a particular point on the grid is called October 2007 Report on the Oversight of The MDC contract is cash settled the locational marginal price (‘‘LMP’’), Trading on Regulated Futures based on the arithmetic average of the which includes the cost of producing Exchanges and Exempt Commercial ‘‘ ’’ peak, day-ahead power price indicies the electricity, as well as congestion and Markets ( ECM Study ) found that in that are reported each day in the line losses. Thus, an LMP reflects general, market participants view ICE as specified contract month. The daily generation costs as well as the actual a price discovery market for certain price indicies are published by ICE in cost of supplying and delivering electricity contracts. The study did not its ‘‘ICE Day Ahead Power Price Report,’’ electricity to a specific point along the specify which markets performed this which is available on the ECM’s grid. function; nevertheless, the Commission Electricity is traded in a day-ahead website. The peak-hour electricity price determined that the MDC contract, market as well as in a real-time market. index on a particular day is calculated while not mentioned by name in the Typically, the bulk of the energy as the volume-weighted average of ECM Study, might warrant further transactions occur in the day-ahead qualifying, day-ahead, peak-hour power review. market. The day-ahead market The Commission explains in its transactions at the Mid-Columbia hub establishes prices for electricity that is Guidance to the Part 36 rules that in that are traded on the ICE platform from to be delivered during the specified evaluating a contract under the material 6 a.m. to 11 a.m. CST on the publication hour on the following day. Day-ahead price reference criterion, it will rely on date. The ICE transactions on which the prices are determined based on one of two sources of evidence—direct daily price index is based specify the generation and energy transaction or indirect—to determine that the price physical delivery of power. The size of of a contract was being used as a the MDC contract is 400 megawatt hours 15 http://www.wpuda.org/publications/ material price reference and therefore, (‘‘MWh’’), and the MDC contract is listed connections/hydro/River%20Riders.pdf. serving a significant price discovery for 86 months. 16 The federal dams are Grand Coulee and Chief function.18 With respect to direct Joseph. The remaining dams are Wells (operated by As the Columbia River flows through the Douglas PUD), Rocky Reach and Rock Island evidence, the Commission will consider Washington State, it encounters two (operated by the Chelan PUD), and Wanapum and the extent to which, on a frequent and federal and nine privately-owned Priest Rapids (operated by the Grant PUD). The recurring basis, cash market bids, offers hydroelectric dams that generate close term ‘‘PUD’’ stands for a publically-owned utility or transactions are directly based on or which provides essential services within a specified to 20,000 MW of power in the area. quoted at a differential to, the prices 17 http://www.wpuda.org/publications/ 14 17 CFR Part 36, Appendix A. connections/hydro/River%20Riders.pdf. 18 17 CFR Part 36, Appendix A.

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generated on the ECM in question. party price providers (e.g., Dow Jones & i. Federal Register Comments Direct evidence may be established Company). ICE’s Mid-C price indices are WGCEF, WPTF, EEI and ICE stated when cash market participants are unique in that they are derived from that no other contract directly references quoting bid or offer prices or entering transactions completed on ICE’s or settles to the MDC contract’s price. into transactions at prices that are set electronic system. Moreover, ICE is the Moreover, the commenters argued that either explicitly or implicitly at a only entity that has access to such the underlying cash price series against differential to prices established for the transaction data. Thus, it is not possible which the MDC contract is settled (in contract in question. Cash market prices for any other firm to replicate ICE’s this case, the average of peak-hour Mid- 20 are set explicitly at a differential to the indices. C electricity prices over the contract section 2(h)(3) contract when, for The fact that ICE’s MDC monthly month, which are derived from physical instance, they are quoted in dollars and contract is used more widely as a source transactions) is the authentic reference cents above or below the reference of pricing information rather than the price and not the ICE contract itself. 21 contract’s price. Cash market prices are daily contract (i.e., the MPD contract) Commission staff believes that this set implicitly at a differential to a bolsters the finding of direct price interpretation of price reference is too section 2(h)(3) contract when, for reference. In this regard, the MDC narrow and believes that a cash-settled instance, they are arrived at after adding contract prices power at the Mid-C up derivatives contract could meet the to, or subtracting from the section to 86 calendar months in the future. price reference criterion if market 2(h)(3) contract, but then quoted or Thus, market participants can use the participants ‘‘consult on a frequent and reported at a flat price. With respect to MDC contract to lock-in electricity recurring basis’’ the derivatives contract indirect evidence, the Commission will prices far into the future. Traders use when pricing forward, fixed-price consider the extent to which the price monthly power contracts like the MDC commitments or other cash-settled of the contract in question is being contract to price future power electricity derivatives that seek to ‘‘lock in’’ a fixed routinely disseminated in widely commitments, where such commitments price for some future point in time to distributed industry publications—or are based on long range forecasts of offered by the ECM itself for some form hedge against adverse price movements. power supply and demand. In contrast, As noted above, the Mid-C hub is a of remuneration—and consulted on a the MPD contract is listed for a much major trading center for electricity in the frequent and recurring basis by industry shorter length of time—up to 38 days in western United States. Traders, participants in pricing cash market the future. As generation and usage including producers, keep abreast of the transactions. nears, market participants have a better The Mid-C power market is a major prices of the MDC contract when understanding of actual power supply conducting cash deals. These traders pricing center for electricity on the West and needs. As a result, they can modify Coast. Traders, including producers, look to a competitively determined previously-established hedges with price as an indication of expected keep abreast of the electricity prices in daily contracts, like the MPD contract. the Mid-C power market when values of electricity at the Mid-C hub The Commission notes that the Mid- when entering into cash market conducting cash deals. These traders C is a major trading point for electricity, look to a competitively determined transaction for power, especially those and the MDC contract’s prices are well trades that provide for physical delivery price as an indication of expected regarded in the industry as indicative of values of power at the Mid-C hub when in the future. Traders use the ICE MDC the value of power at the Mid-C hub. contract to hedge cash market positions entering into cash market transaction for Accordingly, Commission staff believes electricity, especially those trades and transactions, which enhances the that it is reasonable to conclude that providing for physical delivery in the MDC contract’s price discovery utility. market participants purchase the data future. Traders use the ICE MDC While the MDC contract’s settlement packages that include the MDC contract, as well as other ICE power prices may not be the only factor contract’s prices in substantial part contracts, to hedge cash market influencing spot and forward because the MDC contract prices have positions and transactions—activities transactions, natural gas traders particular value to them. Moreover, which enhance the MDC contract’s price consider the ICE price to be a crucial such prices are consulted on a frequent discovery utility. The substantial factor in conducting OTC transactions. and recurring basis by industry volume of trading and open interest in In addition, WGCEF stated that the participants in pricing cash market the MDC contract appears to attest to its publication of price data for the MDC use for this purpose. While the MDC transactions. In light of the above, the contract price is weak justification for contract’s settlement prices may not be MDC contract meets the indirect price material price reference. This the only factor influencing spot and reference test. commenter argued that market forward transactions, electricity traders participants generally do not purchase 20 In contrast, third-party price reporting firms ICE data sets for one contract’s prices, consider the ICE price to be a critical typically compute their power index prices from factor in conducting OTC transactions.19 transaction information that is voluntarily such as those for the MDC contract. Accordingly, the MDC contract satisfies submitted by traders. It is possible that one trader Instead, traders are interested in the the direct price reference test. could submit the same transaction data to multiple settlement prices, so the fact that ICE price reporting firms, whereby increasing the sells the MDC prices as part of a broad The direct price reference finding also likelihood that price indices from different firms are is supported by the uniqueness of the similar in value. However, it is more plausible that package is not conclusive evidence that ICE electricity prices for the Mid-C the third-party price reporters’ price indices would market participants are buying the ICE market. Day-ahead and real-time be similar but not exactly the same because data sets because they find the MDC electricity prices are reported by a different traders are polled. prices have substantial value to them. 21 The MPD contract is cash settled based on the number of sources, including third- peak, day-ahead price index for the specified day, As noted above, the Commission notes as published by ICE in its ‘‘ICE Day Ahead Power that publication of the MDC contract’s 19 In addition to referencing ICE prices, firms Price Report,’’ which is available on the ECM’s prices is indirect evidence of routine participating in the Mid-C power market may rely website. The daily peak-hour electricity price index dissemination. The MDC contract’s on other cash market quotes as well as industry is a volume-weighted average of qualifying, day- publications and price indices that are published by ahead, peak-hour power contracts at the Mid- prices, while sold as a package, are of third-party price reporting firms in entering into Columbia hub that are traded on the ICE platform particular interest to market power transactions. from 6 a.m. to 11 a.m. CST on the publication date. participants. Thus, the Commission has

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concluded that traders likely purchase The total number of transactions using daily settlement prices between the ICE data packages specifically for executed on ICE’s electronic platform in July 1, 2008, and December 31, 2009, for the MDC contract’s prices and consult the MDC contract was 2,022 in the the ICE MDC and OMC contracts. The such prices on a frequent and recurring second quarter of 2009, resulting in a simulation suggests that, on average basis in pricing cash market daily average of 31.6 trades. During the over the sample period, a one percent transactions. same period, the MDC contract had a rise in the MDC contract’s price elicited Lastly, EEI observed that the ECM total trading volume of 67,400 contracts a 1.09 percent increase in ICE OMC Study did not specifically identify the and an average daily trading volume of contract’s price. MDC contract as a contract that is 1,053.1 contracts. Moreover, open referred to by market participants on a interest as of June 30, 2009, was 169,851 i. Federal Register Comments frequent and recurring basis. The contracts, which included trades ICE and WGCEF stated that the MDC Commission cited the ECM Study’s executed on ICE’s electronic trading contract lacks a sufficient number of general finding that some ICE electricity platform, as well as trades executed off trades to meet the material liquidity contracts appear to be regarded as price of ICE’s electronic trading platform and criterion. These two commenters, along discovery markets merely as indication then brought to ICE for clearing. In this with WPTF, FEIG and EEI argued that that an investigation of certain ICE regard, ICE does not differentiate the MDC contract cannot have a contracts may be warranted. The ECM between open interest created by a material effect on other contracts, such Study was not intended to serve, and transaction executed on its trading as those listed for trading by the New did not serve as the sole basis for platform and that created by a York Mercantile Exchange (‘‘NYMEX’’), determining whether or not a particular transaction executed off its trading a DCM. The commenters pointed out contract meets the material price platform.23 that it is not possible for the MDC reference criterion. In a subsequent filing dated March 24, contract to affect a DCM contract ii. Conclusion Regarding Material Price 2010, ICE reported that total trading because price linkage and the potential Reference volume in the fourth quarter of 2009 for arbitrage do not exist. The DCM was 142,700 contracts (or 2,195 contracts do not cash settle based on the Based on the above, the Commission contracts on a daily basis). In terms of MDC contract’s price. Instead, the DCM finds that the ICE MDC contract meets number of transactions, 2,975 trades contracts and the MDC contract are both the material price reference criterion occurred in the fourth quarter of 2009 cash settled based on physical because cash market transactions are (46 trades per day). As of December 31, transactions, which the ECM and DCM priced either explicitly or implicitly on 2009, open interest in the MDC contract contracts cannot influence. The a frequent and recurring basis at a was 221,608 contracts, which included Commission’s statistical analysis shows differential to the MDC contract’s price trades executed on ICE’s electronic that changes in the ICE MDC contract’s (direct evidence). Moreover, the MDC trading platform, as well as trades price significantly influences the prices contract’s price data are sold to market executed off of ICE’s electronic trading of other ECM contracts (namely, the participants, and those individuals platform and then brought to ICE for OMC contract). likely purchase the ICE data packages clearing. WGCEF and ICE noted that the specifically for the MDC contract’s Trading activity in the MDC contract, Commission’s Guidance had posited prices and consult such prices on a as characterized by total quarterly concepts of liquidity that generally frequent and recurring basis in pricing volume, indicates that the MDC contract assumed a fairly constant stream of cash market transactions (indirect experiences trading activity that is prices throughout the trading day, and evidence). significantly greater than that of minor noted that the relatively low number of 2. Material Liquidity Criterion futures markets.24 Thus, it is reasonable trades per day in the MDC contract did to infer that the MDC contract could As noted above, in its October 6, not meet this standard of liquidity. The have a material effect on other ECM 2009, Federal Register notice, the Commission observes that a continuous contracts or on DCM contracts. Commission identified material price stream of prices would indeed be an To measure the potential effect of the reference and material liquidity as indication of liquidity for certain MDC contract on another ECM contract potential criteria for SPDC markets but the Guidance also notes that staff performed a statistical analysis 25 determination of the MDC contract. To ‘‘quantifying the levels of immediacy and price concession that would define assess whether a contract meets the a derivatives transaction execution facility, or an material liquidity criterion, the material liquidity may differ from one electronic trading facility operating in reliance on 26 Commission first examines trading the exemption in section 2(h)(3) of the Act.’’ market or commodity to another.’’ activity as a general measurement of the 23 74 FR 51261 (October 6, 2009). ICE opined that the Commission contract’s size and potential importance. 24 Staff has advised the Commission that in its ‘‘seems to have adopted a five trade per If the Commission finds that the experience, a thinly-traded contract is generally one day test for material liquidity.’’ To the that has a quarterly trading volume of 100,000 contrary, the Commission adopted a five contract in question meets a threshold contracts or less. In this regard, in the third quarter of trading activity that would render it of 2009, physical commodity futures contracts with trades-per-day threshold as a reporting of potential importance, the trading volume of 100,000 contracts or fewer constituted less than one percent of total trading properties of the data necessitated the modeling of Commission will then perform a volume of all physical commodity futures contracts. the contracts’ prices as a CVAR model containing statistical analysis to measure the effect 25 Specifically, Commission staff econometrically both first differences (to handle stationarity) and an that changes to the subject-contract’s estimated a cointegrated vector autoregression error-correction term to capture long run prices potentially may have on prices (CVAR) model using daily settlement prices. CVAR equilibrium relationships. The prices were treated methods permit a dichotomization of the data as a single reduced-form model in order to test for other contracts listed on an ECM or hypothesis that power prices in the same market 22 relationships into long-run equilibrium components a DCM. (called the cointegration space or cointegrating affect each other. The prices of ICE’s MDC and OMC relationships) and a short-run component. A CVAR contracts are positively related to each other in a 22 As noted above, the material liquidity criterion model was chosen over the more traditional vector cointegrating relationship and display a high level speaks to the effect that transactions in the potential autoregression model in levels because the of statistical strength. On average during the sample SPDC may have on trading in ‘‘agreements, statistical properties of the data (lack of stationarity period, each percentage rise in MDC contract’s price contracts and transactions listed for trading on or and ergodicity) precluded the more traditional elicited a 1.09 percent rise in OMC contract’s price. subject to the rules of a designated contract market, modeling treatment. Moreover, the statistical 26 Guidance, supra.

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requirement to enable it to 3. Overall Conclusion Regarding the of the electricity grid in the Northwest ‘‘independently be aware of ECM MDC Contract is coordinated by the NWPP. contracts that may develop into After considering the entire record in One stretch of the Columbia River ’’ 27 SPDCs rather than solely relying this matter, including the comments between the Grand Coulee Dam and upon an ECM to identify potential received, the Commission has Priests Rapids Dam is governed by the SPDCs to the Commission. Thus, any determined that the MDC contract MCHCA. The MCHCA includes seven contract that meets this threshold may performs a significant price discovery dams 31 and nearly 13,000 MW of be subject to scrutiny as a potential function under two of the four criteria generation. Specifically, the agreement SPDC; however, the contract will not be established in section 2(h)(7) of the defines how the Chelan, Douglas and found to be a SPDC merely because it CEA. The Commission has concluded met the reporting threshold. Grant PUDs coordinate their operations that the MDC contract meets both the with the Bonneville Power ICE asserted that the statistics material price reference and material Administration to maximize power provided by ICE were misinterpreted liquidity criteria. Accordingly, the generation while reducing fluctuations and misapplied by the Commission. In Commission is issuing the attached in the river’s flow. A number of other particular, ICE stated that the volume Order declaring that the MDC contract utilities that buy power from the PUDs figures used in the Commission’s is a SPDC. have also signed onto the agreement. analysis (cited above) ‘‘include trades Issuance of this Order signals the The MCHCA agreement was signed into made in all months’’ as well as in strips immediate effectiveness of the effect in 1972 and renewed in 1997 for of contract months. ICE suggested that a Commission’s authorities with respect 20 years.32 more appropriate method of to ICE as a registered entity in determining liquidity is to examine the connection with its MDC contract,29 and In general, electricity is bought and activity in a single traded month of a triggers the obligations, requirements— sold in an auction setting on an hourly given contract.’’ 28 It is the Commission’s both procedural and substantive—and basis at various point along the opinion that liquidity, as it pertains to timetables prescribed in Commission electrical grid. The price of electricity at the MDC contract, is typically a function rule 36.3(c)(4) for ECMs. a particular point on the grid is called of trading activity in particular lead the LMP, which includes the cost of months and, given sufficient liquidity in b. The Mid-C Financial Off-Peak (OMC) producing the electricity, as well as such months, the ICE MDC contract Contract and the SPDC Indicia congestion and line losses. Thus, an itself would be considered liquid. The OMC contract is cash settled LMP reflects generation costs as well as the actual cost of supplying and ii. Conclusion Regarding Material based on the arithmetic average of the Liquidity off-peak, day-ahead power price indices delivering electricity to a specific point that are reported each day in the along the grid. For the reasons discussed above, the specified contract month. The daily Electricity is traded in a day-ahead Commission finds that the MDC meets price indices are published by ICE in its market as well as a real-time market. the material liquidity criterion. ‘‘ICE Day Ahead Power Price Report,’’ Typically, the bulk of the energy Specifically, there is sufficient trading which is available on the ECM’s transactions occur in the day-ahead activity in the MDC contract to have a website. The off-peak hour electricity market. The day-ahead market material effect on ‘‘other agreements, price index on a particular day is establishes prices for electricity that is contracts or transactions listed for calculated as the volume-weighted to be delivered during the specified trading on or subject to the rules of a average of qualifying, day-ahead, off- hour on the following day. Day-ahead designated contract market * * * or an peak hour power transactions at the prices are determined based on Mid-Columbia hub that are traded on electronic trading facility operating in generation and energy transaction reliance on the exemption in section the ICE platform from 6 a.m. to 11 a.m. quotes offered in advance. Because the 2(h)(3) of the Act.’’ CST on the publication date. The ICE quotes are based on estimates of supply transactions on which the price index is and demand, electricity needs usually 27 based specify the physical delivery of 73 FR 75892 (December 12, 2008). are not perfectly satisfied in the day- 28 In addition, ICE stated that the trades-per-day power. The size of the OMC contract is statistics that it provided to the Commission in its 25 MWh, and the OMC contract is listed ahead market. On the day the electricity quarterly filing and which were cited in the for 86 months. is transmitted and used, auction Commission’s October 6, 2009, Federal Register As the Columbia River flows through participants usually realize that they notice included 2(h)(1) transactions, which were bought or sold either too much power or not completed on the electronic trading platform Washington State, it encounters two and should not be considered in the SPDC federal and nine privately-owned too little power. A real-time auction is determination process. Commission staff asked ICE hydroelectric dams that generate close operated in the Mid-C market to to review the data it sent in its quarterly filings; ICE alleviate this problem by servicing as a confirmed that the volume data it provided and to 20,000 MW of power in the which the Commission cited includes only Northwest.30 With another three dams balancing mechanism. In this regard, transaction data executed on ICE’s electronic in British Columbia, Canada, and many electricity traders use the real-time trading platform. As noted above, supplemental more on its various tributaries, the market to sell excess electricity and buy data supplied by ICE confirmed that block trades additional power to meet demand. Only are in addition to the trades that were conducted Columbia River is the largest power- on the electronic platform; block trades comprise producing river in North America. A a relatively small amount of electricity about 54 percent of all transactions in the MDC major goal of the participants in the is traded in the real-time market contract. The Commission acknowledges that the compared with the day-ahead market. open interest information it provided in its October Mid-C electricity market is to maximize 6, 2009, Federal Register notice includes the Columbia River’s potential, along transactions made off the ICE platform. However, with protecting and enhancing the non- 31 The federal dams are Grand Coulee and Chief once open interest is created, there is no way for power uses of the river. The reliability Joseph. The remaining dams are Wells (operated by ICE to differentiate between ‘‘on-exchange’’ versus the Douglas PUD), Rocky Reach and Rock Island ‘‘off-exchange’’ created positions, and all such (operated by the Chelan PUD), and Wanapum and positions are fungible with one another and may be 29 See 73 FR 75888, 75893 (Dec. 12, 2008). Priest Rapids (operated by the Grant PUD). offset in any way agreeable to the position holder 30 http://www.wpuda.org/publications/ 32 http://www.wpuda.org/publications/ regardless of how the position was initially created. connections/hydro/River%20Riders.pdf. connections/hydro/River%20Riders.pdf.

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1. Material Price Reference Criterion of the contract in question is being contract (i.e., the MXO contract) 36 The Commission’s October 6, 2009, routinely disseminated in widely reinforces the argument for direct price Federal Register notice identified distributed industry publications—or reference. In this regard, the OMC material price reference and material offered by the ECM itself for some form contract is a monthly contact that prices liquidity as the potential basis for a of remuneration—and consulted on a power at the Mid-C up to 86 calendar SPDC determination with respect to the frequent and recurring basis by industry months in the future. Thus, market OMC contract. The Commission participants in pricing cash market participants can use the OMC contract considered the fact that ICE sells its transactions. to lock-in electricity prices far into the The Mid-C power market is a major price data to market participants in a future. In contrast, the MXO contract is pricing center for electricity on the West number of different packages which listed for a much shorter length of Coast. Traders, including producers, vary in terms of the hubs covered, time time—up to 70 days in the future. keep abreast of the electricity prices in Traders use monthly power contracts periods, and whether the data are daily the Mid-C power market when like the OMC contract to price future only or historical. For example, ICE conducting cash deals. These traders power electricity commitments, where offers the ‘‘West Power of Day’’ package look to a competitively determined such commitments are based on long with access to all price data or just price as an indication of expected range forecasts of power supply and current prices plus a selected number of values of power at the Mid-C hub when demand. As generation and usage nears, months (i.e., 12, 24, 36 or 48 months) of entering into cash market transaction for market participants have a better historical data. This package includes electricity, especially those trades understanding of generation capacity price data for the OMC contract. providing for physical delivery in the actual power needs. As a result, they The Commission also noted that its future. Traders use the ICE OMC can modify previously-established October 2007 ECM Study found that in contract, as well as other ICE power hedges with daily contracts, like the general, market participants view ICE as contracts, to hedge cash market MXO contract. a price discovery market for certain positions and transactions—activities The Commission notes that the Mid- electricity contracts. The study did not which enhance the OMC contract’s C is a major trading point for electricity, specify which markets performed this price discovery utility. The substantial and the OMC contract’s prices are well function; nevertheless, the Commission volume of trading and open interest in regarded in the industry as indicative of determined that the OMC contract, the OMC contract appears to attest to its the value of power at the Mid-C hub. while not mentioned by name in the use for this purpose. While the OMC Accordingly, Commission staff believes ECM Study, might warrant further contract’s settlement prices may not be that it is reasonable to conclude that review. the only factor influencing spot and market participants purchase the data The Commission explains in its forward transactions, power traders packages that include the OMC Guidance to the Part 36 rules that in consider the ICE price to be a critical contract’s prices in substantial part evaluating a contract under the material factor in conducting OTC transactions.34 because the OMC contract prices have price reference criterion, it will rely on As a result, the OMC contract satisfies particular value to them. Moreover, one of two sources of evidence—direct the direct price reference test. such prices are consulted on a frequent or indirect—to determine that the price Another reason that bolsters the direct and recurring basis by industry of a contract was being used as a price reference claim is related to the participants in pricing cash market material price reference and therefore, uniqueness of the ICE electricity prices transactions. In light of the above, the serving a significant price discovery for the Mid-C market. Day-ahead and OMC contract meets the indirect price function.33 With respect to direct real-time electricity prices are reported reference test. evidence, the Commission will consider by a number of sources, including third- the extent to which, on a frequent and party price providers (e.g., Dow Jones & i. Federal Register Comments recurring basis, cash market bids, offers Company). ICE’s Mid-C price indices are WGCEF, WPTF, EEI and ICE stated or transactions are directly based on or unique in that they are derived from that no other contract directly references quoted at a differential to, the prices transactions completed on ICE’s or settles to the OMC contract’s price. generated on the ECM in question. electronic system. Moreover, ICE is the Moreover, the commenters argued that Direct evidence may be established only entity that has access to such the underlying cash price series against when cash market participants are transaction data. Thus, it is not possible which the OMC contract is settled (in quoting bid or offer prices or entering for any other firm to replicate ICE’s this case, the average of peak Mid-C into transactions at prices that are set indices.35 electricity prices over the contract either explicitly or implicitly at a The fact that ICE’s OMC contract is month, which are derived from cash differential to prices established for the used more widely as a source of pricing market transactions) is the authentic contract in question. Cash market prices information rather than the daily reference price and not the ICE contract are set explicitly at a differential to the itself. Commission staff believes that section 2(h)(3) contract when, for 34 In addition to referencing ICE prices, firms this interpretation of price reference is instance, they are quoted in dollars and participating in the Mid-C power market may rely too narrow and believes that a cash- cents above or below the reference on other cash market quotes as well as industry settled derivatives contract could meet publications and price indices that are published by contract’s price. Cash market prices are third-party price reporting firms in entering into the price reference criterion if market set implicitly at a differential to a power transactions. participants ‘‘consult on a frequent and section 2(h)(3) contract when, for 35 In contrast, third-party price reporting firms instance, they are arrived at after adding typically compute their power index prices from 36 The MXO contract is cash settled based on the to, or subtracting from the section transaction information that is voluntarily off-peak, day-ahead price index for the specified submitted by traders. It is possible that one trader day, as published by ICE in its ‘‘ICE Day Ahead 2(h)(3) contract, but then quoted or could submit the same transaction data to multiple Power Price Report,’’ which is available on the reported at a flat price. With respect to price reporting firms, whereby increasing the ECM’s website. The daily, off-peak hour electricity indirect evidence, the Commission will likelihood that price indices from different firms are price index is a volume-weighted average of similar in value. However, it is more plausible that qualifying, day-ahead, off-peak hour power consider the extent to which the price the third-party price reporters’ price indices would contracts at the Mid-Columbia hub that are traded be similar but not exactly the same because on the ICE platform from 6 a.m. to 11 a.m. CST on 33 17 CFR Part 36, Appendix A. different traders are polled. the publication date.

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recurring basis’’ the derivatives contract for determining whether or not a created by a transaction executed on its when pricing forward, fixed-price particular contract meets the material trading platform and that created by a commitments or other cash-settled price reference criterion. transaction executed off its trading derivatives that seek to ‘‘lock in’’ a fixed platform.38 ii. Conclusion Regarding Material Price price for some future point in time to In a subsequent filing dated March 24, Reference hedge against adverse price movements. 2010, ICE reported that total trading As noted above, the Mid-C hub is a Based on the above, the Commission volume in the fourth quarter of 2009 major trading center for electricity in the finds that the ICE OMC contract meets was 213,862 contracts (or 3,290 western United States. Traders, the material price reference criterion contracts on a daily basis). In terms of including producers, keep abreast of the because cash market transactions are number of transactions, 327 trades prices of the OMC contract when priced either explicitly or implicitly on occurred in the fourth quarter of 2009 (5 conducting cash deals. These traders a frequent and recurring basis at a trades per day). As of December 31, look to a competitively determined differential to the OMC contract’s price 2009, open interest in the OMC contract price as an indication of expected (direct evidence). Moreover, the OMC was 1,249,165 contracts, which values of electricity at the Mid-C hub contract’s price data are sold to market included trades executed on ICE’s when entering into cash market participants, and those individuals electronic trading platform, as well as transaction for power, especially those likely purchase the ICE data packages trades executed off of ICE’s electronic trades that provide for physical delivery specifically for the OMC contract’s trading platform and then brought to in the future. Traders use the ICE OMC prices and consult such prices on a ICE for clearing. contract to hedge cash market positions frequent and recurring basis in pricing The number of trades per day was and transactions, which enhances the cash market transactions (indirect relatively low between the second and OMC contract’s price discovery utility. evidence). fourth quarters of 2009. However, While the OMC contract’s settlement trading activity in the OMC contract, as prices may not be the only factor 2. Material Liquidity Criterion characterized by total quarterly volume, influencing spot and forward In its October 6, 2009, Federal indicates that the MDC contract transactions, power traders consider the Register notice, the Commission experiences trading activity that is ICE price to be a crucial factor in identified material price reference and greater than that of minor futures conducting OTC transactions. material liquidity as potential criteria markets.39 Thus, it is reasonable to infer In addition, WGCEF stated that the for SPDC determination of the OMC that the OMC contract could have a publication of price data for the OMC contract. To assess whether a contract material effect on other ECM contracts contract price is weak justification for meets the material liquidity criterion, or on DCM contracts. material price reference. This the Commission first examines trading To measure the effect that the OMC commenter argued that market activity as a general measurement of the contract potentially could have on participants generally do not purchase contract’s size and potential importance. another ECM contract, staff performed a ICE data sets for one contract’s prices, If the Commission finds that the statistical analysis 40 using daily such as those for the OMC contract. contract in question meets a threshold settlement prices between July 1, 2008, Instead, traders are interested in the of trading activity that would render it and December 31, 2009, for the ICE settlement prices, so the fact that ICE of potential importance, the OMC and MDC contracts. The sells the OMC prices as part of a broad Commission will then perform a simulation suggests that, on average package is not conclusive evidence that statistical analysis to measure the effect over the sample period, a one percent market participants are buying the ICE that changes to the subject-contract’s data sets because they find the OMC prices potentially may have on prices 38 74 FR 51261 (October 6, 2009). prices have substantial value to them. for other contracts listed on an ECM or 39 Staff has advised the Commission that in its As noted above, the Commission notes a DCM.37 experience, a thinly-traded contract is, generally, that publication of the OMC contract’s one that has a quarterly trading volume of 100,000 The total number of transactions contracts or less. In this regard, in the third quarter prices is indirect evidence of routine executed on ICE’s electronic platform in of 2009, physical commodity futures contracts with dissemination. The OMC contract’s the OMC contract was 443 in the second trading volume of 100,000 contracts or fewer prices, while sold as a package, are of quarter of 2009, resulting in a daily constituted less than one percent of total trading particular interest to market volume of all physical commodity futures contracts. average of 6.9 trades. During the same 40 participants. Thus, the Commission has Specifically, Commission staff econometrically period, the OMC contract had a total estimated a cointegrated vector autoregression concluded that traders likely trading volume of 185,950 contracts and (CVAR) model using daily settlement prices. CVAR specifically purchase the ICE data an average daily trading volume of methods permit a dichotomization of the data packages for the OMC contract’s prices 2,905.5 contracts. Moreover, open relationships into long-run equilibrium components and consult such prices on a frequent (called the cointegration space or cointegrating interest as of June 30, 2009, was relationships) and a short-run component. A CVAR and recurring basis in pricing cash 1,105,361 contracts, which included model was chosen over the more traditional vector market transactions. trades executed on ICE’s electronic autoregression model in levels because the Lastly, EEI criticized that the ECM statistical properties of the data (lack of stationarity trading platform, as well as trades and ergodicity) precluded the more traditional Study did not specifically identify the executed off of ICE’s electronic trading OMC contract as a contract that is modeling treatment. Moreover, the statistical platform and then brought to ICE for properties of the data necessitated the modeling of referred to by market participants on a clearing. In this regard, ICE does not contracts’ prices as a CVAR model containing both frequent and recurring basis. In differentiate between open interest first differences (to handle stationarity) and an error response, the Commission notes that it correction term to capture long run equilibrium relationships. The prices were treated as a single cited the ECM Study’s general finding 37 As noted above, the material liquidity criterion reduced-form model in order to test hypothesis that that some ICE electricity contracts speaks to the effect that transactions in the potential power prices in the same market affect each other. appear to be regarded as price discovery SPDC may have on trading in ‘‘agreements, The prices of ICE’s OMC and MDC contracts are markets merely as indication that an contracts and transactions listed for trading on or positively related to each other in a cointegrating subject to the rules of a designated contract market, relationship and display a high level of statistical investigation of certain ICE contracts a derivatives transaction execution facility, or an strength. On average during the sample period, each may be warranted. The ECM Study was electronic trading facility operating in reliance on percentage rise in OMC contract’s price elicited a not intended to serve as the sole basis the exemption in section 2(h)(3) of the Act.’’ 0.915 percent rise in MDC contract’s price.

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rise in the OMC contract’s price elicited analysis (cited above) ‘‘include trades Issuance of this Order signals the a 0.915 percent increase in ICE MDC made in all months’’ as well as in strips immediate effectiveness of the contract’s price. of contract months. ICE suggested that a Commission’s authorities with respect more appropriate method of to ICE as a registered entity in i. Federal Register Comments determining liquidity is to examine the connection with its OMC contract,44 and ICE and WGCEF stated that the OMC activity in a single traded month of a triggers the obligations, requirements— contract lacks a sufficient number of given contract.43 It is the Commission’s both procedural and substantive—and trades to meet the material liquidity opinion that liquidity, as it pertains to timetables prescribed in Commission criterion. These two commenters, along the OMC contract, is typically a rule 36.3(c)(4) for ECMs. with WPTF, FEIG and EEI argued that function of trading activity in particular V. Related Matters the OMC contract cannot have a lead months and, given sufficient material effect on other contracts, such liquidity in such months, the ICE OMC a. Paperwork Reduction Act as those listed for trading by NYMEX. contract itself would be considered The Paperwork Reduction Act of 1995 The commenters pointed out that it is liquid. (‘‘PRA’’) 45 imposes certain requirements not possible for the OMC contract to on Federal agencies, including the affect a DCM contract because price ii. Conclusion Regarding Material Commission, in connection with their linkage and the potential for arbitrage Liquidity conducting or sponsoring any collection do not exist. The DCM contracts do not For the reasons discussed above, the of information as defined by the PRA. cash settle to the OMC contract’s price. Commission finds that the OMC meets Certain provisions of Commission rule Instead, the DCM contracts and the the material liquidity criterion. 36.3 impose new regulatory and OMC contract are both cash settled Specifically, there is sufficient trading reporting requirements on ECMs, based on physical transactions, which activity in the OMC contract to have a resulting in information collection the ECM and DCM contracts cannot material effect on ‘‘other agreements, requirements within the meaning of the influence. The Commission’s statistical contracts or transactions listed for PRA. OMB previously has approved and analysis shows that changes in the ICE trading on or subject to the rules of a assigned OMB control number 3038– OMC contract’s price significantly designated contract market * * * or an 0060 to this collection of information. influence the prices of other ECM electronic trading facility operating in contracts (namely, the MDC contract). reliance on the exemption in section b. Cost-Benefit Analysis WGCEF and ICE noted that the 2(h)(3) of the Act’’ (that is, an ECM). Section 15(a) of the CEA 46 requires Commission’s Guidance had posited the Commission to consider the costs concepts of liquidity that generally 3. Overall Conclusion Regarding the OMC Contract and benefits of its actions before issuing assumed a fairly constant stream of an order under the Act. By its terms, prices throughout the trading day, and After considering the entire record in section 15(a) does not require the noted that the relatively low number of this matter, including the comments Commission to quantify the costs and trades per day in the OMC contract did received, the Commission has benefits of an order or to determine not meet this standard of liquidity. determined that the OMC contract whether the benefits of the order While a continuous stream of prices performs a significant price discovery outweigh its costs; rather, it requires would indeed be an indication of function under two of the four criteria that the Commission ‘‘consider’’ the liquidity for certain markets, the established in section 2(h)(7) of the costs and benefits of its actions. Section Guidance also notes that ‘‘quantifying CEA. The Commission has concluded 15(a) further specifies that the costs and the levels of immediacy and price that the OMC contract meets both the benefits shall be evaluated in light of concession that would define material material price reference and material five broad areas of market and public liquidity may differ from one market or liquidity criteria. Accordingly, the concern: (1) Protection of market commodity to another.’’ 41 Commission is issuing the attached participants and the public; (2) ICE opined that the Commission Order declaring that the OMC contract efficiency, competitiveness and ‘‘seems to have adopted a five trade per is a SPDC. financial integrity of futures markets; (3) day test for material liquidity.’’ To the price discovery; (4) sound risk contrary, the Commission adopted a five 43 In addition, ICE stated that the trades-per-day management practices; and (5) other trades-per-day threshold as a reporting statistics that it provided to the Commission in its quarterly filing and which were cited in the public interest considerations. The requirement to enable it to Commission’s October 6, 2009, Federal Register Commission may in its discretion give ‘‘independently be aware of ECM notice includes 2(h)(1) transactions, which were not greater weight to any one of the five contracts that may develop into completed on the electronic trading platform and enumerated areas and could in its SPDCs’’ 42 rather than solely relying should not be considered in the SPDC determination process. The Commission staff asked discretion determine that, upon an ECM on its own to identify any ICE to review the data it sent in its quarterly filings; notwithstanding its costs, a particular such potential SPDCs to the ICE confirmed that the volume data it provided and order is necessary or appropriate to Commission. Thus, any contract that which the Commission cited includes only protect the public interest or to meets this threshold may be subject to transaction data executed on ICE’s electronic trading platform. As noted above, supplemental effectuate any of the provisions or scrutiny as a potential SPDC; however, data supplied by ICE confirmed that block trades accomplish any of the purposes of the the contract will not be found to be a are in addition to the trades that were conducted Act. SPDC merely because it met the on the electronic platform; block trades comprise When a futures contract begins to reporting threshold. about 82 percent of all transactions in the OMC serve a significant price discovery ICE also asserted that the statistics contract. Commission acknowledges that the open interest information it provided in its October 6, function, that contract, and the ECM on provided by ICE were misinterpreted 2009, Federal Register notice includes transactions which it is traded, warrants increased and misapplied by the Commission. In made off the ICE platform. However, once open oversight to deter and prevent price particular, ICE stated that the volume interest is created, there is no way for ICE to manipulation or other disruptions to figures used in the Commission’s differentiate between ‘‘on-exchange’’ versus ‘‘off- exchange’’ created positions, and all such positions are fungible with one another and may be offset in 44 See 73 FR 75888, 75893 (Dec. 12, 2008). 41 Guidance, supra. any way agreeable to the position holder regardless 45 44 U.S.C. 3507(d). 42 73 FR 75892 (December 12, 2008). of how the position was initially created. 46 7 U.S.C. 19(a).

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market integrity, both on the ECM itself and material liquidity criteria for Issued in Washington, DC, on June 25, and in any related futures contracts significant price discovery contracts. 2010, by the Commission. trading on DCMs. An Order finding that Consistent with this determination, and David A. Stawick, a particular contract is a SPDC triggers effective immediately, the Secretary of the Commission. this increased oversight and imposes IntercontinentalExchange, Inc., must [FR Doc. 2010–16212 Filed 7–1–10; 8:45 am] obligations on the ECM calculated to comply with, with respect to the Mid- BILLING CODE 6351–01–P accomplish this goal. The increased C Financial Peak contract, the nine core oversight engendered by the issue of a principles established by new section SPDC Order increases transparency and 2(h)(7)(C). Additionally, the COMMODITY FUTURES TRADING helps to ensure fair competition among IntercontinentalExchange, Inc., shall be COMMISSION ECMs and DCMs trading similar and is considered a registered entity 49 products and competing for the same with respect to the Mid-C Financial Orders Finding That the Mid-C business. Moreover, the ECM on which Peak contract and is subject to all the Financial Peak Daily Contract and Mid- the SPDC is traded must assume, with provisions of the Commodity Exchange C Financial Off-Peak Daily Contract, respect to that contract, all the Act applicable to registered entities. Offered for Trading on the responsibilities and obligations of a Further, the obligations, requirements IntercontinentalExchange, Inc., Do Not registered entity under the CEA and and timetables prescribed in Perform a Significant Price Discovery Commission regulations. Additionally, Commission rule 36.3(c)(4) governing Function core principle compliance by the the ECM must comply with nine core AGENCY: Commodity Futures Trading principles established by section 2(h)(7) IntercontinentalExchange, Inc., Commission. of the Act—including the obligation to commence with the issuance of this ACTION: Final orders. establish position limits and/or Order.50 accountability standards for the SPDC. b. Order Relating to the Mid-C Financial SUMMARY: On October 6, 2009, the Section 4(i) of the CEA authorize the Off-Peak Contract Commodity Futures Trading Commission to require reports for Commission (‘‘CFTC’’ or ‘‘Commission’’) SPDCs listed on ECMs. These increased After considering the complete record published for comment in the Federal responsibilities, along with the CFTC’s in this matter, including the comment Register 1 a notice of its intent to increased regulatory authority, subject letters received in response to its undertake a determination whether the the ECM’s risk management practices to request for comments, the Commission Mid-C 2 Financial Peak Daily (‘‘MPD’’) the Commission’s supervision and has determined to issue the following contract and Mid-C Financial Off-Peak Order: oversight and generally enhance the Daily (‘‘MXO’’) contract,3 which are The Commission, pursuant to its financial integrity of the markets. listed for trading on the authority under section 2(h)(7) of the IntercontinentalExchange, Inc. (‘‘ICE’’), c. Regulatory Flexibility Act Act, hereby determines that the Mid-C ‘‘ ’’ Financial Off-Peak contract, traded on an exempt commercial market ( ECM ) The Regulatory Flexibility Act under sections 2(h)(3)–(5) of the 47 the IntercontinentalExchange, Inc., (‘‘RFA’’) requires that agencies ‘‘ ’’ satisfies the statutory material price Commodity Exchange Act ( CEA or the consider the impact of their rules on ‘‘ ’’ reference and material liquidity criteria Act ), perform a significant price small businesses. The requirements of discovery function pursuant to section CEA section 2(h)(7) and the Part 36 for significant price discovery contracts. 2(h)(7) of the CEA. The Commission rules affect ECMs. The Commission Consistent with this determination, and undertook this review based upon an previously has determined that ECMs effective immediately, the initial evaluation of information and are not small entities for purposes of the IntercontinentalExchange, Inc., must data provided by ICE as well as other RFA.48 Accordingly, the Chairman, on comply with, with respect to the Mid- available information. The Commission behalf of the Commission, hereby C Financial Off-Peak contract, the nine has reviewed the entire record in this certifies pursuant to 5 U.S.C. 605(b) that core principles established by new matter, including all comments these Orders, taken in connection with section 2(h)(7)(C). Additionally, the received, and has determined to issue section 2(h)(7) of the Act and the Part IntercontinentalExchange, Inc., shall be 51 orders finding that the MPD and MXO 36 rules, will not have a significant and is considered a registered entity impact on a substantial number of small with respect to the Mid-C Financial Off- contracts do not perform a significant entities. Peak contract and is subject to all the price discovery function. Authority for provisions of the Commodity Exchange this action is found in section 2(h)(7) of VI. Orders Act applicable to registered entities. the CEA and Commission rule 36.3(c) a. Order Relating to the Mid-C Financial Further, the obligations, requirements promulgated thereunder. Peak Contract and timetables prescribed in DATES: Effective Date: June 25, 2010. Commission rule 36.3(c)(4) governing FOR FURTHER INFORMATION CONTACT: After considering the complete record core principle compliance by the in this matter, including the comment Gregory K. Price, Industry Economist, IntercontinentalExchange, Inc., letters received in response to its Division of Market Oversight, commence with the issuance of this request for comments, the Commission Commodity Futures Trading Order.52 has determined to issue the following Order: that was previously declared by the Commission to 49 7 U.S.C. 1a(29). be a SPDC, ICE must submit a written The Commission, pursuant to its 50 Because ICE already lists for trading a contract demonstration of compliance with the Core authority under section 2(h)(7) of the (i.e., the Henry Financial LD1 Fixed Price contract) Principles within 30 calendar days of the date of Act, hereby determines that the Mid-C that was previously declared by the Commission to this Order. 17 CFR 36.3(c)(4). Financial Peak contract, traded on the be a SPDC, ICE must submit a written 1 74 FR 51261 (October 6, 2009). IntercontinentalExchange, Inc., satisfies demonstration of compliance with the Core 2 The acronym ‘‘Mid-C’’ stands for Mid-Columbia. Principles within 30 calendar days of the date of 3 The Federal Register notice also requested the statutory material price reference this Order. 17 CFR 36.3(c)(4). comment on the Mid-C Financial Peak (‘‘MDC’’) 51 7 U.S.C. 1a(29). contract and Mid-C Financial Off-Peak (‘‘OMC’’) 47 5 U.S.C. 601 et seq. 52 Because ICE already lists for trading a contract contract; these contracts will be addressed in a 48 66 FR 42256, 42268 (Aug. 10, 2001). (i.e., the Henry Financial LD1 Fixed Price contract) separate Federal Register release.

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Commission, Three Lafayette Centre, settlement or other daily price of Comments were received from the 1155 21st Street, NW., Washington, DC another contract. Federal Energy Regulatory Commission 20581. Telephone: (202) 418–5515. E- Commission rule 36.3(c)(3) (‘‘FERC’’), Financial Institutions Energy mail: [email protected]; or Susan Nathan, established the procedures by which the Group (‘‘FIEG’’), Working Group of Senior Special Counsel, Division of Commission makes and announces its Commercial Energy Firms (‘‘WGCEF’’), Market Oversight, same address. determination whether a particular ECM Edison Electric Institute (‘‘EEI’’), ICE, Telephone: (202) 418–5133. E-mail: contract serves a significant price Western Power Trading Forum [email protected]. discovery function. Under those (‘‘WPTF’’) and Public Utility procedures, the Commission will Commission of Texas (‘‘PUCT’’).11 The SUPPLEMENTARY INFORMATION: publish notice in the Federal Register comment letters from FERC 12 and that it intends to undertake an I. Introduction evaluation whether the specified PUCT did not directly address the issue agreement, contract or transaction of whether or not the subject contracts The CFTC Reauthorization Act of are SPDCs. The remaining comment 2008 (‘‘Reauthorization Act’’) 4 performs a significant price discovery function and to receive written views, letters raised substantive issues with significantly broadened the CFTC’s respect to the applicability of section regulatory authority with respect to data and arguments relevant to its 2(h)(7) to the MPD and MXO contracts ECMs by creating, in section 2(h)(7) of determination from the ECM and other and generally expressed the opinion the CEA, a new regulatory category— interested persons. Upon the close of that the contracts are not SPDCs because ECMs on which significant price the comment period, the Commission they does not meet the material price discovery contracts (‘‘SPDCs’’) are will consider, among other things, all relevant information regarding the traded—and treating ECMs in that reference or material liquidity criteria subject contract and issue an order category as registered entities under the for SPDC determination. These announcing and explaining its CEA.5 The legislation authorizes the comments are more extensively determination whether or not the CFTC to designate an agreement, discussed below, as applicable. contract is a SPDC. The issuance of an contract or transaction as a SPDC if the affirmative order signals the Commission determines, under criteria written data, views and arguments relevant to its effectiveness of the Commission’s determination from the ECM and other interested established in section 2(h)(7), that it regulatory authorities over an ECM with persons. performs a significant price discovery respect to a SPDC; at that time such an 11 FERC is an independent federal regulatory function. When the Commission makes ECM becomes subject to all provisions agency that, among other things, regulates the interstate transmission of natural gas, oil and such a determination, the ECM on of the CEA applicable to registered which the SPDC is traded must assume, electricity. FIEG describes itself as an association of entities.7 The issuance of such an order investment and commercial banks who are active with respect to that contract, all the also triggers the obligations, participants in various sectors of the natural gas responsibilities and obligations of a requirements and timetables prescribed markets, ‘‘including acting as marketers, lenders, registered entity under the Act and in Commission rule 36.3(c)(4).8 underwriters of debt and equity securities, and Commission regulations, and must proprietary investors.’’ WGCEF describes itself as ‘‘a II. Notice of Intent To Undertake SPDC diverse group of commercial firms in the domestic comply with nine core principles energy industry whose primary business activity is established by new section 2(h)(7)(C). Determination the physical delivery of one or more energy On March 16, 2009, the CFTC On October 6, 2009, the Commission commodities to customers, including industrial, published in the Federal Register notice commercial and residential consumers’’ and whose promulgated final rules implementing membership consists of ‘‘energy producers, the provisions of the Reauthorization of its intent to undertake a marketers and utilities.’’ EEI is the ‘‘association of Act.6 As relevant here, rule 36.3 determination whether the MPD and shareholder-owned electric companies, MXO contracts 9 perform a significant international affiliates and industry associates imposes increased information reporting worldwide.’’ ICE is an ECM, as noted above. WPTF requirements on ECMs to assist the price discovery function and requested 10 describes itself as a ‘‘broad-based membership Commission in making prompt comment from interested parties. organization dedicated to encouraging competition assessments whether particular ECM in the Western power markets * * * WTPF strives 7 Public Law 110–246 at 13203; Joint Explanatory to reduce the long-run cost of electricity to contracts may be SPDCs. In addition to Statement of the Committee of Conference, H.R. consumers throughout the region while maintaining filing quarterly reports of its contracts, Rep. No. 110–627, 110 Cong., 2d Sess. 978, 986 the current high level of system reliability.’’ PUCT an ECM must notify the Commission (Conference Committee Report). See also 73 FR is the independent organization that oversees the promptly concerning any contract 75888, 75894 (Dec. 12, 2008). Electric Reliability Council of Texas (‘‘ERCOT’’) to 8 For an initial SPDC, ECMs have a grace period ‘‘ensure nondiscriminatory access to the traded in reliance on the exemption in of 90 calendar days from the issuance of a SPDC transmission and distribution systems, to ensure the section 2(h)(3) of the CEA that averaged determination order to submit a written reliability and adequacy of the regional electrical five trades per day or more over the demonstration of compliance with the applicable network, and to perform other essential market most recent calendar quarter, and for core principles. For subsequent SPDCs, ECMs have functions.’’ The comment letters are available on the a grace period of 30 calendar days to demonstrate Commission’s Web site: http://www.cftc.gov/ which the exchange sells its price core principle compliance. lawandregulation/federalregister/ information regarding the contract to 9 As noted above, the Federal Register notice also federalregistercomments/2009/09–011.html. market participants or industry requested comment on the Mid-C Financial Peak 12 FERC expressed the opinion that a publications, or whose daily closing or (‘‘MDC’’) contract and Mid-C Financial Off-Peak determination by the Commission that either of the settlement prices on 95 percent or more (‘‘OMC’’) contract. The MDC and OMC contracts subject contracts performs a significant price will be addressed in a separate Federal Register discovery function ‘‘would not appear to conflict of the days in the most recent quarter release. with FERC’s exclusive jurisdiction under the were within 2.5 percent of the 10 The Commission’s Part 36 rules establish, Federal Power Act (FPA) over the transmission or contemporaneously determined closing, among other things, procedures by which the sale for resale of electric energy in interstate Commission makes and announces its commerce or with its other regulatory determination whether a specific ECM contract responsibilities under the FPA’’ and further that 4 Incorporated as Title XIII of the Food, serves a significant price discovery function. Under ‘‘FERC staff will monitor proposed SPDC Conservation and Energy Act of 2008, Public Law those procedures, the Commission publishes a determinations and advise the CFTC of any 110–246, 122 Stat. 1624 (June 18, 2008). notice in the Federal Register that it intends to potential conflicts with FERC’s exclusive 5 7 U.S.C. 1a(29). undertake a determination whether a specified jurisdiction over RTOs, [(regional transmission 6 74 FR 12178 (Mar. 23, 2009); these rules became agreement, contract or transaction performs a organizations)], ISOs [(independent system effective on April 22, 2009. significant price discovery function and to receive operators)] or other jurisdictional entities.’’

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III. Section 2(h)(7) of the CEA which a SPDC must conform to the Northwest.15 With another three dams The Commission is directed by various criteria. In Guidance issued in in British Columbia, Canada, and many section 2(h)(7) of the CEA to consider connection with the Part 36 rules more on its various tributaries, the the following criteria in determining a governing ECMs with SPDCs, the Columbia River is the largest power- contract’s significant price discovery Commission observed that these criteria producing river in North America. A function: do not lend themselves to a mechanical major goal of the participants in the • Price Linkage—the extent to which checklist or formulaic analysis. Mid-C electricity market is to maximize the agreement, contract or transaction Accordingly, the Commission has the Columbia River’s potential, along uses or otherwise relies on a daily or indicated that in making its with protecting and enhancing the non- final settlement price, or other major determinations it will consider the power uses of the river. The reliability price parameter, of a contract or circumstances under which the of the electricity grid in the Northwest contracts listed for trading on or subject presence of a particular criterion, or is coordinated by the Northwest to the rules of a designated contract combination of criteria, would be PowerPool (‘‘NWPP’’), which is a market (‘‘DCM’’) or derivatives sufficient to support a SPDC voluntary organization comprised of transaction execution facility (‘‘DTEF’’), determination.14 For example, for major generating utilities serving the or a SPDC traded on an electronic contracts that are linked to other Northwestern United States, as well as trading facility, to value a position, contracts or that may be arbitraged with British Columbia and Alberta, Canada. transfer or convert a position, cash or other contracts, the Commission will One stretch of the Columbia River financially settle a position, or close out consider whether the price of the between the Grand Coulee Dam and a position. potential SPDC moves in such harmony Priests Rapids Dam is governed by the • Arbitrage—the extent to which the with the other contract that the two Mid-Columbia Hourly Coordination price for the agreement, contract or markets essentially become Agreement (‘‘MCHCA’’). The MCHCA transaction is sufficiently related to the interchangeable. This co-movement of covers seven dams 16 and nearly 13,000 price of a contract or contracts listed for prices would be an indication that MW of generation. Specifically, the trading on or subject to the rules of a activity in the contract had reached a agreement defines how the Chelan, DCM or DTEF, or a SPDC traded on or level sufficient for the contract to Douglas and Grant PUDs coordinate subject to the rules of an electronic perform a significant price discovery operations with the Bonneville Power trading facility, so as to permit market function. In evaluating a contract’s price Administration to maximize power participants to effectively arbitrage discovery role as a price reference, the generation while reducing fluctuations between the markets by simultaneously Commission the extent to which, on a in the river’s flow. A number of other maintaining positions or executing frequent and recurring basis, bids, offers utilities that buy power from the PUDs trades in the contracts on a frequent and or transactions are directly based on, or have also signed onto the agreement. recurring basis. are determined by referencing, the This agreement was signed into effect in • Material price reference—the extent prices established for the contract. 1972 and renewed for 20 years in to which, on a frequent and recurring 1997.17 basis, bids, offers or transactions in a IV. Findings and Conclusions In general, electricity is bought and sold in an auction setting on an hourly commodity are directly based on, or are The Commission’s findings and basis at various points along the determined by referencing or conclusions with respect to the MPD electrical grid. The price of electricity at consulting, the prices generated by and MXO contracts are discussed a particular point on the grid is called agreements, contracts or transactions separately below: being traded or executed on the the locational marginal price (‘‘LMP’’), electronic trading facility. a. The Mid-C Financial Peak Daily which includes the costs of producing • Material liquidity—the extent to (MPD) Contract and the SPDC Indicia the electricity, as well as congestion and which the volume of agreements, line losses. Thus, an LMP reflects The MPD contract is cash settled generation costs as well as the actual contracts or transactions in a based on the peak, day-ahead price commodity being traded on the cost of supplying and delivering index for the specified day, as published electricity to a specific point on the grid. electronic trading facility is sufficient to by ICE in its ‘‘ICE Day Ahead Power have a material effect on other Electricity is traded in a day-ahead Price Report,’’ which is available on the market as well as a real-time market. agreements, contracts or transactions ECM’s Web site. The daily peak-hour listed for trading on or subject to the Typically, the bulk of energy electricity price index is a volume- transactions occur in the day-ahead rules of a DCM, DTEF or electronic weighted average of qualifying, day- trading facility operating in reliance on market. The day-ahead market ahead, peak-hour power transactions at establishes prices for electricity that is the exemption in section 2(h)(3). the Mid-Columbia hub that are traded to be delivered during the specified Not all criteria must be present to on the ICE platform from 6 a.m. to 11 support a determination that a hour on the following day. Day-ahead a.m. CST on the publication date. The prices are determined based on particular contract performs a ICE transactions on which the price significant price discovery function, and generation and energy transaction index is based specify the physical quotes offered in advance. Because day- one or more criteria may be inapplicable delivery of power. The size of the MPD to a particular contract.13 Moreover, the contract is 400 megawatt hours 15 http://www.wpuda.org/publications/ statutory language neither prioritizes the (‘‘MWh’’), and the MPD contract is listed connections/hydro/River%20Riders.pdf. criteria nor specifies the degree to for 38 consecutive days. 16 The federal dams are Grand Coulee and Chief As the Columbia River flows through Joseph. The remaining dams are Wells (operated by 13 In its October 6, 2009, Federal Register release, the Douglas PUD), Rocky Reach and Rock Island the Commission identified material price reference Washington State, it encounters two (operated by the Chelan PUD), and Wanapum and and material liquidity as the possible criteria for federal and nine privately-owned Priest Rapids (operated by the Grant PUD). The SPDC determination of the MPD and MXO hydroelectric dams generating a total of term ‘‘PUD’’ stands for publically-owned utility, contracts. Arbitrage and price linkage were not close to 20,000 MW of power in the which provides essential services within a specified identified as possible criteria. As a result, arbitrage area. and price linkage will not be discussed further in 17 http://www.wpuda.org/publications/ this document and the associated Orders. 14 17 CFR 36, Appendix A. connections/hydro/River%20Riders.pdf.

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ahead quotes for power are based on generated on the ECM in question. material price reference criterion would estimates of supply and demand, Direct evidence may be established routinely be consulted by industry electricity needs usually are not when cash market participants are participants in pricing cash market perfectly satisfied in the day-ahead quoting bid or offer prices or entering transactions. Although the Mid-C is a market. In this regard, on the day the into transactions at prices that are set major trading center for electricity and, electricity is transmitted and used, either explicitly or implicitly at a as noted, ICE sells price information for auction participants typically realize differential to prices established for the the MPD contract, the MPD contract is that they bought or sold too much contract in question. Cash market prices not consulted in this manner and does power or too little power. A real-time are set explicitly at a differential to the not satisfy the material price reference auction is operated to alleviate this section 2(h)(3) contract when, for criterion. Thus, the MPD contract does problem by servicing as a balancing instance, they are quoted in dollars and not satisfy the direct price reference test mechanism. Specifically, electricity cents above or below the reference for existence of material price reference. traders use the real-time market to sell contract’s price. Cash market prices are Furthermore, the Commission notes that excess electricity and buy additional set implicitly at a differential to a publication of the MPD contract’s prices power to meet demand. Only a section 2(h)(3) contract when, for is not indirect evidence of material price relatively small amount of electricity is instance, they are arrived at after adding reference. The MPD contract’s prices are traded in the real-time market compared to, or subtracting from the section published with those of numerous other with the day-ahead market. 2(h)(3) contract, but then quoted or contracts, including ICE’s monthly reported at a flat price. With respect to electricity contracts, which are of more 1. Material Price Reference Criterion indirect evidence, the Commission will interest to market participants. In these The Commission’s October 6, 2009, consider the extent to which the price circumstances, the Commission has Federal Register notice identified of the contract in question is being concluded that traders likely do not material price reference and material routinely disseminated in widely specifically purchase ICE data packages liquidity as the potential basis for a distributed industry publications—or for the MPD contract’s prices and do not SPDC determination with respect to the offered by the ECM itself for some form consult such prices on a frequent and MPD contract. The Commission of remuneration—and consulted on a recurring basis in pricing cash market considered the fact that ICE sells its frequent and recurring basis by industry transactions. price data to market participants in a participants in pricing cash market i. Federal Register Comments: number of different packages which transactions. WGCEF, WPTF, EEI and ICE stated vary in terms of the hubs covered, time The Mid-C power market is a major that no other contract directly references periods, and whether the data are daily pricing center for electricity on the West or settles to the MPD contract’s price. only or historical. For example, ICE Coast. Traders, including producers, Moreover, the commenters argued that offers the ‘‘West Power of Day’’ package keep abreast of the electricity prices in the underlying cash price series against with access to all price data or just the Mid-C power market when which the MPD contract is settled (in current prices plus a selected number of conducting cash deals. However, ICE’s this case, the peak Mid-C electricity months (i.e., 12, 24, 36 or 48 months) of Mid-C Financial Peak (‘‘MDC’’) contract, price on a particular day, which is historical data. This package includes which is a monthly contract, is used derived from cash market transactions) price data for the MPD contract. more widely as a source of pricing is the authentic reference price and not The Commission also noted that its information for electricity than the the ICE contract itself. Commission staff October 2007 Report on the Oversight of daily, peak-hour contract (i.e., the MPD believes that this interpretation of price Trading on Regulated Futures contract). Specifically, the MDC contract reference is too narrow and believes that Exchanges and Exempt Commercial prices power at the Mid-C trading point a cash-settled derivatives contract could Markets (‘‘ECM Study’’) found that in based on the simple average of the daily meet the price reference criterion if general, market participants view ICE as peak-hour prices over the entire month, market participants ‘‘consult on a a price discovery market for certain as reported by ICE. Moreover, the MDC frequent and recurring basis’’ the electricity contracts. The study did not contract is listed for up to 86 calendar derivatives contract when pricing specify which markets performed this months. Thus, market participants can forward, fixed-price commitments or function; nevertheless, the Commission use the MDC contract to lock-in other cash-settled derivatives that seek determined that the MPD contract, electricity prices far into the future. In to ‘‘lock in’’ a fixed price for some future while not mentioned by name in the contrast, the MPD contract is listed for point in time to hedge against adverse ECM Study, might warrant further a much shorter length of time—up to 38 price movements. As noted above, while review. days in the future. With such a limited the Mid-C is a major power market, The Commission explains in its timeframe, the forward pricing traders do not consider the daily peak- Guidance to the Part 36 rules that in capability of the MPD contract is much hour Mid-C price to be as important as evaluating a contract under the material more constrained than that of the MDC the electricity price associated with the price reference criterion, it will rely on contract. Traders use monthly power monthly contract. one of two sources of evidence—direct contracts like the MDC contract to price In addition, WGCEF stated that the or indirect—to determine that the price electricity commitments in the future, publication of price data for the MPD of a contract was being used as a where such commitments are based on contract price is weak justification for material price reference and therefore, long range forecasts of power supply material price reference. This serving a significant price discovery and demand. As actual generation and commenter argued that market function.18 With respect to direct usage nears, market participants have a participants generally do not purchase evidence, the Commission will consider better understanding of actual power ICE data sets for one contract’s prices, the extent to which, on a frequent and supply and needs. As a result, traders such as those for the MPD contract. recurring basis, cash market bids, offers can modify previously-established Instead, traders are interested in the or transactions are directly based on or hedges with the daily power contracts, settlement prices, so the fact that ICE quoted at a differential to, the prices like the MPD contract. sells the MPD prices as part of a broad The Commission explained in its package is not conclusive evidence that 18 17 CFR 36, Appendix A. Guidance that a contract meeting the market participants are buying the ICE

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data sets because they find the MPD of trading activity that would render it i. Federal Register Comments prices have substantial value to them. of potential importance, the As noted above, the Commission notes Commission will then perform a ICE and WGCEF stated that the MPD that publication of the MPD contract’s statistical analysis to measure the effect contract lacks a sufficient number of prices is not indirect evidence of routine that changes to the subject contract’s trades to meet the material liquidity dissemination. The MPD contract’s prices potentially may have on prices criterion. These two commenters, along prices are published with those of for other contracts listed on an ECM or with WPTF, FEIG and EEI argued that numerous other contracts, which are of a DCM. the MPD contract cannot have a material more interest to market participants. The total number of transactions effect on other contracts, such as those Due to the lack of importance of daily executed on ICE’s electronic platform in listed for trading by the New York power contracts relative to monthly the MPD contract was 1,294 in the Mercantile Exchange (‘‘NYMEX’’), a contracts, the Commission has second quarter of 2009, resulting in a DCM. The commenters pointed out that concluded that traders likely do not daily average of 20.2 trades. During the it is not possible for the MPD contract specifically purchase the ICE data same period, the MPD contract had a to affect a DCM contract because price packages for the MPD contract’s prices total trading volume of 18,862 contracts linkage and the potential for arbitrage and do not consult such prices on a and an average daily trading volume of do not exist. The DCM contracts do not frequent and recurring basis in pricing 294.7 contracts. Moreover, open interest cash settle to the MPD contract’s price. cash market transactions. as of June 30, 2009, was 826 contracts, Instead, the DCM contracts and the MPD Lastly, EEI criticized that the ECM which included trades executed on contract are both cash settled based on Study did not specifically identify the ICE’s electronic trading platform, as physical transactions, which neither the MPD contract as a contract that is well as trades executed off of ICE’s ECM or the DCM contracts can referred to by market participants on a electronic trading platform and then influence. frequent and recurring basis. In brought to ICE for clearing. In this response, the Commission notes that it regard, ICE does not differentiate WGCEF and ICE noted that the cited the ECM Study’s general finding between open interest created by a Commission’s Guidance had posited that some ICE electricity contracts transaction executed on its trading concepts of liquidity that generally appear to be regarded as price discovery platform and that created by a assumed a fairly constant stream of markets merely as indication that an transaction executed off its trading prices throughout the trading day and investigation of certain ICE contracts platform.19 noted that the relatively low number of may be warranted. The ECM Study was In a subsequent filing dated March 24, trades per day in the MPD contract did not intended to serve as the sole basis 2010, ICE reported that total trading not meet this standard of liquidity. The for determining whether or not a volume in the fourth quarter of 2009 Commission observes that a continuous particular contract meets the material was 19,574 contracts (or 301 contracts stream of prices would indeed be an price reference criterion. on a daily basis). In terms of number of indication of liquidity for certain transactions, 1,108 trades occurred in markets but the Guidance also notes that ii. Conclusion Regarding Material Price the fourth quarter of 2009 (17 trades per ‘‘quantifying the levels of immediacy Reference day). As of December 31, 2009, open and price concession that would define Based on the above, the Commission interest in the MPD contract was 550 material liquidity may differ from one finds that the ICE MPD contract does contracts, which included trades market or commodity to another.’’ 22 not meet the material price reference executed on ICE’s electronic trading ICE opined that the Commission criterion because cash market platform, as well as trades executed off ‘‘seems to have adopted a five trade per transactions are not priced either of ICE’s electronic trading platform and day test for material liquidity.’’ To the explicitly or implicitly on a frequent then brought to ICE for clearing. contrary, the Commission adopted a five and recurring basis at a differential to The number of trades per day trades-per-day threshold as a reporting remained relatively low between the the MPD contract’s price (direct requirement to enable it to second and fourth quarters of 2009 and evidence). Moreover, while the MPD ‘‘independently be aware of ECM averaged only slightly more than the contract’s price data is sold to market contracts that may develop into reporting level of five trades per day. participants, those individuals likely do SPDCs’’ 23 rather than solely relying not purchase the ICE data packages Moreover, trading activity in the MPD upon an ECM on its own to identify any specifically for the MPD contract’s contract, as characterized by total such potential SPDCs to the prices and do not consult such prices on quarterly volume, indicates that the Commission. Thus, any contract that a frequent and recurring basis in pricing MPD contract experiences trading meets this threshold may be subject to cash market transactions (indirect activity that is similar to that of minor scrutiny as a potential SPDC; however, evidence). futures markets.20 Thus, the MPD contract does not meet a threshold of the contract will not be found to be a 2. Material Liquidity Criterion trading activity that would render it of As noted above, in its October 6, potential importance and no additional a SPDC, the Commission made clear that ‘‘material 21 liquidity itself would not be sufficient to make a 2009, Federal Register notice, the statistical analysis is warranted. determination that a contract is a [SPDC],* * * but Commission identified material price combined with other factors it can serve as a reference and material liquidity as 19 74 FR 51261 (October 6, 2009). guidepost indicating which contracts are potential criteria for SPDC 20 Staff has advised the Commission that in its functioning as [SPDCs].’’ [17 CFR 36, Appendix A]. determination of the MPD contract. To experience, a thinly-traded contract is, generally, For the reasons discussed above, the Commission one that has a quarterly trading volume of 100,000 has found that the MPD contract does not meet the assess whether a contract meets the contracts or less. In this regard, in the third quarter material price reference criterion. In light of this material liquidity criterion, the of 2009, physical commodity futures contracts with finding and the Commission’s Guidance cited Commission first examines trading trading volume of 100,000 contracts or fewer above, there is no need to evaluate further the activity as a general measurement of the constituted less than one percent of total trading material liquidity criteria since the Commission volume of all physical commodity futures contracts. believes it is not useful as the sole basis for a SPDC contract’s size and potential importance. 21 In establishing guidance to illustrate how it determination. If the Commission finds that the will evaluate the various criteria, or combinations 22 Guidance, supra. contract in question meets a threshold of criteria, when determining whether a contract is 23 73 FR 75892 (December 12, 2008).

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SPDC merely because it met the established in section 2(h)(7) of the generation. Specifically, the agreement reporting threshold. CEA. Specifically, the Commission has defines how the Chelan, Douglas and ICE proposed that the statistics determined that the MPD contract does Grant PUDs coordinate operations with provided by ICE were misinterpreted not meet the material price reference or the Bonneville Power Administration to and misapplied by the Commission. In material liquidity criteria at this time. maximize power generation while particular, ICE stated that the volume Accordingly, the Commission is issuing reducing fluctuations in the river’s flow. figures used in the Commission’s the attached Order declaring that the A number of other utilities that buy analysis (cited above) ‘‘include trades MPD contract is not a SPDC. power from the PUDs have also signed made in all months’’ as well as in strips Issuance of this Order indicates that onto the agreement. This agreement was of contract months. ICE suggested that a the Commission does not at this time signed into effect on 1972 and renewed more appropriate method of regard ICE as a registered entity in for 20 years in 1997.28 determining liquidity is to examine the connection with its MPD contract.25 In general, electricity is bought and activity in a single traded month of a Accordingly, with respect to its MPD sold in an auction setting on an hourly given contract.’’ 24 It is the Commission’s contract, ICE is not required to comply basis at various point along the opinion that liquidity, as it pertains to with the obligations, requirements and electrical grid. The price of electricity at the MPD contract, is typically a function timetables prescribed in Commission a particular point on the grid is called of trading activity in particular lead rule 36.3(c)(4) for ECMs with SPDCs. the LMP, which includes the cost of days and, given sufficient liquidity in However, ICE must continue to comply producing the electricity, as well as such days, the ICE MPD contract itself with the applicable reporting congestion and line losses. Thus, and would be considered liquid. In any requirements for ECMs. LMP reflects generation costs as well as event, in light of the fact that the the actual cost of supplying and Commission has found that the MPD b. The Mid-C Financial Off-Peak Daily delivering electricity to a specific point contract does not meet the material (MXO) Contract and the SPDC Indicia on the grid. price reference criterion, according to The MXO contract is cash settled Electricity is traded in a day-ahead the Commission’s Guidance, it would be based on the off-peak, day-ahead price market as well as a real-time market. unnecessary to evaluate whether the index for the specified day, as published Typically, the bulk of the energy MPD contract meets the material by ICE in its ‘‘ICE Day Ahead Power transactions occur in the day-ahead liquidity criterion since it cannot be Price Report,’’ which is available on the market. The day-ahead market used alone for SPDC determination. ECM’s website. The daily, off-peak hour establishes prices for electricity that is electricity price index is a volume- to be delivered during the specified ii. Conclusion Regarding Material weighted average of qualifying, day- hour on the following day. Day-ahead Liquidity ahead, off-peak hour power transactions prices are determined based on For the reasons discussed above, the at the Mid-Columbia hub that are traded generation and energy transaction Commission finds that the MPD contract on the ICE platform from 6 a.m. to quotes offered in advance. Because day- does not meet the material liquidity 11a.m. CST on the publication date. The ahead price quotes are based on criterion. ICE transactions on which the price estimates of supply and demand, index is based specify the physical electricity needs usually are not 3. Overall Conclusion Regarding the perfectly satisfied in the day-ahead MPD Contract delivery of power. The size of the MXO contract is 25 MWh, and the MXO market. On the day electricity is After considering the entire record in contract is listed for 70 consecutive generated and used, auction participants this matter, including the comments days. usually realize that they bought or sold received, the Commission has As the Columbia River flows through either too much or too little power. A real-time auction is operated in the Mid- determined that the ICE MPD contract Washington State, it encounters two C market to alleviate this problem. In does not perform a significant price federal and nine privately-owned this regard, electricity traders use the discovery function under the criteria hydroelectric dams generating close to real-time market to sell excess 20,000 MW of power for the 24 electricity and buy additional power to In addition, ICE stated that the trades-per-day Northwest.26 With another three dams statistics that it provided to the Commission in its meet demand. Only a relatively small in British Columbia, Canada, and many quarterly filing and which were cited in the amount of electricity is traded in the more on its various tributaries, the Commission’s October 6, 2009, Federal Register real-time market compared with the notice includes 2(h)(1) transactions, which were not Columbia River is the largest power- day-ahead market. completed on the electronic trading platform and producing river in North America. A should not be considered in the SPDC determination process. The Commission staff asked major goal of the participants in the 1. Material Price Reference Criterion ICE to review the data it sent in its quarterly filings; Mid-C electricity market is to maximize The Commission’s October 6, 2009, ICE confirmed that the volume data it provided and the Columbia River’s potential, along Federal Register notice identified which the Commission cited includes only with protecting and enhancing the non- transaction data executed on ICE’s electronic material price reference and material trading platform. As noted above, supplemental power uses of the river. The reliability liquidity as the potential basis for a data supplied by ICE confirmed that block trades of the electricity grid in the Northwest SPDC determination with respect to the are in addition to the trades that were conducted is coordinated by the NWPP. MXO contract. The Commission on the electronic platform; block trades comprise One stretch of the Columbia River about 28 percent (fourth quarter of 2009) of all considered the fact that ICE sells its transactions in the MPD contract. Commission between the Grand Coulee Dam and price data to market participants in a acknowledges that the open interest information it Priests Rapids Dam is governed by the number of different packages which provided in its October 6, 2009, Federal Register MCHCA. The MCHCA covers seven vary in terms of the hubs covered, time notice includes transactions made off the ICE dams 27 and nearly 13,000 MW of platform. However, once open interest is created, periods, and whether the data are daily there is no way for ICE to differentiate between ‘‘on- exchange’’ versus ‘‘off-exchange’’ created positions, 25 See 73 FR 75888, 75893 (Dec. 12, 2008). the Douglas PUD), Rocky Reach and Rock Island and all such positions are fungible with one another 26 http://www.wpuda.org/publications/ (operated by the Chelan PUD), and Wanapum and and may be offset in any way agreeable to the connections/hydro/River%20Riders.pdf. Priest Rapids (operated the Grant PUD). position holder regardless of how the position was 27 The federal dams are Grand Coulee and Chief 28 http://www.wpuda.org/publications/ initially created. Joseph. The remaining dams are Wells (operated by connections/hydro/River%20Riders.pdf.

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only or historical. For example, ICE contract, which is a monthly contract, is derived from cash market transactions) offers the ‘‘West Power of Day’’ package used more widely as a source of pricing is the authentic reference price and not with access to all price data or just information for electricity in that market the ICE contract itself. Commission staff current prices plus a selected number of than the daily off-peak hour contract believes that this interpretation of price months (i.e., 12, 24, 36 or 48 months) of (i.e., the MXO contract). In this regard, reference is too limiting and believes historical data. This package includes OMC contract prices power at the Mid- that a cash-settled derivatives contract price data for the MXO contract. C trading point based on the simple could meet the price reference criterion The Commission also noted that its average of the daily off-peak hour prices if market participants ‘‘consult on a October 2007 ECM Study found that, in over the entire month, as reported by frequent and recurring basis’’ the general, market participants view ICE as ICE. Moreover, the OMC contract is derivatives contract when pricing a price discovery market for certain listed for up to 86 calendar months. forward, fixed-price commitments or electricity contracts. The study did not Market participants can use the OMC other cash-settled derivatives that seek specify which markets performed this contract to lock-in off-peak electricity to ‘‘lock in’’ a fixed price for some future function; nevertheless, the Commission prices far into the future. In contrast, the point in time to hedge against adverse determined that the MXO contract, MXO contract is listed for a much price movements. As noted above, while while not mentioned by name in the shorter length of time—up to 70 days in the Mid-C is a major power market, ECM Study, might warrant further the future. With such a limited traders do not consider the daily off- analysis. timeframe, the forward pricing peak hour Mid-C price to be as The Commission has explained in capability of the MXO contract is important as the electricity price Guidance that it will rely on one of two constrained relative to that of the OMC associated with the average monthly off- sources of evidence—direct or contract. Traders likely use monthly peak price. indirect—to determine that the price of power contracts like the OMC contract In addition, WGCEF stated that the a contract is being used as a material to price electricity commitments in the publication of price data for the MXO price reference and therefore, serving a future. Such commitments are based on contract price reference is weak significant price discovery function.29 long range forecasts of power supply justification for material price reference. With respect to direct evidence, the and demand. As the time of generation This commenter argued that market Commission will consider the extent to and consumption nears, market participants generally do not purchase which, on a frequent and recurring participants have a better understanding ICE data sets for one contract’s prices, basis, cash market bids, offers or of actual power supply and needs. As a such as those for the MXO contract. transactions are directly based on or result, traders can modify previously- Instead, traders are interested in the quoted at a differential to, the prices established hedges with the daily power settlement prices, so the fact that ICE generated on the ECM in question. contracts, like the MXO contract. sells the MXO prices as part of a broad Direct evidence may be established The Commission explained in its package is not conclusive evidence that when cash market participants are Guidance that a contract meeting the market participants are buying the ICE quoting bid or offer prices or entering material price reference criterion would data sets because they find the MXO into transactions at prices that are set routinely be consulted by industry prices have substantial value to them. either explicitly or implicitly at a participants in pricing cash market As mentioned above, the Commission differential to prices established for the transactions. Although the Mid-C is a notes that publication of the MXO contract in question. Cash market prices major trading center for electricity and, contract’s prices is not indirect evidence are set explicitly at a differential to the as noted, ICE sells price information for of routine dissemination. The MXO section 2(h)(3) contract when, for the MXO contract, the Commission contract’s prices are published with instance, they are quoted in dollars and found upon further evaluation that the those of numerous other contracts, cents above or below the reference MXO contract is not routinely consulted which are of more interest to market contract’s price. Cash market prices are by industry participants in pricing cash participants. Due to the lack of set implicitly at a differential to a market transactions. Furthermore, the importance of daily power contracts section 2(h)(3) contract when, for Commission notes that publication of relative to monthly power contracts, the instance, they are arrived at after adding the MXO contract’s prices is not indirect Commission has concluded that traders to, or subtracting from the section evidence of material price reference. likely do not specifically purchase the 2(h)(3) contract, but then quoted or The MXO contract’s prices are ICE data packages for the MXO reported at a flat price. With respect to published with those of numerous other contract’s prices and do not consult indirect evidence, the Commission will contracts, including ICE’s OMC such prices on a frequent and recurring consider the extent to which the price contract, which are of more interest to basis in pricing cash market of the contract in question is being market participants. Thus, the transactions. routinely disseminated in widely Commission has concluded that traders Lastly, EEI observed that the ECM distributed industry publications—or likely do not specifically purchase ICE Study did not specifically identify the offered by the ECM itself for some form data packages for the MXO contract’s MXO contract as a contract that is of remuneration—and consulted on a prices and do not consult such prices on referred to by market participants on a frequent and recurring basis by industry a frequent and recurring basis in pricing frequent and recurring basis. In participants in pricing cash market cash market transactions. response, the Commission notes that it transactions. cited the ECM Study’s general finding The Mid-C power market is a major i. Federal Register Comments that some ICE electricity contracts pricing center for electricity on the West WGCEF, WPTF, EEI and ICE stated appear to be regarded as price discovery Coast. Traders, including producers, that no other contract directly references markets merely as indication that an keep abreast of the electricity prices in or settles to the MXO contract’s price. investigation of certain ICE contracts the Mid-C power market when Moreover, the commenters argued that may be warranted. The ECM Study was conducting cash deals. However, ICE’s the underlying cash price series against not intended to serve as the sole basis Mid-C Financial Off-Peak (‘‘OMC’’) which the MXO contract is settled (in for determining whether or not a this case, the off-peak Mid-C electricity particular contract meets the material 29 17 CFR 36, Appendix A. price on a particular day, which is price reference criterion.

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ii. Conclusion Regarding Material transactions, 123 trades occurred in the trades per day in the MXO contract did Price Reference: fourth quarter of 2009 (1.9 trades per not meet this standard of liquidity. The Based on the above, the Commission day). As of December 31, 2009, open Commission observes that a continuous finds that the ICE MXO contract does interest in the MXO contract was 2,528 stream of prices would indeed be an not meet the material price reference contracts, which included trades indication of liquidity for certain criterion because cash market executed on ICE’s electronic trading markets but the Guidance also notes that transactions are not priced either platform, as well as trades executed off ‘‘quantifying the levels of immediacy explicitly or implicitly on a frequent of ICE’s electronic trading platform and and price concession that would define and recurring basis at a differential to then brought to ICE for clearing. material liquidity may differ from one the MXO contract’s price (direct The number of trades per day fell market or commodity to another.’’ 33 evidence). Moreover, while the MXO below minimum reporting level of five ICE opined that the Commission contract’s price data is sold to market trades per day in the fourth quarters of ‘‘seems to have adopted a five trade per participants, those individuals likely do 2009. Moreover, trading activity in the day test for material liquidity.’’ To the not specifically purchase the ICE data MXO contract, as characterized by total contrary, the Commission adopted a five packages for the MXO contract’s prices quarterly volume, indicates that the trades-per-day threshold as a reporting and do not consult such prices on a MXO contract experiences trading requirement to enable it to frequent and recurring basis in pricing activity that is similar to that of minor ‘‘independently be aware of ECM cash market transactions (indirect futures markets.31 Thus, the MXO contracts that may develop into evidence). contract does not meet a threshold of SPDCs’’34 rather than solely relying 2. Material Liquidity Criterion trading activity that would render it of upon an ECM on its own to identify any potential importance and no additional such potential SPDCs to the As noted above, in its October 6, statistical analysis is warranted.32 Commission. Thus, any contract that 2009, Federal Register notice, the meets this threshold may be subject to i. Federal Register Comments Commission identified material price scrutiny as a potential SPDC; however, reference and material liquidity as ICE and WGCEF stated that the MXO the contract will not be found to be a potential criteria for SPDC contract lacks a sufficient number of SPDC merely because it met the determination of the MXO contract. To trades to meet the material liquidity reporting threshold. assess whether a contract meets the criterion. These two commenters, along ICE proposed that the statistics material liquidity criterion, the with WPTF, FEIG and EEI argued that provided by ICE were misinterpreted Commission first examines trading the MXO contract cannot have a and misapplied by the Commission. In activity as a general measurement of the material effect on other contracts, such particular, ICE stated that the volume contract’s size and potential importance. as those listed for trading by NYMEX. figures used in the Commission’s If the Commission finds that the The commenters pointed out that it is analysis (cited above) ‘‘include trades contract in question meets a threshold not possible for the MXO contract to made in all months’’ as well as in strips of trading activity that would render it affect a DCM contract because price of contract months. ICE suggested that a of potential importance, the linkage and the potential for arbitrage more appropriate method of Commission will then perform a do not exist. The DCM contracts do not determining liquidity is to examine the statistical analysis to measure the effect cash settle to the MXO contract’s price. activity in a single traded month of a that changes to the subject contract’s Moreover, the DCM contracts and the given contract.35 It is the Commission’s prices potentially may have on prices MXO contract are both cash settled opinion that liquidity, as it pertains to for other contracts listed on an ECM or based on physical transactions, which the MXO contract, is typically a a DCM. the contracts cannot influence. function of trading activity in particular The total number of transactions WGCEF and ICE noted that the lead days and, given sufficient liquidity executed on ICE’s electronic platform in Commission’s Guidance had posited the MXO contract was 437 in the second concepts of liquidity that generally 33 Guidance, supra. quarter of 2009, resulting in a daily assumed a fairly constant stream of 34 73 FR 75892 (December 12, 2008). average of 6.8 trades. During the same prices throughout the trading day and 35 In addition, ICE stated that the trades-per-day period, the MXO contract had a total noted that the relatively low number of statistics that it provided to the Commission in its trading volume of 61,688 contracts and quarterly filing and which were cited in the an average daily trading volume of 963.9 Commission’s October 6, 2009, Federal Register 31 Staff has advised the Commission that in its notice includes 2(h)(1) transactions, which were not contracts. Moreover, open interest as of experience, a thinly-traded contract is, generally, completed on the electronic trading platform and June 30, 2009, was 826 contracts, which one that has a quarterly trading volume of 100,000 should not be considered in the SPDC included trades executed on ICE’s contracts or less. In this regard, in the third quarter determination process. The Commission staff asked electronic trading platform, as well as of 2009, physical commodity futures contracts with ICE to review the data it sent in its quarterly filings; trading volume of 100,000 contracts or fewer ICE confirmed that the volume data it provided and trades executed off of ICE’s electronic constituted less than one percent of total trading which the Commission cited includes only trading platform and then brought to volume of all physical commodity futures contracts. transaction data executed on ICE’s electronic ICE for clearing. In this regard, ICE does 32 In establishing guidance to illustrate how it trading platform. As noted above, supplemental not differentiate between open interest will evaluate the various criteria, or combinations data supplied by ICE confirmed that block trades of criteria, when determining whether a contract is are in addition to the trades that were conducted created by a transaction executed on its a SPDC, the Commission observed that ‘‘material on the electronic platform; block trades comprise trading platform and that created by a liquidity itself would not be sufficient to make a about 61 percent of all transactions in the MXO transaction executed off its trading determination that a contract is a [SPDC], * * * but contract (fourth quarter of 2009). Commission platform.30 combined with other factors it can serve as a acknowledges that the open interest information it guidepost indicating which contracts are provided in its October 6, 2009, Federal Register In a subsequent filing dated March 24, functioning as [SPDCs].’’ For the reasons discussed notice includes transactions made off the ICE 2010, ICE reported that total trading above, the Commission has found that the MXO platform. However, once open interest is created, volume in the fourth quarter of 2009 contract does not meet the material price reference there is no way for ICE to differentiate between ‘‘on- was 19,216 contracts (or 296 contracts criterion. In light of this finding and the exchange’’ versus ‘‘off-exchange’’ created positions, Commission’s Guidance cited above, there is no and all such positions are fungible with one another on a daily basis). In terms of number of need to evaluate further the material liquidity and may be offset in any way agreeable to the criteria since the Commission believes it is not position holder regardless of how the position was 30 74 FR 51261 (October 6, 2009). useful as the sole basis for a SPDC determination. initially created.

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in such days, the ICE MXO contract b. Cost-Benefit Analysis the ECM’s risk management practices to itself would be considered liquid. In any Section 15(a) of the CEA38 requires the Commission’s supervision and event, in light of the fact that the the Commission to consider the costs oversight and generally enhance the Commission has found that the MXO and benefits of its actions before issuing financial integrity of the markets. contract does not meet the material an order under the Act. By its terms, The Commission has concluded that price reference criterion, according to section 15(a) does not require the the MPD and MXO contracts, which are the subject of the attached Orders, are the Commission’s Guidance, it would be Commission to quantify the costs and not SPDCs; accordingly, the unnecessary to evaluate whether the benefits of an order or to determine Commission’s Orders impose no MXO contract meets the material whether the benefits of the order additional costs and no additional liquidity criterion since it cannot be outweigh its costs; rather, it requires statutorily or regulatory mandated used alone for SPDC determination. that the Commission ‘‘consider’’ the responsibilities on the ECM. ii. Conclusion Regarding Material costs and benefits of its actions. Section Liquidity 15(a) further specifies that the costs and c. Regulatory Flexibility Act benefits shall be evaluated in light of The Regulatory Flexibility Act For the reasons discussed above, the five broad areas of market and public (‘‘RFA’’) 39 requires that agencies Commission finds that the MXO concern: (1) Protection of market consider the impact of their rules on contract does not meet the material participants and the public; (2) small businesses. The requirements of liquidity criterion. efficiency, competitiveness and CEA section 2(h)(7) and the Part 36 3. Overall Conclusion Regarding the financial integrity of futures markets; (3) rules affect ECMs. The Commission MXO Contract price discovery; (4) sound risk previously has determined that ECMs management practices; and (5) other are not small entities for purposes of the After considering the entire record in public interest considerations. The RFA.40 Accordingly, the Chairman, on this matter, including the comments Commission may in its discretion give behalf of the Commission, hereby received, the Commission has greater weight to any one of the five certifies pursuant to 5 U.S.C. 605(b) that determined that the ICE MXO contract enumerated areas and could in its these Orders, taken in connection with does not perform a significant price discretion determine that, section 2(h)(7) of the Act and the Part discovery function under the criteria notwithstanding its costs, a particular 36 rules, will not have a significant established in section 2(h)(7) of the order is necessary or appropriate to impact on a substantial number of small CEA. Specifically, the Commission has protect the public interest or to entities. determined that the MXO contract does effectuate any of the provisions or not meet the material price reference or accomplish any of the purposes of the VI. Orders material liquidity criteria at this time. Act. a. Order Relating to the Mid-C Financial Accordingly, the Commission is issuing When a futures contract begins to Peak Daily Contract serve a significant price discovery the attached Order declaring that the After considering the complete record function, that contract, and the ECM on MXO contract is not a SPDC. in this matter, including the comment which it is traded, warrants increased Issuance of this Order indicates that letters received in response to its oversight to deter and prevent price the Commission does not at this time request for comments, the Commission manipulation or other disruptions to regard ICE as a registered entity in has determined to issue the following connection with its MXO contract.36 market integrity, both on the ECM itself Order: Accordingly, with respect to its MXO and in any related futures contracts The Commission, pursuant to its contract, ICE is not required to comply trading on DCMs. An Order finding that authority under section 2(h)(7) of the with the obligations, requirements and a particular contract is a SPDC triggers Act, hereby determines that the Mid-C timetables prescribed in Commission this increased oversight and imposes Financial Peak Daily contract, traded on rule 36.3(c)(4) for ECMs with SPDCs. obligations on the ECM calculated to the IntercontinentalExchange, Inc., does However, ICE must continue to comply accomplish this goal. The increased not at this time satisfy the material price with the applicable reporting oversight engendered by the issue of a preference or material liquidity criteria requirements for ECMs. SPDC Order increases transparency and for significant price discovery contracts. helps to ensure fair competition among Consistent with this determination, the V. Related Matters ECMs and DCMs trading similar IntercontinentalExchange, Inc., is not a. Paperwork Reduction Act products and competing for the same considered a registered entity 41 with business. Moreover, the ECM on which respect to the Mid-C Financial Peak The Paperwork Reduction Act of 1995 the SPDC is traded must assume, with Daily contract and is not subject to the 37 (‘‘PRA’’) imposes certain requirements respect to that contract, all the provisions of the Commodity Exchange on Federal agencies, including the responsibilities and obligations of a Act applicable to registered entities. Commission, in connection with their registered entity under the CEA and Further, the obligations, requirements conducting or sponsoring any collection Commission regulations. Additionally, and timetables prescribed in of information as defined by the PRA. the ECM must comply with nine core Commission rule 36.3(c)(4) governing Certain provisions of Commission rule principles established by section 2(h)(7) core principle compliance by the 36.3 impose new regulatory and of the Act—including the obligation to IntercontinentalExchange, Inc., are not reporting requirements on ECMs, establish position limits and/or applicable to the Mid-C Financial Peak resulting in information collection accountability standards for the SPDC. Daily contract with the issuance of this requirements within the meaning of the Section 4(i) of the CEA authorizes the Order. PRA. OMB previously has approved and Commission to require reports for This Order is based on the assigned OMB control number 3038– SPDCs listed on ECMs. These increased representations made to the 0060 to this collection of information. responsibilities, along with the CFTC’s increased regulatory authority, subject 39 5 U.S.C. 601 et seq. 36 See 73 FR 75888, 75893 (Dec. 12, 2008). 40 66 FR 42256, 42268 (Aug. 10, 2001). 37 44 U.S.C. 3507(d). 38 7 U.S.C. 19(a). 41 7 U.S.C. 1a(29).

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Commission by the Section 2(h)(3) of the Act, the Telephone: (202) 418–5133. E-mail: IntercontinentalExchange, Inc., dated IntercontinentalExchange, Inc., must [email protected]. July 27, 2009, and March 24, 2010, and continue to comply with all of the SUPPLEMENTARY INFORMATION: other supporting material. Any material applicable requirements of Section change or omissions in the facts and 2(h)(3) and Commission Regulation I. Introduction circumstances pursuant to which this 36.3. The CFTC Reauthorization Act of order is granted might require the Issued in Washington, DC on June 25, 2008 (‘‘Reauthorization Act’’) 2 Commission to reconsider its current 2010, by the Commission. significantly broadened the CFTC’s determination that the Mid-C Financial David A. Stawick, regulatory authority with respect to Peak Daily contract is not a significant Secretary of the Commission. ECMs by creating, in section 2(h)(7) of price discovery contract. Additionally, [FR Doc. 2010–16206 Filed 7–1–10; 8:45 am] the CEA, a new regulatory category— to the extent that it continues to rely ECMs on which significant price BILLING CODE 6351–01–P upon the exemption in Section 2(h)(3) discovery contracts (‘‘SPDCs’’) are of the Act, the traded—and treating ECMs in that IntercontinentalExchange, Inc., must COMMODITY FUTURES TRADING category as registered entities under the continue to comply with all of the COMMISSION CEA.3 The legislation authorizes the applicable requirements of Section CFTC to designate an agreement, 2(h)(3) and Commission Regulation Order Finding That the Fuel Oil-180 contract or transaction as an SPDC if the 36.3. Singapore Swap Contract Traded on Commission determines, under criteria b. Order Relating to the Mid-C Financial the IntercontinentalExchange, Inc., established in section 2(h)(7), that it Off-Peak Daily Contract Does Not Perform a Significant Price performs a significant price discovery After considering the complete record Discovery Function function. When the Commission makes in this matter, including the comment such a determination, the ECM on AGENCY: Commodity Futures Trading which the SPDC is traded must assume, letters received in response to its Commission. request for comments, the Commission with respect to that contract, all the ACTION: Final Order. has determined to issue the following responsibilities and obligations of a registered entity under the Act and Order: SUMMARY: On October 20, 2009, the The Commission, pursuant to its Commission regulations, and must Commodity Futures Trading comply with nine core principles authority under section 2(h)(7) of the Commission (‘‘CFTC’’ or ‘‘Commission’’) Act, hereby determines that the Mid-C established by new section 2(h)(7)(C). published for comment in the Federal On March 16, 2009, the CFTC Financial Off-Peak Daily contract, 1 Register a notice of its intent to promulgated final rules implementing traded on the IntercontinentalExchange, undertake a determination whether the Inc., does not at this time satisfy the the provisions of the Reauthorization Fuel Oil-180 Singapore Swap (‘‘SZS’’) Act.4 As relevant here, rule 36.3 material price reference or material contract traded on the liquidity criteria for significant price imposes increased information reporting IntercontinentalExchange, Inc. (‘‘ICE’’), requirements on ECMs to assist the discovery contracts. Consistent with this an exempt commercial market (‘‘ECM’’) determination, the Commission in making prompt under sections 2(h)(3)–(5) of the assessments whether particular ECM IntercontinentalExchange, Inc., is not Commodity Exchange Act (‘‘CEA’’ or the 42 contracts may be SPDCs. In addition to considered a registered entity with ‘‘Act’’), performs a significant price respect to the Mid-C Financial Off-Peak filing quarterly reports of its contracts, discovery function pursuant to section an ECM must notify the Commission Daily contract and is not subject to the 2(h)(7) of the CEA. The Commission provisions of the Commodity Exchange promptly concerning any contract undertook this review based upon an traded in reliance on the exemption in Act applicable to registered entities. initial evaluation of information and Further, the obligations, requirements section 2(h)(3) of the CEA that averaged data provided by ICE as well as other five trades per day or more over the and timetables prescribed in available information. The Commission Commission rule 36.3(c)(4) governing most recent calendar quarter, and for has reviewed the entire record in this which the exchange sells its price core principle compliance by the matter, including all comments IntercontinentalExchange, Inc., are not information regarding the contract to received, and has determined to issue market participants or industry applicable to the Mid-C Financial Off- an order finding that the SZS contract Peak Daily contract with the issuance of publications, or whose daily closing or does not perform a significant price settlement prices on 95 percent or more this Order. discovery function. Authority for this This Order is based on the of the days in the most recent quarter action is found in section 2(h)(7) of the representations made to the were within 2.5 percent of the CEA and Commission rule 36.3(c) Commission by the contemporaneously determined closing, promulgated thereunder. IntercontinentalExchange, Inc., July 27, settlement or other daily price of 2009, and March 24, 2009, and other DATES: Effective Date: June 25, 2010. another contract. supporting material. Any material FOR FURTHER INFORMATION CONTACT: Commission rule 36.3(c)(3) change or omissions in the facts and Gregory K. Price, Industry Economist, established the procedures by which the circumstances pursuant to which this Division of Market Oversight, Commission makes and announces its order is granted might require the Commodity Futures Trading determination whether a particular ECM Commission to reconsider its current Commission, Three Lafayette Centre, contract serves a significant price determination that the Mid-C Financial 1155 21st Street, NW., Washington, DC discovery function. Under those Off-Peak Daily contract is not a 20581. Telephone: (202) 418–5515. E- significant price discovery contract. mail: [email protected]; or Susan Nathan, 2 Incorporated as Title XIII of the Food, Senior Special Counsel, Division of Conservation and Energy Act of 2008, Pub. L. No. Additionally, to the extent that it 110–246, 122 Stat. 1624 (June 18, 2008). continues to rely upon the exemption in Market Oversight, same address. 3 7 U.S.C. 1a(29). 4 74 FR 12178 (Mar. 23, 2009); these rules became 42 7 U.S.C. 1a(29). 1 74 FR 53728 (October 20, 2009). effective on April 22, 2009.

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procedures, the Commission will The comment letter from Platts did not contracts or transactions in a publish notice in the Federal Register directly address the issue of whether or commodity being traded on the that it intends to undertake an not the SZS contract is a SPDC. The electronic trading facility is sufficient to evaluation whether the specified remaining comment letters raised have a material effect on other agreement, contract or transaction substantive issues with respect to the agreements, contracts or transactions performs a significant price discovery applicability of section 2(h)(7) to the listed for trading on or subject to the function and to receive written views, SZS contract and generally expressed rules of a DCM, DTEF or electronic data and arguments relevant to its the opinion that the SZS contract is not trading facility operating in reliance on determination from the ECM and other a SPDC because it does not meet the the exemption in section 2(h)(3). interested persons. Upon the close of material price reference and material Not all criteria must be present to the comment period, the Commission liquidity criteria for SPDC support a determination that a will consider, among other things, all determination. These comments are particular contract performs a relevant information regarding the more extensively discussed below, as significant price discovery function, and subject contract and issue an order applicable. one or more criteria may be inapplicable announcing and explaining its to a particular contract.9 Moreover, the III. Section 2(h)(7) of the CEA determination whether or not the statutory language neither prioritizes the contract is a SPDC. The issuance of an The Commission is directed by criteria nor specifies the degree to affirmative order signals the section 2(h)(7) of the CEA to consider which a SPDC must conform to the effectiveness of the Commission’s the following criteria in determining a various criteria. In Guidance issued in regulatory authorities over an ECM with contract’s significant price discovery connection with the Part 36 rules respect to a SPDC; at that time such an function: governing ECMs with SPDCs, the • ECM becomes subject to all provisions Price Linkage—the extent to which Commission observed that these criteria of the CEA applicable to registered the agreement, contract or transaction do not lend themselves to a mechanical entities.5 The issuance of such an order uses or otherwise relies on a daily or checklist or formulaic analysis. also triggers the obligations, final settlement price, or other major Accordingly, the Commission has requirements and timetables prescribed price parameter, of a contract or indicated that in making its in Commission rule 36.3(c)(4).6 contracts listed for trading on or subject determinations it will consider the to the rules of a designated contract circumstances under which the II. Notice of Intent To Undertake SPDC market (‘‘DCM’’) or derivatives presence of a particular criterion, or Determination transaction execution facility (‘‘DTEF’’), combination of criteria, would be On October 20, 2009, the Commission or a SPDC traded on an electronic sufficient to support a SPDC published in the Federal Register notice trading facility, to value a position, determination.10 For example, for of its intent to undertake a transfer or convert a position, cash or contracts that are linked to other determination whether the SZS contract financially settle a position, or close out contracts or that may be arbitraged with performs a significant price discovery a position. other contracts, the Commission will function and requested comment from • Arbitrage—the extent to which the consider whether the price of the interested parties.7 Comments were price for the agreement, contract or potential SPDC moves in such harmony received from Working Group of transaction is sufficiently related to the with the other contract that the two Commercial Energy Firms (‘‘WGCEF’’), price of a contract or contracts listed for markets essentially become Platts, ICE and Shell International trading on or subject to the rules of a interchangeable. This co-movement of Eastern Trading Company (‘‘SIETCO).8 designated DCM or DTEF, or a SPDC prices would be an indication that traded on or subject to the rules of an activity in the contract had reached a 5 Public Law 110–246 at 13203; Joint Explanatory electronic trading facility, so as to level sufficient for the contract to Statement of the Committee of Conference, H.R. permit market participants to effectively perform a significant price discovery Rep. No. 110–627, 110 Cong., 2d Sess. 978, 986 (Conference Committee Report). See also 73 FR arbitrage between the markets by function. In evaluating a contract’s price 75888, 75894 (Dec. 12, 2008). simultaneously maintaining positions or discovery role as a price reference, the 6 For an initial SPDC, ECMs have a grace period executing trades in the contracts on a Commission will consider whether cash of 90 calendar days from the issuance of a SPDC frequent and recurring basis. market participants are quoting bid or determination order to submit a written • Material price reference—the extent demonstration of compliance with the applicable offer prices or entering into transactions core principles. For subsequent SPDCs, ECMs have to which, on a frequent and recurring at prices that are set either explicitly or a grace period of 30 calendar days to demonstrate basis, bids, offers or transactions in a implicitly at a differential to prices core principle compliance. commodity are directly based on, or are established for the contract. 7 The Commission’s Part 36 rules establish, determined by referencing or among other things, procedures by which the IV. Findings and Conclusions Commission makes and announces its consulting, the prices generated by determination whether a specific ECM contract agreements, contracts or transactions The Fuel Oil-180 Singapore Swap (SZS) serves a significant price discovery function. Under being traded or executed on the Contract and the SPDC Indicia those procedures, the Commission publishes a electronic trading facility. The SZS contract specifies 1,000 notice in the Federal Register that it intends to • Material liquidity—the extent to undertake a determination whether a specified metric tons of 180 CentiStokes (cst) which the volume of agreements, agreement, contract or transaction performs a Singapore high-sulfur fuel oil. The significant price discovery function and to receive contract is cash-settled based on the written data, views and arguments relevant to its compiles and calculates monthly energy price determination from the ECM and other interested indices from energy trade data submitted to Platts persons. by energy marketers. ICE is an exempt commercial 9 In its October 20, 2009, Federal Register release, 8 WGCEF describes itself as ‘‘a diverse group of market, as noted above. SIETCO, a subsidiary of the Commission identified material price reference commercial firms in the domestic energy industry Royal Dutch Shell Oil Company (Shell Oil) located and material liquidity as the possible criteria for whose primary business activity is the physical in Singapore, handles exports and trading of Shell SPDC determination of the SZS contract. Price delivery of one or more energy commodities to Oil petroleum products in the Asia-Pacific region. linkage and Arbitrage were not identified as customers, including industrial, commercial and The comment letters are available on the possible criteria. As a result, price linkage and residential consumers’’ and whose membership Commission’s Web site: http://www.cftc.gov/ arbitrage will not be discussed further in this consists of ‘‘energy producers, marketers and lawandregulation/federalregister/ document and the associated Order. utilities.’’ McGraw-Hill, through its division Platts, federalregistercomments/2009/09-030.html. 10 17 CFR 36, Appendix A.

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arithmetic average of the means between contain a small amount of No. 2 to get 1. Material Price Reference Criterion the daily high and low price quotations it to meet specifications. The Commission’s October 20, 2009, for ‘‘HSFO 180 CST’’ delivered in the Heavy fuel oils, also known as bunker Federal Register notice identified specified calendar month, published fuels,12 are used for powering marine material price reference as a potential under the ‘‘Singapore’’ heading in Platts’ vessels. The hydrocarbon chains in basis for a SPDC determination with Asia-Pacific/Arab Gulf Marketscan. The bunker fuel are very long, and this fuel respect to this contract. The SZS contract specifies the delivery of is highly viscous as a result. The thick Commission considered the fact that ICE high-sulfur fuel oil in Singapore on an fuel is difficult for most engines to burn sells its price data to market participants FOB basis.11 The SZS contract is listed since it must be heated before it will in a number of different packages which for up to 60 consecutive calendar combust, so it tends to be used in large vary in terms of the hubs covered, time months beginning with the next engines like those on board ships. Ships periods, and whether the data are daily calendar month. have enough space to heat bunker fuel only or historical. For example, the ICE After crude oil is extracted from the before feeding it into their engines, and offers the ‘‘OTC Oil End of Day’’ data ground and brought to a refinery, it goes their extremely sophisticated engines package with access to all price data or through a process called fractional are capable of burning a wide range of just 12, 24, 36, or 48 months of distillation. During fractional fuels, including low quality bunker fuel. historical data. This package includes distillation, the oil is heated, causing The principal market for Singapore price data for the SZS contract. The Commission also noted that its different types of oil within the crude to high-sulfur fuel oil 180 cst is the Asia- October 2007 Report on the Oversight of separate as they have different boiling Pacific region. points. Classically, fractional distillation Trading on Regulated Futures is accomplished in a distillation Fuel oil is transported worldwide by Exchanges and Exempt Commercial column, which siphons off various fleets of supertankers making deliveries Markets (‘‘ECM Study’’) 14 found that in fractions as they precipitate out. During to suitably sized strategic ports such as general, market participants view the fractional distillation, oil refineries can Houston, Singapore, and Rotterdam. ICE as a price discovery market for also use catalysts to ‘‘crack’’ the Where a convenient seaport does not certain energy contracts. The study did hydrocarbon chains in the crude oil to exist, inland transport may be achieved not specify which markets performed create specific oil fractions. with the use of barges. this function; nevertheless, the Fuel oil is a fraction obtained from Market participants keep abreast of Commission determined that the SZS petroleum distillation, either as a fuel oil prices worldwide in order to contract, while not mentioned by name distillate or a residue. Fuel oil is made take advantage of arbitrage in the ECM Study, might warrant further of long hydrocarbon chains, particularly opportunities. In this regard, review. The Commission will rely on one of alkanes, cycloalkanes and aromatics. international fuel oil prices are two sources of evidence—direct or Technically, different grades of fuel oil compared with those in the trader’s indirect—to determine that the price of exist; fuel oil is classified into six home port after accounting for a contract was being used as a material classes, numbered 1 through 6, transportation costs. Market participants price reference and therefore, serving a according to its boiling point, may find it profitable to ship fuel oil significant price discovery function.15 composition and purpose. Broadly from one market to another. For With respect to direct evidence, the speaking, fuel oil is any liquid example, it is sometimes profitable to Commission will consider the extent to petroleum product that is burned in a ship fuel oil from the Gulf Coast of the which, on a frequent and recurring furnace or boiler for the generation of United States to Singapore. Such basis, cash market bids, offers or heat or used in an engine for the conditions do not exist all of the time; transactions are directly based on or generation of power, except oils having in fact, a trader may realize this quoted at a differential to, the prices a flash point of approximately 104 opportunity only a few times per year. generated on the ECM in question. degrees Fahrenheit and oils burned in In its October 20, 2009, Federal Direct evidence may be established cotton or wool-wick burners. Thus, fuel Register notice, the Commission when cash market participants are oils can include kerosene, diesel, and identified material price reference and quoting bid or offer prices or entering ‘‘ ’’ heating oil. However, the term fuel oil material liquidity as the SPDC criteria into transactions at prices that are set typically is used in a stricter sense to potentially applicable to the SZS either explicitly or implicitly at a refer to the heavy commercial fuel that contract. Each of these criteria is differential to prices established for the is obtained from crude oil, which is discussed below.13 contract in question. Cash market prices thicker than gasoline and naphtha. are set explicitly at a differential to the No. 5 fuel oil and No. 6 fuel oil are 12 Bunker fuel gets its name from the containers section 2(h)(3) contract when, for called residual fuel oils (‘‘RFO’’) or on ships and in ports that it is stored in; in the days instance, they are quoted in dollars and heavy fuel oils. More No. 6 oil is of steam they were coal bunkers but now they are cents above or below the reference produced compared to No. 5 oil, thus bunker-fuel tanks. The Australian Customs and the Australian Tax Office define a bunker fuel as the contract’s price. Cash market prices are the terms heavy fuel oil and residual fuel that powers the engine of a ship or aircraft. set implicitly at a differential to a fuel oil are sometimes used as names for Bunker A is No. 2 fuel oil, bunker B is No. 4 or section 2(h)(3) contract when, for No. 6. No. 5 fuel oil is a mixture of 75– No. 5 and bunker C is No. 6. Since No. 6 is the most instance, they are arrived at after adding 80 percent No. 6 oil and 25–20 diesel common, the term ‘‘bunker fuel’’ is often used as a synonym for No. 6. No. 5 fuel oil is also called navy to, or subtracting from the section fuel (No. 2 oil). No. 6 oil may also special fuel oil or just navy special, No. 6 or 5 are 2(h)(3) contract, but then quoted or also called furnace fuel oil (‘‘FFO’’); the high reported at a flat price. With respect to 11 The term ‘‘FOB’’ indicates ‘‘free on board.’’ In viscosity requires heating, usually by a re-circulated indirect evidence, the Commission will other words, the seller will pay for transportation low pressure steam system, before the oil can be consider the extent to which the price of the product to the port of Singapore, as well as pumped from a bunker tank. the cost of loading the fuel oil onto the cargo ship 13 As noted above, the Commission did not find (this includes inland hauling charges, customs any indication of price linkage or arbitrage in 14 http://www.cftc.gov/ucm/groups/public/ clearance, origin documentation charges, demurrage connection with this contract; accordingly, those @newsroom/documents/file/pr5403- (if any), and origin port handling charges—in this criteria were not discussed in reference to the SZS 07_ecmreport.pdf. case Singapore). contract. 15 17 CFR 36, Appendix A.

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of the contract in question is being derivatives contract when pricing ii. Conclusion Regarding Material Price routinely disseminated in widely forward, fixed-price commitments or Reference distributed industry publications—or other cash-settled derivatives that seek Based on the above, the Commission offered by the ECM itself for some form to ‘‘lock in’’ a fixed price for some future finds that the SZS contract does not of remuneration—and consulted on a point in time to hedge against adverse meet the material price reference frequent and recurring basis by industry price movements. As noted above, the criterion because cash market participants in pricing cash market port of Singapore is a significant trading transactions are not priced on a frequent transactions. center for 180 cst fuel oil in the Asian Although Singapore has one of the and recurring basis at a differential to market. However, traders do not consult most utilized ports in the world and ICE the SZS contract’s price (direct the SZS contract’s price on a frequent sells price data for its SZS contract, the evidence). Moreover, while the ECM Commission has found upon further and recurring basis since the potential sells the SZS contract’s price data to evaluation that cash market transactions for arbitrage between fuel oil market market participants, market participants are not being directly based or quoted as centers worldwide is sporadic and likely do not specifically purchase the a differential to the SZS contract nor is infrequent. ICE data packages for the SZS contract’s that contract routinely consulted by ICE argued that the Commission prices and do not consult such prices on a frequent and recurring basis in pricing industry participants in pricing cash appeared to base the case that the SZS cash market transactions (indirect market transactions. In this regard, contract is potentially a SPDC on a evidence). traders use the SZS contract’s price as disputable assertion. In issuing its an indicator of arbitrage potential notice of intent to determine whether 2. Material Liquidity Criterion between two fuel oil markets (e.g., the SZS contract is a SPDC, the CFTC Singapore and the U.S. Gulf Coast). But As noted above, in its October 20, cited a general conclusion in its ECM 2009, Federal Register notice, the because the market conditions are not Study ‘‘that certain market participants always such that diverting fuel oil from Commission identified material referred to ICE as a price discovery one market to Singapore is profitable, liquidity and material price reference as market for certain energy contracts.’’ ICE traders do not regularly keep track of the potential criteria for SPDC ‘‘ SZS contract’s prices. Instead, traders states that this argument is nearly determination of the SZS contract. To refer to the SZS contract on an impossible to respond to as the ECM assess whether a contract meets the occasional basis and during periods report did not mention the SZS material liquidity criterion, the when it is historically profitable to ship [contract] as a potential significant price Commission first examines trading fuel oil to Singapore. Cash market discovery contract. It is hard to say activity as a general measurement of the transactions are not priced on a frequent which market participants made this contract’s size and potential importance. and recurring basis at a differential to statement in 2007 or the contracts that If the Commission finds that the the SZS contract’s price. Moreover, were referenced * * * Basing a material contract in question meets a threshold market participants likely do not price reference determination on general of trading activity that would render it specifically purchase the ICE data statements made in a two year old study of potential importance, the packages for the SZS contract’s prices does not seem to meet Congress’ intent Commission will then perform a and do not consult such prices on a that the CFTC use its considerable statistical analysis to measure the effect frequent and recurring basis in pricing expertise to study the OTC markets.’’ In that the prices of the subject contract potentially may have on prices for other cash market transactions. Thus, the SZS response to the above comment, the contracts listed on an ECM or a DCM. contract does not meet the Commission notes that it cited the ECM The Commission noted that the total Commission’s Guidance for the material Study’s general finding that some ICE price reference criterion. number of transactions executed on energy contracts appear to be regarded ICE’s electronic platform in the SZS i. Federal Register Comments as price discovery markets merely as an contract was 1,957 in the second quarter ICE and SIETCO addressed the indication that a further review of of 2009, resulting in a daily average of question of whether the SZS contract certain ICE contracts may be warranted, 30.6 trades. During the same period, the met the material price reference and was not intended to serve as the SZS contract had a total trading volume criterion for a SPDC. The commenters sole basis for determining whether or of 13,170 contracts and an average daily argued that the underlying cash price not a particular contract meets the trading volume of 205.8 contracts. series against which the ICE SZS material price reference criterion. Moreover, open interest as of June 30, contract is settled (in this case, the WGCEF argued that the SZS contract 2009, was 11,356 contracts, which Platts price for 180 cst fuel oil in does not meet the direct evidence or the included trades executed on ICE’s Singapore) is the authentic reference indirect evidence with respect to the electronic trading platform, as well as price and not the ICE contract itself. material price reference criterion. With trades executed off of ICE’s electronic Consequently, the commenters maintain regard to direct evidence, WGCEF stated trading platform and then brought to that the only price which is referenced that ‘‘[t]here are no other related ICE for clearing. In this regard, ICE does and relied upon by market participants contracts traded in any market that not differentiate between open interest for this product is the one published by created by a transaction executed on its settle to, or reference, the contract.’’ As Platts. Commission staff believes that trading platform and that created by a noted above, this view of price reference this interpretation of price reference is transaction executed off its trading is narrow. Nevertheless, while the too limiting in that it only considers the platform.16 average index value on which the Commission believes that price In a subsequent filing dated contract is cash settled after trading reference can include consultation on a November 13, 2009, ICE reported that ceases. Instead, the Commission frequent and recurring basis, the total trading volume in the third quarter believes that a cash-settled derivatives Commission has determined that such of 2009 was 22,255 contracts (or 337 contract could meet the price reference frequent and recurring consultation contracts on a daily basis). In terms of criterion if market participants ‘‘consult does not take place with respect to the on a frequent and recurring basis’’ the SZS contract. 16 74 FR 53728 (October 20, 2009).

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number of transactions, 4,625 trades ICE opined that the Commission addition to the trades that were occurred in the third quarter of 2009 ‘‘seems to have adopted a five trade-per- conducted on the electronic platform; (70.1 trades per day). As of September day test to determine whether a contract block trades comprise about 42.5 30, 2009, open interest in the SZS is materially liquid. It is worth noting percent of all transactions in the SZS contract was 15,681 contracts, which that ICE originally suggested that the contract. The Commission included trades executed on ICE’s CFTC use a five trades-per-day acknowledges that the open interest electronic trading platform, as well as threshold as the basis for an ECM to information it provided in its October trades executed off of ICE’s electronic report trade data to the CFTC.’’ In this 20, 2009, Federal Register notice trading platform and then brought to regard, the Commission adopted a five includes transactions made off the ICE ICE for clearing.17 trades-per-day threshold as a reporting platform. However, once open interest is Trading activity in the SZS contract, requirement to enable it to created, there is no way for ICE to as characterized by total quarterly ‘‘independently be aware of ECM differentiate between ‘‘on-exchange’’ volume, indicates that the SZS contract contracts that may develop into versus ‘‘off-exchange’’ created positions, experiences trading activity similar to SPDCs’’ 20 rather than solely relying and all such positions are fungible with that of other thinly-traded contracts.18 upon an ECM on its own to identify any one another and may be offset in any Thus, the SZS contract does not meets such potential SPDCs to the way agreeable to the position holder a threshold of trading activity that Commission. Thus, any contract that regardless of how the position was would render it of potential importance meets this threshold may be subject to initially created. and no additional statistical analysis is scrutiny as a potential SPDC but this ii. Conclusion Regarding Material warranted.19 does not mean that the contract will be found to be a SPDC merely because it Liquidity Federal Register Comments met the reporting threshold. For the reasons discussed above, the As noted above, WGCEF, ICE, and ICE proposed that the statistics it Commission has found that the SZS SIETCO addressed the question of provided were misinterpreted and contract does not meet the material whether the SZS contract met the misapplied by the Commission. In price reference criterion. material liquidity criterion for a SPDC. particular, ICE stated that the volume 4. Overall Conclusion These commenters stated that the SZS figures used in the Commission’s contract does not meet the material analysis (cited above) include trades After considering the entire record in liquidity criterion for SPDC made in all months of the contract as this matter, including the comments determination for a number of reasons. well as in strips of contract months, and received, the Commission has ICE noted that the Commission’s a ‘‘more appropriate method of determined that the SZS contract does Guidance had posited concepts of determining liquidity is to examine the not perform a significant price discovery liquidity that generally assumed a fairly activity in a single traded month or strip function under the criteria established constant stream of prices throughout the of a given contract.’’ in section 2(h)(7) of the CEA. trading day. The Commission observes It is the Commission’s opinion that Specifically, the Commission has that a continuous stream of prices liquidity, as it pertains to the SZS determined that the SZS contract does would indeed be an indication of contract, is typically a function of not meet the material price reference liquidity for certain markets but the trading activity in particular lead criterion at this time. In light of this fact, Guidance also notes that ‘‘quantifying months and, given sufficient liquidity in according to the Commission’s the levels of immediacy and price such months, the ICE SZS contract itself Guidance, it would be unnecessary to concession that would define material would be considered liquid. evaluate whether the SZS contract liquidity may differ from one market or Nevertheless, in light of the fact that the meets the material liquidity criterion Commission has found that the SZS commodity to another.’’ since the Commission believes it is not contract does not meet the material useful as the sole basis for a SPDC price reference criterion, material 17 In this regard, supplemental data subsequently determination. Accordingly, the submitted by the ICE indicated that block trades are liquidity cannot be used alone for SPDC Commission is issuing the attached included in the on-exchange trades; block trades determination. Order declaring that the SZS contract is comprise 42.5 percent of all transactions in the SZS Additionally, ICE stated that the not a SPDC. contract. trades-per-day statistics that it provided 18 Issuance of this Order indicates that Staff has advised the Commission that in its to the Commission in its quarterly filing experience, a thinly-traded contract is, generally, the Commission does not at this time and which were cited in the one that has a quarterly trading volume of 100,000 regard ICE as a registered entity in contracts or less. In this regard, in the third quarter Commission’s October 20, 2009, Federal connection with its SZS contract.21 of 2009, physical commodity futures contracts with Register notice includes 2(h)(1) Accordingly, with respect to its SZS trading volume of 100,000 contracts or fewer transactions, which were not completed constituted less than one percent of total trading on the electronic trading platform and contract, ICE is not required to comply volume of all physical commodity futures contracts. with the obligations, requirements and 19 should not be considered in the SPDC In establishing guidance to illustrate how it timetables prescribed in Commission will evaluate the various criteria, or combinations determination process. SIETCO of criteria, when determining whether a contract is expressed a similar concern. In this rule 36.3(c)(4) for ECMs with SPDCs. a SPDC, the Commission made clear that ‘‘material However, ICE must continue to comply liquidity itself would not be sufficient to make a respect, the Commission staff asked ICE to review the data it sent in its quarterly with the applicable reporting determination that a contract is a [SPDC], * * * but requirements for ECMs. combined with other factors it can serve as a filings; ICE confirmed that the volume guidepost indicating which contracts are data it provided and which the V. Related Matters functioning as [SPDCs].’’ For the reasons discussed Commission cited includes only above, the Commission has found that the SZS a. Paperwork Reduction Act contract does not meet the material price reference transaction data executed on ICE’s criterion. In light of this finding and the electronic trading platform. As noted The Paperwork Reduction Act of 1995 Commission’s Guidance cited above, there is no above, supplemental data supplied by (‘‘PRA’’) 22 imposes certain requirements need to evaluate further the material liquidity criteria since the Commission believes it is not ICE confirmed that block trades are in useful as the sole basis for a SPDC determination. 21 See 73 FR 75888, 75893 (Dec. 12, 2008). 17 CFR 36, Appendix A. 20 73 FR 75892 (December 12, 2008). 22 44 U.S.C. 3507(d).

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on Federal agencies, including the oversight engendered by the issue of a on the IntercontinentalExchange, Inc., Commission, in connection with their SPDC Order increases transparency and does not at this time satisfy the material conducting or sponsoring any collection helps to ensure fair competition among price reference and material liquidity of information as defined by the PRA. ECMs and DCMs trading similar criteria for significant price discovery Certain provisions of Commission rule products and competing for the same contracts. Moreover, under Commission 36.3 impose new regulatory and business. Moreover, the ECM on which Guidance material liquidity alone reporting requirements on ECMs, the SPDC is traded must assume, with cannot support a significant price resulting in information collection respect to that contract, all the discovery finding for the Fuel Oil-180 requirements within the meaning of the responsibilities and obligations of a Singapore Swap contract. PRA. OMB previously has approved and registered entity under the CEA and Consistent with this determination, assigned OMB control number 3038– Commission regulations. Additionally, the IntercontinentalExchange, Inc., is 0060 to this collection of information. the ECM must comply with nine core not considered a registered entity 26 principles established by section 2(h)(7) with respect to the Fuel Oil-180 b. Cost-Benefit Analysis of the Act—including the obligation to Singapore Swap contract and is not Section 15(a) of the CEA 23 requires establish position limits and/or subject to the provisions of the the Commission to consider the costs accountability standards for the SPDC. Commodity Exchange Act applicable to and benefits of its actions before issuing Amendments to section 4(i) of the CEA registered entities. Further, the an order under the Act. By its terms, authorize the Commission to require obligations, requirements and timetables section 15(a) does not require the reports for SPDCs listed on ECMs. These prescribed in Commission rule Commission to quantify the costs and increased responsibilities, along with 36.3(c)(4) governing core principle benefits of an order or to determine the CFTC’s increased regulatory compliance by the whether the benefits of the order authority, subject the ECM’s risk IntercontinentalExchange, Inc., are not outweigh its costs; rather, it requires management practices to the applicable to the Fuel Oil-180 Singapore that the Commission ‘‘consider’’ the Commission’s supervision and oversight Swap contract with the issuance of this costs and benefits of its actions. Section and generally enhance the financial Order. 15(a) further specifies that the costs and integrity of the markets. This Order is based on the benefits shall be evaluated in light of The Commission has concluded that representations made to the five broad areas of market and public ICE’s SZS contract, which is the subject Commission by the concern: (1) Protection of market of the attached Order, is not a SPDC; IntercontinentalExchange, Inc., dated participants and the public; (2) accordingly, the Commission’s Order July 27, 2009, and November 13, 2009, efficiency, competitiveness and imposes no additional costs and no and other supporting material. Any financial integrity of futures markets; (3) additional statutorily or regulatory material change or omissions in the price discovery; (4) sound risk mandated responsibilities on the ECM. facts and circumstances pursuant to management practices; and (5) other c. Regulatory Flexibility Act which this order is granted might public interest considerations. The require the Commission to reconsider its Commission may in its discretion give The Regulatory Flexibility Act current determination that the Fuel Oil- ‘‘ ’’ 24 greater weight to any one of the five ( RFA ) requires that agencies 180 Singapore Swap contract is not a enumerated areas and could in its consider the impact of their rules on significant price discovery contract. small businesses. The requirements of discretion determine that, Additionally, to the extent that it CEA section 2(h)(7) and the Part 36 notwithstanding its costs, a particular continues to rely upon the exemption in rules affect exempt commercial markets. order is necessary or appropriate to Section 2(h)(3) of the Act, the The Commission previously has protect the public interest or to IntercontinentalExchange, Inc., must determined that exempt commercial effectuate any of the provisions or continue to comply with all of the markets are not small entities for accomplish any of the purposes of the applicable requirements of Section purposes of the RFA.25 Accordingly, the Act. The Commission has considered 2(h)(3) and Commission Regulation the costs and benefits in light of the Chairman, on behalf of the Commission, 36.3. specific provisions of section 15(a) of hereby certifies pursuant to 5 U.S.C. the Act and has concluded that the 605(b) that this Order, taken in Issued in Washington, DC on June 25, Order, required by Congress to connection with section 2(h)(7) of the 2010, by the Commission. strengthen federal oversight of exempt Act and the Part 36 rules, will not have David A. Stawick, commercial markets and to prevent a significant impact on a substantial Secretary of the Commission. market manipulation, is necessary and number of small entities. [FR Doc. 2010–16209 Filed 7–1–10; 8:45 am] appropriate to accomplish the purposes VI. Order BILLING CODE 6351–01–P of section 2(h)(7) of the Act. When a futures contract begins to Order Relating to the Fuel Oil-180 serve a significant price discovery Singapore Swap Contract CONSUMER PRODUCT SAFETY function, that contract, and the ECM on After considering the complete record COMMISSION which it is traded, warrants increased in this matter, including the comment oversight to deter and prevent price letters received in response to its Sunshine Act Meetings manipulation or other disruptions to request for comments, the Commission TIME AND DATE: Wednesday, June 30, market integrity, both on the ECM itself has determined to issue the following 2010, 2 p.m.–3 p.m. and in any related futures contracts Order: trading on DCMs. An Order finding that The Commission, pursuant to its PLACE: Hearing Room 420, Bethesda a particular contract is a SPDC triggers authority under section 2(h)(7) of the Towers, 4330 East West Highway, this increased oversight and imposes Act, hereby determines that the Fuel Bethesda, Maryland. obligations on the ECM calculated to Oil-180 Singapore Swap contract, traded STATUS: Commission Meeting—Open to accomplish this goal. The increased the Public. 24 5 U.S.C. 601 et seq. 23 7 U.S.C. 19(a). 25 66 FR 42256, 42268 (Aug. 10, 2001). 26 7 U.S.C. 1a(29).

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MATTERS TO BE CONSIDERED: Purpose of the Meeting DEPARTMENT OF DEFENSE 1. Accreditation for Third Party Conformity Assessment Bodies for Meetings of the Board of Regents Office of the Secretary Testing for Children’s Products: Carpets assure that USU operates in the best Federal Advisory Committee; Defense and Rugs. traditions of academia. An outside Health Board (DHB) Meeting 2. Accreditation for Third Party Board is necessary for institutional accreditation. Conformity Assessment Bodies for AGENCY: Department of Defense (DoD). Testing for Children’s Products: Vinyl Agenda ACTION: Notice of meeting. Plastic Film. A live Webcast of the Meeting can be The actions that will take place SUMMARY: Pursuant to the Federal viewed at http://www.cpsc.gov/webcast. include the approval of minutes from Advisory Committee Act of 1972 (5 For a recorded message containing the the Board of Regents Meeting held May U.S.C., Appendix as amended), the latest agenda information, call (301) 14, 2010; acceptance of reports from Sunshine in the Government Act of 504–7948. working committees; approval of faculty 1976 (5 U.S.C. 552b, as amended), and appointments and promotions; and the 41 CFR 102–3.150, and in accordance CONTACT PERSON FOR MORE INFORMATION: awarding of master’s and doctoral with section 10(a)(2) of Public Law, DoD Todd A. Stevenson, Office of the announces a meeting of the Defense Secretary, U.S. Consumer Product degrees in the biomedical sciences and public health. The Acting President, Health Board (DHB) on August 18 and Safety Commission, 4330 East West 19, 2010, in West Point, NY. Highway, Bethesda, MD 20814, (301) USU will also present a report. These DATES: 504–7923. actions are necessary for the University The meeting will be held on to pursue its mission, which is to August 18 (from 8 a.m. to 5 p.m.) and Dated: June 25, 2010. provide outstanding health care on August 19, 2010 (from 7 a.m. to Todd A. Stevenson, practitioners and scientists to the 2 p.m.). Secretary. uniformed services. ADDRESSES: The meeting will be held at [FR Doc. 2010–16316 Filed 6–30–10; 4:15 pm] the Thayer Hotel, 674 Thayer Road, BILLING CODE 6355–01–P Meeting Accessibility West Point, NY 10996. Pursuant to Federal statute and FOR FURTHER INFORMATION CONTACT: regulations (5 U.S.C. 552b, as amended, Commander Edmond F. Feeks, Executive Secretary, Defense Health DEPARTMENT OF DEFENSE and 41 CFR 102–3.140 through 102– 3.165) and the availability of space, the Board, Five Skyline Place, 5111 Office of the Secretary meeting is open to the public from 8 Leesburg Pike, Suite 810, Falls Church, Virginia 22041–3206, (703) 681–8448, a.m. to 12 noon. Seating is on a first- ext. 1228, Fax: (703) 681–3317, Board of Regents of the Uniformed come basis. The closed portion of this [email protected]. Services University of the Health meeting (from 12 noon to 1:30 p.m.) is Sciences authorized by 5 U.S.C. 552b(c)(6) as the SUPPLEMENTARY INFORMATION: Additional information, agenda updates, AGENCY: Uniformed Services University subject matter involves personal and private observations. and meeting registration are available of the Health Sciences (USU), DoD. online at the Defense Health Board Web ACTION: Quarterly meeting notice. Written Statements site, http://www.ha.osd.mil/dhb.

SUMMARY: Under the provisions of the Interested persons may submit a Purpose of the Meeting Federal Advisory Committee Act of written statement for consideration by The purpose of the meeting is to 1972 (5 U.S.C., Appendix, as amended) the Board of Regents. Individuals address and deliberate pending and new and the Sunshine in the Government submitting a written statement must Board issues and provide briefings for Act of 1976 (5 U.S.C. 552b, as submit their statement to the Designated Board members on topics related to amended), this notice announces a Federal Official (see FOR FURTHER ongoing Board business. meeting of the Board of Regents of the INFORMATION CONTACT). If such statement Agenda Uniformed Services University of the is not received at least 10 calendar days Health Sciences on August 3, 2010, in prior to the meeting, it may not be August 18, 2010 Bethesda, MD. provided to or considered by the Board 8 a.m.–9:15 a.m. (Closed DATES: The meeting will be held on of Regents until its next open meeting. Administrative Working Meeting). Tuesday, August 3, 2010, from 8 a.m. to The Designated Federal Official will 9:30 a.m.–12:45 p.m. (Open Session). 12 noon (open session) and from 12 review all timely submissions with the 12:45 p.m.–1:45 p.m. (Closed noon to 1:30 p.m. (closed session). Board of Regents Chairman and ensure Administrative Working Meeting). ADDRESSES: The meeting will be held at such submissions are provided to Board 1:45 p.m.–5 p.m. (Open Session). of Regents Members before the meeting. the Everett Alvarez Jr. Board of Regents August 19, 2010 Room (D 3001), Uniformed Services After reviewing the written comments, University of the Health Sciences, 4301 submitters may be invited to orally 7 a.m.–2 p.m. (Closed Administrative Jones Bridge Road, Bethesda, MD 20814. present their issues during the August Working Meeting). FOR FURTHER INFORMATION CONTACT: 2010 meeting or at a future meeting. Meeting Topics Janet S. Taylor, Designated Federal Dated: June 28, 2010. On August 18, 2010, the DHB will Official, 4301 Jones Bridge Road, Mitchell S. Bryman, Alternate OSD Federal receive briefings on military health Bethesda, MD 20814; telephone 301– Register Liaison Officer, Department of needs and priorities. The following 295–3066. Ms. Taylor can also provide Defense. Defense Health Board Subcommittees base access procedures. [FR Doc. 2010–16092 Filed 7–1–10; 8:45 am] will present updates to the Board: SUPPLEMENTARY INFORMATION: BILLING CODE 5001–06–P Department of Defense Task Force on

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the Prevention of Suicide by Members meeting that is subject to this notice. FOR FURTHER INFORMATION CONTACT: Ms. of the Armed Forces, Infectious Disease After reviewing the written comments, Theresa Lowery at (202) 231–1193. Subcommittee, and the Psychological the Chairperson and the Designated SUPPLEMENTARY INFORMATION: The Health External Advisory Federal Officer may choose to invite the Defense Intelligence Agency systems of Subcommittee. Additionally, the Board submitter of the comments to orally records notices subject to the Privacy will receive briefings regarding the present their issue during an open Act of 1974, (5 U.S.C. 552a), as history of the United States Military portion of this meeting or at a future amended, have been published in the Academy and the Resilience Program. meeting. Federal Register and are available from The Board may vote on The Designated Federal Officer, in the DIA Privacy Act Coordinator, DAN recommendations regarding in-theater consultation with the Defense Health 1–C, 200 MacDill Blvd, Washington, DC use of fresh whole blood for combat Board Chairperson, may, if desired, allot 20340. casualties requiring transfusion, and the a specific amount of time for members The proposed systems report, as Joint Theater Trauma System, as well as of the public to present their issues for required by 5 U.S.C. 552a(r) of the the review of the Deployment Health review and discussion by the Defense Privacy Act of 1974, as amended, was Research Center conducted by the Health Board. submitted on June 18, 2010, to the Military Occupational/Environmental Dated: June 29, 2010. House Committee on of Government Health and Medical Surveillance Reform, the Senate Committee on Subcommittee. Mitchell S. Bryman, Alternate OSD Federal Register Liaison Homeland Security and Government Public Accessibility Officer, Department of Defense. Affairs, and the Office of Management The public is encouraged to register [FR Doc. 2010–16179 Filed 7–1–10; 8:45 am] and Budget (OMB) pursuant to paragraph 4c of Appendix I to OMB for the meeting. If special BILLING CODE 5001–06–P accommodations are required to attend Circular No A–130, ‘‘Federal Agency (sign language, wheelchair accessibility) Responsibilities for Maintaining please contact Ms. Lisa Jarrett at (703) DEPARTMENT OF DEFENSE Records About Individuals’’ dated 681–8448 ext. 1280 by August 4, 2010. February 8, 1996 (February 20, 1996; 61 Pursuant to 5 U.S.C. 552b, as Office of the Secretary FR 6427). amended, and 41 CFR 102–3.140 Dated: June 29, 2010. [Docket ID: DOD–2010–OS–0091] through 102–3.165 and subject Mitchell S. Bryman, availability of space, the Defense Health Privacy Act of 1974; System of Alternate OSD Federal Register Liaison Board meeting from 9:30 a.m. to Records Officer, Department of Defense. 12:45 p.m. and from 1:45 p.m. to 5 p.m. LDIA: 10–0004 on August 18, 2010 is open to the AGENCY: Defense Intelligence Agency, public. DoD. SYSTEM NAME: Written Statements ACTION: Notice to add a system of Occupational, Safety, Health, and records. Any member of the public wishing to Environmental Management Records. provide input to the Defense Health SUMMARY: The Defense Intelligence SYSTEM LOCATION: Board should submit a written proposes to add a system of records to Defense Intelligence Agency. statement in accordance with 41 CFR its inventory of record systems subject 102–3.140(c) and section 10(a)(3) of the to the Privacy Act of 1974 (5 U.S.C. CATEGORIES OF INDIVIDUALS COVERED BY THE Federal Advisory Committee Act, and 552a), as amended. SYSTEM: the procedures described in this notice. DATES: This proposed action will be DIA civilians, military, and Written statements should address the effective without further notice on contractors. following details: The issue, discussion, August 2, 2010, unless comments are CATEGORIES OF RECORDS IN THE SYSTEM: and a recommended course of action. received which result in a contrary Supporting documentation may also be determination. Name, Social Security Number (SSN), included as needed to establish the and date of birth. Records relating to appropriate historical context and to ADDRESSES: You may submit comments, illness or injury regarding occupational provide any necessary background identified by docket number and title, safety, and environmental issues or information. by any of the following methods: accidents. Individuals desiring to submit a • Federal Rulemaking Portal: http:// written statement may do so through the www.regulations.gov. Follow the AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Board’s Designated Federal Officer at instructions for submitting comments. 29 CFR part 1904, Recording and any point. Written statements may be • Mail: Federal Docket Management Reportable Injury or Illness; 29 CFR part mailed to the address under FOR System Office, 1160 Defense Pentagon, 1960, Basic Program Elements for FURTHER INFORMATION CONTACT, e-mailed Washington, DC 20301–1160. Federal Employees Occupational, to [email protected] or faxed to (703) • Instructions: All submissions Safety, and Health Programs and 681–3317. If the written statement is not received must include the agency name Related Matters; DoDI 6055.7, Accident received at least 10 calendar days prior and docket number for this Federal Investigation, Reporting, and Record to the meeting, which is subject to this Register document. The general policy Keeping; and E.O. 9397, as amended. notice, then it may not be provided to for comments and other submissions or considered by the Defense Health from members of the public is to make PURPOSE(S): Board until the next open meeting. these submissions available for public This system will manage The Designated Federal Officer will viewing on the Internet at http:// occupational, safety, health, and review all timely submissions with the www.regulations.gov as they are environmental management case files. Defense Health Board Chairperson, and received without change, including any Information is used to comply with ensure they are provided to members of personal identifiers or contact regulatory reporting requirements and to the Defense Health Board before the information. identify and correct known or potential

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hazards in order to facilitate prevention SYSTEM MANAGER(S) AND ADDRESS: DEPARTMENT OF DEFENSE programs. Occupational, Safety, Health, and Office of the Secretary ROUTINE USES OF RECORDS MAINTAINED IN THE Environmental Office, Defense SYSTEM, INCLUDING CATEGORIES OF USERS AND Intelligence Agency, 200 MacDill Revised Non-Foreign Overseas Per THE PURPOSES OF SUCH USES: Boulevard, Washington, DC 20340– Diem Rates 0001. In addition to those disclosures AGENCY: Per Diem, Travel and generally permitted under 5 U.S.C. NOTIFICATION PROCEDURE: Transportation Allowance Committee; 552a(b) of the Privacy Act of 1974, these DoD. records contained therein may Individuals seeking to determine ACTION: Notice of revised non-foreign specifically be disclosed outside the whether information about themselves overseas per diem rates. Department of Defense as a routine use is contained in this system of records pursuant to 5 U.S.C. 552a(b)(3) as should address written inquiries to the SUMMARY: The Per Diem, Travel and follows: DIA Freedom of Information Act Office Transportation Allowance Committee is The DoD ‘Blanket Routine Uses’ set (DAN–1A), Defense Intelligence Agency, publishing Civilian Personnel Per Diem forth at the beginning of the Defense 200 MacDill Blvd, Washington, DC Bulletin Number 268. This bulletin lists Intelligence Agency’s compilation of 20340–5100. revisions in the per diem rates systems of records notices apply to this Request should contain the prescribed for U.S. Government system. individual’s full name, current address, employees for official travel in Alaska, Hawaii, Puerto Rico, the Northern and telephone number. POLICIES AND PRACTICES FOR STORING, Mariana Islands and Possessions of the RETRIEVING, ACCESSING, RETAINING, AND United States. AEA changes announced DISPOSING OF RECORDS IN THE SYSTEM: RECORD ACCESS PROCEDURES: in Bulletin Number 194 remain in effect. STORAGE: Individuals seeking access to Bulletin Number 268 is being published information about themselves, in the Federal Register to assure that Paper and electronic records. contained in this system of records, travelers are paid per diem at the most RETRIEVABILITY: should address written inquiries to the current rates. DIA Freedom of Information Act Office, DATES: By last name and Social Security Effective July 1, 2010. Defense Intelligence Agency (DAN–1A), Number (SSN). SUPPLEMENTARY INFORMATION: This 200 MacDill Blvd, Washington, DC document gives notice of revisions in SAFEGUARDS: 20340–5100. per diem rates prescribed by the Per Records are stored in office buildings Request should contain the Diem Travel and Transportation protected by guards, controlled individual’s full name, current address Allowance Committee for non-foreign screenings, use of visitor registers, and telephone number. areas outside the continental United electronic access, and/or locks. Access States. It supersedes Civilian Personnel to records is limited to individuals who CONTESTING RECORD PROCEDURES: Per Diem Bulletin Number 267. Distribution of Civilian Personnel Per are properly screened and cleared on a DIA’s rules for accessing records, for need-to-know basis in the performance Diem Bulletins by mail was contesting contents, and appealing discontinued. Per Diem Bulletins of their duties. Passwords and User IDs initial agency determinations are are used to control access to the system published periodically in the Federal published in DIA Instruction 5400.001 Register now constitute the only data, and procedures are in place to ‘‘Defense Intelligence Agency Privacy deter and detect browsing and notification of revisions in per diem Program’’; or may be obtained from the unauthorized access. Physical and rates to agencies and establishments system manager. electronic access are limited to persons outside the Department of Defense. For responsible for servicing and authorized more information or questions about per RECORD SOURCE CATEGORIES: to use the system. diem rates, please contact your local Individuals, agency and other travel office. The text of the Bulletin RETENTION AND DISPOSAL: government officials. follows: The changes in Civilian Bulletin 268 are updated rates for Guam Records are kept for 5 years and then and Northern Mariana Islands. destroyed. Paper records are authorized EXEMPTIONS CLAIMED FOR THE SYSTEM: Dated: June 29, 2010. for destruction in accordance with None. agency destruction methods and Mitchell S. Bryman, [FR Doc. 2010–16132 Filed 7–1–10; 8:45 am] include, shredding, pulping or burning. Alternate OSD Federal Register Liaison The electronic record is deleted from BILLING CODE 5001–06–P Officer, Department of Defense. this system from which it is housed. BILLING CODE 5001–06–P

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[FR Doc. 2010–16133 Filed 7–1–10; 8:45 am] of automated collection techniques or 553–8402 (this is not a toll-free number) BILLING CODE 5001–06–C other forms of information technology. or fax: 619–553–8459. Title and OMB Number: Mental DATES: Consideration will be given to all comments received by August 31, 2010. Health Issues among Separating DEPARTMENT OF DEFENSE Marines; OMB Number 0703–0056. ADDRESSES: You may submit comments, Needs and Uses: Tens of thousands of Department of the Navy identified by docket number and title, Marines transition from the military to by any of the following methods: civilian life each year, the majority of [Docket ID: USN–2010–0023] • Federal eRulemaking Portal: http:// whom have been exposed to Proposed Collection; Comment www.regulations.gov. Follow the deployment stressors that have put them Request instructions for submitting comments. at high risk for stress-related disorders. • Mail: Federal Docket Management This longitudinal study builds on a AGENCY: Department of the Navy, DoD. System Office, 1160 Defense Pentagon, 2008 pilot study assessing the ACTION: Notice. Washington, DC 20301–1160. prevalence of mental health outcomes Instructions: All submissions received among Sailors and Marines transitioning SUMMARY: In compliance with the must include the agency name, docket from the Service, and identifying requirement of section 3506(c)(2)(A) of number and title for this Federal predictors of and changes in mental the Paperwork Reduction Act of 1995 Register document. The general policy health and resilience over time. For the the Naval Health Research Center for comments and other submissions baseline component of the current (NHRC), Department of the Navy, from members of the public is to make study, a paper-and-pencil questionnaire announces a proposed extension of a these submissions available for public was administered to approximately public information collection and seeks viewing on the Internet at http:// 2,700 active-duty Marines in the public comment on the provisions www.regulations.gov as they are Transition Assistance Program (TAP) thereof. received without change, including any during routine mandatory separation Comments are invited on: Whether counseling via group administration at 6 personal identifiers or contact the proposed collection of information selected installations worldwide. Based information. is necessary for the proper performance on the estimated number of attendees of the functions of the agency, including FOR FURTHER INFORMATION CONTACT: To per TAP class and the number of classes whether the information shall have request more information on this conducted during the 4-month data practical utility; the accuracy of the proposed information collection or to collection period (January–April 2010), agency’s estimate of the burden of the obtain a copy of the proposal and we estimate that approximately 4,900 proposed information collection; ways associated collection instruments, Marines were eligible for inclusion into to enhance the quality, utility, and please write to Dr. Jerry Larson, Ph.D.; the study, giving us an approximate 55 clarity of the information to be Head, Behavioral Science and percent response rate. The baseline collected; and ways to minimize the Epidemiology Program, Naval Health survey included selected items from the burden of the information collection on Research Center; P. O. Box 85122, San post-deployment health reassessment respondents, including through the use Diego, CA 92186–5122; telephone 619– (PDHRA), along with additional

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questions on risk factors for poor with the option of completing the development, and potential impacts on civilian readjustment, and other questionnaire via the Web. All those resources as a result of biographical and psychological content. participants from the baseline survey implementing the alternatives. The on- DoD regulations stipulate that all who have separated from military site land use alternatives considered in military personnel must receive pre- service since completion of the baseline detail are: (1) No Project Alternative (No separation counseling no less than 90 survey will be eligible for the second development for both land use and days before leaving active duty. phase of study and their participation in water supply/alignment); (2) No USACE NHRC proposes tracking over time the the follow-up survey will be requested. Permit Alternative (no discharge of mental well-being of eligible baseline Respondents were informed during the dredged and/or fill material into waters respondents for the longitudinal portion Introductory Briefing to the baseline of the U.S.); (3) Proposed Project of the study through a follow-on survey survey that they may be contacted for a Alternative, the Applicants’ Preferred 3 to 6 months after separation from follow-up interview. Alternative; (4) Resource Impact military service, after they have Approximately 15 percent of Military Minimization Alternative; (5) completed the transition from military personnel are women. Therefore, it is Centralized Development Alternative; to civilian life. Data from extant estimated that 15 percent will be the and (6) Reduced Hillside Development historical personnel and medical files proportion of women completing the Alternative. The off-site water supply/ will also be combined with survey data survey; the remaining 85 percent will be alignment alternatives considered in to develop models that demonstrate the male respondents. detail are: (1) No USACE Permit influence of combat, and a variety of Dated: June 28, 2010. Alternative (no discharge of dredged covariates, on mental health symptoms, Mitchell S. Bryman, and/or fill material into waters of the resilience, and substance abuse. We U.S.); (2) Proposed Off-site Water estimate that approximately 1,850 of the Alternate OSD Federal Register Liaison Officer, Department of Defense. Facility Alternative—Raw Water 2,700 baseline participants will be Conveyance—Grant Line Road [FR Doc. 2010–16089 Filed 7–1–10; 8:45 am] eligible for and consent to participate in Alignment and On-site WTP; (3) Off-site the follow-up survey. In order to BILLING CODE 5001–06–P Water Facility Alternative 1—Raw facilitate locating these respondents, the Water Conveyance—Grant Line Road baseline questionnaire requested DEPARTMENT OF DEFENSE Alignment and White Rock WTP; (4) participants provide name, relocation Off-site Water Facility Alternative 1A— plans, names and contact information Department of the Army Raw Water Conveyance—Grant Line for two friends or relatives who always Road Route Variation Alignment and know where the respondent is living, Corps of Engineers White Rock WTP; (5) Off-site Water and the respondent’s date of birth and Facility Alternative 2—Treated Water social security number. The follow-up Notice of Availability of Draft Conveyance—Douglas Road Alignment survey will be sent to respondents Environmental Impact Statement for and Vineyard SWTP; (6) Off-site Water through the mail. Respondents will also the Proposed Folsom South of U.S. Facility Alternative 2A—Treated Water have the option of completing this Highway 50 Specific Plan Project, in Conveyance—Douglas Road Route survey via the Web, which will closely Sacramento County, CA, Corps Permit Variation Alignment and Vineyard simulate the hardcopy version of the Application Number SPK–2007–02159 SWTP; (7) Off-site Water Facility instrument. Alternative 2B—Treated Water AGENCY: Department of the Army, U.S. Affected Public: Marine Corps Conveyance—North Douglas Tanks Army Corps of Engineers, DOD. personnel who have separated from the Variation Alignment and Vineyard Military in the six-month period ACTION: Notice of availability. SWTP; (8) Off-site Water Facility following the baseline survey. SUMMARY: Pursuant to the National Alternative 3—Raw Water Annual Burden Hours: 1,850. Conveyance—Douglas Road Alignment Number of Respondents: 1,850. Environmental Policy Act (NEPA), the U.S. Army Corps of Engineers (USACE), and White Rock WTP; (9) Off-site Water Responses per Respondent: 1. Facility Alternative 3A—Raw Water Average Burden per Response: 1 hour. Sacramento District has prepared a Draft Frequency: One time. Environmental Impact Statement (DEIS) Conveyance—Douglas Road Route Variation Alignment and White Rock SUPPLEMENTARY INFORMATION: that analyzes the potential effects of implementing each of six on-site land- WTP; (10) Off-site Water Facility Summary of Information Collection use and eleven off-site water supply/ Alternative 4—Raw Water Conveyance This study population is unique alignment alternative scenarios for a to Folsom Boulevard Alignment and because there is a need for longitudinal large-scale, mixed-use, mixed-density Folsom Boulevard WTP; and (11) Off- mental health research in the Military master planned community on the site Water Facility Alternative 4A—Raw that spans both Active Duty and the approximately 3,502-acre Folsom South Water Conveyance to Folsom period of reintegration into civilian life of U.S. Highway 50 Specific Plan area Boulevard—Route Variation Alignment after combat exposure. Given that (SPA), located within the Sphere of and Folsom Boulevard WTP. disability and poor physical health were Influence of the City of Folsom, DATES: All written comments must be significant predictors of mental health Sacramento County, California. The postmarked on or before September 7, problems in the pilot study, that stigma DEIS has been prepared as a joint 2010. The USACE and the City will continues to be an issue for military document with the City of Folsom jointly conduct a public meeting that personnel seeking mental health care, (City). The City is the local agency will be held on August 2, 2010 from 5 and that significant difficulties remain responsible for preparing an p.m. to 7 p.m. The public meeting will in transitioning mental health care, this Environmental Impact Report in be held at the Folsom Community type of program would appear compliance with the California Center, 52 Natoma Street, Folsom, especially appropriate and suited for Environmental Quality Act (CEQA). California 95630. implementation in the U.S. military. The DEIS documents the existing ADDRESSES: Comments may be The follow-up survey will consist of condition of environmental resources in submitted in writing to: Lisa M. Gibson, a mailed paper-and-pencil questionnaire and around areas considered for U.S. Army Corps of Engineers,

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Sacramento District, Regulatory Central Mutual Water Company 50 Natoma Street, Folsom, California Division; 1325 J Street, Room 1480, (NCMWC), diverting the water supply 95630. Sacramento, California 95814–2922, or from the Sacramento River and (2) Folsom Public Library, Georgia via e-mail to conveying the water to the SPA. The Murray Building, 411 Stafford Street, [email protected]. Oral proposed water supply would also Folsom, California 95630. and written comments may also be involve the City purchasing dedicated June 23, 2010. submitted at the public meeting capacity within the Freeport Regional Thomas C. Chapman, described in the DATES section. Water Project (Freeport Project) from Colonel, U.S. Army, District Engineer. Sacramento County Water Agency FOR FURTHER INFORMATION CONTACT: Lisa [FR Doc. 2010–16135 Filed 7–1–10; 8:45 am] (SCWA), which would serve as the M. Gibson, (916) 557–5288, or via e-mail BILLING CODE 3720–58–P at [email protected]. point of diversion (POD) on the SUPPLEMENTARY INFORMATION: The South Sacramento River and partial Folsom Property Owners Group, the conveyance pathway for not more than DEPARTMENT OF DEFENSE project applicants, are seeking adoption 6,000 AFY purchased from NCMWC. by the City of the proposed SPA project The City proposes to add the Freeport Department of the Army and associated entitlements. The City POD to the assigned CVP water to and the South Folsom Property Owners facilitate the diversion of these supplies Corps of Engineers Group are also seeking authorization at the existing Freeport Project from USACE for the placement of diversion. The City proposes to pump The Release of the Final Environmental Impact Statement (FEIS) for the Town dredged or fill material into waters of and convey the assigned NCMWC CVP of Nags Head Proposed Beach the United States pursuant to Section water supply through the Freeport Nourishment Project in Dare County, 404 of the Clean Water Act. The Project diversion facility and NC Proposed Project includes 10,210 conveyance pipeline to the point where residential units at various densities on SCWA and East Bay Municipal Utility AGENCY: Department of the Army, U.S. a total of 1,477.2 acres; 362.8 acres District pipelines split. The City would Army Corps of Engineers, DoD. then construct new water supply designated for commercial and ACTION: Notice. industrial use, including a regional conveyance infrastructure from the shopping center; public/quasi-public bifurcation point to the SPA within an SUMMARY: The U.S. Army Corps of uses; elementary, middle, and high approximately 200-foot corridor. The Engineers (COE), Wilmington District, schools on 179.3 acres; 121.7 acres of corridor for the proposed construction Regulatory Division, has been reviewing community and neighborhood parks; of the water line and the proposed a request for Department of the Army stormwater detention basins; 1,053.1 location for water treatment plants authorization, pursuant to Section 404 acres of open-space areas and open- contains approximately 50.7 acres of of the Clean Water Act and Section 10 space preserves; and major roads with waters of the U.S. The estimate of of the Rivers and Harbors Act of 1899, landscaping. In addition, the proposed waters of the U.S. within the proposed from the Town of Nags Head to dredge project includes the construction of water supply corridor was determined up to 4.6 million cubic yards of beach- several off-site infrastructure facilities, based on aerial photographs and quality sediment from an offshore including intersection expansions to National Wetland Inventory maps, and borrow source, and deposit the material allow access to and from U.S. 50 and the has not been field delineated or verified along approximately 10 miles of ocean SPA, an overpass of U.S. 50, two by USACE. Because the City has not yet shoreline in the Town of Nags Head. roadway connections and sewer completed project specific engineering The applicant proposes to utilize a pipelines from the SPA into El Dorado details for the proposed off-site water self-contained hopper dredge during a Hills, a sewer force main connection to supply/alignment, the exact impacts to proposed construction window from the existing City system, a detention waters of the U.S. cannot be determined. April through September to undertake basin and water pipelines and facilities. However, construction of the water the dredging operations and discharge The SPA contains approximately 84.94 supply infrastructure is expected to the sand on the beach via submerged acres of waters of the U.S. The proposed occur within an area of less than 100- pipeline. The applicant’s proposed land-use plan would involve the feet in width, and, depending on which borrow areas include sites identified as discharge of fill material into side of the corridor construction would having beach quality material in the approximately 39.50 acres of waters of occur, would impact an estimated 5.7 U.S. Army Corps of Engineers, the U.S., and indirect impacts to 0.29 acres or 6.8 acres of waters of the U.S. Wilmington District’s EIS, entitled Final acres of waters of the U.S. resulting from USACE invites full public Feasibility Report and Environmental fragmentation of existing waters. In participation to promote open Impact Statement on Hurricane addition, the proposed land-use plan communication and better decision- Protection and Beach Erosion Control, involves the preservation of making. All persons and organizations dated September 2000 (USACE 2000). approximately 44.19 acres of waters of that have an interest in the SPA are DATES: Written comments on the Final the U.S., concentrated primarily on the urged to participate in the NEPA EIS will be received until July 26, 2010. Alder Creek corridor and adjacent process. ADDRESSES: Copies of comments and tributaries and wetlands. An electronic version of the DEIS may questions regarding the Final EIS may For the proposed off-site water be viewed at the USACE, Sacramento be addressed to: U.S. Army Corps of supply/alignment for the SPA, the City District Web site: http://www.spk.usace. Engineers, Wilmington District, is proposing off-site water facilities that army.mil/organizations/cespk-co/ Washington Regulatory Field Office. would involve the permanent regulatory/EISs/EIS-index.html: In ATTN: File Number 200640282, 2407 assignment to the City of the contractual addition, a hardcopy of the DEIS may W. Fifth Street, Washington, NC 27889. entitlements to Central Valley Project also be reviewed at the following Copies of the Draft EIS can be reviewed (CVP) contract entitlement water, locations: on the Wilmington District Regulatory totaling not more than 8,000 acre-feet (1) City of Folsom City Hall, homepage at, http:// per year (AFY) from the Natomas Community Development Department, www.saw.usace.army.mil/wetlands/

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regtour.htm, or contact Ms. Sharon across the surf zone, then by way of local, state, and federal governmental Barnett, at (910) 251–4555, to receive shore-based pipe positioned along the agencies. written or CD copies of the Final EIS. dry beach. Only a small area of the The COE coordinated closely with the FOR FURTHER INFORMATION CONTACT: Corps borrow area will be required to North Carolina Division of Coastal Questions about the proposed action provide up to 4.6 million cubic yards of Management, the U.S. Fish and Wildlife and FEIS can be directed to Mr. Raleigh beach quality material. The applicant is Service, and the National Marine Bland, Project Manager, Regulatory coordinating the specific area for use in Fisheries Service in the development of Division, telephone: (910) 251–4564. the proposed project with the Corps the Final EIS to ensure the process SUPPLEMENTARY INFORMATION: with the following understanding: (1) complies with State Environmental 1. Project Description. The project site The final borrow area required for the Policy Act (SEPA) requirements, as well is located off NC Highway 12, adjacent emergency beach nourishment project as the NEPA requirements. The Final to the Atlantic Ocean, in the Town of can be limited to the equivalent of a 0.9 EIS has been designed to consolidate Nags Head, Dare County, NC. The square-mile (approximately 575 acres) both NEPA and SEPA processes. The proposed project totals approximately area, (2) the borrow area used will be State of North Carolina has issued a 401 10 miles of ocean shoreline beginning contiguous rather than a series of small Water Quality Certification Permit and a approximately 1 mile from the town’s impact areas, (3) once used, the borrow Coastal Zone Consistency Determination northern limit and extending south to area will no longer be available for use, in the form of a Coastal Area the town line adjacent to the Cape consistent with the Dare County Project, Management Act Permit. Hatteras National Seashore. The and (4) the borrow area will be Dated: June 17, 2010. proposed borrow area is located in the delineated so as to avoid ongoing Jefferson M. Ryscavage, biological monitoring stations Atlantic Ocean approximately 2–3 miles Colonel, U.S. Army, District Commander. established by the Corps in connection offshore of the project site. The Town of [FR Doc. 2010–16137 Filed 7–1–10; 8:45 am] Nags Head encompasses approximately with the Dare County Project. The BILLING CODE 3720–58–P 11 miles of ocean shoreline on a barrier project will be built in approximate 1– island located at the northern end of 2 mile sections, optimizing the disposition of pipeline. Sections will be North Carolina’s Outer Banks. The DEPARTMENT OF DEFENSE width of the berm of the island’s dune pumped into place with the aid of system varies considerably with temporary dikes pushed up by Department of the Army location along the town’s beach and bulldozers in the surf zone. Daily with the season. Along most of the operations will impact approximately Corps of Engineers project area, the winter berm is non- 500–1,000 linear feet of shoreline as existent due to continuing erosion work progresses in either direction from [ID SPK–2009–00511] processes. Dune habitat is currently the submerged pipeline. Upon completion of a section, the submerged Notice of Availability of Draft decreasing due to excessive erosion of Environmental Impact Statement for the base or toe of the dunes by waves pipe and beach-building equipment will be shifted to the next section. As the Sunridge Properties in the that travel unimpeded over eroded wet Sunridge Specific Plan Area, in beach to directly impact dunes. The construction progresses, sections will be graded to final contours, dressed to Rancho Cordova, Sacramento County, Town of Nags Head proposes to CA excavate 4.6 million cubic yards of eliminate low areas, and opened for use beach-quality sediment from an offshore by the public. Support equipment will AGENCY: Department of the Army, U.S. borrow source, and deposit the material be shifted out of completed sections as Army Corps of Engineers, DOD. soon as practicable, so that construction along approximately 10 miles of ocean ACTION: Notice of Availability. shoreline owned by the Town of Nags activities in a particular reach will not Head. disrupt normal beach use for only a SUMMARY: The U.S. Army Corps of 2. Proposed Action. The purpose of month or so at any locality. The finished Engineers, Sacramento District, (Corps) the proposed action is to nourish the sections will be allowed to adjust to has prepared a Draft Environmental Town of Nags Head’s ocean shoreline to natural processes for several months. Impact Statement (EIS) to analyze restore a protective beach, replace sand The final process will include the programmatically the direct, indirect lost during the period of delay in the placement of dune fencing and/or dune and cumulative effects associated with implementation of the federal Dare plantings as needed or required. six residential development projects in County Hurricane Protection and Beach 4. Alternatives. An extensive the Sunridge Specific Plan area in Erosion Control Project (USACE 2000), alternatives analysis was performed and Rancho Cordova, Sacramento County, and to help preserve property values reviewed for this project. This included CA. and the tax base of Dare County. the evaluation of a no action alternative; The purpose of the Draft EIS is to The proposed borrow area includes a retreat and relocate alternative; and provide decision-makers and the public portions of offshore areas identified by the preferred alternative. Many with information pertaining to the the Corps of Engineers in the 2000 alternatives were identified and Proposed Action and alternatives, and Federal Dare County Project. The evaluated through the scoping process, to disclose environmental impacts and anticipated optimal equipment for and further detailed descriptions of all identify mitigation measures to reduce excavations will include ocean-certified, alternatives is disclosed in Section 5.0 impacts. The Proposed Action is the self-contained hopper dredges. Such of the Final EIS. construction of the six projects equipment typically excavates shallow 5. Scoping Process. A public scoping (collectively, the ‘‘Sunridge Properties’’) trenches (approximately 2–3 foot meeting was held on April 28, 2009 and which would require the filling of sections) in each pass (leaving narrow public and agency comments were approximately 29.7 acres of waters of undisturbed areas at the margin of each solicited for input in the preparation of the United States, including wetlands. cut), then travels to a buoyed pipeline the Draft and Final EIS. The scoping The EIS is being prepared as part of anchored close to shore. Discharge to meeting was well attended by the ongoing litigation concerning the beach is via submerged pipeline public, as well as representatives from Department of the Army permits issued

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by the Corps between 2005 and 2007 for Corps on October 2, 2006. It is located 0.45 acres indirectly of vernal pool five of the projects and a pending permit on a 24-acre site south of Douglas Road habitat. To mitigate for this loss, the decision for the sixth. A stay in the and adjacent to the west side of Jaeger USFWS instructed the permittee to litigation is in place while the Corps Road. The project involves filling preserve 11.55 acres of vernal pool reevaluates the impacts of the projects approximately 1.4 acres of waters of the habitat at either the Town Center through preparation of the EIS. U.S., including wetlands, to construct Property or Anatolia Conservation Bank, The Draft EIS was prepared in 134 houses, roadways, and other and to create 6.0 acres of vernal pool accordance with the National infrastructure. As compensation for the crustacean habitat. The permittee for Environmental Policy Act (NEPA) of loss of waters, the permittee purchased this project is Grantline Investors, LLC. 1969, as amended, and the Corps’ 1.4 acres of vernal pool creation credits 4. The Douglas Road 98 project regulations for NEPA implementation at at the Laguna Terrace Mitigation Bank, received a DA permit (ID: SPK–2002– 33 Code of Federal Regulations parts and purchased 2.7 credits of 00568) on May 31, 2006. It is located on 230 and 325 Appendix B. The Corps is preservation credits from the Anatolia a 105-acre site south of Douglas Road the lead Federal agency responsible for Preserve to satisfy U.S. Fish and and adjacent to the west side of Grant complying with NEPA and information Wildlife Service (USFWS) requirements, Line Road. As part of the project, contained in the EIS serves as the basis and 2.7 credits at Gill Ranch to satisfy approximately 3.9 acres of waters of the for decisions regarding issuance of a Corps requirements. No on-site preserve U.S., including wetlands, would be Department of the Army permits. area is proposed. The permittee for this filled to construct 693 houses, DATES: Comments on the Draft EIS must project is the Sunridge, LLC. roadways, and other infrastructure. No be submitted to the Corps by August 15, 2. The Sunridge Village J project on-site preserve area is proposed. To 2010. received a DA permit (ID: SPK–2001– compensate for the loss of waters, 3.9 ADDRESSES: Please send written 00230) from Corps on October 24, 2006. acres of wetland habitat would be comments to Michael Jewell, Chief of It is located on an 81.3-acre site in the constructed or created off-site. This the Regulatory Division, U.S. Army southwest corner of the intersection action has not been taken; but is Corps of Engineers, Sacramento District, formed by Douglas Road and Jaeger expected to occur within Gill Ranch 1325 J Street, Room 1480, Sacramento, Road. The project involves filling Open Space Preserve, a 10,400-acre CA 95814–2922. You may also e-mail approximately 3.0 acres of waters of the preserve in eastern Sacramento County. your comments to U.S., including wetlands, to construct The USFWS Biological Opinion [email protected]. 369 houses, roadways, and other concluded that the project would infrastructure. No on-site preserve area adversely affect 3.70 acres of vernal pool FOR FURTHER INFORMATION CONTACT: is proposed. As compensation for the habitat. To mitigate for this loss, the Michael Jewell, (916) 557–6605, e-mail: loss of waters, the permittee paid for the permittee is required to preserve either [email protected]. creation of 3.4 acres of vernal pools and 7.8 acres of vernal pool crustacean SUPPLEMENTARY INFORMATION: The the preservation of functioning wetland habitat at the Anatolia preserve or 15.6 Sunridge Specific Plan area is a master- habitat. The Corps’ required mitigation acres at Borden Ranch, and create 3.91 planned area consisting of nine action has been completed. The USFWS acres at the Silva Consolidated residential and commercial Biological Opinion concluded that the Conservation Bank. The permittee for developments located in eastern Rancho project would adversely affect this project is Woodside Homes. Cordova, Sacramento County, CA. The approximately 2.49 acres of vernal pool 5. The Douglas Road 103 project Specific Plan, which was originally habitat, 1.88 acres directly and 0.36 received a DA permit (ID: SPK–1997– approved by the County of Sacramento acres indirectly. As mitigation the 00006) on June 18, 2007. It is located on in 2002, is part of a larger planning USFWS identified preserving 9.96 acres a 106-acre site adjacent to the south side effort in the City of Rancho Cordova at Bryte Ranch Conservation Bank and of Douglas Road and west of Grant Line called the Sunrise-Douglas Community creating 2.10 acres of vernal pool and Road. As part of the project, Plan. Three of the nine projects in the seasonal wetland habitat. The permittee approximately 2.0 acres of waters of the Sunridge Specific Plan area have been for this project is Cresleigh Homes. U.S., including wetlands, would be built. The Proposed Action is the 3. The Grantline 208 project received filled to construct 301 houses, construction of the remaining six a DA permit (ID: SPK–1994–00365) on roadways, and other infrastructure. The projects in the Specific Plan area. October 25, 2006. It is located on a 211- permittee proposes to preserve 44 acres Collectively, these six projects are acre site in the southeast corner of the of wetlands on-site. Compensatory referred to as the Sunridge Properties. intersection formed by Douglas Road mitigation identified in the DA permit The overall purpose of the action is to and Grant Line Road. As part of the but not yet implemented includes construct a large residential project, approximately 5.7 acres of restoring or creating 7.3 acres of vernal development, including supporting waters of the U.S., including wetlands, pool habitat and preserving 5.9 acres of infrastructure, in southeastern would be filled to construct 855 houses, vernal pool habitat off-site. Mitigation is Sacramento County, California. roadways, and other infrastructure. The expected to occur within Gill Ranch Between 2005 and 2007, the Corps permittee proposes to preserve 68.1 Open Space Preserve, a 10,400-acre completed Environmental Assessments, acres of wetlands within its property. preserve in eastern Sacramento County. made Findings of No Significant Impact, Compensatory mitigation identified in In the Biological Opinion, the USFWS and issued permits for five of the six the DA permit is the restoration and/or concluded that the project would Sunridge Specific Plan Projects. The creation of 6.2 acres of vernal pool directly affect 1.97 and indirectly affect permitted projects are Anatolia IV, habitat off-site. This action has not been 2.91 acres of vernal pool crustacean Sunridge Village J, Grantline 208, taken, but it is expected to occur within habitat. To mitigate for this loss, the Douglas Road 98, and Douglas Road the Gill Ranch Open Space Preserve, a USFWS directed the permittee to restore 103. A permit decision has not been 10,400-acre preserve in eastern 4.88 acres of vernal pool habitat. The rendered for the sixth of the Sunridge Sacramento County. The USFWS permittee for this project is Douglas Specific Plan Projects, Arista Del Sol. Biological Opinion concluded that the Grantline 103 Investors, LLC. 1. The Anatolia IV project received a project would adversely affect 6. The Arista del Sol project (ID: SPK– DA permit (ID: SPK–1994–00210) from approximately 5.55 acres directly and 2004–00458) is located on a 215-acre

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site south of Douglas Road and adjacent Dated: June 22, 2010. [email protected] or (703) to the west side of Grant Line Road. The Thomas C. Chapman, 604–7490. applicant proposes to fill approximately Colonel, Corps of Engineers, District Engineer. SUPPLEMENTARY INFORMATION: None. 13.9 acres of waters of the U.S., [FR Doc. 2010–16138 Filed 7–1–10; 8:45 am] including wetlands, to construct 906 BILLING CODE 3720–58–P Brenda S. Bowen, houses, roadways, and other Army Federal Register Liaison Officer. infrastructure. The permittee proposes [FR Doc. 2010–16136 Filed 7–1–10; 8:45 am] to preserve 42 acres of wetlands on-site. DEPARTMENT OF DEFENSE BILLING CODE 3710–08–P According to the Biological Opinion issued for the project, approximately 12 Department of the Army acres of wetland habitat would be DEPARTMENT OF DEFENSE created and 22.5 acres of wetland Army Science Board Plenary Meeting Department of the Navy habitat preservation would occur off- AGENCY: Department of the Army, DoD. site. Mitigation is expected to occur ACTION: Notice of open meeting. within Gill Ranch Open Space Preserve, Meetings of the Naval Research Advisory Committee a 10,400-acre preserve in eastern SUMMARY: Pursuant to the Federal Sacramento County. The applicant for Advisory Committee Act of 1972 (5 AGENCY: Department of the Navy, DoD. this project is Pappas Investments. U.S.C., Appendix, as amended), the The Draft EIS includes an evaluation Sunshine in the Government Act of ACTION: Notice of closed meetings. of a reasonable range of alternatives. 1976 (U.S.C. 552b, as amended) and 41 The Draft EIS considers several on-site Code of the Federal Regulations (CFR SUMMARY: The Naval Research Advisory and off-site alternatives. Three 102–3. 140 through 160, the Department Committee (NRAC) will meet from July alternatives were carried through for of the Army announces the following 19–23, 2010, and July 26–30, 2010, to detailed analysis: (1) The no action committee meeting: discuss materials presented at the NRAC alternative, (2) the proposed action (the Name of Committee: Army Science Summer Study. All sessions on applicants’ preferred projects), and (3) a Board (ASB). Monday, July 19, 2010, and the reduced footprint alternative. The no Date(s) of Meeting: July 21, 2010. Executive Sessions led by Panel Chair action alternative is limited to Time(s) of Meeting: 0800–1330. and Vice Chair from 8 a.m. to 8:30 a.m. development in uplands, avoiding all Location: Beckman Center, 100 on July 20–23, 2010, will be open to the waters of the United States. The reduced Academy, Irvine, CA 92617. public. The sessions from 8:30 a.m. to development footprint alternative Purpose: Adopt the findings and 5 p.m. on July 20–23, 2010, and all of involves less development with fewer recommendations for phase one of the the sessions on July 26–30, 2010, will be impacts to waters of the United States. following studies: Strengthening closed to the public. The closed sessions Comments on the Draft EIS must be Sustainability and Resiliency of a will be devoted to discussions and submitted to the Corps by August 15, Future Force, Tactical Non-cooperative technical examination of classified 2010. The public and affected Federal, Biometric Systems and Soldier information, For Official Use Only State, and local agencies, Native Resilience and Performance (FOUO) information, and vendor American Tribes, and other Sustainment. proprietary briefings related to the organizations and parties are invited to Purposed Agenda: study: ‘‘Status and Future of Naval comment. Electronic copies of the Draft Research & Development Enterprise.’’ Wednesday 21 July: EIS may be found on the Corps’ Web These closed session discussions will site at http://www.spk.usace.army.mil/ 0800–0930 Study results for assess the current technical core organizations/cespk-co/regulatory/EISs/ Strengthening Sustainability and competencies of the Warfare Centers EIS-index.html. A hard copy of the Draft Resiliency of a Future Force are employed by the Systems Commands EIS will be available for review at the presented to the ASB. The ASB (SYSCOMs) and Program Executive Corps office during normal business deliberates and votes to adopt the Offices (PEOs) (as well as the hours. To view the hard copy, please findings and recommendations on the stewardship provided for those contact Michael Jewell to schedule a first phase of the study. competencies and the technical core time to visit the Corps office. 0930–0945 Break. competencies that are provided by the The Corps will also hold two public 0945–1115 Study results for the Navy University Affiliated Research meetings for the Draft EIS. The meetings Tactical Non-Cooperative Biometric Centers (UARCs)); will consider the will be held on July 27, 2010, with the Systems are presented to the ASB. The technical quality of the workforce and first from 5 p.m. to 6 p.m. and the ASB deliberates and votes to adopt the physical infrastructure; will review second from 7 p.m. to 8 p.m. The findings and recommendations on the proprietary information regarding location of the meetings is at the Rancho first phase of the study. technology applications and systems Cordova City Hall, 2729 Prospect Park 1115–1200 Lunch Break for the ASB under development in the private sector Drive, American River Room—South, Members. between competing companies; will Rancho Cordova, CA 95670. Interested 1200–1330 Study results for Soldier assess emerging concepts of operations parties can provide oral and written Resilience and Performance in each of these areas and evaluate comments at these meetings. Sustainment are presented to the ASB. appropriate options in such areas as: In addition to notices in the Federal The ASB deliberates and votes to adopt Personnel, training, R&D funding Register, the Corps will issue public the findings and recommendations on allocation, technology monitoring, notices advising interested parties of the the first phase of the study. progress assessments, probable time availability of the Draft EIS and Final FURTHER INFORMATION CONTACT: For frames for transformation and EIS. Interested parties may register for information please contact Mr. Justin implementation; and will assess the Corps’ public notices at: http:// Bringhurst at challenges with the utilization and www.spk.usace.army.mil/organizations/ [email protected] or (703) fielding of various technology cespk-co/regulatory/pnlist.html. 604–7468 or Carolyn German at applications.

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DATES: All sessions on Monday, July 19, 875 North Randolph Street, Arlington, available. Members of the public 2010, and the Executive Sessions led by VA 22203–1955, 703–696–5775. wishing to attend this event must enter Panel Chair and Vice Chair from 8 a.m. SUPPLEMENTARY INFORMATION: Pursuant through the Pentagon’s Metro Entrance to 8:30 a.m. on July 20–23, 2010, will be to the provisions of the Federal between 7 a.m. to 7:30 a.m. where they open to the public. The sessions from Advisory Committee Act, as amended (5 will need two forms of identification in 8:30 a.m. to 5 p.m. on July 20–23, 2010, U.S.C. App.), the proprietary order to receive a visitors badge and and all of the sessions on July 26–30, information (to include trade secrets meet their escort. Members will then be 2010, will be closed to the public. and commercial and financial escorted to the N89 Conference Room to Public Access: The NRAC Summer information) and the classified attend the open sessions of the Advisory Study will be headquartered in the information (to include FOUO and Panel. Members of the public shall CLOUD ROOM at 53605 Hull Street, SECRET information) constitute remain with designated escorts at all Space and Naval Warfare Systems information that is exempt from times while on the Pentagon Center, San Diego, CA 92152–5410. disclosure to the public. Accordingly, Reservation. They will be escorted back Access instructions for the public: the Secretary of the Navy has to the Pentagon Metro Entrance at 12 1. If you are a non-US citizen, you determined in writing, in accordance p.m. unless prior coordination is made must submit a visit request by letter or with 5 U.S.C. App. 2, section 10(d), that to leave earlier. fax 619–553–2726 via your embassy to: the public interest requires that the FOR FURTHER INFORMATION CONTACT: SPAWARSYSCEN San Diego, CODE sessions from 8:30 a.m. to 5 p.m. on July Captain Jon Kaufmann, Designated 20352 (PL–TS), POC: Jackie Olson, 854, 20–23, 2010, and all of the sessions on Federal Officer, SECNAV Advisory 49275 Electron Dr., San Diego, CA July 26–30, 2010, be closed to the public Panel, Office of Program Appraisal 1000 92152–5435. because they will deal with the Navy Pentagon, Washington, DC 20350, Please indicate that you will be exempted matters listed in 5 U.S.C. 703–695–3032. attending the open sessions of the Naval section 552b(c)(1) and (4). Research Advisory Committee (NRAC) Dated: June 25, 2010. SUPPLEMENTARY INFORMATION: Pursuant Summer Study. H.E. Higgins, to the provisions of the Federal 2. If you are a U.S. government Advisory Committee Act (5 U.S.C. App. Lieutenant, Office of the Judge Advocate employee or an active military service General, U.S. Navy, Federal Register Liaison 2), these matters constitute classified member with a security clearance, Officer. information that is specifically please submit a Visit Request via JPAS [FR Doc. 2010–16129 Filed 7–1–10; 8:45 am] authorized by Executive Order to be to SPAWARS; UIC number 660015 or kept secret in the interest of national BILLING CODE 3810–FF–P fax it to 619–553–2726. POC is Ms. defense and are, in fact, properly Jackie Olson, Office 85400, 619–553– classified pursuant to such Executive 2722. DEPARTMENT OF DEFENSE Order. Accordingly, the SECNAV has 3. If you are a U.S. citizen with no determined in writing that the public security clearances, you will require an Department of the Navy interest requires that the sessions of this escort at all times while within meeting from 12 p.m. until 4:45 p.m. on SPAWAR’S facilities. Please submit a Meeting of the Secretary of the Navy July 21, 2010, be closed to the public Visit Request via e-mail or fax no later Advisory Panel because they will be concerned with than July 1, 2010, to: Mr. William Ellis, AGENCY: Department of the Navy, DoD. matters listed in section 552b(c)(1), of NRAC Program Director, Title 5, United States Code. ACTION: Notice of partially closed [email protected]; fax: 703–696– meeting. Individuals or interested groups may 4837 or Mr. Miguel Becerril, NRAC submit written statements for Program Manager, [email protected]; SUMMARY: The Secretary of the Navy consideration by the SECNAV Advisory fax: 703–696–4837. (SECNAV) Advisory Panel will Panel at any time or in response to the All guests must have at least two deliberate the findings and agenda of a scheduled meeting. All forms of government issued recommendations for the Department of requests must be submitted to the identification. Guests planning on the Navy’s Energy program and Asia/ Designated Federal Officer at the attending activities indicated above Pacific Engagement topic. address detailed below. must have submitted their respective DATES: The meeting will be held on July Visit Request per the above instructions. If the written statement is in response 21, 2010, from 8 a.m. to 4:45 p.m. to the agenda mentioned in this meeting If the guest requires an escort, he or she This meeting will be open to the must be present at the SPAWARS notice then the statement, if it is to be public from 8 a.m. until 12 p.m. on July considered by the Panel for this Visitor Center no later than 7 a.m. The 21, 2010, and the afternoon sessions Visitor Center is located at the entrance meeting, must be received at least five from 12 p.m. until 4:45 p.m. on July 21, days prior to the meeting in question. to the Space and Naval Warfare Center, 2010, will be closed to the public. 49275 Electron Drive, San Diego, CA. ADDRESSES: The meeting will be held at The Designated Federal Officer will Guests requiring escort will be greeted the Pentagon N89 Conference Room review all timely submissions with the by a member of the NRAC staff and (5E456). SECNAV Advisory Panel Chairperson, escorted to the site of the summer study. Access: Public access is limited due to and ensure they are provided to Escorted guests will be limited to only the Pentagon Security requirements. members of the SECNAV Advisory those areas related to the summer study Members of the public wishing to attend Panel before the meeting that is the activities. Escorted guests will be will need to contact Commander Cary subject of this notice. returned to the Visitor Center upon Knox at 703–693–0463 or Commander To contact the Designated Federal completion of the NRAC activities open Marc Gage at 703–695–3042 no later Officer, write to: Designated Federal to the public. than July 14, 2010, and provide their Officer, SECNAV Advisory Panel, Office FOR FURTHER INFORMATION CONTACT: Mr. Name, Date of Birth and Social Security of Program and Process Assessment William H. Ellis, Jr., Program Director, number. Public transportation is 1000 Navy Pentagon, Washington, DC Naval Research Advisory Committee, recommended as public parking is not 20350, 703–697–9154.

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Dated: June 25, 2010. and postsecondary programs for of accreditation standards, which H.E. Higgins, students with intellectual disabilities; workgroup must include— Lieutenant, Office of the Judge Advocate (2) Provide technical assistance (i) An expert in higher education; General, U.S. Navy, Federal Register Liaison regarding the development, evaluation, (ii) An expert in special education; Officer. and continuous improvement of such (iii) A disability organization that [FR Doc. 2010–16127 Filed 7–1–10; 8:45 am] programs; represents students with intellectual BILLING CODE 3810–FF–P (3) Develop a Department-approved disabilities; evaluation protocol for such programs (iv) A representative from the that includes qualitative and National Advisory Committee on Institutional Quality and Integrity; DEPARTMENT OF EDUCATION quantitative methodologies for measuring student outcomes and (v) A representative of a regional or national accreditation agency or Office of Postsecondary Education: program strengths in the areas of association; Overview Information; Coordinating academic enrichment, socialization, independent living, and competitive or (vi) An expert in inclusive Center for Transition and competitive employment for individuals Postsecondary Programs for Students supported employment, including whether students obtain gainful with disabilities; and With Intellectual Disabilities; Notice (vii) An expert in independent living Inviting Applications for New Awards employment in an integrated setting once they have received a credential; for individuals with disabilities. for Fiscal Year (FY) 2010 (11) Collaborate with existing centers (4) Assist recipients that have grants dedicated to helping individuals with Catalog of Federal Domestic authorized under the TPSID program in intellectual disabilities access Assistance (CFDA) Number: 84.407B. efforts to award a meaningful credential postsecondary education, such as the Dates: to students with intellectual disabilities Center for Postsecondary Education for Applications Available: July 2, 2010. upon the completion of such programs, Individuals with Intellectual Disabilities Deadline for Transmittal of which credential must take into funded by the U.S. Department of Applications: August 2, 2010. consideration unique State factors and Education, National Institute on meet criteria developed by the center Full Text of Announcement Disability and Rehabilitation Research and approved by the Department; (NIDRR), and the Consortium for I. Funding Opportunity Description (5) Develop recommendations for the Postsecondary Programs for Individuals necessary components of such Purpose of Program: The purpose of with Developmental Disabilities, a programs, such as— this program is to establish a National Training Initiative of the (i) Academic, vocational, social, and coordinating center for institutions of Administration on Developmental independent living skills; higher education that offer inclusive Disabilities (ADD), and any future (ii) Evaluation of student progress; comprehensive transition and centers dedicated to this issue. postsecondary programs for students (iii) Program administration and Applicable Statutory Definition: with intellectual disabilities, including evaluation; Comprehensive transition and institutions that have grants authorized (iv) Student eligibility; and postsecondary program for students under the Transition Programs for (v) Issues regarding the equivalency of with intellectual disabilities (section Students with Intellectual Disabilities a student’s participation in such 760(1) of the HEA). into Higher Education (TPSID) program programs to semester, trimester, quarter, The term ‘‘comprehensive transition (CFDA 84.407A) (www2.ed.gov/ credit, or clock hours at an institution and postsecondary program for students programs/tpsid/index.html). of higher education; with intellectual disabilities’’ means a Priority: We are establishing this (6) Analyze possible funding streams degree, certificate, or nondegree priority for the FY 2010 grant for such programs and provide program that meets each of the competition and any subsequent year in recommendations regarding the funding following: which we make awards from the list of streams; (A) Is offered by an institution of unfunded applicants from this (7) Develop model memoranda of higher education. competition, in accordance with section agreement for use between or among (B) Is designed to support students 437(d)(1) of the General Education institutions of higher education and with intellectual disabilities who are Provisions Act (GEPA), 20 U.S.C. State and local agencies providing seeking to continue academic, career 1232(d)(1). funding for such programs; and technical, and independent living Absolute Priority: This priority is an (8) Develop mechanisms for regular instruction at an institution of higher absolute priority. Under 34 CFR communication, outreach, and education in order to prepare for gainful 75.105(c)(3) we consider only dissemination of information about employment. applications that meet his priority. comprehensive transition and (C) Includes an advising and This priority is: postsecondary programs for students curriculum structure. A grant recipient must use grant funds with intellectual disabilities to those (D) Requires students with to establish a coordinating center for institutions that have grants authorized intellectual disabilities to participate on institutions of higher education that under the TPSID program and to not less than a half-time basis as offer inclusive comprehensive transition families and prospective students; determined by the institution, with such and postsecondary programs for (9) Host a meeting of all recipients of participation focusing on academic students with intellectual disabilities. grants authorized under the TPSID components, and occurring through one The coordinating center must provide program not less often than once each or more of the following activities: these programs with recommendations year; (i) Regular enrollment in credit- related to the development of standards, (10) Convene a workgroup to develop bearing courses with nondisabled technical assistance, and evaluations. and recommend model criteria, students offered by the institution. The coordinating center is required to: standards, and components of such (ii) Auditing or participating in (1) Serve as the technical assistance programs as described in paragraph (5) courses with nondisabled students entity for all comprehensive transition that are appropriate for the development offered by the institution for which the

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student does not receive regular Project Period: 60 months. references, and captions, as well as all academic credit. text in charts, tables, figures, and III. Eligibility Information (iii) Enrollment in noncredit-bearing, graphs. nondegree courses with nondisabled 1. Eligible Applicants: (a) Under • Use a font that is either 12-point or students. section 777(b)(1) of the HEA, an larger, or no smaller than 10 pitch (iv) Participation in internships or ‘‘eligible entity’’ means an entity, or a (characters per inch). work-based training in settings with partnership of entities, that has • Use one of the following fonts: nondisabled individuals. demonstrated expertise in the fields of— Times New Roman, Courier, Courier (E) Requires students with intellectual (1) Higher education; New, or Arial. Applications submitted disabilities to be socially and (2) The education of students with in any other font (including Times academically integrated with intellectual disabilities; Roman or Arial Narrow) will not be nondisabled students to the maximum (3) The development of accepted. extent possible. comprehensive transition and • Appendices are limited to the Waiver of Proposed Rulemaking: postsecondary programs for students following: Curriculum Vitae, letters of Under the Administrative Procedure Act with intellectual disabilities; and support, partnership agreements, (5 U.S.C. 553) the Department generally (4) Evaluation and technical memoranda of agreement, a offers interested parties the opportunity assistance. bibliography, and one additional to comment on proposed priorities and (b) In addition to the provisions in optional appendix relevant to the requirements. Section 437(d)(1) of the paragraph (a) of section III.1. Eligible support of the proposal, not to exceed GEPA, however, allows the Secretary to Applicants, an applicant must have five pages. exempt from rulemaking requirements experience in establishing, sustaining, The page limit does not apply to Part regulations governing the first grant or providing technical assistance to I, the Application for Federal Assistance competition under a new or comprehensive transition and (SF 424); the Supplemental Information substantially revised program authority. postsecondary programs. Form required by the Department of This is the first grant competition for 2. Cost Sharing or Matching: This Education; Part IV, the assurances and this program under section 777(b) of the competition does not require cost certifications; or the one-page abstract; Higher Education Act of 1965, as sharing or matching. or the appendices. The page limit also amended (HEA), 20 U.S.C. 1140q(b) and does not apply to the table of contents, therefore qualifies for this exemption. In IV. Application and Submission Information if you include one. However, you must order to ensure timely grant awards, the include all of the application narrative Secretary has decided to forego public 1. Address To Request Application in Part III. comment on the priority and the Package: Shedita Alston, Teacher and We will reject your application if you requirement in paragraph (b) under Student Development Programs Service, exceed the page limit. section III.1. Eligible Applicants. This U.S. Department of Education, 1990 K 3. Submission Dates and Times: priority and requirement will apply to Street, NW., Room 6131, Washington, Applications Available: July 2, 2010. the FY 2010 grant competition and any DC 20006–8524. Telephone (202) 502– Deadline for Transmittal of subsequent year in which we make 7808 or by e-mail: Applications: August 2, 2010. awards from the list of unfunded [email protected]. Applications for grants under this applicants from this competition. If you use a telecommunications program must be submitted Program Authority: 20 U.S.C. device for the deaf (TDD), call the electronically using the Electronic Grant 1140q(b). Federal Relay Service (FRS), toll free, at Application System (e-Application) Applicable Regulations: The 1–800–877–8339. accessible through the Department’s e- Education Department General Individuals with disabilities can Grants site. For information (including Administrative Regulations (EDGAR) in obtain a copy of the application package dates and times) about how to submit 34 CFR parts 74, 75, 77, 79, 82, 84, 85, in an accessible format (e.g., Braille, your application electronically, or in 86, 97, 98, and 99. large print, audiotape, or computer paper format by mail or hand delivery Note: The regulations in 34 CFR part 79 diskette) by contacting the program if you qualify for an exception to the apply to all applicants except Federally contact person listed in this section. electronic submission requirement, recognized Indian tribes. 2. Content and Form of Application please refer to section IV.7. Other Submission: Requirements concerning Submission Requirements of this notice. Note: The regulations in 34 CFR part 86 the content of an application, together We do not consider an application apply to institutions of higher education with the forms you must submit, are in that does not comply with the deadline only. the application package for this requirements. program. Individuals with disabilities who II. Award Information Page Limit: The application narrative need an accommodation or auxiliary aid Type of Award: Cooperative (Part III of the application) is where you, in connection with the application Agreement. the applicant, address the selection process should contact the person listed Estimated Available Funds: $330,000. criteria that reviewers use to evaluate under FOR FURTHER INFORMATION Maximum Award: We will reject any your application. You must limit the CONTACT in section VII of this notice. If application that proposes a budget application narrative (Part III) to no the Department provides an exceeding $330,000 for a single budget more than 70 pages, using the following accommodation or auxiliary aid to an period of 12 months. The Assistant standards: individual with a disability in Secretary for Postsecondary Education • A ‘‘page’’ is 8.5″ x 11″, on one side connection with the application may change the maximum amount only, with 1″ margins at the top, bottom, process, the individual’s application through a notice published in the and both sides. remains subject to all other Federal Register. • Double space (no more than three requirements and limitations in this Estimated Number of Awards: 1. lines per vertical inch) all text in the notice. Note: The Department is not bound by any application narrative, including titles, 4. Intergovernmental Review: This estimates in this notice. headings, footnotes, quotations, program is subject to Executive Order

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12372 and the regulations in 34 CFR Applications for grants under the Education Supplemental Information for part 79. Information about Coordinating Center CFDA 84.407B SF 424, Budget Information—Non- Intergovernmental Review of Federal must be submitted electronically using Construction Programs (ED 524), and all Programs under Executive Order 12372 e-Application, accessible through the necessary assurances and certifications. is in the application package for this Department’s e-Grants Web site at: You must attach any narrative sections program. http://e-grants.ed.gov, unless you of your application as files in a .DOC 5. Funding Restrictions: We specify qualify for an exception to this (document), .RTF (rich text), or .PDF unallowable costs in 34 CFR part 75. We requirement in accordance with the (Portable Document) format. If you reference additional regulations instructions in this section. upload a file type other than the three outlining funding restrictions in the We will reject your application if you file types specified in this paragraph or Applicable Regulations section of this submit it in paper format unless, as submit a password protected file, we notice. described elsewhere in this section, you will not review that material. 6. Data Universal Numbering System qualify for one of the exceptions to the • Your electronic application must Number, Taxpayer Identification electronic submission requirement and comply with any page limit Number, and Central Contractor submit, no later than two weeks before requirements described in this notice. Registry: To do business with the the application deadline date, a written • Prior to submitting your electronic Department of Education, (1) you must statement to the Department that you application, you may wish to print a have a Data Universal Numbering qualify for one of these exceptions. copy of it for your records. System (DUNS) number and a Taxpayer Further information regarding • After you electronically submit Identification Number (TIN); (2) you calculation of the date that is two weeks your application, you will receive an must register both of those numbers before the application deadline date is automatic acknowledgment that will with the Central Contractor Registry provided later in this section under include a PR/Award number (an (CCR), the Government’s primary Exception to Electronic Submission identifying number unique to your registrant database; and (3) you must Requirement. application). provide those same numbers on your While completing your electronic • Within three working days after application. application, you will be entering data submitting your electronic application, You can obtain a DUNS number from online that will be saved into a fax a signed copy of the SF 424 to the Dun and Bradstreet. A DUNS number database. You may not e-mail an Application Control Center after can be created within one business day. electronic copy of a grant application to following these steps: If you are a corporate entity, agency, us. (1) Print SF 424 from e-Application. institution, or organization, you can Please note the following: (2) The applicant’s Authorizing obtain a TIN from the Internal Revenue • You must complete the electronic Representative must sign this form. Service. If you are an individual, you submission of your Grant application by (3) Place the PR/Award number in the can obtain a TIN from the Internal 4:30:00 p.m., Washington, DC time, on upper right hand corner of the hard- Revenue Service or the Social Security the application deadline date. E- copy signature page of the SF 424. Administration. If you need a new TIN, Application will not accept an (4) Fax the signed SF 424 to the please allow 2–5 weeks for your TIN to application for this program after Application Control Center at (202) become active. 4:30:00 p.m., Washington, DC time, on 245–6272. The CCR registration process may take the application deadline date. • We may request that you provide us five or more business days to complete. Therefore, we strongly recommend that original signatures on other forms at a If you are currently registered with the you do not wait until the application later date. CCR, you may not need to make any deadline date to begin the application Application Deadline Date Extension changes. However, please make certain process. in Case of e-Application Unavailability: that the TIN associated with your DUNS • The hours of operation of the e- If you are prevented from electronically number is correct. Also note that you Grants Web site are 6:00 a.m. Monday submitting your application on the will need to update your CCR until 7:00 p.m. Wednesday; and 6:00 application deadline date because e- registration on an annual basis. This a.m. Thursday until 8:00 p.m. Sunday, Application is unavailable, we will may take three or more business days to Washington, DC time. Please note that, grant you an extension of one business complete. because of maintenance, the system is day to enable you to transmit your In addition, if you are submitting your unavailable between 8:00 p.m. on application electronically, by mail, or by application via www.http://Grants.gov, Sundays and 6:00 a.m. on Mondays, and hand delivery. We will grant this you must: (1) Be designated by your between 7:00 p.m. on Wednesdays and extension if— organization as an Authorized 6:00 a.m. on Thursdays, Washington, (1) You are a registered user of e- Organization Representative (AOR); and DC time. Any modifications to these Application and you have initiated an (2) register yourself with Grants.gov as hours are posted on the e-Grants Web electronic application for this an AOR. Details on these steps are site. competition; and outlined in the Grants.gov 3-Step • You will not receive additional (2)(a) E-Application is unavailable for Registration Guide (see http://www. point value because you submit your 60 minutes or more between the hours grants.gov/section910/ application in electronic format, nor of 8:30 a.m. and 3:30 p.m., Washington, Grants.govRegistrationBrochure.pdf). will we penalize you if you qualify for DC time, on the application deadline 7. Other Submission Requirements: an exception to the electronic date; or Applications for grants under this submission requirement, as described (b) E-Application is unavailable for program must be submitted elsewhere in this section, and submit any period of time between 3:30 p.m. electronically unless you qualify for an your application in paper format. and 4:30:00 p.m., Washington, DC time, exception to this requirement in • You must submit all documents on the application deadline date. accordance with the instructions in this electronically, including all information We must acknowledge and confirm section. you typically provide on the following these periods of unavailability before a. Electronic Submission of forms: The Application for Federal granting you an extension. To request Applications. Assistance (SF 424), the Department of this extension or to confirm our

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acknowledgment of any system Level 1, 400 Maryland Avenue, SW., V. Application Review Information unavailability, you may contact either: Washington, DC 20202–4260. Selection Criteria: The selection (1) The person listed elsewhere in this You must show proof of mailing criteria for this program are from 34 CFR notice under For Further Information consisting of one of the following: 75.210 and are listed in the application Contact (see VII. Agency Contact) or; (2) (1) A legibly dated U.S. Postal Service package. the e-Grants help desk at 1–888–336– postmark. VI. Award Administration Information 8930. If e-Application is unavailable (2) A legible mail receipt with the due to technical problems with the date of mailing stamped by the U.S. 1. Award Notices: If your application system and, therefore, the application Postal Service. is successful, we notify your U.S. deadline is extended, an e-mail will be (3) A dated shipping label, invoice, or Representative and U.S. Senators and sent to all registered users who have receipt from a commercial carrier. send you a Grant Award Notification initiated an e-Application. Extensions (4) Any other proof of mailing (GAN). We may notify you informally, referred to in this section apply only to also. the unavailability of e-Application. acceptable to the Secretary of the U.S. Department of Education. If your application is not evaluated or Exception to Electronic Submission not selected for funding, we will notify If you mail your application through Requirement: You qualify for an you. the U.S. Postal Service, we do not exception to the electronic submission 2. Administrative and National Policy accept either of the following as proof requirement, and may submit your Requirements: We identify of mailing: application in paper format if you are administrative and national policy unable to submit an application through (1) A private metered postmark. requirements in the application package e-Application because— (2) A mail receipt that is not dated by and reference these and other • You do not have access to the the U.S. Postal Service. requirements in the Applicable Internet; or If your application is postmarked after Regulations section of this notice. • You do not have the capacity to the application deadline date, we will We reference the regulations outlining upload large documents to e- not consider your application. the terms and conditions of an award in Application; and Note: The U.S. Postal Service does not the Applicable Regulations section of • No later than two weeks before the uniformly provide a dated postmark. Before this notice and include these and other application deadline date (14 calendar relying on this method, you should check specific conditions in the GAN. The days or, if the fourteenth calendar day with your local post office. GAN also incorporates your approved before the application deadline date c. Submission of Paper Applications application as part of your binding falls on a Federal holiday, the next by Hand Delivery. commitments under the grant. business day following the Federal 3. Reporting: At the end of the project If you qualify for an exception to the holiday), you mail or fax a written period, a grantee must submit a final electronic submission requirement, you statement to the Department, explaining performance report, including financial (or a courier service) may deliver your which of the two grounds for an information, as directed by the Secretary paper application to the Department by exception prevents you from using the under 34 CFR 75.118. The Secretary hand. You must deliver the original and Internet to submit your application. If may also require more frequent two copies of your application, by hand, you mail your written statement to the performance reports under 34 CFR on or before the application deadline Department, it must be postmarked no 75.720(c). In addition, not later than five date, to the Department at the following later than two weeks before the years after the date of the establishment address: U.S. Department of Education, application deadline date. If you fax of the coordinating center, the Application Control Center, Attention: your written statement to the coordinating center must report to the (CFDA Number 84.407B), 550 12th Department, we must receive the faxed Secretary, the Congressional authorizing Street, SW., Room 7041, Potomac Center statement no later than two weeks committees, and the National Advisory Plaza, Washington, DC 20202–4260. before the application deadline date. Committee on Institutional Quality and Address and mail or fax your The Application Control Center accepts Integrity on the recommendations of the statement to: Shedita Alston, U.S. hand deliveries daily between 8 a.m. workgroup described in the absolute Department of Education, 1990 K Street, and 4:30 p.m., Washington, DC time, priority of this notice. For specific NW., room 6131, Washington, DC except Saturdays, Sundays, and Federal requirements on reporting, please go to 20006–8524. Fax: (202) 502–7675. holidays. Note for Mail or Hand Delivery http://www2.ed.gov/fund/grant/apply/ Your paper application must be of Paper Applications: If you mail or appforms/appforms.html. submitted in accordance with the mail hand deliver your application to the 4. Performance Measures: The or hand delivery instructions described Department— Government Performance and Results in this notice. (1) You must indicate on the envelope Act (GPRA) of 1993 directs Federal b. Submission of Paper Applications and—if not provided by the departments and agencies to improve by Mail. Department—in Item 11 of the SF 424 the effectiveness of their programs by If you qualify for an exception to the the CFDA number, including suffix engaging in strategic planning, setting electronic submission requirement, you letter, if any, of the competition under outcome-related goals for programs, and may mail (through the U.S. Postal which you are submitting your measuring program results against those Service or a commercial carrier) your application; and goals. The goal of the Coordinating application to the Department. You (2) The Application Control Center Center Program is to provide: (A) must mail the original and two copies will mail to you a notification of receipt Recommendations related to the of your application, on or before the of your grant application. If you do not development of standards for inclusive application deadline date, to the receive this grant notification within 15 comprehensive transition and Department at the following address: business days from the application postsecondary programs for students U.S. Department of Education, deadline date, you should call the U.S. with intellectual disabilities; (B) Application Control Center, Attention: Department of Education Application technical assistance for such programs; (CFDA Number 84.407B), LBJ Basement Control Center at (202) 245–6288. and (C) evaluations for such programs.

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To assess the success of the grantee in DEPARTMENT OF EDUCATION fedregister. To use PDF you must have meeting these goals, in addition to other Adobe Acrobat Reader, which is information, the grantee’s annual Office of Special Education and available free at this site. Rehabilitative Services; Personnel performance report must include— Note: The official version of this document (1) The percentage of recipients that Development to Improve Services and is the document published in the Federal have grants authorized under the TPSID Results for Children with Disabilities Register. Free Internet access to the official program that meet Department- edition of the Federal Register and the Code approved, center-developed standards Catalog of Federal Domestic Assistance of Federal Regulations is available on GPO for necessary program components, (CFDA) Number: 84.325D, 84.325K, and Access at: http://www.gpoaccess.gov/nara/ reported across each standard; and 84.325T. index.html. (2) The percentage of students with AGENCY: Department of Education. Dated: June 25, 2010. intellectual disabilities who are enrolled ACTION: Notice inviting applications for in programs funded under TPSID who new awards for fiscal year (FY) 2010; Alexa Posny, complete the programs and obtain a correction. Assistant Secretary for Special Education and meaningful credential, as defined by the Rehabilitative Services. SUMMARY: On June 14, 2010, we center and approved by the Department. [FR Doc. 2010–16204 Filed 7–1–10; 8:45 am] published in the Federal Register (75 BILLING CODE 4000–01–P VII. Agency Contact FR 33593) a notice inviting applications For Further Information Contact: for new awards for FY 2010 under Shedita Alston, U.S. Department of certain Personnel Development to DEPARTMENT OF EDUCATION Education, Teacher and Student Improve Services and Results for Development Programs Service, 1990 K Children with Disabilities competitions Office of Postsecondary Education; Street, NW., Room 6131, Washington, authorized under the Individuals with Overview Information Training for DC 20006–8524. Telephone: (202) 502– Disabilities Education Act. We are Realtime Writers; Notice Inviting 7808 or by e-mail: correcting the use of the word ‘‘scholar’’ Applications for New Awards for Fiscal [email protected]. in the Special Education Preservice Year (FY) 2010 If you use a TDD, call the FRS, toll Program Improvement Grants (84.325T) priority in the notice published on June Catalog of Federal Domestic Assistance free, at 1–800–877–8339. (CFDA) Number: 84.116K. 14, 2010 (75 FR 33599–33601) because VIII. Other Information scholars, as defined in 34 CFR 304.3(g), Dates: Applications Available: July 2, Accessible Format: Individuals with receive scholarship assistance while, 2010. disabilities can obtain this document under this priority, financial support is Deadline for Transmittal of and a copy of the application package in not available to students during any Applications: August 2, 2010. an accessible format (e.g., Braille, large year of the project. Full Text of Announcement print, audiotape, or computer diskette) On page 33600, third column, I. Funding Opportunity Description on request to the program contact paragraphs (a)(6)(i) and (a)(6)(ii), we person listed under FOR FURTHER remove the word ‘‘scholars’’ and replace Purpose of Program: The objective of INFORMATION CONTACT in section VII of it with the term ‘‘program graduates’’. In this program is to provide grants to this notice. addition, on page 33600, third column, institutions of higher education (IHEs) Electronic Access to This Document: we remove footnote number 22 that that meet certain qualifications to You can view this document, as well as defines ‘‘scholar’’. And finally, on page promote training and placement of all other documents of this Department 33600, third column, paragraph (b)(2), individuals, including individuals who published in the Federal Register, in and page 33601, first column, paragraph have completed a court reporting text or Adobe Portable Document (g), we remove the word ‘‘scholars’’ and training program, as realtime writers in Format (PDF) on the Internet at the replace it with the term ‘‘students’’. order to meet the requirements for following site: www.ed.gov/news/ FOR FURTHER INFORMATION CONTACT: Tina closed captioning of video programming fedregister. To use PDF you must have Diamond, U.S. Department of set forth in section 713 of the Adobe Acrobat Reader, which is Education, 400 Maryland Avenue, SW., Communications Act of 1934 (47 U.S.C. available free at this site. room 4094, Potomac Center Plaza, 613) and the rules prescribed Note: The official version of this document Washington, DC 20202–2600. thereunder. is the document published in the Federal Telephone: (202) 245–6674. Priority: In accordance with 34 CFR Register. Free Internet access to the official If you use a telecommunications 75.105(b)(2)(iv), this priority is from edition of the Federal Register and the Code device for the deaf (TDD), call the section 872(a)(3) of the Higher of Federal Regulations is available on GPO Federal Relay Service (FRS), toll-free, at Education Act of 1965, as amended Access at: http://www.gpoaccess.gov/nara/ 1–800–877–8339. (HEA). index.html. Accessible Format: Individuals with Absolute Priority: For FY 2010 and Delegation of Authority: The Secretary disabilities can obtain this document in any subsequent year in which we make of Education has delegated authority to an accessible format (e.g., braille, large awards from the list of unfunded Daniel T. Madzelan, Director, print, audiotape, or computer diskette) applicants from this competition, this Forecasting and Policy Analysis for the on request to the contact person listed priority is an absolute priority. Under 34 Office of Postsecondary Education to under the FOR FURTHER INFORMATION CFR 75.105(c)(3) we consider only perform the functions of the Assistant CONTACT section of this notice. applications that meet this priority. Secretary for Postsecondary Education. Electronic Access to This Document: Applicants must: (1) Demonstrate You can view this document, as well as they possess the most substantial Dated: June 29, 2010. all other documents of this Department capability to increase their capacity to Daniel T. Madzelan, published in the Federal Register, in train realtime writers; (2) demonstrate Director, Forecasting and Policy Analysis. text or Adobe Portable Document they have undertaken the most [FR Doc. 2010–16186 Filed 7–1–10; 8:45 am] Format (PDF) on the Internet at the promising collaboration with BILLING CODE 4000–01–P following site: www.ed.gov/news/ educational institutions, businesses,

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labor organizations, or other community include a supplement-not-supplant • Use one of the following fonts: groups having the potential to train or requirement. Under section 872(c)(4) of Times New Roman, Courier, Courier provide job placement assistance to the HEA, grant amounts awarded under New, or Arial. An application submitted realtime writers; or (3) propose this program must supplement and not in any other font (including Times promising and innovative approaches supplant other Federal or non-Federal Roman or Arial Narrow) will not be for initiating or expanding training or funds of the grant recipient for purposes accepted. job placement assistance efforts with of promoting the training and placement The page limit does not apply to Part respect to realtime writers. of individuals as realtime writers. I, the cover sheet; Part II, the budget An eligible entity receiving a grant section, including the narrative budget IV. Application and Submission must use the grant funds for purposes justification; Part IV, the assurances and Information relating to the recruitment, training and certifications; the table of contents; the assistance, and job placement of 1. Address to Request Application one page abstract, the resumes, the individuals, including individuals who Package: You can obtain an application bibliography, or citation list, letters of have completed a court reporting package via the Internet or from the partners’ or other collaborators’ training program, as realtime writers, Education Publications Center (ED commitment, or letters from including: (1) Recruitment; (2) the Pubs). To obtain a copy via the Internet, institutional administrators that provision of scholarships (subject to the use the following address: http:// document the applicant’s existing work requirements in section 872(c)(2) of the e-grants.ed.gov/fund/grant/apply/ study program. HEA); (3) distance learning; (4) further grantapps/index.html. To obtain a copy We will reject your application if you developing and implementing both from ED Pubs, write, fax, or call the exceed the page limit. English and Spanish curricula to more following: ED Pubs, U.S. Department of 3. Submission Dates and Times: effectively train individuals in realtime Education, P.O. Box 22207, Alexandria, Applications Available: July 2, 2010. writing skills, and the knowledge VA 22304. Telephone, toll free: 1–877– Deadline for Transmittal of necessary for the delivery of high 433–7827. FAX: (703) 605–6794. If you Applications: August 2, 2010. Applications for grants under this quality closed captioning services; (5) use a telecommunications device for the program competition must be submitted mentoring students to ensure successful deaf (TDD), call toll free: 1–877–576– electronically using the Electronic Grant completion of the realtime training and 7734. Application System (e-Application) providing assistance in job placement; You can contact ED Pubs at its Web accessible through the Department’s e- (6) encouraging individuals with site, also: http://www.edpubs.gov/ or at Grants site. For information (including disabilities to pursue a career in its e-mail address: [email protected]. dates and times) about how to submit realtime writing; and (7) the If you request an application from ED your application electronically, or in employment and payment of personnel Pubs, be sure to identify this program or paper format by mail or hand delivery for the purposes described. competition as follows: CFDA number if you qualify for an exception to the Program Authority: 20 U.S.C. 1161s. 84.116K. electronic submission requirement, Applicable Regulations: The Individuals with disabilities can please refer to Section IV. 7. Other Education Department General obtain a copy of the application package Administrative Regulations (EDGAR) in Submission Requirements of this notice. in an accessible format (e.g., braille, We do not consider an application 34 CFR parts 74, 75, 77, 79, 80, 82, 84, large print, audiotape, or computer that does not comply with the deadline 85, 86, 97, 98, and 99. diskette) by contacting the person or requirements. II. Award Information team listed under FOR FURTHER Individuals with disabilities who INFORMATION CONTACT in Section VII of need an accommodation or auxiliary aid Type of Award: Discretionary grants. this notice. in connection with the application Estimated Available Funds: $990,000. 2. Content and Form of Application Estimated Range of Awards: process should contact the person listed Submission: Requirements concerning FOR FURTHER INFORMATION $200,000–$300,000. under the content of an application, together CONTACT in Section VII of this notice. If Estimated Average Size of Awards: with the forms you must submit, are in $250,000 for the entire performance the Department provides an the application package for this program accommodation or auxiliary aid to an period. competition. Page Limit: The Estimated Number of Awards: 4. individual with a disability in application narrative (Part III of the connection with the application application) is where you, the applicant, process, the individual’s application Note: The Department is not bound by any address the selection criteria that remains subject to all other estimates in this notice. reviewers use to evaluate your requirements and limitations in this Project Period: Up to 60 months. application. You must limit the notice. application narrative to the equivalent 4. Intergovernmental Review: This III. Eligibility Information and Program of no more than 15 pages, using the competition is subject to Executive Requirements following standards: Order 12372 and the regulations in 34 1. Eligible Applicants: An IHE that • A ‘‘page’’ is 8.5″ x 11″, on one side CFR part 79. Information about offers a court reporting program that: (1) only, with 1″ margins at the top, bottom, Intergovernmental Review of Federal Has a curriculum capable of training and both sides. Programs under Executive Order 12372 realtime writers qualified to provide • Double space (no more than three is in the application package for this captioning services; (2) is accredited by lines per vertical inch) all text in the program competition. an accrediting agency or association application narrative, except titles, 5. Funding Restrictions: Under section recognized by the Secretary; and (3) is headings, footnotes, quotations, 872(c)(3) of the HEA, a grantee under participating in student aid programs references, and captions, as well as all this program may not use more than five under Title IV of the HEA. text in charts, tables, figures and graphs. percent of the grant amount to pay 2. Cost Sharing or Matching: This • Use a font that is either 12 point or administrative costs associated with program does not require cost sharing or larger, or no smaller than 10 pitch activities funded by the grant. We matching. However, the program does (characters per inch). reference regulations outlining

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additional funding restrictions in the Exception to Electronic Submission identifying number unique to your Applicable Regulations section of this Requirement. application). notice. While completing your electronic • Within three working days after 6. Data Universal Numbering System application, you will be entering data submitting your electronic application, Number, Taxpayer Identification online that will be saved into a fax a signed copy of the SF 424 to the Number, and Central Contractor database. You may not e-mail an Application Control Center after Registry: To do business with the electronic copy of a grant application to following these steps: Department of Education, (1) you must us. (1) Print SF 424 from e-Application. have a Data Universal Numbering Please note the following: • (2) The applicant’s Authorizing System (DUNS) number and a Taxpayer You must complete the electronic Representative must sign this form. Identification Number (TIN); (2) you submission of your grant application by (3) Place the PR/Award number in the must register both of those numbers 4:30:00 p.m., Washington, DC time, on upper right hand corner of the hard- with the Central Contractor Registry the application deadline date. copy signature page of the SF 424. (CCR), the Government’s primary E-Application will not accept an (4) Fax the signed SF 424 to the registrant database; and (3) you must application for this program Application Control Center at (202) provide those same numbers on your competition after 4:30:00 p.m., 245–6272. application. Washington, DC time, on the • We may request that you provide us You can obtain a DUNS number from application deadline date. Therefore, we original signatures on other forms at a Dun and Bradstreet. A DUNS number strongly recommend that you do not later date. can be created within one business day. wait until the application deadline date Application Deadline Date Extension If you are a corporate entity, agency, to begin the application process. in Case of e-Application Unavailability: institution, or organization, you can • The hours of operation of the e- If you are prevented from electronically obtain a TIN from the Internal Revenue Grants Web site are 6:00 a.m. Monday submitting your application on the Service. If you are an individual, you until 7:00 p.m. Wednesday; and 6:00 application deadline date because e- can obtain a TIN from the Internal a.m. Thursday until 8:00 p.m. Sunday, Application is unavailable, we will Revenue Service or the Social Security Washington, DC time. Please note that, grant you an extension of one business Administration. If you need a new TIN, because of maintenance, the system is day to enable you to transmit your please allow 2–5 weeks for your TIN to unavailable between 8:00 p.m. on application electronically, by mail, or by become active. Sundays and 6:00 a.m. on Mondays, and hand delivery. We will grant this The CCR registration process may take between 7:00 p.m. on Wednesdays and extension if— five or more business days to complete. 6:00 a.m. on Thursdays, Washington, If you are currently registered with the DC time. Any modifications to these (1) You are a registered user of e- CCR, you may not need to make any hours are posted on the e-Grants Web Application and you have initiated an changes. However, please make certain site. electronic application for this that the TIN associated with your DUNS • You will not receive additional competition; and number is correct. Also note that you point value because you submit your (2) (a) E-Application is unavailable for will need to update your CCR application in electronic format, nor 60 minutes or more between the hours registration on an annual basis. This will we penalize you if you qualify for of 8:30 a.m. and 3:30 p.m., Washington, may take three or more business days to an exception to the electronic DC time, on the application deadline complete. submission requirement, as described date; or 7. Other Submission Requirements: elsewhere in this section, and submit (b) E-Application is unavailable for Applications for grants under this your application in paper format. any period of time between 3:30 p.m. competition must be submitted • You must submit all documents and 4:30:00 p.m., Washington, DC time, electronically unless you qualify for an electronically, including all information on the application deadline date. exception to this requirement in you typically provide on the following We must acknowledge and confirm accordance with the instructions in this forms: The Application for Federal these periods of unavailability before section. Assistance (SF 424), the Department of granting you an extension. To request a. Electronic Submission of Education Supplemental Information for this extension or to confirm our Applications. SF 424, Budget Information—Non- acknowledgment of any system Applications for grants under the Construction Programs (ED 524), and all unavailability, you may contact either Training for Realtime Writers Program— necessary assurances and certifications. (1) the person listed elsewhere in this CFDA number 84.116K—must be You must attach any narrative sections notice under For Further Information submitted electronically using e- of your application as files in a .DOC Contact (See VII. Agency Contact) or (2) Application, accessible through the (document), .RTF (rich text), or .PDF the e-Grants help desk at 1–888–336– Department’s e-Grants Web site at: (Portable Document) format. If you 8930. If e-Application is unavailable http://e-grants.ed.gov. upload a file type other than the three due to technical problems with the We will reject your application if you file types specified in this paragraph or system and, therefore, the application submit it in paper format unless, as submit a password protected file, we deadline is extended, an e-mail will be described elsewhere in this section, you will not review that material. sent to all registered users who have qualify for one of the exceptions to the • Your electronic application must initiated an e-Application. Extensions electronic submission requirement and comply with any page limit referred to in this section apply only to submit, no later than two weeks before requirements described in this notice. the unavailability of e-Application. the application deadline date, a written • Prior to submitting your electronic Exception to Electronic Submission statement to the Department that you application, you may wish to print a Requirement: You qualify for an qualify for one of these exceptions. copy of it for your records. exception to the electronic submission Further information regarding • After you electronically submit requirement and may submit your calculation of the date that is two weeks your application, you will receive an application in paper format, if you are before the application deadline date is automatic acknowledgment that will unable to submit an application through provided later in this section under include a PR/Award number (an e-Application because—

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• You do not have access to the If your application is postmarked after VI. Award Administration Information Internet; or the application deadline date, we will • 1. Award Notices: If your application You do not have the capacity to not consider your application. is successful, we notify your U.S. upload large documents to e- Note: The U.S. Postal Service does not Representative and U.S. Senators and Application; and uniformly provide a dated postmark. Before • send you a Grant Award Notification No later than two weeks before the relying on this method, you should check (GAN). We may notify you informally, application deadline date (14 calendar with your local post office. also. days; or, if the fourteenth calendar day c. Submission of Paper Applications If your application is not evaluated or before the application deadline date by Hand Delivery. not selected for funding, we will notify falls on a Federal holiday, the next If you qualify for an exception to the you. business day following the Federal 2. Administrative and National Policy holiday), you mail or fax a written electronic submission requirement, you (or a courier service) may deliver your Requirements: We identify statement to the Department, explaining administrative and national policy which of the two grounds for an paper application to the Department by hand. You must deliver the original and requirements in the application package exception prevents you from using the and reference these and other Internet to submit your application. If two copies of your application, by hand, on or before the application deadline requirements in the Applicable you mail your written statement to the Regulations section of this notice. Department, it must be postmarked no date, to the Department at the following address: Department of Education, We reference the regulations outlining later than two weeks before the the terms and conditions of an award in application deadline date. If you fax Application Control Center, Attention: CFDA Number 84.116K, 550 12th Street, the Applicable Regulations section of your written statement to the this notice and include these and other Department, we must receive the faxed SW., Room 7041, Potomac Center Plaza, Washington, DC 20202–4260. specific conditions in the GAN. The statement no later than two weeks GAN also incorporates your approved The Application Control Center before the application deadline date. application as part of your binding accepts hand deliveries daily between Address and mail or fax your commitments under the grant. statement to: Erin Marie McDermott, 8:00 a.m. and 4:30:00 p.m., Washington, 3. Reporting: At the end of your U.S. Department of Education, 1990 K DC time, except Saturdays, Sundays, project period, you must submit a final Street, NW., room 6142, Washington, and Federal holidays. performance report, including financial DC 20006–8544. FAX: (202) 502–7877. Note for Mail or Hand Delivery of Paper information and, as required under Your paper application must be Applications: If you mail or hand deliver section 872(d) of the HEA and as submitted in accordance with the mail your application to the Department— directed by the Secretary, (1) an or hand delivery instructions described (1) You must indicate on the envelope assessment of the effectiveness of and—if not provided by the Department—in in this notice. activities carried out using such funds b. Submission of Paper Applications Item 11 of the SF 424 the CFDA number, including suffix letter, if any, of the in increasing the number of realtime by Mail. competition under which you are submitting writers, using the performance measures If you qualify for an exception to the your application; and submitted in the application for the electronic submission requirement, you (2) The Application Control Center will grant; and (2) a description of the best may mail (through the U.S. Postal mail to you a notification of receipt of your practices identified for increasing the Service or a commercial carrier) your grant application. If you do not receive this number of individuals who are trained, application to the Department. You grant notification within 15 business days employed, and retained in employment must mail the original and two copies from the application deadline date, you as realtime writers. The Secretary may should call the U.S. Department of Education of your application, on or before the also require more frequent performance application deadline date, to the Application Control Center at (202) 245– 6288. reports under 34 CFR 75.720(c). For Department at the following address: specific requirements on reporting, Department of Education, Application V. Application Review Information please go to: http://www.ed.gov/fund/ Control Center, Attention: (CFDA grant/apply/appforms/appforms.html. Number 84.116K) LBJ Basement Level 1, 1. Selection Criteria: The selection 4. Performance Measures: Under the 400 Maryland Avenue, SW., criteria for this program are from 34 CFR Government Performance and Results Washington, DC 20202–4260. 75.210. Additional information Act (GPRA), the following measure will You must show proof of mailing regarding these criteria is in the be used by the Department in assessing consisting of one of the following: application package for this the performance of the Training for (1) A legibly dated U.S. Postal Service competition. Realtime Writers Program: The number postmark. 2. Review and Selection Process: of participants who have completed the (2) A legible mail receipt with the Additional factors we consider in program who are employed as realtime date of mailing stamped by the U.S. selecting an application for an award are writers. Postal Service. as follows. In making grant awards for If funded, you will be asked to collect (3) A dated shipping label, invoice, or this program, the Department will and report data on these measures in receipt from a commercial carrier. consider information concerning the your project’s annual performance (4) Any other proof of mailing applicant’s performance and use of report (34 CFR 75.590). acceptable to the Secretary of the U.S. funds under a previous award under Department of Education. any Department program, and will VII. Agency Contact If you mail your application through consider any information concerning For Further Information Contact: Erin the U.S. Postal Service, we do not the applicant’s failure under any Marie McDermott, Training for Realtime accept either of the following as proof Department program to submit a Writers Program, U.S. Department of of mailing: performance report or its submission of Education, 1990 K Street, NW., room (1) A private metered postmark. a performance report of unacceptable 6142, Washington, DC 20006–8544. (2) A mail receipt that is not dated by quality, in accordance with 34 CFR Telephone: (202) 502–7607 or by e-mail: the U.S. Postal Service. 75.217(d)(3). [email protected].

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If you use a TDD, call the FRS, toll ‘‘Department of Housing and Urban reimbursement of litigation and other free, at 1–800–877–8339. Development’’. legal expenses; (5) Annual Estimated Number of Respondents: 36; (6) Annual VIII. Other Information [FR Doc. C1 2010–15353 Filed 7–1–10; 8:45 am] BILLING CODE 1505–01–D Estimated Number of Total Responses: Accessible Format: Individuals with 36; (7) Annual Estimated Number of disabilities can obtain this document Burden Hours: 515; (8) Annual and a copy of the application package in DEPARTMENT OF ENERGY Estimated Reporting and Recordkeeping an accessible format (e.g., braille, large Cost Burden: None. The costs incurred print, audiotape, or computer diskette) Agency Information Collection by the DOE contractors in providing the on request to the program contact Extension information collections in this package person listed under For Further are recovered in their contract fees and Information Contact in Section VII of AGENCY: Department of Energy. payments. this notice. ACTION: Notice and request for Statutory Authority: These Electronic Access to This Document: comments. requirements are promulgated under You can view this document, as well as authority in section 161 of the Atomic all other documents of this Department SUMMARY: The Department of Energy Energy Act of 1954, 42 U.S.C. 2201; the published in the Federal Register, in (DOE), pursuant to the Paperwork Department of Energy Organization Act, text or Adobe Portable Document Reduction Act of 1995, intends to 42 U.S.C. 7101, et seq.; and the National Format (PDF), on the Internet at the extend for three years, an information Nuclear Security Administration Act, 50 following site: http://www.ed.gov/news/ collection request with the Office of U.S.C. 2401, et seq. Management and Budget (OMB). fedregister. To use PDF, you must have Issued in Washington, DC, on June 28, Adobe Acrobat Reader, which is Comments are invited on: (a) Whether 2010. the extended collection of information available free at this site. Kathleen M. Binder, is necessary for the proper performance Note: The official version of this document of the functions of the agency, including Director, Office of Conflict Prevention and Resolution, Office of General Counsel. is the document published in the Federal whether the information shall have Register. Free Internet access to the official practical utility; (b) the accuracy of the [FR Doc. 2010–16241 Filed 7–1–10; 8:45 am] edition of the Federal Register and the Code BILLING CODE 6450–01–P of Federal Regulations is available on GPO agency’s estimate of the burden of the Access at: http://www.gpoaccess.gov/nara/ proposed collection of information, including the validity of the index.html. DEPARTMENT OF ENERGY methodology and assumptions used; (c) Delegation of Authority: The Secretary ways to enhance the quality, utility, and [OE Docket No. EA–368] of Education has delegated the authority clarity of the information to be to Daniel T. Madzelan, Director, collected; and (d) ways to minimize the Application to Export Electric Energy; Forecasting and Policy Analysis for the burden of the collection of information Brookfield Energy Marketing LP Office of Postsecondary Education, to on respondents, including through the perform the functions and duties of the use of automated collection techniques AGENCY: Office of Electricity Delivery Assistant Secretary for Postsecondary or other forms of information and Energy Reliability, DOE. Education. technology. ACTION: Notice of application. Daniel T. Madzelan, DATES: Comments regarding this SUMMARY: Brookfield Energy Marketing Director, Forecasting and Policy Analysis. proposed information collection must LP (BEM LP) has applied for authority [FR Doc. 2010–16203 Filed 7–1–10; 8:45 am] be received on or before August 31, to transmit electric energy from the BILLING CODE 4000–01–P 2010. If you anticipate difficulty in United States to Canada pursuant to submitting comments within that section 202(e) of the Federal Power Act. period, contact the person listed below DATES: Comments, protests, or requests as soon as possible. to intervene must be submitted on or DEPARTMENT OF HOUSING AND ADDRESSES: Written comments may be before August 2, 2010. URBAN DEVELOPMENT sent to Anne Broker, GC–12, U.S. ADDRESSES: Comments, protests, or Department of Energy, Office of Conflict DEPARTMENT OF TRANSPORTATION requests to intervene should be Prevention and Resolution, 1000 addressed as follows: Office of Independence Avenue, SW., [Docket No. FR–5415–N–12] Electricity Delivery and Energy Washington, DC 20585 or by fax at 202– Reliability, Mail Code: OE–20, U.S. 586–4116 or by e-mail at Notice of Funding Availability for the Department of Energy, 1000 [email protected]. Department of Housing and Urban Independence Avenue, SW., Development’s Community Challenge FOR FURTHER INFORMATION CONTACT: Washington, DC 20585–0350 (FAX 202– Planning Grants and the Department of Anne Broker at 202–586–5060 or 586–8008). Transportation’s TIGER II Planning [email protected]. FOR FURTHER INFORMATION CONTACT: Grants SUPPLEMENTARY INFORMATION: This Christopher Lawrence (Program Office) 202–586–5260 or Michael Skinker Correction information collection request contains: (1) OMB No. 1910–5115; (2) Information (Program Attorney) 202–586–2793. In notice document 2010–15353 Collection Request Title: Contractor SUPPLEMENTARY INFORMATION: Exports of beginning on page 36246 in the issue of Legal Management Requirements; (3) electricity from the United States to a Thursday, June 24, 2010, make the Type of Review: Renewal; (4) Purpose: foreign country are regulated by the following correction: The collection of this information Department of Energy (DOE) pursuant to On page 36245, on the cover for continues to be necessary to provide a sections 301(b) and 402(f) of the separate part V, ‘‘Department of Health basis for DOE decisions on requests, Department of Energy Organization Act and Human Services’’ should read from applicable contractors, for (42 U.S.C. 7151(b), 7172(f)) and require

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authorization under section 202(e) of Issued in Washington, DC, on June 28, SUPPLEMENTARY INFORMATION: This the FPA (16 U.S.C. 824a(e)). 2010. section contains the following On June 18, 2010, DOE received an Anthony J. Como, information about the energy application from BEM LP for authority Director, Permitting and Siting, Office of information collection submitted to Electricity Delivery and Energy Reliability. to transmit electric energy from the OMB for review: (1) The collection [FR Doc. 2010–16238 Filed 7–1–10; 8:45 am] numbers and title; (2) the sponsor (i.e., United States to Canada as a power BILLING CODE 6450–01–P the Department of Energy component); marketer using existing international (3) the current OMB docket number (if transmission facilities for five years. applicable); (4) the type of request (i.e., BEM LP does not own any electric DEPARTMENT OF ENERGY new, revision, extension, or transmission facilities nor does it hold reinstatement); (5) response obligation a franchised service area. Energy Information Administration (i.e., mandatory, voluntary, or required The electric energy that BEM LP to obtain or retain benefits); (6) a Agency Information Collection description of the need for and proposes to export to Canada would be Activities: Submission for OMB proposed use of the information; (7) a surplus energy purchased from electric Review; Comment Request utilities, Federal power marketing categorical description of the likely agencies and other entities within the AGENCY: Energy Information respondents; (8) an estimate of the total United States. The existing international Administration (EIA), Department of annual reporting burden (i.e., the transmission facilities to be utilized by Energy (DOE). estimated number of likely respondents times the proposed frequency of BEM LP have previously been ACTION: Agency Information Collection response per year times the average authorized by Presidential permits Activities: Submission for OMB Review; hours per response). issued pursuant to Executive Order Comment Request. 10485, as amended, and are appropriate 1. Form EIA–914, ‘‘Monthly Natural for open access transmission by third SUMMARY: The EIA has submitted the Gas Production Report’’. parties. form EIA–914 ‘‘Monthly Natural Gas 2. Energy Information Administration. Production Report’’ to the Office of Procedural Matters: Any person 3. OMB Number 1905–0205. Management and Budget (OMB) for desiring to become a party to these review and a three-year extension under 4. Three-year extension. proceedings or to be heard by filing section 3507(h)(1) of the Paperwork 5. Mandatory. comments or protests to this application Reduction Act of 1995 (Pub. L. 104–13) 6. The purpose of the survey is to should file a petition to intervene, (44 U.S.C. 3501 et seq). comment, or protest at the address collect monthly data on the production DATES: provided above in accordance with Comments must be filed by of natural gas in seven geographical August 2, 2010. If you anticipate that §§ 385.211 or 385.214 of the Federal areas (Texas (including State offshore), you will be submitting comments but Energy Regulatory Commission’s Rules Louisiana (including State offshore), find it difficult to do so within that Oklahoma, New Mexico, Wyoming, of Practice and Procedures (18 CFR period, you should contact the OMB Federal Gulf of Mexico offshore and 385.211, 385.214). Fifteen copies of each Desk Officer for DOE listed below as Other States (defined as all remaining petition and protest should be filed with soon as possible. states, except Alaska, in which the DOE on or before the date listed above. ADDRESS: Send comments to OMB Desk operator produced natural gas during Comments on the BEM LP application Officer for DOE, Office of Information the report month). Data will be used to to export electric energy to Canada and Regulatory Affairs, Office of monitor natural gas supplies. Survey should be clearly marked with Docket Management and Budget. To ensure respondents would be a sample of well No. EA–368. Additional copies are to be receipt of the comments by the due date, operators. filed directly with Andrea Rocheleau, submission by FAX (202–395–7285) or 7. Business or other for-profit. Brookfield Energy Marketing LP, 480 de e-mail to 8. 8,748 hours. la Cite Blvd., Gatineau, Quebec J8T 8R3 [email protected] is AND Jack Burkom, Brookfield Energy recommended. The mailing address is Please refer to the supporting Marketing LP, 480 de la Cite Blvd., 726 Jackson Place NW., Washington, DC statement as well as the proposed forms and instructions for more information Gatineau, Quebec J8T 8R3. A final 20503. The OMB DOE Desk Officer may about the purpose, who must report, decision will be made on this be telephoned at (202) 395–4638. (A when to report, where to submit, the application after the environmental copy of your comments should also be elements to be reported, detailed impacts have been evaluated pursuant provided to EIA’s Statistics and Methods Group at the address below.) instructions, provisions for to the National Environmental Policy confidentiality, and uses (including Act of 1969, and a determination is FOR FURTHER INFORMATION CONTACT: possible nonstatistical uses) of the made by DOE that the proposed action Requests for additional information information. For instructions on will not adversely impact on the should be directed to Jason Worrall. To obtaining materials, see the FOR FURTHER reliability of the U.S. electric power ensure receipt of the comments by the INFORMATION CONTACT section. supply system. due date, submission by FAX (202–586– 5271) or e-mail Statutory Authority: Section 13(b) of the Copies of this application will be Federal Energy Administration Act of 1974, ([email protected]) is also made available, upon request, for public Pub. L. 93–275, codified at 15 U.S.C. 772(b). recommended. The mailing address is inspection and copying at the address Statistics and Methods Group (EI–70), Issued in Washington, DC, June 28, 2010. provided above, by accessing the Forrestal Building, U.S. Department of Richard Reeves, program Web site at http:// Energy, 1000 Independence Ave., SW., Acting Director, Statistics and Methods www.oe.energy.gov/permits Washington, DC 20585–0670. Mr. Group, Energy Information Administration. _ pending.htm, or by e-mailing Odessa Worrall may be contacted by telephone [FR Doc. 2010–16239 Filed 7–1–10; 8:45 am] Hopkins at [email protected]. at (202) 586–6075. BILLING CODE 6450–01–P

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DEPARTMENT OF ENERGY supersede the conditions in public utilities’ delinquent Electric Quarterly Reports. If market-based rate authorizations, and failure a public utility fails to make this filing, Federal Energy Regulatory to comply with the requirements of this rule the Commission will revoke that public Commission will subject public utilities to the same utility’s authority to sell power at consequences they would face for not satisfying the conditions in their rate market-based rates and will terminate Order on Intent To Revoke Market- its electric market-based rate tariff. The Based Rate Authority authorizations, including possible revocation of their authority to make wholesale power Secretary is hereby directed, upon Issued June 25, 2010. sales at market-based rates.3 expiration of the filing deadline in this order, to promptly issue a notice, 5. Pursuant to these requirements, the Before Commissioners: Jon Wellinghoff, effective on the date of issuance, listing Commission has revoked the market- Chairman; Marc Spitzer, Philip D. Moeller, the public utilities whose tariffs have and John R. Norris. based rate tariffs of several market-based been revoked for failure to comply with rate sellers that failed to submit their In the matter of: ER02–2001–015, ER00– the requirements of this order and the 167–000, ER03–752–000, Electric Quarterly Electric Quarterly Reports.4 Reports, Strategic Energy Management Corp., 6. As noted above, Commission staff’s Commission’s Electric Quarterly Report Solaro Energy Marketing Corporation. review of the Electric Quarterly Report filing requirements. (B) The Secretary is hereby directed to 1. Section 205 of the Federal Power submittals identified two public utilities publish this order in the Federal Act (FPA), 16 U.S.C. 824d (2006), and with authority to sell power at market- Register. 18 CFR part 35 (2009), require, among based rates that failed to file Electric other things, that all rates, terms, and Quarterly Reports through the first By the Commission. conditions of jurisdictional services be quarter of 2010. Commission staff Kimberly D. Bose, filed with the Commission. In Order No. contacted these entities to remind them Secretary. 5 2001, the Commission revised its public of their regulatory obligations. None of [FR Doc. 2010–16131 Filed 7–1–10; 8:45 am] utility filing requirements and the public utilities listed in the caption BILLING CODE 6717–01–P established a requirement for public of this order has met those obligations.6 utilities, including power marketers, to Accordingly, this order notifies these file Electric Quarterly Reports public utilities that their market-based ENVIRONMENTAL PROTECTION summarizing the contractual terms and rate authorizations will be revoked AGENCY conditions in their agreements for all unless they comply with the jurisdictional services (including Commission’s requirements within 15 [EPA–R01–OW–2010–0316, FRL–9170–4] market-based power sales, cost-based days of the issuance of this order. power sales, and transmission service) 7. In the event that any of the above- Massachusetts Marine Sanitation and providing transaction information captioned market-based rate sellers has Device Standard—Notice of (including rates) for short-term and already filed its Electric Quarterly Determination long-term power sales during the most Report in compliance with the AGENCY: Environmental Protection recent calendar quarter.1 Commission’s requirements, its Agency (EPA). 2. Commission staff’s review of the inclusion herein is inadvertent. Such Electric Quarterly Report submittals market-based rate seller is directed, ACTION: Notice of determination. indicates that two utilities with within 15 days of the date of issuance SUMMARY: The Regional Administrator authority to sell electric power at of this order, to make a filing with the market-based rates have failed to file of the Environmental Protection Commission identifying itself and Agency—New England Region, has their Electric Quarterly Reports. This providing details about its prior filings order notifies these public utilities that determined that adequate facilities for that establish that it complied with the the safe and sanitary removal and their market-based rate authorizations Commission’s Electric Quarterly Report will be revoked unless they comply treatment of sewage from all vessels are filing requirements. reasonably available for the coastal with the Commission’s requirements 8. If any of the above-captioned within 15 days of the date of issuance waters of Pleasant Bay/Chatham Harbor, market-based rate sellers do not wish to MA. of this order. continue having market-based rate 3. In Order No. 2001, the Commission authority, they may file a notice of ADDRESSES: Docket: All documents in stated that: cancellation with the Commission the docket are listed in the http:// [i]f a public utility fails to file a[n] Electric pursuant to section 205 of the FPA to www.regulations.gov index. Although Quarterly Report (without an appropriate cancel their market-based rate tariff. listed in the index, some information is request for extension), or fails to report an The Commission orders: not publicly available, e.g., CBI or other agreement in a report, that public utility may (A) Within 15 days of the date of information whose disclosure is forfeit its market-based rate authority and restricted by statute. Certain other may be required to file a new application for issuance of this order, each public utility listed in the caption of this order material, such as copyrighted material, market-based rate authority if it wishes to will be publicly available only in hard resume making sales at market-based rates.2 shall file with the Commission all copy. Publicly available docket 4. The Commission further stated that: 3 Id. P 223. materials are available electronically in [o]nce this rule becomes effective, the 4 See, e.g., Electric Quarterly Reports, 75 FR http://www.regulations.gov. requirement to comply with this rule will 19,646 (Apr. 15, 2010); Electric Quarterly Reports, FOR FURTHER INFORMATION CONTACT: Ann 74 FR 44,841 (Aug. 31, 2009). Rodney, U.S. Environmental Protection 1 5 See Solaro Energy Marketing Corporation, Revised Public Utility Filing Requirements, Agency—New England Region, Office of Order No. 2001, FERC Stats. & Regs. ¶ 31,127, reh’g Docket No. ER03–752–000 (April 22, 2010) denied, Order No. 2001–A, 100 FERC ¶ 61,074, (unpublished letter order); Strategic Energy Ecosystem Protection, Oceans and reconsideration and clarification denied, Order No. Management Corp., Docket No. ER00–167–000 Coastal Protection Unit, Five Post Office 2001–B, 100 FERC ¶ 61,342, order directing filings, (April 22, 2010) (unpublished letter order). Square, Suite 100, OEP06–1, Boston, Order No. 2001–C, 101 FERC ¶ 61,314 (2002), order 6 According to the Commission’s records, both directing filings, Order No. 2001–D, 102 FERC companies subject to this order failed to file their MA 02109–3912. Telephone: (617) 918– ¶ 61,334 (2003). Electric Quarterly Reports for the 4th quarter of 1538. Fax number: (617) 918–0538. E- 2 Order No. 2001 at P 222. 2009 and the 1st quarter of 2010. mail address: [email protected].

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SUPPLEMENTARY INFORMATION: On May 7, The petition was filed pursuant to may completely prohibit the discharge 2010, EPA published a notice that the Section 312 (f) (3) of Public Law 92–500, from all vessels of any sewage, whether Commonwealth of Massachusetts had as amended by Public Laws 95–217 and treated or not, into such waters, except petitioned the Regional Administrator, 100–4, for the purpose of declaring that no such prohibition shall apply Environmental Protection Agency, to these waters a No Discharge Area until the Administrator determines that determine that adequate facilities for the (NDA). adequate facilities for the safe and safe and sanitary removal and treatment Section 312 (f) (3) states: After the sanitary removal and treatment of of sewage from all vessels are effective date of the initial standards sewage from all vessels are reasonably reasonably available for the waters of and regulations promulgated under this available for such water to which such Pleasant Bay/Chatham Harbor. Three section, if any State determines that the prohibition would apply. comments were received on this protection and enhancement of the This Notice of Determination is for petition. The response to comments can quality of some or all of the waters the waters of Pleasant Bay/Chatham be obtained utilizing the above contact within such State require greater Harbor. The NDA boundaries are as information. environmental protection, such State follows:

Waterbody/General area From latitude From longitude To latitude To longitude

Bounded on the west by mainland Chatham, Harwich, 41°42′19.43″ N. 69°55′44.76″ W. 41°42′13.31″ N. 69°55′45.11″ W. Brewster and Orleans; bounded on the east by Nauset Beach (North Beach) and North Beach Island. A line drawn cross the mouth of the North inlet across from Minister’s Point:. From West of a line across the mouth of the South Inlet: 41°40′41.51″ N. 69°56′3.47″ W. 41°39′56.52″ N. 69°56′30.48″ W.

The area includes the municipal appended at the end of this sewage from all vessels are reasonably waters of Chatham, Harwich, Brewster determination. available for the area covered under this and Orleans. Based on the examination of the determination. The information submitted to EPA by petition and its supporting This determination is made pursuant the Commonwealth of Massachusetts documentation, and information from to Section 312 (f) (3) of Public Law 92– certifies that there are three pumpout site visits conducted by EPA New facilities located within this area. A list England staff, EPA has determined that 500, as amended by Public laws 95–217 of the facilities, with locations, phone adequate facilities for the safe and and 100–4. numbers, and hours of operation is sanitary removal and treatment of

PUMPOUT FACILITIES WITHIN THE NO DISCHARGE AREA

Mean low Name Location Contact info. Hours water depth

Pleasant Bay/Chatham Harbor

Harbormaster ...... Round Cove Harwich ...... 508–430–7532, VHF 60 ...... On demand ...... N/A. Harbormaster ...... Ryder’s Cove Chatham ...... 508–945–1067 or 508–945– M–F 8 a.m.–5 p.m., Sat. 9 3 ft. 5185, VHF 66. a.m.–1 p.m. Nauset Marine East ...... 37 Barley Neck Road, East 508–255–3045, VHF 9 ...... On demand ...... 3 ft. Orleans.

Dated: June 24, 2010. Notice publication of the notice of availability H. Curtis Spalding, of EPA comments in the Federal Regional Administrator, New England Region. In accordance with Section 309(a) of Register. the Clean Air Act, EPA is required to [FR Doc. 2010–16174 Filed 7–1–10; 8:45 am] make its comments on EISs issued by EIS No. 20100236, Draft EIS, FERC, CA, BILLING CODE 6560–50–P other Federal agencies public. Kilarc-Cow Creek Hydroelectric Historically, EPA has met this mandate Project (FERC Project No. 606) by publishing weekly notices of Proposes to Surrender the License for ENVIRONMENTAL PROTECTION Operation Project, Old Crow Creek AGENCY availability of EPA comments, which includes a brief summary of EPA’s and South Cow Creek, Shasta County, [ER–FRL–8991–2] comment letters, in the Federal CA, Comment Period Ends: 08/16/ Register. Since February 2008, EPA has 2010, Contact: Mary O’Driscoll, Environmental Impact Statements; 1–866–208–3372. Notice of Availability been including its comment letters on EISs on its Web site at: http:// EIS No. 20100237, Final Supplement, Responsible Agency: Office of Federal www.epa.gov/compliance/nepa/ BLM, NV, Newmont Gold Mining, Activities, General Information (202) eisdata.html. Including the entire EIS South Operations Area Project 564–1399 or http://www.epa.gov/ comment letters on the Web site Amendment, Updated Information on compliance/nepa/. Weekly receipt of satisfies the Section 309(a) requirement the Cumulative Effects Analyses, Environmental Impact Statements. Filed to make EPA’s comments on EISs Operation and Expansion, Plan of 06/21/2010 through 06/25/210. available to the public. Accordingly, on Operations, Elko and Eureka Pursuant to 40 CFR 1506.9. March 31, 2010, EPA discontinued the Counties, NV, Wait Period Ends: 08/

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02/2010, Contact: Deb McFarlance, Churchill Counties, NV, Comment ACCESS AND ACCOMMODATIONS: For 775–753–0200. Period Ends: 09/22/2010, Contact: information on access or services for EIS No. 20100238, Final Supplement, Robert Edward, 775–623–1597. individuals with disabilities, please BLM, NV, Leeville Mining Project, Revision to FR Notice Published 06/ contact Martha Berger at 202–564–2191 Propose to Develop and Operate an 25/2010: Correction to Title. or [email protected], preferably at Underground Mine and Ancillary EIS No. 20100234, Final EIS, USAF, 00, least 10 days prior to the meeting. Facilities including Dewatering Shaw Air Base Airspace Training Dated: June 28, 2010. Operation, Updated Information on Initiative (ATI), 20th Fighter Wing, Martha Berger, the Cumulative Effects Analyses, Proposal to Modify the Training Designated Federal Official. Plan-of-Operations/Right-of-Way Airspace Overlying Parts, South Permit and COE Section 404 Permit, Carolina and Georgia, Wait Period Draft Agenda—U.S. Environmental Elko and Eureka Counties, NV, Wait Ends: 07/26/2010, Contact: Linda Protection Agency, Children’s Health Period Ends: 08/02/2010, Contact: Devine, 757–764–9434. Protection Advisory Committee: July 21–22, Deb McFarlance, 775–753–0200. 2010, The Ritz-Carlton Hotel, Salon IIIA, Revision to FR Notice Published 06/ 1150 22nd St, NW., Washington, DC 20037; EIS No. 20100239, Draft EIS, BPA, WA, 25/2010: Correction to Contact Person 202–974–5557. Central Ferry-Lower Monumental Telephone Number. Plenary Session Desired Outcomes 500-kilovolt Transmission Line Dated: June 29, 2010. • Project, Proposing to Construct, Robert W. Hargrove, Learn about new and ongoing Operate, and Maintain a 38 to 40– Director, NEPA Compliance Division, Office activities at EPA and the Office of Mile-Long 500-kilovolt (kV) of Federal Activities. Children’s Health Protection. Transmission Line, Garfield, • [FR Doc. 2010–16171 Filed 7–1–10; 8:45 am] Review work group efforts on Columbia and Walla Walla Counties, indoor environments and prenatal BILLING CODE 6560–50–P WA, Comment Period Ends: 08/16/ exposures. 2010, Contact: Tish Eaton, 503–230– • Discuss potential interagency task 3469. ENVIRONMENTAL PROTECTION force issues: Asthma disparities and EIS No. 20100240, Draft EIS, USACE, AGENCY chemical management. CA, American River Watershed Wednesday, July 21 Common Features Project/Natomas [FRL–9170–7] Post-Authorization Change Report/ 8:00 Coffee. Notice of Meeting of the EPA’s Natomas Levee Improvement 8:30–8:35 Review Meeting Agenda and Children’s Health Protection Advisory Program, Phase 4b Landside Introductions. Committee (CHPAC) Improvements Project, Sacramento 8:45–9:15 Highlights of Office of and Sutter Counties, CA, Comment AGENCY: Environmental Protection Children’s Health Protection Period Ends: 08/16/2010, Contact: Agency (EPA). Activities, Peter Grevatt, Director Elizabeth G. Holland, 916–557–6763. ACTION: Notice of meeting. OCHP. EIS No. 20100241, Draft EIS, USACE, 9:15–10:15 Indoor Environments Work CA, Sunridge Properties Project, SUMMARY: Pursuant to the provisions of Group. Tyra Bryant-Stephens and Implementing Alternatives for Six the Federal Advisory Committee Act, Janice Dhonau, Co-chairs, Matthew Residential Development Project, City Public Law 92–463, notice is hereby Davis, EPA lead. of Rancho Cordova, Sacramento given that the next meeting of the 10:15–10:30 Break. 10:30–11:30 Prenatal Exposures Work County, CA, Comment Period Ends: Children’s Health Protection Advisory Group. Amy Kyle and Nancy Clark, 08/16/2010, Contact: Michael Jewell, Committee (CHPAC) will be held July Co-chairs. Michael Firestone, EPA 916–557–6605. 21 and 22, 2010 at the Ritz-Carlton Hotel, 1150 22nd Street, NW., lead. EIS No. 20100242, Draft EIS, NSA, MD, Washington, DC. The CHPAC was 11:30–12:30 EPA’s voluntary lead Fort George G. Meade, Maryland, to created to advise the Environmental testing in drinking water initiative. Address Campus Development, Site Protection Agency on science, Office of Water. M as an Operational Complex and to regulations, and other issues relating to 12:30–2:15 LUNCH (on your own). Construct and Operate Consolidated children’s environmental health. 2:15–3:15 Asthma Disparities Group Facilities for Intelligence Community Discussion. Use, Fort George G. Meade, MD, DATES: The CHPAC will meet July 21 and 22, 2010. 3:15–3:30 Break. Comment Period Ends: 08/16/2010, 3:30–4:30 Asthma Disparities ADDRESSES: Ritz-Carlton Hotel, 1150 Contact: Jeffery William, 301–688– Discussion, continued. 2970. 22nd Street, NW., Washington, DC. 4:30 PUBLIC COMMENT. EIS No. 20100243, Draft EIS, FHWA, AL, FOR FURTHER INFORMATION CONTACT: 5:00 ADJOURN. I–85 Extension from I–59/I–20 near Martha Berger, Office of Children’s Thursday, July 22 the Mississippi State Line to I–65 near Health Protection, USEPA, MC 1107A, Montgomery, Portion of Autauga, 1200 Pennsylvania Avenue, NW., 8:30 Coffee. Dallas, Hale, Lowndes, Marengo, Washington, DC 20460, (202) 564–2191, 9:00–9:15 Check in and Agenda Montgomery, Perry, and Sumter [email protected]. Review. Counties, AL, Comment Period Ends: SUPPLEMENTARY INFORMATION: The 9:15–10:15 Chemicals Management 08/16/2010, Contact: Mark D. Bartlett, meetings of the CHPAC are open to the Group Discussion. 334–274–6350. public. The CHPAC will meet on 10:15–10:30 Break. Wednesday, July 21 from 8:30 a.m. to 5 10:30–11:30 Chemicals Management Amended Notices p.m., and Thursday, July 22 from 9 a.m. Discussion, continued. EIS No. 20100225, Draft EIS, BLM, NV, to 12:30 p.m. Agenda items include 11:30–12:00 Review and Next Steps. Winnemucca District Office Resource discussions on prenatal environmental 12:00 ADJOURN. Management Plan, Humboldt, exposures and indoor environments for [FR Doc. 2010–16177 Filed 7–1–10; 8:45 am] Pershing, Washoe, Lyon and children. BILLING CODE 6560–50–P

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ENVIRONMENTAL PROTECTION Washington, DC 20460; telephone: (202) An electronic version of the public AGENCY 564–5601; fax number (202) 564–5603; docket is available through http:// e-mail address: [email protected]. www.regulations.gov. You may use [FRL–9170–8] SUPPLEMENTARY INFORMATION: http://www.regulations.gov to submit or Proposed Consent Decree, Clean Air view public comments, access the index Act Citizen Suit I. Additional Information About the listing of the contents of the official Proposed Consent Decree public docket, and to access those AGENCY: Environmental Protection documents in the public docket that are The proposed consent decree Agency (EPA). available electronically. Once in the establishes a deadline of November 15, ACTION: system, key in the appropriate docket Notice of Proposed Consent 2010, for the Administrator to sign a Decree; Request for Public Comment. identification number, then select notice or notices, pursuant to section ‘‘search’’. SUMMARY: In accordance with section 110(k)(2) of the CAA, either approving, It is important to note that EPA’s 113(g) of the Clean Air Act, as amended disapproving, or approving in part and policy is that public comments, whether (CAA), 42 U.S.C. 7413(g), notice is disapproving in part, Imperial Rule 420. submitted electronically or on paper, hereby given of a proposed consent In addition, the proposed consent will be made available for public decree, to address a lawsuit filed by decree requires that following signature viewing online at http:// Comite Civico Del Valle, Inc. in the on such notice or notices, EPA shall www.regulations.gov without change, United States District Court for the deliver such notice or notices to the unless the comment contains Northern District of California: Comite Office of the Federal Register for copyrighted material, CBI, or other Civico Del Valle, Inc. v. Jackson, No. publication. The proposed consent information whose disclosure is 10–cv–00946 PJH (N.D. C.A.). On March decree also provides that after EPA’s restricted by statute. Information 5, 2010, Plaintiff filed a complaint to completion of the obligations under the claimed as CBI and other information compel the U. S. Environmental decree, the parties will file a joint whose disclosure is restricted by statute Protection Agency (EPA or Agency) to request to the Court to dismiss the is not included in the official public take final action under section 110(k) of litigation with prejudice. docket or in the electronic public the CAA on the ‘‘Imperial County Air For a period of thirty (30) days docket. EPA’s policy is that copyrighted Pollution Control District Rule 420’’ following the date of publication of this material, including copyrighted material (Imperial Rule 420), a State notice, the Agency will accept written contained in a public comment, will not implementation plan (SIP) revision comments relating to the proposed be placed in EPA’s electronic public submitted by the State of California to consent decree from persons who were docket but will be available only in EPA on or about August 24, 2007, which not named as parties or intervenors to printed, paper form in the official public pertains to measures to control the litigation in question. EPA or the docket. Although not all docket particulate matter emissions from beef Department of Justice may withdraw or materials may be available feedlot operations within the Imperial withhold consent to the proposed electronically, you may still access any Valley. Under the terms of the proposed consent decree if the comments disclose of the publicly available docket consent decree, EPA has agreed to take facts or considerations that indicate that materials through the EPA Docket final action no later than November 15, such consent is inappropriate, Center. 2010. improper, inadequate, or inconsistent B. How and to whom do I submit DATES: Written comments on the with the requirements of the Act. Unless comments? proposed consent decree must be EPA or the Department of Justice You may submit comments as received by August 2, 2010. determines, based on any comment submitted, that consent to this consent provided in the ADDRESSES section. ADDRESSES: Submit your comments, Please ensure that your comments are identified by Docket ID number EPA– decree should be withdrawn, the terms of the decree will be affirmed. submitted within the specified comment HQ–OGC–2010–0509, online at http:// period. Comments received after the www.regulations.gov (EPA’s preferred II. Additional Information About close of the comment period will be method); by e-mail to Commenting on the Proposed Consent marked ‘‘late.’’ EPA is not required to [email protected]; mailed to EPA Decree consider these late comments. Docket Center, Environmental If you submit an electronic comment, Protection Agency, Mailcode: 2822T, A. How can I get a copy of the consent decree? EPA recommends that you include your 1200 Pennsylvania Ave., NW., name, mailing address, and an e-mail Washington, DC 20460–0001; or by The official public docket for this address or other contact information in hand delivery or courier to EPA Docket action (identified by Docket ID No. the body of your comment and with any Center, EPA West, Room 3334, 1301 EPA–HQ–OGC–2010–0509) contains a disk or CD–ROM you submit. This Constitution Ave., NW., Washington, copy of the proposed consent decree. ensures that you can be identified as the DC, between 8:30 a.m. and 4:30 p.m. The official public docket is available submitter of the comment and allows Monday through Friday, excluding legal for public viewing at the Office of EPA to contact you in case EPA cannot holidays. Comments on a disk or CD– Environmental Information (OEI) Docket read your comment due to technical ROM should be formatted in Word or in the EPA Docket Center, EPA West, difficulties or needs further information ASCII file, avoiding the use of special Room 3334, 1301 Constitution Ave., on the substance of your comment. Any characters and any form of encryption, NW., Washington, DC. The EPA Docket identifying or contact information and may be mailed to the mailing Center Public Reading Room is open provided in the body of a comment will address above. from 8:30 a.m. to 4:30 p.m., Monday be included as part of the comment that FOR FURTHER INFORMATION CONTACT: through Friday, excluding legal is placed in the official public docket, Geoffrey L. Wilcox, Air and Radiation holidays. The telephone number for the and made available in EPA’s electronic Law Office (2344A), Office of General Public Reading Room is (202) 566–1744, public docket. If EPA cannot read your Counsel, U.S. Environmental Protection and the telephone number for the OEI comment due to technical difficulties Agency, 1200 Pennsylvania Ave., NW., Docket is (202) 566–1752. and cannot contact you for clarification,

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EPA may not be able to consider your ADDRESSES: Submit your comments, with the requirements of the CAA. comment. identified by Docket ID number EPA– Unless EPA or the Department of Justice Use of the http://www.regulations.gov HQ–OGC–2010–0428, online at http:// determines, based on any comment Web site to submit comments to EPA www.regulations.gov (EPA’s preferred submitted, that consent to this consent electronically is EPA’s preferred method method); by e-mail to decree should be withdrawn, the terms for receiving comments. The electronic [email protected]; mailed to EPA of the decree will be affirmed. public docket system is an ‘‘anonymous Docket Center, Environmental II. Additional Information About access’’ system, which means EPA will Protection Agency, Mailcode: 2822T, Commenting on the Proposed Consent not know your identity, e-mail address, 1200 Pennsylvania Ave., NW., Decree or other contact information unless you Washington, DC 20460–0001; or by provide it in the body of your comment. hand delivery or courier to EPA Docket A. How can I get a copy of the consent In contrast to EPA’s electronic public Center, EPA West, Room 3334, 1301 decree? docket, EPA’s electronic mail (e-mail) Constitution Ave., NW., Washington, system is not an ‘‘anonymous access’’ DC, between 8:30 a.m. and 4:30 p.m. The official public docket for this system. If you send an e-mail comment Monday through Friday, excluding legal action (identified by Docket ID No. directly to the Docket without going holidays. Comments on a disk or CD– EPA–HQ–OGC–2010–0428) contains a through http://www.regulations.gov, ROM should be formatted in Word or copy of the proposed consent decree. your e-mail address is automatically ASCII file, avoiding the use of special The official public docket is available captured and included as part of the characters and any form of encryption, for public viewing at the Office of comment that is placed in the official and may be mailed to the mailing Environmental Information (OEI) Docket public docket, and made available in address above. in the EPA Docket Center, EPA West, Room 3334, 1301 Constitution Ave., EPA’s electronic public docket. FOR FURTHER INFORMATION CONTACT: NW., Washington, DC. The EPA Docket Geoffrey L. Wilcox, Air and Radiation Dated: June 28, 2010. Center Public Reading Room is open Law Office (2344A), Office of General Kevin W. McLean, from 8:30 a.m. to 4:30 p.m., Monday Counsel, U.S. Environmental Protection Acting Associate General Counsel. through Friday, excluding legal Agency, 1200 Pennsylvania Ave., NW., [FR Doc. 2010–16173 Filed 7–1–10; 8:45 am] holidays. The telephone number for the Washington, DC 20460; telephone: (202) BILLING CODE 6560–50–P Public Reading Room is (202) 566–1744, 564–5601; fax number (202) 564–5603; and the telephone number for the OEI e-mail address: [email protected]. Docket is (202) 566–1752. ENVIRONMENTAL PROTECTION SUPPLEMENTARY INFORMATION: An electronic version of the public AGENCY I. Additional Information About the docket is available through http:// Proposed Consent Decree www.regulations.gov. You may use the [FRL–9170–9] The proposed consent decree would http://www.regulations.gov to submit or view public comments, access the index Proposed Consent Decree, Clean Air resolve a lawsuit seeking to compel listing of the contents of the official Act Citizen Suit action by the Administrator to take final action under section 110(k)(2) of the public docket, and to access those AGENCY: Environmental Protection CAA on the 5% Plan submitted by the documents in the public docket that are Agency (EPA). State of Arizona to EPA as revisions to available electronically. Once in the ACTION: Notice of Proposed Consent the SIP for the Maricopa County serious system, key in the appropriate docket Decree; Request for Public Comment. PM–10 nonattainment area as required identification number then select by section 189(d) of the CAA. ‘‘search’’. SUMMARY: In accordance with section The proposed consent decree requires It is important to note that EPA’s 113(g) of the Clean Air Act, as amended EPA to sign for publication in the policy is that public comments, whether (CAA), 42 U.S.C. 7413(g), notice is Federal Register no later than submitted electronically or on paper, hereby given of a proposed consent September 3, 2010, a notice of the will be made available for public decree, to address a lawsuit filed by Agency’s proposed action on the 5% viewing online at http:// Sandra L. Bahr, Diane E. Brown and Plan pursuant to section 110(k) of the www.regulations.gov without change, David Matusow, Bahr, et al. v. Jackson, CAA and sign for publication in the unless the comment contains No. CV 09–2511–PHX–MHM (D. Ariz.). Federal Register by January 28, 2011, a copyrighted material, CBI, or other Plaintiffs filed a deadline suit to compel notice of the Agency’s final action on information whose disclosure is the Administrator to take final action the 5% Plan pursuant to section 110(k). restricted by statute. Information under section 110(k)(2) of the CAA on If EPA fulfills its obligations, Plaintiffs claimed as CBI and other information the ‘‘MAG 2007 Five Percent Plan for have agreed to dismiss this suit without whose disclosure is restricted by statute PM–10 for the Maricopa County prejudice. is not included in the official public Nonattainment Area,’’ Maricopa For a period of thirty (30) days docket or in the electronic public Association of Governments, 2007 (the following the date of publication of this docket. EPA’s policy is that copyrighted 5% Plan), a State implementation plan notice, the Agency will accept written material, including copyrighted material (SIP) revision submitted to the U.S. comments relating to the proposed contained in a public comment, will not Environmental Protection Agency (EPA consent decree from persons who were be placed in EPA’s electronic public or Agency) in December 2007 by the not named as parties or intervenors to docket but will be available only in State of Arizona pursuant to section the litigation in question. EPA or the printed, paper form in the official public 189(d) of the CAA. The proposed Department of Justice may withdraw or docket. Although not all docket consent decree establishes deadlines for withhold consent to the proposed materials may be available EPA action on the 5% Plan. consent decree if the comments disclose electronically, you may still access any DATES: Written comments on the facts or considerations that indicate that of the publicly available docket proposed consent decree must be such consent is inappropriate, materials through the EPA Docket received by August 2, 2010 improper, inadequate, or inconsistent Center.

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B. How and to whom do I submit ENVIRONMENTAL PROTECTION commenting on. EPA’s policy is that all comments? AGENCY comments received will be included in the docket without change and may be EPA–HQ–OPP–2010–0118; FRL–8829–1 You may submit comments as made available on-line at http:// provided in the ADDRESSES section. Registration Review; Biopesticide www.regulations.gov, including any Please ensure that your comments are Dockets Opened for Review and personal information provided, unless submitted within the specified comment Comment the comment includes information period. Comments received after the claimed to be Confidential Business close of the comment period will be AGENCY: Environmental Protection Information (CBI) or other information marked ‘‘late.’’ EPA is not required to Agency (EPA). whose disclosure is restricted by statute. consider these late comments. ACTION: Notice. Do not submit information that you If you submit an electronic comment, consider to be CBI or otherwise SUMMARY: EPA has established protected through regulations.gov or e- EPA recommends that you include your registration review dockets for the name, mailing address, and an e-mail mail. The regulations.gov website is an pesticides listed in the table in Unit ‘‘anonymous access’’ system, which address or other contact information in III.A. of this notice. With this document, means EPA will not know your identity the body of your comment and with any EPA is opening the public comment or contact information unless you disk or CD ROM you submit. This period for these registration reviews. provide it in the body of your comment. ensures that you can be identified as the Registration review is EPA’s periodic If you send an e-mail comment directly submitter of the comment and allows review of pesticide registrations to to EPA without going through EPA to contact you in case EPA cannot ensure that each pesticide continues to regulations.gov, your e-mail address read your comment due to technical satisfy the statutory standard for will be automatically captured and difficulties or needs further information registration, that is, the pesticide can included as part of the comment that is on the substance of your comment. Any perform its intended function without placed in the docket and made available identifying or contact information unreasonable adverse effects on human on the Internet. If you submit an provided in the body of a comment will health or the environment. Registration electronic comment, EPA recommends be included as part of the comment that review dockets contain information that that you include your name and other is placed in the official public docket, will assist the public in understanding contact information in the body of your and made available in EPA’s electronic the types of information and issues that comment and with any disk or CD-ROM public docket. If EPA cannot read your the Agency may consider during the you submit. If EPA cannot read your comment due to technical difficulties course of registration reviews. Through comment due to technical difficulties and cannot contact you for clarification, this program, EPA is ensuring that each and cannot contact you for clarification, EPA may not be able to consider your pesticide’s registration is based on EPA may not be able to consider your comment. current scientific and other knowledge, comment. Electronic files should avoid including its effects on human health the use of special characters, any form Use of the http://www.regulations.gov and the environment. of encryption, and be free of any defects Web site to submit comments to EPA DATES: Comments must be received on or viruses. electronically is EPA’s preferred method or before August 31, 2010. Docket: All documents in the docket for receiving comments. The electronic ADDRESSES: Submit your comments are listed in the docket index available public docket system is an ‘‘anonymous identified by the docket identification at http://www.regulations.gov. Although access’’ system, which means EPA will (ID) number for the specific pesticide of listed in the index, some information is not know your identity, e-mail address, interest provided in the table in Unit not publicly available, e.g., CBI or other or other contact information unless you III.A. of this notice, by one of the information whose disclosure is provide it in the body of your comment. following methods: restricted by statute. Certain other In contrast to EPA’s electronic public • Federal eRulemaking Portal: http:// material, such as copyrighted material, docket, EPA’s electronic mail (e-mail) www.regulations.gov. Follow the on-line is not placed on the Internet and will be system is not an ‘‘anonymous access’’ instructions for submitting comments. publicly available only in hard copy system. If you send an e-mail comment • Mail: Office of Pesticide Programs form. Publicly available docket directly to the Docket without going (OPP) Regulatory Public Docket (7502P), materials are available either in the through http://www.regulations.gov, Environmental Protection Agency, 1200 electronic docket at http:// your e-mail address is automatically Pennsylvania Ave., NW., Washington, www.regulations.gov, or, if only captured and included as part of the DC 20460–0001. available in hard copy, at the OPP comment that is placed in the official • Delivery: OPP Regulatory Public Regulatory Public Docket in Rm. S– public docket, and made available in Docket (7502P), Environmental 4400, One Potomac Yard (South Bldg.), EPA’s electronic public docket. Protection Agency, Rm. S–4400, One 2777 S. Crystal Dr., Arlington, VA. The Potomac Yard (South Bldg.), 2777 S. hours of operation of this Docket Dated: June 28, 2010. Crystal Dr., Arlington, VA. Deliveries Facility are from 8:30 a.m. to 4 p.m., Kevin W. McLean, are only accepted during the Docket Monday through Friday, excluding legal Acting Associate General Counsel. Facility’s normal hours of operation holidays. The Docket Facility’s [FR Doc. 2010–16172 Filed 7–1–10; 8:45 am] (8:30 a.m. to 4 p.m., Monday through telephone number is (703) 305–5805. BILLING CODE 6560–50–P Friday, excluding legal holidays). FOR FURTHER INFORMATION CONTACT: For Special arrangements should be made pesticide specific information contact: for deliveries of boxed information. The The Regulatory Action Leader (RAL) Docket Facility’s telephone number is identified in the table in Unit III.A. for (703) 305–5805. the pesticide of interest. Instructions: Direct your comments to For general information contact: the docket ID numbers listed in the table Kevin Costello, Pesticide Re-evaluation in Unit III.A. for the pesticides you are Division (7508P), Office of Pesticide

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Programs, Environmental Protection accordance with procedures set forth in effects from exposure to the pesticides Agency, 1200 Pennsylvania Ave., NW., 40 CFR part 2. discussed in this document, compared Washington, DC 20460–0001; telephone 2. Tips for preparing your comments. to the general population. number: (703) 305–5026; fax number: When submitting comments, remember II. Authority (703) 308–8090; e-mail address: to: costello.kevin @epa.gov. i. Identify the document by docket ID EPA is initiating its reviews of the SUPPLEMENTARY INFORMATION: number and other identifying pesticides identified in this document information (subject heading, Federal pursuant to section 3(g) of the Federal I. General Information Register date and page number). Insecticide, Fungicide, and Rodenticide A. Does this Action Apply to Me? ii. Follow directions. The Agency may Act (FIFRA) and the Procedural ask you to respond to specific questions Regulations for Registration Review at This action is directed to the public or organize comments by referencing a 40 CFR part 155, subpart C. Section 3(g) in general, and may be of interest to a Code of Federal Regulations (CFR) part of FIFRA provides, among other things, wide range of stakeholders including or section number. that the registrations of pesticides are to environmental, human health, iii. Explain why you agree or disagree; be reviewed every 15 years. Under farmworker, and agricultural advocates; suggest alternatives and substitute FIFRA, a pesticide product may be the chemical industry; pesticide users; language for your requested changes. registered or remain registered only if it and members of the public interested in iv. Describe any assumptions and meets the statutory standard for the sale, distribution, or use of provide any technical information and/ registration given in FIFRA section pesticides. Since others also may be or data that you used. 3(c)(5). When used in accordance with interested, the Agency has not v. If you estimate potential costs or widespread and commonly recognized attempted to describe all the specific burdens, explain how you arrived at practice, the pesticide product must entities that may be affected by this your estimate in sufficient detail to perform its intended function without action. If you have any questions allow for it to be reproduced. unreasonable adverse effects on the regarding the applicability of this action vi. Provide specific examples to environment; that is, without any to a particular entity, consult the person illustrate your concerns and suggest unreasonable risk to man or the listed under FOR FURTHER INFORMATION alternatives. environment, or a human dietary risk CONTACT. vii. Explain your views as clearly as from residues that result from the use of possible, avoiding the use of profanity B. What Should I Consider as I Prepare a pesticide in or on food. or personal threats. My Comments for EPA? viii. Make sure to submit your III. Registration Reviews 1. Submitting CBI. Do not submit this comments by the comment period A. What Action is the Agency Taking? information to EPA through deadline identified. regulations.gov or e-mail. Clearly mark 3. Environmental justice. EPA seeks to As directed by FIFRA section 3(g), the part or all of the information that achieve environmental justice, the fair EPA is reviewing the pesticide you claim to be CBI. For CBI treatment and meaningful involvement registrations identified in the table in information in a disk or CD-ROM that of any group, including minority and/or this unit to assure that they continue to you mail to EPA, mark the outside of the low income populations, in the satisfy the FIFRA standard for disk or CD-ROM as CBI and then development, implementation, and registration—that is, they can still be identify electronically within the disk or enforcement of environmental laws, used without unreasonable adverse CD-ROM the specific information that is regulations, and policies. To help effects on human health or the claimed as CBI. In addition to one address potential environmental justice environment. A pesticide’s registration complete version of the comment that issues, the Agency seeks information on review begins when the Agency includes information claimed as CBI, a any groups or segments of the establishes a docket for the pesticide’s copy of the comment that does not population who, as a result of their registration review case and opens the contain the information claimed as CBI location, cultural practices, or other docket for public review and comment. must be submitted for inclusion in the factors, may have atypical or At present, EPA is opening registration public docket. Information so marked disproportionately high and adverse review dockets for the cases identified will not be disclosed except in human health impacts or environmental in the following table.

TABLE–REGISTRATION REVIEW DOCKETS OPENING

Registration Action Leader, Telephone Num- Registration Review Case Name and Number Docket ID Number ber, E-mail Address

Gliocladium species, (6020) EPA–HQ–OPP–2010–0439 Kathleen Martin, (703) 308–2857, mar- [email protected]

Pelargonic acid, salts and esters (6077) EPA–HQ–OPP–2010–0424 Andrew Bryceland, (703) 305–6928, [email protected]

B. Docket Content including, but not limited to, the • Federal Register notices regarding following information: any pending registration actions. 1. Review dockets. The registration • • review dockets contain information that An overview of the registration Federal Register notices regarding the Agency may consider in the course review case status. current or pending tolerances. of the registration review. The Agency • A list of current product • Risk assessments. may include information from its files registrations and registrants.

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• Bibliographies concerning current As provided in 40 CFR 155.58, the does not display a currently valid OMB registrations. registration review docket for each control number. • Summaries of incident data. pesticide case will remain publicly DATES: Written Paperwork Reduction • Any other pertinent data or accessible through the duration of the Act (PRA) comments should be information. registration review process; that is, until submitted on or before August 2, 2010. Each docket contains a document all actions required in the final decision If you anticipate that you will be summarizing what the Agency currently on the registration review case have submitting PRA comments, but find it knows about the pesticide case and a been completed. difficult to do so within the period of preliminary work plan for anticipated List of Subjects time allowed by this notice, you should data and assessment needs. Additional advise the FCC contact listed below as documents provide more detailed Environmental protection, Pesticides soon as possible. information. During this public and pests, Gliocladium species, ADDRESSES: Direct all PRA comments to comment period, the Agency is asking Pelargonic acid, salts and esters Nicholas A. Fraser, Office of that interested persons identify any Dated: June 16, 2010. Management and Budget, via fax at 202– additional information they believe the W. Michael McDavit, 395–5167 or via email to Agency should consider during the [email protected] and Acting Director, Biopesticides and Pollution registration reviews of these pesticides. to the Federal Communications The Agency identifies in each docket Prevention Division, Office of Pesticide Programs. Commission via email to [email protected] the areas where public comment is and [email protected]. To view a specifically requested, though comment [FR Doc. 2010–16027 Filed 7–1–10; 8:45 am] copy of this information collection in any area is welcome. BILLING CODE 6560–50–S request (ICR) submitted to OMB: (1) Go 2. Other related information. More to the web page http://reginfo.gov/ information on these cases, including public/do/PRAMain, (2) look for the the active ingredients for each case, may section of the web page called be located in the registration review FEDERAL COMMUNICATIONS COMMISSION ‘‘Currently Under Review’’, (3) click on schedule on the Agency’s website at the downward–pointing arrow in the http://www.epa.gov/oppsrrd1/ ‘‘Select Agency’’ box below the _ Notice of Public Information registration review/schedule.htm. Collection(s) Being Submitted for ‘‘Currently Under Review’’ heading, (4) Information on the Agency’s registration Review and Approval to the Office of select ‘‘Federal Communications review program and its implementing Management and Budget (OMB), Commission’’ from the list of agencies regulation may be seen at http:// Comments Requested presented in the ‘‘Select Agency’’ box, www.epa.gov/oppsrrd1/ (5) click the ‘‘Submit’’ button to the right registration_review. June 25, 2010. of the ‘‘Select Agency’’ box, and (6) 3. Information submission SUMMARY: The Federal Communications when the list of FCC ICRs currently requirements. Anyone may submit data Commission, as part of its continuing under review appears, look for the title or information in response to this effort to reduce paperwork burden of this ICR (or its OMB Control Number, document. To be considered during a invites the general public and other if there is one) and then click on the ICR pesticide’s registration review, the Federal agencies to take this Reference Number to view detailed submitted data or information must opportunity to comment on the information about this ICR. meet the following requirements: following information collection(s), as FOR FURTHER INFORMATION CONTACT: • To ensure that EPA will consider required by the Paperwork Reduction Cathy Williams, Office of Managing data or information submitted, Act (PRA) of 1995, 44 U.S.C. 3501 – Director, (202) 418–2918. interested persons must submit the data 3520. Comments are requested SUPPLEMENTARY INFORMATION: or information during the comment concerning: (a) whether the proposed OMB Control Number: 3060–0106. period. The Agency may, at its collection of information is necessary Title: Reporting Requirements for U.S. discretion, consider data or information for the proper performance of the Providers of International submitted at a later date. functions of the Commission, including • Telecommunications Services and The data or information submitted whether the information shall have Affiliates; 47 CFR 43.61. must be presented in a legible and practical utility; (b) the accuracy of the Form No.: Not Applicable. useable form. For example, an English Commission’s burden estimate; (c) ways Type of Review: Extension of a translation must accompany any to enhance the quality, utility, and currently approved collection. material that is not in English and a clarity of the information collected; (d) Respondents: Business or other for– written transcript must accompany any ways to minimize the burden of the profit entities. information submitted as an collection of information on the Number of Respondents/Responses: audiographic or videographic record. respondents, including the use of 1,262 respondents; 1,262 responses. Written material may be submitted in automated collection techniques or Estimated Time Per Response: 2 – 480 paper or electronic form. other forms of information technology; hours. • Submitters must clearly identify the and (e) ways to further reduce the Frequency of Response: Annual and source of any submitted data or information collection burden for small quarterly reporting requirements. information. business concerns with fewer than 25 Obligation to Respond: Required to • Submitters may request the Agency employees. obtain or retain benefits. The statutory to reconsider data or information that The FCC may not conduct or sponsor authority for this collection is contained the Agency rejected in a previous a collection of information unless it in Sections 1, 4(i), 4(j) 11, 201–205, 211, review. However, submitters must displays a currently valid control 214, 219, 220, 303(r), 309, and 403 of explain why they believe the Agency number. No person shall be subject to the Communications Act of 1934, as should reconsider the data or any penalty for failing to comply with amended, 47 U.S.C. 151, 154(i), 154(j), information in the pesticide’s a collection of information subject to the 161, 201–205, 211, 214, 219, 220, 303(r), registration review. Paperwork Reduction Act (PRA) that 309 and 403.

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Total Annual Burden: 23,954 hours. Reserve Bank indicated. The notices express their views in writing on the Annual Cost Burden: $340,800. also will be available for inspection at question whether the proposal complies Privacy Act Impact Assessment: No the office of the Board of Governors. with the standards of section 4 of the impact(s). Interested persons may express their BHC Act. Additional information on all Nature and Extent of Confidentiality: views in writing to the Reserve Bank bank holding companies may be In general, there is no need for indicated for that notice or to the offices obtained from the National Information confidentiality. of the Board of Governors. Comments Center website at www.ffiec.gov/nic/. Needs and Uses: The purpose of this must be received not later than July 20, Unless otherwise noted, comments information collection is to obtain 2010. regarding the applications must be information from applicants and current A. Federal Reserve Bank of Atlanta received at the Reserve Bank indicated licensees to further the Commission’s (Clifford Stanford, Vice President) 1000 or the offices of the Board of Governors goal of protecting U.S. consumers and Peachtree Street, N.E., Atlanta, Georgia not later than July 20, 2010. U.S. carriers from anti–competitive 30309: A. Federal Reserve Bank of Kansas conduct, ensure that consumers enjoy 1. Anthony Jennings Roy, III, City (Dennis Denney, Assistant Vice more choice in telecommunications Marksville, Louisiana; to retain voting President) 1 Memorial Drive, Kansas services and decrease prices for shares of Mansura Bancshares, Inc., City, Missouri 64198–0001: international calls without imposing Mansura, Louisiana, and thereby 1. Sturm Financial Group, Inc., unnecessary paperwork burdens on indirectly retain voting shares of The Denver, Colorado; to engage in lending carriers. If the information collection Cottonport Bank, Cottonport, Louisiana. activities through Northern Lights, LLC, was not conducted or was conducted B. Federal Reserve Bank of Kansas Denver, Colorado, pursuant to section less frequently, the Commission would City (Dennis Denney, Assistant Vice 225.28(b)(1) of Regulation Y. not be able to ensure compliance with President) 1 Memorial Drive, Kansas Board of Governors of the Federal Reserve its international rules and policies. City, Missouri 64198–0001: System, June 29, 2010. Furthermore, the Commission would 1. The Bannister Bancshares Robert deV. Frierson, not have sufficient information to take Irrevocable Trust dated May 21, 2010, Deputy Secretary of the Board. measures to prevent anticompetitive and Peter J. Fiene, as Trustee, both of conduct in the provision of Overland Park, Kansas; to acquire [FR Doc. 2010–16176 Filed 7–1–10; 8:45 am] international communications services. control of Bannister Bancshares Inc., BILLING CODE 6210–01–S The Commission would not have and thereby indirectly acquire control of adequate information to respond to Union Bank, both of Kansas City, failures in the U.S.–international Missouri. DEPARTMENT OF HEALTH AND HUMAN SERVICES market. The Commission would not be Board of Governors of the Federal Reserve able to promote effective competition in System, June 29, 2010. [Document Identifier: OS–0990–New; 60- the global market for communications Robert deV. Frierson, Day Notice] services. The lack of effective Deputy Secretary of the Board. competition would adversely affect the Agency Information Collection [FR Doc. 2010–16175 Filed 7–1–10; 8:45 am] U.S. revenues in the Request. 60-Day Public Comment telecommunications industry. The BILLING CODE 6210–01–S Request agency would not be able to comply AGENCY: Office of the Secretary, HHS. with the international regulations stated FEDERAL RESERVE SYSTEM in the World Trade Organization (WTO) In compliance with the requirement of section 3506(c)(2)(A) of the Basic Telecom Agreement. Notice of Proposals to Engage in Paperwork Reduction Act of 1995, the Permissible Nonbanking Activities or Federal Communications Commission. Office of the Secretary (OS), Department to Acquire Companies that are Marlene H. Dortch, of Health and Human Services, is Engaged in Permissible Nonbanking publishing the following summary of a Secretary, Activities Office of the Secretary, proposed information collection request Office of Managing Director. The companies listed in this notice for public comment. Interested persons have given notice under section 4 of the are invited to send comments regarding [FR Doc. 2010–16098 Filed 7–2–10; 8:45 am] Bank Holding Company Act (12 U.S.C. this burden estimate or any other aspect BILLING CODE 6712–01–S 1843) (BHC Act) and Regulation Y (12 of this collection of information, CFR Part 225) to engage de novo, or to including any of the following subjects: acquire or control voting securities or (1) The necessity and utility of the FEDERAL RESERVE SYSTEM assets of a company, including the proposed information collection for the proper performance of the agency’s Change in Bank Control Notices; companies listed below, that engages functions; (2) the accuracy of the Acquisition of Shares of Bank or Bank either directly or through a subsidiary or estimated burden; (3) ways to enhance Holding Companies other company, in a nonbanking activity that is listed in § 225.28 of Regulation Y the quality, utility, and clarity of the The notificants listed below have (12 CFR 225.28) or that the Board has information to be collected; and (4) the applied under the Change in Bank determined by Order to be closely use of automated collection techniques Control Act (12 U.S.C. 1817(j)) and related to banking and permissible for or other forms of information § 225.41 of the Board’s Regulation Y (12 bank holding companies. Unless technology to minimize the information CFR 225.41) to acquire a bank or bank otherwise noted, these activities will be collection burden. To obtain copies of holding company. The factors that are conducted throughout the United States. the supporting statement and any considered in acting on the notices are Each notice is available for inspection related forms for the proposed set forth in paragraph 7 of the Act (12 at the Federal Reserve Bank indicated. paperwork collections referenced above, U.S.C. 1817(j)(7)). The notice also will be available for e-mail your request, including your The notices are available for inspection at the offices of the Board of address, phone number, OMB number, immediate inspection at the Federal Governors. Interested persons may and OS document identifier, to

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[email protected], or call Cooperative Agreement Program, as implementation activities. The State the Reports Clearance Office on (202) authorized by Section 3013 of the Plans must be submitted to the National 690–6162. Written comments and American Recovery and Reinvestment Coordinator for Health Information recommendations for the proposed Act, is to provide grants to States and Technology during the first year of the information collections must be directed Qualified State Designated Entities and project period in order to receive to the OS Paperwork Clearance Officer to facilitate and expand the secure, implementation funding through the at the above e-mail address within 60 electronic movement and use of health cooperative agreement. Annual updates days. information among organizations to the State plans will be required in the Proposed Project: ONC State HIE State according to nationally recognized three remaining project periods. The Plans—OMB No. 0990–NEW—Office of standards. Section 3013 requires States data collection will last four years, the National Coordinator for Health and Qualified State Designated Entities which is the duration of the project, and Information Technology. to have approved State Plans, consisting this request is for the data collection for Abstract: The purpose of the State of strategic and operational components, the first three years of that project Health Information Exchange before funding can be used for period.

ESTIMATED ANNUALIZED BURDEN TABLE

Average bur- Forms Number of Number of den per Total burden (if necessary) Type of respondent respondents responses per response hours respondent (in hrs.)

State Plans (Strategic and Oper- State Government or Qualified State 56 1 10,024 561,244 ational). Designated Entity. Subsequent updates to the State State government or Qualified State 56 1 500 28,000 Plan. Designated Entity. Total ...... 589,244

Seleda Perryman, (1) The necessity and utility of the Report—OMB No. 0990–NEW–Office of Office of the Secretary, Paperwork Reduction proposed information collection for the the National Coordinator for Health Act Clearance Officer. proper performance of the agency’s Information Technology. [FR Doc. 2010–16164 Filed 7–1–10; 8:45 am] functions; (2) the accuracy of the Abstract: The purpose of the State BILLING CODE 4150–45–P estimated burden; (3) ways to enhance Health Information Exchange the quality, utility, and clarity of the Cooperative Agreement Program, as information to be collected; and (4) the authorized by Section 3013 of the DEPARTMENT OF HEALTH AND use of automated collection techniques HUMAN SERVICES or other forms of information American Recovery and Reinvestment technology to minimize the information Act, is to provide grants to States and [Document Identifier: OS–0990–New(60-day Qualified State Designated Entities and notice)] collection burden. to facilitate and expand the secure, To obtain copies of the supporting Agency Information Collection statement and any related forms for the electronic movement and use of health Request: 60-Day Public Comment proposed paperwork collections information among organizations Request referenced above, e-mail your request, according to nationally recognized standards. As part of that project, States AGENCY: including your address, phone number, Office of the Secretary, HHS. and Qualified State Designated Entities In compliance with the requirement OMB number, and OS document of section 3506(c)(2)(A) of the identifier, to are required to provide biannual Paperwork Reduction Act of 1995, the [email protected], or call program progress reports and report on Office of the Secretary (OS), Department the Reports Clearance Office on (202) performance measures during the of Health and Human Services, is 690–6162. Written comments and implementation phase of the publishing the following summary of a recommendations for the proposed cooperative agreement. This request is proposed information collection request information collections must be directed for those two data gathering for public comment. Interested persons to the OS Paperwork Clearance Officer requirements. The data collection will are invited to send comments regarding at the above email address within 60- last four years, which is the duration of this burden estimate or any other aspect days. the project, and this request is for the of this collection of information, Proposed Project: ONC State HIE data collection for the first three years including any of the following subjects: Performance Measures and Progress of that project period.

ESTIMATED ANNUALIZED BURDEN TABLE

Average Type of Number of Number of burden per Total burden Forms (if necessary) respondent respondents responses per response hours respondent (in hrs.)

Evaluation performance measures ...... State government or Quali- 56 2 175 19,600 fied State Designated En- tity.

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ESTIMATED ANNUALIZED BURDEN TABLE—Continued

Average Type of Number of Number of burden per Total burden Forms (if necessary) respondent respondents responses per response hours respondent (in hrs.)

Program progress report ...... State government or Quali- 56 2 8 896 fied State Designated En- tity.

Total ...... 20,496

Seleda Perryman, Department of Agriculture’s National 28, 2010. The system of records, except Office of the Secretary, Paperwork Reduction Finance Center (NFC), and one or more the routine uses, will become effective Act Clearance Officer. nonprofit entities to serve as a third- upon publication in the Federal [FR Doc. 2010–16165 Filed 7–1–10; 8:45 am] party administrator (TPA) responsible Register. To ensure that all parties have BILLING CODE 4150–45–P for maintaining a network of health care adequate time in which to comment on providers and adjudicating claims for the routine uses, the routine uses will covered services. become effective 30 days from the DEPARTMENT OF HEALTH AND The purpose of this system of records publication of the notice, or 40 days HUMAN SERVICES is to collect and maintain information from the date it was submitted to OMB on individuals who apply for and Congress, whichever is later, unless Office of Consumer Information and enrollment in the program. This HHS receives comments that require Insurance Oversight: Privacy Act of information will enable HHS acting alterations to the routine uses. 1974; Report of a New System of through NFC, OPM, and any third-party ADDRESSES: The public should address Records administrator(s) to determine comments to: HHS Privacy Officer, AGENCY: Department of Health and applicants’ eligibility, enroll eligible Office of the Secretary, Office of the Human Services (HHS). individuals into the program, adjudicate Assistant Secretary for Public Affairs appeals of eligibility and coverage (ASPA), Freedom of Information/ ACTION: Notice of a New System of determinations, bill and collect Privacy Acts Division, 330 ‘‘C’’ Street, Records. premium payments, and process and SW., Washington, DC 20201. Telephone SUMMARY: In accordance with the pay claims for covered health care items number: (202) 690–7453. Comments requirements of the Privacy Act of 1974, and services furnished to eligible received will be available for review at the U.S. Department of Health and individuals. Information maintained in this location, by appointment, during Human Services’ (HHS) Office of this system will also be disclosed to: (1) regular business hours, Monday through Consumer Information and Insurance Support regulatory, reimbursement, and Friday from 9 a.m.–3 p.m. e.t. Oversight (OCIIO) is proposing to policy functions performed by an HHS FOR FURTHER INFORMATION CONTACT: Jill establish a new system of records (SOR) contractor, consultant or grantee; (2) Gotts, Office of Consumer Information titled ‘‘Pre-Existing Condition Insurance assist another Federal or State agency, and Insurance Oversight (OCIIO), Office Plan (PCIP),’’ System No. 09–90–0275. agency of a State government, an agency of the Secretary, Department of Health Section 1101 of Title I of the Patient established by State law, or its fiscal and Human Services. She can be Protection and Affordable Care Act of agent; (3) support litigation involving reached at (202) 690–5894, or contact 2010 (Affordable Care Act) requires that the Department; (4) combat fraud and via e-mail at [email protected]. the Secretary of Health and Human abuse in certain health benefits SUPPLEMENTARY INFORMATION: Services establish, either directly or programs; and (5) assist efforts to Individuals who have a pre-existing through contracts with States and respond to a suspected or confirmed condition are often unable to obtain nonprofit private entities, a temporary breach of the security or confidentiality insurance coverage in the individual high risk health insurance pool program of information maintained in this market and in many cases are denied to make health insurance coverage system of records. We have provided coverage entirely, are offered coverage available at standard rates to uninsured background information about the with a rider that excludes coverage for individuals with pre-existing modified system in the ‘‘Supplementary the pre-existing condition, or are offered conditions. This program will continue Information’’ section below. Although coverage at an unaffordable premium. until January 1, 2014, when American the Privacy Act requires only that HHS The Pre-Existing Condition Insurance Health Benefit Exchanges established provide an opportunity for interested Plan will enable eligible individuals under sections 1311 and 1321 of the persons to comment on the proposed with pre-existing conditions to purchase Affordable Care Act will be available for routine uses, HHS invites comments on coverage without any pre-existing individuals to obtain health insurance all portions of this notice. See EFFECTIVE condition coverage exclusions at coverage. HHS provided each State or DATES section for comment period. standard individual insurance market its designated nonprofit entity the DATES: Effective: HHS filed a new rates. Section 1101 of the Act requires opportunity to contract with HHS to system report with the Chair of the that the Secretary of the Department of establish this program. However, to the House Committee on Government Health and Human Services (HHS) extent that HHS does contract with a Reform and Oversight, the Chair of the establish, either directly or through State to administer the program, HHS Senate Committee on Homeland contracts with States or nonprofit will make available a Pre-Existing Security and Governmental Affairs, and private entities, a temporary high risk Insurance Plan in such State under the Administrator, Office of Information pool program to provide access to arrangements with the U.S. Office of and Regulatory Affairs, Office of affordable insurance for uninsured Personnel Management, the U.S. Management and Budget (OMB) on June Americans with pre-existing conditions.

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This transitional program is intended to associated with these anti-dumping system will be approved only for the remain in place from the time of its rules, and sets forth remedies when minimum information necessary to establishment until the American such situations occur. We are also accomplish the purpose of the Health Benefit Exchanges established required to establish oversight disclosure and only after HHS: under sections 1311 or 1321 of the Act procedures, including appeals 1. Determines that the use or go into effect on January 1, 2014. procedures and protections against disclosure is consistent with the reason Eligible individuals may access fraud, waste, and abuse. that the data is being collected, e.g., to coverage through a Pre-Existing Finally, the statute specifies that collect, maintain, and process Condition Insurance Plan that will be coverage of eligible individuals under information necessary to effectively and established in each State by HHS, either the high risk pool program will efficiently administer the PCIP; directly or through a contract with the terminate on January 1, 2014. The 2. Determines that: State or a non-profit entity. Individuals Secretary is charged with developing a. The purpose for which the are eligible to enroll in a qualified high procedures to transition qualified high disclosure is to be made can only be risk pool if they are citizens or nationals risk pool enrollees to the American accomplished if the record is provided of the 50 States or District of Columbia, Health Benefit Exchanges, established in individually identifiable form; or are otherwise lawfully present; have under sections 1311 or 1321 of the Act, b. The purpose for which the not been covered under creditable to ensure that there are no lapses in disclosure is to be made is of sufficient coverage during the 6-month period health coverage. importance to warrant the effect and/or prior to applying for coverage through risk on the privacy of the individual that this program; and have a pre-existing I. Description of the Proposed System of additional exposure of the record might condition. Records bring; and Individuals who enroll in qualified A. Statutory and Regulatory Basis for c. There is a strong probability that high risk pools are entitled under System the proposed use of the data would in section 1101 of the Act to coverage that fact accomplish the stated purpose(s). Authority for the collection, has an actuarial value of at least 65 3. Requires the information recipient maintenance, and disclosures from this percent of total allowed costs, and has to: system is given under provisions of a limit on enrollee out-of-pocket a. Establish administrative, technical, Section 1101 of the Affordable Care Act. expenses that does not exceed the and physical safeguards to prevent amount available to individuals with a B. Collection and Maintenance of Data unauthorized use of disclosure of the high deductible health plan linked to a in the System record; tax-preferred health savings account. b. Remove or destroy at the earliest Information in this system is The Pre-Existing Condition Insurance time all individually-identifiable maintained on individuals who apply to Plan will be available to eligible information; and enroll in the Pre-Existing Condition individuals for a premium that is no c. Agree to not use or disclose the Insurance Plan. Information maintained more than 100 percent of the standard information for any purpose other than in this system includes, but is not individual market rate for that coverage. the stated purpose under which the limited to, the applicant’s first name, Premiums charged in the pool may vary information was disclosed. last name, middle initial, address, date only on the basis of the type of coverage 4. Determines that the data are valid of birth, Social Security Number (SSN), (individual or family), age (by a factor and reliable. no greater than 4 to 1). gender, state of residence, information The statute appropriates $5 billion in about prior coverage, information about III. Proposed Routine Use Disclosures funding for the program, and specifies the citizenship or lawful presence, and of Data in the System information about prior denials of that these funds are available for the A. Entities Who May Receive payment of claims and administrative insurance coverage or exclusions. Disclosures Under Routine Use costs that are in excess of the premiums II. Agency Policies, Procedures, and collected from enrollees in the program. These routine uses specify Restrictions on Routine Uses The Secretary is given broad authority circumstances, in addition to those to make adjustments needed to comply A. The Privacy Act permits us to provided by statute in the Privacy Act with this funding limitation, including disclose information without an of 1974, under which HHS may release limiting applications for participation in individual’s consent if the information information from the PCIP without the the program. The Secretary may carry is to be used for a purpose that is consent of the individual to whom such out this program either directly or compatible with the purpose(s) for information pertains. Each proposed through contracts with eligible entities, which the information was collected. disclosure of information under these including States and nonprofit private Any such disclosure of data is known as routine uses will be evaluated to ensure entities. To the extent that States meet a ‘‘routine use.’’ The government will that the disclosure is legally the requirements described in the Act, only release PCIP information that can permissible, including but not limited to HHS will contract with them to be associated with an individual as ensuring that the purpose of the administer the new program. If a State provided for under ‘‘Section III. disclosure is compatible with the declined to contract with HHS, or does Proposed Routine Use Disclosures of purpose for which the information was not submit an application Data in the System.’’ Both identifiable collected. We propose to establish the demonstrating the capability to meet the and non-identifiable data may be following routine use disclosures of requirements of this program, HHS will disclosed under a routine use. information maintained in the system: administer that program in that State We will only disclose the minimum 1. To support HHS contractors, through a contract with a nonprofit personal data necessary to achieve the consultants, or HHS grantees who have private entity. purpose of PCIP. HHS has the following been engaged by HHS to assist in The Affordable Care Act also requires policies and procedures concerning accomplishment of an HHS function that the Secretary establish criteria to disclosures of information that will be relating to the purposes for this SOR protect against ‘‘dumping risk’’ by maintained in the system. In general, and who need to have access to the insurers; the Act spells out criteria disclosure of information from the records in order to assist HHS.

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We contemplate disclosing policies or operations could be affected for the assistance. Other agencies may information under this routine use only by the outcome of the litigation, HHS require PCIP information for the in situations in which HHS may enter would be able to disclose information to purpose of assisting the Department’s into a contractual or similar agreement the DOJ, court, or adjudicatory body efforts to respond to a suspected or with a third party to assist in involved. confirmed breach of the security or accomplishing an HHS function relating 4. To assist an HHS contractor that confidentiality of information to purposes for this SOR. HHS assists in the administration of an HHS- maintained in this system of records. occasionally contracts out certain of its administered health benefits program, B. Additional Circumstances Affecting functions when doing so would or to a grantee of an HHS-administered Routine Use Disclosures contribute to effective and efficient grant program, when disclosure is operations. HHS will give a contractor, deemed reasonably necessary by HHS to Our policy will be to prohibit release consultant, or HHS grantee the prevent, deter, discover, detect, even of data not directly identifiable, information necessary for the contractor investigate, examine, prosecute, sue except pursuant to one of the routine or consultant to fulfill its duties. In with respect to, defend against, correct, uses or if required by law, if we these situations, safeguards are provided remedy, or otherwise combat fraud, determine there is a possibility that an in the contract prohibiting the waste or abuse in such program. individual can be identified through contractor, consultant, or grantee from We contemplate disclosing implicit deduction based on small cell using or disclosing the information for information under this routine use only sizes (instances where the patient any purpose other than that described in in situations in which HHS may enter population is so small that individuals the contract and requires the contractor, into a contract or grant with a third could, because of the small size, use this consultant, or grantee to return or party to assist in accomplishing HHS information to deduce the identity of destroy all information at the functions relating to the purpose of the individual). combating fraud, waste or abuse. HHS completion of the contract. Contractors IV. Safeguards are also required to provide the occasionally contracts out certain of its appropriate management, operational, functions when doing so would HHS has safeguards in place for and technical controls to secure the contribute to effective and efficient authorized users and monitors such data. operations. HHS must be able to give a users to ensure against unauthorized 2. To assist another Federal or state contractor or grantee whatever use. Personnel having access to the agency, agency of a state government, an information is necessary for the system have been trained in the Privacy agency established by state law, or its contractor or grantee to fulfill its duties. Act and information security fiscal agent pursuant to agreements with In these situations, safeguards are requirements. Employees who maintain HHS to determine applicants’ eligibility provided in the contract prohibiting the records in this system are instructed not for the Pre-existing Condition Insurance contractor or grantee from using or to release data until the intended Plan, enroll eligible individuals into the disclosing the information for any recipient agrees to implement plan, adjudicate appeals of eligibility purpose other than that described in the appropriate management, operational and coverage determinations, bill and contract and requiring the contractor or and technical safeguards sufficient to collect premium payments, and process grantee to return or destroy all protect the confidentiality, integrity and and pay claims for covered health care information. availability of the information and items and services furnished to eligible 5. To assist another Federal agency or information systems and to prevent individuals. to an instrumentality of any unauthorized access. Other Federal or state agencies in governmental jurisdiction within or This system will conform to all their administration of the Pre-existing under the control of the United States applicable Federal laws and regulations Condition Insurance Plan may require (including any state or local and Federal and HHS policies and PCIP information in order to carry out governmental agency), that administers, standards as they relate to information their functions pursuant to their or that has the authority to investigate security and data privacy. These laws agreements with HHS. potential fraud, waste or abuse in a and regulations include but are not 3. To support the Department of health benefits program funded in limited to: The Privacy Act of 1974; the Justice (DOJ), court, or adjudicatory whole or in part by Federal funds, when Federal Information Security body when: disclosure is deemed reasonably Management Act of 2002; the Computer a. The Department or any component necessary by HHS to prevent, deter, Fraud and Abuse Act of 1986; the E– thereof, or discover, detect, investigate, examine, Government Act of 2002, and the b. Any employee of HHS in his or her prosecute, sue with respect to, defend Clinger-Cohen Act of 1996; OMB official capacity, or against, correct, remedy, or otherwise Circular A–130, Management of Federal c. Any employee of HHS in his or her combat fraud, waste or abuse in such Resources, Appendix III, Security of individual capacity where the DOJ has programs. Federal Automated Information agreed to represent the employee, or Other agencies may require PCIP Resources also applies. Federal and d. The United States Government, is information for the purpose of HHS policies and standards include but a party to litigation or has an interest in combating fraud, waste or abuse in such are not limited to: all pertinent National such litigation, and by careful review, Federally-funded programs. Institute of Standards and Technology HHS determines that the records are 6. To assist appropriate Federal publications; and the HHS Information both relevant and necessary to the agencies and Department contractors Systems Program Handbook. litigation and that the use of such that have a need to know the records by the DOJ, court or information for the purpose of assisting V. Effects of the New System on the adjudicatory body is compatible with the Department’s efforts to respond to a Rights of Individuals the purpose for which the agency suspected or confirmed breach of the HHS proposes to establish this system collected the records. security or confidentiality of in accordance with the principles and Whenever HHS is involved in information maintained in this system requirements of the Privacy Act and will litigation, or occasionally when another of records, and the information collect, use, and disseminate party is involved in litigation and HHS’s disclosed is relevant and unnecessary information only as prescribed therein.

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We will only disclose the minimum pertaining to (1) his or her citizenship These routine uses specify personal data necessary to achieve the or immigration status, since only circumstances, in addition to those purpose of PCIP. Disclosure of individuals who are citizens or provided by statute in the Privacy Act information from the system will be nationals of the U.S. or lawfully present of 1974, under which HHS may release approved only to the extent necessary to are eligible to enroll; (2) coverage an information from the PCIP without the accomplish the purpose of the individual had during the prior twelve consent of the individual to whom such disclosure. months from the date of application in information pertains. Each proposed HHS will take precautionary measures order to establish that such individual disclosure of information under these to minimize the risks of unauthorized has been without creditable coverage for routine uses will be evaluated to ensure access to the records and the potential at least six months are eligible to enroll that the disclosure is legally harm to individual privacy or other and to assess whether insurers are permissible, including but not limited to personal or property rights. HHS will discouraging an individual from ensuring that the purpose of the collect only that information necessary remaining enrolled in prior coverage disclosure is compatible with the to perform the system’s functions. In due to health status; and (3) an purpose for which the information was addition, HHS will make disclosure insurance company’s denial of coverage, collected. We propose to establish the from the proposed system only with offer of coverage with a medical following routine use disclosures of consent of the subject individual, or his/ condition exclusion rider, or, for an information maintained in the system: her legal representative, or in applicant is guaranteed an offer of 1. To support HHS contractors, accordance with an applicable coverage, coverage that is medically consultants, or HHS grantees who have exception provision of the Privacy Act. underwritten. Information will also be been engaged by HHS to assist in HHS, therefore, does not anticipate an maintained with respect to the accomplishment of an HHS function unfavorable effect on individual privacy applicant’s premium amount and relating to the purposes for this SOR as a result of the disclosure of payment history. and who need to have access to the information relating to individuals. records in order to assist HHS. AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Dated: June 25, 2010. 2. To assist another Federal or state Authority for the collection, agency, agency of a state government, an Richard Popper, maintenance, and disclosures from this Deputy Director. agency established by state law, or its system is given under provisions of fiscal agent pursuant to agreements with SYSTEM NUMBER: Section 1101 of the Patient Protection HHS to determine applicants’ eligibility and Affordable Care Act (Pub. L. 111– 09–90–0275. for the Pre-existing Condition Insurance 148). Plan, enroll eligible individuals into the SYSTEM NAME: PURPOSE(S) OF THE SYSTEM: plan, adjudicate appeals of eligibility and coverage determinations, bill and ‘‘Pre-Existing Condition Insurance The purpose of this system of records collect premium payments, and process Plan (PCIP),’’ OCIIO, OS/HHS. is to collect and maintain information and pay claims for covered health care on individuals who apply for SECURITY CLASSIFICATION: items and services furnished to eligible enrollment in the program. This None. individuals. information will enable HHS acting 3. To support the Department of SYSTEM LOCATION: through NFC, OPM, and any third-party Justice (DOJ), court, or adjudicatory administrator(s) to determine Office of Consumer Information and body when: applicants’ eligibility, enroll eligible Insurance Oversight, U.S. Department of e. The Department or any component individuals into the program, adjudicate Health & Human Services, 200 thereof, or appeals of eligibility and coverage Independence Avenue, SW., Suite 738F, f. Any employee of HHS in his or her determinations, bill and collect Washington, DC 20201. official capacity, or premium payments, and process and CATEGORIES OF INDIVIDUALS COVERED BY THE pay claims for covered health care items g. Any employee of HHS in his or her SYSTEM: and services furnished to eligible individual capacity where the DOJ has Information in this system is individuals. Information maintained in agreed to represent the employee, or maintained on individuals who apply to this system will also be disclosed to: (1) h. The United States Government, is enroll in the Pre-Existing Condition Support regulatory, reimbursement, and a party to litigation or has an interest in Insurance Plan. policy functions performed by an HHS such litigation, and by careful review, contractor, consultant or grantee; (2) HHS determines that the records are CATEGORIES OF RECORDS IN THE SYSTEM: assist another Federal or State agency, both relevant and necessary to the Information in this system is agency of a State government, an agency litigation and that the use of such maintained on individuals who enroll established by State law, or its fiscal records by the DOJ, court or in the Pre-Existing Condition Insurance agent; (3) support litigation involving adjudicatory body is compatible with Plan. Information maintained in this the Department; (4) combat fraud and the purpose for which the agency system includes, but is not limited to, abuse in certain health benefits collected the records. the applicant’s first name, last name, programs; and (5) assist efforts to 4. To assist an HHS contractor that middle initial, mailing address or respond to a suspected or confirmed assists in the administration of an HHS- permanent residential address (if breach of the security or confidentiality administered health benefits program, different than the mailing address), date of information maintained in this or to a grantee of an HHS-administered of birth, Social Security Number (if the system of records. grant program, when disclosure is applicant has one), gender, email deemed reasonably necessary by HHS to address, telephone number. The system ROUTINE USES OF RECORDS MAINTAINED IN THE prevent, deter, discover, detect, will also maintain information to make SYSTEM, INCLUDING CATEGORIES OR USERS AND investigate, examine, prosecute, sue a decision about an applicant’s THE PURPOSES OF SUCH USES: with respect to, defend against, correct, eligibility. We collect and maintain B. Entities Who May Receive remedy, or otherwise combat fraud, information that the applicant submits Disclosures Under Routine Use waste or abuse in such program.

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5. To assist another Federal agency or appropriate management, operational the reasons for the correction with to an instrumentality of any and technical safeguards sufficient to supporting justification. (These governmental jurisdiction within or protect the confidentiality, integrity and procedures are in accordance with under the control of the United States availability of the information and Department regulation 45 CFR 5b.7). (including any state or local information systems and to prevent governmental agency), that administers, unauthorized access. RECORD SOURCE CATEGORIES: or that has the authority to investigate This system will conform to all Record source categories include potential fraud, waste or abuse in a applicable Federal laws and regulations applicants who voluntarily submit data health benefits program funded in and Federal and HHS policies and and personal information for the PCIP whole or in part by Federal funds, when standards as they relate to information program. security and data privacy. These laws disclosure is deemed reasonably SYSTEMS EXEMPTED FROM CERTAIN PROVISIONS necessary by HHS to prevent, deter, and regulations include but are not OF THE ACT: discover, detect, investigate, examine, limited to: the Privacy Act of 1974; the None. prosecute, sue with respect to, defend Federal Information Security against, correct, remedy, or otherwise Management Act of 2002; the Computer [FR Doc. 2010–16167 Filed 7–1–10; 8:45 am] combat fraud, waste or abuse in such Fraud and Abuse Act of 1986; the E– BILLING CODE 4150–65–P programs. Government Act of 2002, and the 6. To assist appropriate Federal Clinger-Cohen Act of 1996; OMB agencies and Department contractors Circular A–130, Management of Federal DEPARTMENT OF HEALTH AND that have a need to know the Resources, Appendix III, Security of HUMAN SERVICES Federal Automated Information information for the purpose of assisting Centers for Medicare & Medicaid Resources also applies. Federal and the Department’s efforts to respond to a Services suspected or confirmed breach of the HHS policies and standards include but security or confidentiality of are not limited to: all pertinent National [Document Identifier: CMS–R–297 and information maintained in this system Institute of Standards and Technology CMS–10209] of records, and the information publications; and the HHS Information disclosed is relevant and unnecessary Systems Program Handbook. Agency Information Collection for the assistance. Activities: Submission for OMB RETENTION AND DISPOSAL: C. Additional Circumstances Review; Comment Request Records are maintained with Affecting Routine Use Disclosures AGENCY: Centers for Medicare & Our policy will be to prohibit release identifiers for all transactions after they are entered into the system for a period Medicaid Services. even of data not directly identifiable, In compliance with the requirement except pursuant to one of the routine of 10 years. Records are housed in both active and archival files in accordance of section 3506(c)(2)(A) of the uses or if required by law, if we Paperwork Reduction Act of 1995, the determine there is a possibility that an with HHS data and document management policies and standards. Centers for Medicare & Medicaid individual can be identified through Services (CMS), Department of Health implicit deduction based on small cell SYSTEM MANAGER AND ADDRESS: and Human Services, is publishing the sizes (instances where the patient Anthony Culotta, High Risk Pool following summary of proposed population is so small that individuals Program Division, Office of Insurance collections for public comment. could, because of the small size, use this Programs, Office of Consumer Interested persons are invited to send information to deduce the identity of Information and Insurance Oversight, comments regarding this burden the beneficiary). U.S. Department of Health & Human estimate or any other aspect of this POLICIES AND PRACTICES FOR STORING, Services, 200 Independence Avenue, collection of information, including any RETRIEVING, ACCESSING, RETAINING, AND SW., Suite 738F, Washington, DC of the following subjects: (1) The DISPOSING OF RECORDS IN THE SYSTEM: 20201. necessity and utility of the proposed information collection for the proper STORAGE: NOTIFICATION PROCEDURE: performance of the Agency’s function; We will be storing records in For purpose of notification, the (2) the accuracy of the estimated hardcopy files and various electronic subject individual should write to the burden; (3) ways to enhance the quality, storage media (including DB2, Oracle, system manager who will require the utility, and clarity of the information to and other relational data structures). system name, and the retrieval selection be collected; and (4) the use of criteria (e.g., name, SSN, etc.). RETRIEVABILITY: automated collection techniques or Information is most frequently RECORD ACCESS PROCEDURE: other forms of information technology to retrieved by first name, last name, For purpose of access, use the same minimize the information collection middle initial, date of birth, or Social procedures outlined in Notification burden. Security Number (SSN). Procedures above. Requestors should 1. Type of Information Collection also reasonably specify the record Request: Extension of a currently SAFEGUARDS: contents being sought. (These approved collection; Title of HHS has safeguards in place for procedures are in accordance with Information Collection: Request for authorized users and monitors such Department regulation 45 CFR Employment Information; Use: Section users to ensure against unauthorized 5b.5(a)(2)). 1837(i) of the Social Security Act use. Personnel having access to the provides for a special enrollment period system have been trained in the Privacy CONTESTING RECORD PROCEDURES: for individuals who delay enrolling in Act and information security The subject individual should contact Medicare Part B because they are requirements. Employees who maintain the system manager named above, and covered by a group health plan based on records in this system are instructed not reasonably identify the record and their own or a spouse’s current to release data until the intended specify the information to be contested. employment status. When these recipient agrees to implement State the corrective action sought and individuals apply for Medicare Part B,

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they must provide proof that the group OMB, Office of Information and Background and Brief Description health plan coverage is (or was) based Regulatory Affairs, Attention: CMS In September 2005, the Centers for on current employment status. This Desk Officer, Fax Number: Disease Control and Prevention form is used by the Social Security (202) 395–6974, e-mail: _ launched CDC–INFO, a consolidated, Administration to obtain information OIRA [email protected]. comprehensive effort to respond to from employers regarding whether a Dated: June 28, 2010. consumer, provider and partner Medicare beneficiary’s coverage under a Michelle Shortt, inquiries on a broad spectrum of public group health plan is based on current Director, Regulations Development Group, health topics by telephone, e-mail, fax, employment status. Form Number: Office of Strategic Operations and Regulatory or postal mail. More than 40 nationwide CMS–R–297 (OMB#: 0938–0787); Affairs. public health hotlines and warm lines Frequency: Once; Affected Public: [FR Doc. 2010–16008 Filed 7–1–10; 8:45 am] were consolidated into one central Private Sector: Business or other for- BILLING CODE 4120–01–P phone number using a phased approach profits and Not-for-profit institutions; from 2005 to 2008. Management of Number of Respondents: 5,000; Total CDC–INFO services is increasingly Annual Responses: 5,000; Total Annual DEPARTMENT OF HEALTH AND guided by a comprehensive evaluation Hours: 1250. (For policy questions HUMAN SERVICES that includes point-of-service and regarding this collection contact Kevin follow-up customer satisfaction surveys. Simpson at 410–786–0017. For all other Centers for Disease Control and These surveys provide the public with issues call 410–786–1326.) Prevention ongoing opportunity to express their 2. Type of Information Collection [60-Day–10–0753] level of satisfaction and report how they Request: Extension of a currently have used this information. All approved collection; Title of Proposed Data Collections Submitted members of the public, health care Information Collection: Chronic Care for Public Comment and providers and businesses can contact Recommendations Improvement Program and Medicare CDC–INFO by phone, e-mail, or postal Advantage Quality Improvement In compliance with the requirement mail to request health information or Project; Use: The Social Security Act, of section 3506(c)(2)(A) of the order CDC publications. section 1852 e(1), (2) and (3)(a)(i), and Paperwork Reduction Act of 1995 for CDC–INFO is a proactive, unified, and CFR 42, 422.152 describe CMS’ opportunity for public comment on integrated approach to the delivery of regulatory authority to require each proposed data collection projects, the public health information and is Medicare Advantage Organization (other Centers for Disease Control and designed to contribute to improving the than Medicare Advantage (MA) private Prevention (CDC) will publish periodic health and safety of the public. fee for service and MSA plans) that summaries of proposed projects. To Customers are defined as any individual offers one or more MA plans to have an request more information on the or group seeking health or public health ongoing quality assessment and proposed projects or to obtain a copy of information from CDC. This includes performance improvement program. the data collection plans and the public, media, medical and This program must include measuring instruments, call 404–639–5960 and healthcare professionals, public health performance using standard measures send comments to Maryam I. Daneshvar, professionals, partner groups, required by CMS and report its CDC Acting Reports Clearance Officer, businesses, researchers, and others. performance to CMS. Form Number: 1600 Clifton Road, MS–D74, Atlanta, Customer interactions occur through CMS–10209 (OMB#: 0938–1023); GA 30333 or send an e-mail to multiple channels, e.g., telephone calls, Frequency: Yearly; Affected Public: [email protected]. e-mails, and postal mail. There are Business or other for-profits and Not- Comments are invited on: (a) Whether seven (7) potential evaluation points for-profit institutions; Number of the proposed collection of information across three (3) major categories: Respondents: 394; Total Annual is necessary for the proper performance consumer satisfaction, special event/ Responses: 788; Total Annual Hours: of the functions of the agency, including outreach, and emergency response. All 18,912. (For policy questions regarding whether the information shall have survey tools provide the participant an this collection contact Darlene practical utility; (b) the accuracy of the opportunity to decline and are available Anderson at 410–786–9824. For all agency’s estimate of the burden of the in English and Spanish. other issues call 410–786–1326.) proposed collection of information; (c) These satisfaction surveys track the ways to enhance the quality, utility, and utility of CDC–INFO to the public at To obtain copies of the supporting clarity of the information to be point of service and are integral for statement and any related forms for the collected; and (d) ways to minimize the directing attention towards programs proposed paperwork collections burden of the collection of information that are underperforming or receiving referenced above, access CMS Web site on respondents, including through the high endorsement, to understand the address at http://www.cms.hhs.gov/ use of automated collection techniques basis for disparity. Industry benchmarks PaperworkReductionActof1995, or e- or other forms of information for performance, including consumer mail your request, including your technology. Written comments should satisfaction, were helpful for creating address, phone number, OMB number, be received within 60 days of this measures, and setting realistic and CMS document identifier, to notice. expectations for performance. With the [email protected], or call the passage of time, the private sector has Reports Clearance Office on Proposed Project integrated new performance indicators (410) 786–1326. Evaluation of the Centers for Disease for contact centers, and the suggested To be assured consideration, Control and Prevention’s Consumer revisions reflect these innovations. comments and recommendations for the Response Service Center, CDC INFO. These innovations and survey findings proposed information collections must (OMB No. 0920–0753—Revision—Office form the rationale for new question be received by the OMB desk officer at of the Associate Director of items and revised burden estimates. the address below, no later than 5 p.m. Communication, Centers for Disease Minor changes were made to the on August 16, 2010. Control and Prevention (CDC).) research protocol to improve

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recruitment, and are discussed contact center. The outcome of this endorsing the highest level of throughout the application where there feedback is tangible, with the average satisfaction—very satisfied. is any implication for information number of incoming calls to CDC–INFO Sample size, respondent burden, and privacy. reaching new heights on an annual intrusiveness have been minimized to These evaluations have provided basis, and consumer satisfaction be consistent with national evaluation volumes of data, reports, and hovering around the best practice presentations on the progression of objectives. There is no cost to the benchmark of 75 percent of callers respondent, other than the amount of CDC–INFO, an innovative, multi- participating in a satisfaction survey million dollar, Federal public health time required to respond to the survey.

ESTIMATED ANNUALIZED BURDEN HOURS

Average burden Type of Form Number of Number of per Total respondent name respondents responses response burden per respondent (in hrs) hours

General Callers ...... Satisfaction survey ...... 92,000 1 4⁄60 6,133 Email Inquirers ...... Satisfaction survey ...... 1,460 1 3⁄60 73 Callers (follow-up) ...... Follow-up survey ...... 5,290 1 9⁄60 794 General Public ...... Special event/Outreach survey 5,120 1 7⁄60 597 Professionals ...... Special event/Outreach survey 2,080 1 5⁄60 173 General Public ...... Emergency response survey— 8,288 1 5⁄60 691 Level 1. Professionals ...... Emergency response survey— 1,658 1 5⁄60 138 Level 1. General Public ...... Emergency response survey— 8,637 1 5⁄60 720 Level 2. Professionals ...... Emergency response survey— 1,727 1 5⁄60 144 Level 2. General Public ...... Emergency response survey— 35,185 1 5⁄60 2,932 Level 3. Professional ...... Emergency response survey— 7,037 1 5⁄60 586 Level 3. General Public ...... Emergency response survey— 129,126 1 5⁄60 10,761 Level 4. Professional ...... Emergency response survey— 29,825 1 5⁄60 2,485 Level 4.

Total Burden Hours ...... 26,227

Dated: June 24, 2010. effectiveness summaries of approved and 814.45(d) to discontinue individual Maryam I. Daneshvar, PMAs through the Internet and the publication of PMA approvals and Acting Reports Clearance Officer, Centers for agency’s Division of Dockets denials in the Federal Register. Instead, Disease Control and Prevention. Management. the agency now posts this information [FR Doc. 2010–16200 Filed 7–1–10; 8:45 am] ADDRESSES: Submit written requests for on the Internet on FDA’s home page at BILLING CODE 4163–18–P copies of summaries of safety and http://www.fda.gov. FDA believes that effectiveness data to the Division of this procedure expedites public Dockets Management (HFA–305), Food notification of these actions because DEPARTMENT OF HEALTH AND and Drug Administration, 5630 Fishers announcements can be placed on the HUMAN SERVICES Lane, rm. 1061, Rockville, MD 20852. Internet more quickly than they can be Please cite the appropriate docket published in the Federal Register, and Food and Drug Administration number as listed in table 1 of this FDA believes that the Internet is [Docket Nos. FDA–2010–M–0068, FDA– document when submitting a written accessible to more people than the 2010–M–0078, FDA–2010–M–0063, FDA– request. See the SUPPLEMENTARY Federal Register. 2010–M–0135, FDA–2010–M–0158] INFORMATION section for electronic In accordance with section 515(d)(4) access to the summaries of safety and and (e)(2) of the Federal Food, Drug, and Medical Devices; Availability of Safety effectiveness. and Effectiveness Summaries for Cosmetic Act (the act) (21 U.S.C. Premarket Approval Applications FOR FURTHER INFORMATION CONTACT: 360e(d)(4) and (e)(2)), notification of an Nicole Wolanski, Center for Devices and order approving, denying, or AGENCY: Food and Drug Administration, Radiological Health, Food and Drug withdrawing approval of a PMA will HHS. Administration, 10903 New Hampshire continue to include a notice of ACTION: Notice. Ave., Bldg. 66, rm. 1650, Silver Spring, opportunity to request review of the MD 20993–0002, 301–796–6570. order under section 515(g) of the act. SUMMARY: The Food and Drug SUPPLEMENTARY INFORMATION: The 30-day period for requesting Administration (FDA) is publishing a reconsideration of an FDA action under list of premarket approval applications I. Background § 10.33(b) (21 CFR 10.33(b)) for notices (PMAs) that have been approved. This In the Federal Register of January 30, announcing approval of a PMA begins list is intended to inform the public of 1998 (63 FR 4571), FDA published a on the day the notice is placed on the the availability of safety and final rule that revised 21 CFR 814.44(d) Internet. Section 10.33(b) provides that

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FDA may, for good cause, extend this The regulations provide that FDA Internet from January 1, 2010, through 30-day period. Reconsideration of a publish a quarterly list of available March 31, 2010. There were no denial denial or withdrawal of approval of a safety and effectiveness summaries of actions during this period. The list PMA may be sought only by the PMA approvals and denials that were provides the manufacturer’s name, the applicant; in these cases, the 30-day announced during that quarter. The product’s generic name or the trade period will begin when the applicant is following is a list of approved PMAs for name, and the approval date. notified by FDA in writing of its which summaries of safety and decision. effectiveness were placed on the

TABLE 1—LIST OF SAFETY AND EFFECTIVENESS SUMMARIES FOR APPROVED PMAS MADE AVAILABLE FROM JANUARY 1, 2010, THROUGH MARCH 31, 2010

PMA No. Docket No. Applicant Trade Name Approval Date

P010047 Neomend, Inc. PROGEL PLEURAL AIR LEAK SEALANT January 14, 2010 FDA–2010–M–0068

P060040/S005 Thoratec Corp. THORATEC HEARTMATE II LEFT VENTRICULAR January 20, 2010 FDA–2010–M–0078 ASSIST SYSTEM (LVAS)

H080002 Medtronic, Inc. MEDTRONIC MELODY TRANSCATHETER PUL- January 25, 2010 FDA–2010–M–0063 MONARY VALVE (MODEL PB10) AND MEDTRONIC ENSEMBLE TRANSCATHETER VALVE DELIVERY SYSTEM (NU10)

P090003 Boston Scientific Corp. EXPRESS LD LLIAC PREMOUNTED STENT SYS- March 5, 2010 FDA–2010–M–0135 TEM

P090006 Medtronic Vascular COMPLETE SE VASCULAR STENT SYSTEM March 17, 2010 FDA–2010–M–0158

II. Electronic Access would constitute a clearly unwarranted DEPARTMENT OF HEALTH AND invasion of personal privacy. HUMAN SERVICES Persons with access to the Internet may obtain the documents at http:// Name of Committee: National Institute on Centers for Medicare & Medicaid www.fda.gov/cdrh/pmapage.html. Alcohol Abuse and Alcoholism Special Services Emphasis Panel ZAA1 HH01—AA3 Member Dated: June 28, 2010. Conflicts. [CMS–1571–N] Nancy Stade, Date: July 30, 2010. Acting Associate Director for Regulations and Time: 11 a.m. to 12 p.m. Medicare Program; Second Semi- Policy, Center for Devices and Radiological Agenda: To review and evaluate grant Annual Meeting of the Advisory Panel Health. applications. on Ambulatory Payment Classification [FR Doc. 2010–16139 Filed 7–1–10; 8:45 am] Place: National Institutes of Health, 5635 Groups—August 23 & 24, 2010 BILLING CODE 4160–01–S Fishers Lane, Bethesda, MD 20892. AGENCY: Centers for Medicare & Contact Person: Lorraine Gunzerath, PhD, Medicaid Services, Department of MBA, Scientific Review Officer, National Health and Human Services. DEPARTMENT OF HEALTH AND Institute on Alcohol Abuse and Alcoholism, ACTION: Notice. HUMAN SERVICES Office of Extramural Activities, Extramural Project Officer, 5635 Fishers Lane, Room National Institutes of Health SUMMARY: This notice announces the 2121, Bethesda, MD 20892–9304, 301–443– second semi-annual meeting of the National Institute on Alcohol Abuse 2369. Advisory Panel on Ambulatory Payment and Alcoholism; Notice of Closed (Catalogue of Federal Domestic Assistance Classification (APC) Groups (the Panel) Meeting Program Nos.) for 2010. The purpose of the Panel is to Dated: June 25, 2010. review the APC groups and their Pursuant to section 10(d) of the Jennifer Spaeth, associated weights and to advise the Federal Advisory Committee Act, as Secretary of the Department of Health amended (5 U.S.C. App), notice is Director, Office of Federal Advisory and Human Services (DHHS) (the hereby given of the following meeting. Committee Policy. Secretary) and the Administrator of the The meeting will be closed to the [FR Doc. 2010–16037 Filed 7–1–10; 8:45 am] Centers for Medicare & Medicaid public in accordance with the BILLING CODE 4140–01–P Services (CMS) (the Administrator) provisions set forth in sections concerning the clinical integrity of the 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., APC groups and their associated as amended. The grant applications and weights. We will consider the Panel’s the discussions could disclose advice as we prepare the final rule that confidential trade secrets or commercial would update the hospital Outpatient property such as patentable materials, Prospective Payment System (OPPS) for and personal information concerning CY 2011. individuals associated with the grant DATES: Meeting Dates: We are applications, the disclosure of which scheduling the second semi-annual

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meeting in 2010 for the following dates written comments by the prescribed SUPPLEMENTARY INFORMATION: and times: deadlines. I. Background • Monday, August 23, 2010, 1 p.m. to • Send electronic transmissions to the 5 p.m. eastern standard time (e.d.t.).1 e-mail address below. The Secretary is required by section • Tuesday, August 24, 2010, 8 a.m. to • Do not send pictures of patients in 1833(t)(9)(A) of the Social Security Act 5 p.m. (e.d.t.).1 any of the documents unless their faces (the Act) to consult with an expert, have been blocked out. outside advisory panel on the clinical Deadlines • Do not send documents integrity of the APC groups and weights Deadline for Hardcopy Comments electronically that have been archived. established under the Medicare hospital (including the comment in electronic • Mail (or send by courier) to the OPPS. format)/Suggested Agenda Topics—5 Designated Federal Officer (DFO) all The APC Panel meets up to three p.m. (e.d.t.), Monday, August 2, 2010. hardcopies, accompanied by Form times annually. The Charter requires Deadline for Hardcopy Presentations, CMS–20017 (revised 01/07), if they are that the Panel must be fairly balanced in including the required electronic presenting, as specified in the FOR its membership in terms of the points of documents as discussed below—5 p.m. FURTHER INFORMATION CONTACT section of view represented and the functions to (e.d.t.), Monday, August 2, 2010. this notice. be performed. The Panel consists of up Deadline for Attendance • Commenters are not required to to 15 members who are representatives Registration—5 p.m. (e.d.t.), send Form CMS–20017 with their of providers and a Chair. Wednesday, August 16, 2010. written comments. Each Panel member must be Deadline for Special ADDRESSES: The meeting will be held in employed full-time by a hospital, Accommodations—5 p.m. (e.d.t.), the Auditorium, CMS Central Office, hospital system, or other Medicare Wednesday, August 16, 2010. 7500 Security Boulevard, Baltimore, provider subject to payment under the Maryland 21244–1850. OPPS. The Secretary or Administrator Submission of Materials to the FOR FURTHER INFORMATION CONTACT: For selects the Panel membership based Designated Federal Officer (DFO) further information, contact: Shirl upon either self-nominations or Because of staffing and resource Ackerman-Ross, Designated Federal nominations submitted by Medicare limitations, we cannot accept written Official (DFO), CMS, CMM, HAPG, providers and other interested comments and presentations by FAX, DOC, 7500 Security Boulevard, Mail organizations. nor can we print written comments and Stop C4–05–17, Baltimore, MD 21244– All members must have technical presentations received electronically for 1850. Phone: (410) 786–4474. expertise to enable them to participate dissemination at the meeting. fully in the Panel’s work. Such expertise Note: We recommend that you advise encompasses hospital payment systems; Only hardcopy comments and couriers of the following information: When presentations can be reproduced for delivering hardcopies of presentations to hospital medical care delivery systems; public dissemination. All hardcopy CMS, if no one answers at the above phone provider billing systems; APC groups; presentations must be accompanied by number, please call (410) 786–4532 or (410) Current Procedural Terminology codes; Form CMS–20017 (revised 01/07). The 786–9316. and alpha-numeric Health Care form is now available through the CMS The e-mail address for comments, Common Procedure Coding System Forms Web site. The Uniform Resource presentations, and registration requests codes; and the use of, and payment for, Locator (URL) for linking to this form is is CMS [email protected]. drugs, medical devices, and other as follows: http://www.cms.hhs.gov/ services in the outpatient setting, as Note: There is NO underscore in this e- well as other forms of relevant expertise. cmsforms/downloads/cms20017.pdf. mail address; there is a SPACE between CMS Presenters must use the most recent and APCPanel. Details regarding membership copy of CMS–20017 (updated 01/07) at requirements for the APC Panel are News media representatives must the above URL. Additionally, presenters found on the FACA and CMS Web sites contact our Public Affairs Office at (202) must clearly explain the action(s) that as listed above. 690–6145. The Panel presently consists of the they are requesting CMS to take in the Advisory Committees’ Information appropriate section of the form. They following members: Lines: The phone numbers for the CMS • must also clarify their relationship to E.L. Hambrick, M.D., J.D., Chair, Federal Advisory Committee Hotline are CMS Medical Officer. the organization that they represent in 1–877–449–5659 (toll free) and (410) • the presentation. Ruth L. Bush, M.D., M.P.H. 786–9379 (local). • Dawn L. Francis, M.D., M.H.S. Note: Issues that are vague, or that are Web Sites: Please access the CMS Web • Patrick A. Grusenmeyer, Sc.D., outside the scope of the APC Panel’s site at: http://www.cms.hhs.gov/FACA/ F.A.C.H.E. purpose, will not be considered for 05_AdvisoryPanelonAmbulatory • Kathleen Graham, R.N., M.S.H.A., presentations and comments. There will be PaymentClassification C.P.H.Q., A.C.M. no exceptions to this rule. We appreciate Groups.asp#TopOfPage to obtain the • David Halsey, M.D. your cooperation on this matter. following information: • Judith T. Kelly, B.S.H.A., R.H.I.T., We are also requiring electronic R.H.I.A., C.C.S. Note: There is an UNDERSCORE after • versions of the written comments and FACA/05(like this_); there is no space. Michael D. Mills, Ph.D. • Agatha L. Nolen, D.Ph., M.S., presentations, in addition to the • hardcopies. Additional information on the APC F.A.S.H.P. In summary, presenters and/or meeting agenda topics. • Randall A. Oyer, M.D. • Updates to the Panel’s activities. • Beverly Khnie Philip, M.D. commenters must do the following: • • Copies of the current Charter. • Daniel Pothen, M.S., R.H.I.A., Send both electronic and hardcopy • Membership requirements. versions of their presentations and C.P.H.I.M.S., C.C.S.-P, C.H.C. You may also search information • Gregory Przybylski, M.D. about the APC Panel and its • 1 Russ Ranallo, M.S., B.S. The times listed in this notice are approximate membership in the FACA database at • Michael A. Ross, M.D., F.A.C.E.P. times; consequently, the meetings may last longer • than listed in this notice, but will not begin before the following URL: https:// Patricia Spencer-Cisek, M.S., the posted times. www.fido.gov/facadatabase/public.asp. A.P.R.N.-B.C., A.O.C.N.

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II. Agenda The Chair may further limit time • Organization. The agenda for the August 2010 allowed for presentations due to the • E-mail address(es). meeting will provide for discussion and number of oral presentations, if • Telephone number(s). comment on the following topics as necessary. Presentation times listed in the public agenda are approximate and IX. Security, Building, and Parking designated in the Panel’s Charter: Guidelines • Addressing whether procedures presenters should be prepared to within an APC group are similar both present earlier and later than indicated. The following are the security, clinically and in terms of resource use. V. Presenter and Presentation building, and parking guidelines: • Evaluating APC group weights. • Persons attending the meeting • Information Reviewing the packaging of OPPS including presenters must be registered All presenters must submit Form services and costs, including the and on the attendance list by the CMS–20017 (revised 01/07). Hardcopies methodology and the impact on APC prescribed date. are required for oral presentations; groups and payment. • Individuals who are not registered • Removing procedures from the however, electronic submissions of in advance will not be permitted to inpatient list for payment under the Form CMS–20017 are optional. The enter the building and will be unable to OPPS. DFO must receive the following • information from those wishing to make attend the meeting. Using single and multiple • procedure claims data for CMS’ oral presentations: Attendees must present determination of APC group weights. • Form CMS–20017 completed with photographic identification to the • Addressing other technical issues all pertinent information identified on Federal Protective Service or Guard concerning APC group structure. the first page of the presentation. Service personnel before entering the • building. Note: The subject matter before the Panel One hardcopy of presentation. • Electronic copy of presentation. • Security measures include will be limited to these and related topics. • Issues related to calculation of the OPPS Personal registration information as inspection of vehicles, inside and out, at conversion factor, charge compression, pass- described in the ‘‘Meeting Attendance’’ the entrance to the grounds. through payments, or wage adjustments are section below. • All persons entering the building not within the scope of the Panel’s purpose. • Those persons wishing to submit must pass through a metal detector. Therefore, these issues will not be considered comments only must send hardcopy and • All items brought into CMS for presentations and/or comments. There electronic versions of their comments, including personal items, such as will be no exceptions to this rule. We but they are not required to submit appreciate your cooperation on this matter. laptops, cell phones, and palm pilots, Form CMS–20017. are subject to physical inspection. The Panel may use data collected or • The public may enter the building developed by entities and organizations, VI. Collection of Information 30 to 45 minutes before the meeting other than the Department of Health and Requirements convenes each day. Human Services (DHHS) and CMS, in This document does not impose any • conducting its review. We recommend information collection and All visitors must be escorted in organizations to submit data for the recordkeeping requirements. areas other than the lower and first-floor Panel’s and CMS staff’s review. Consequently, it need not be reviewed levels in the Central Building. by the Office of Management and • The main-entrance guards will III. Written Comments and Suggested Budget under the authority of the issue parking permits and instructions Agenda Topics Paperwork Reduction Act of 1995 (44 upon arrival at the building. Hardcopy and electronic written U.S.C. 35). X. Special Accommodations comments and suggested agenda topics should be sent to the DFO as specified VII. Oral Comments Individuals requiring sign-language in the ADDRESSES section of this notice. In addition to formal oral interpretation or other special The DFO must receive these items by 5 presentations, there will be opportunity accommodations must send a request p.m. (e.d.t.), Monday, August 2, 2010. during the meeting for public oral for these services to the DFO by 5 p.m. There will be no exceptions. We comments, which will be limited to 1 (e.d.t.), Monday, August 16, 2010. appreciate your cooperation on this minute for each individual and a total XI. Panel Recommendations and matter. of 3 minutes per organization. Discussions The written comments and suggested VIII. Meeting Attendance agenda topics submitted for the August The Panel’s recommendations at any 2010 APC Panel meeting must fall The meeting is open to the public; APC Panel meeting generally are not within the subject categories outlined in however, attendance is limited to space final until they have been reviewed and the Panel’s Charter and as listed in the available. Attendance will be approved by the Panel on the last day Agenda section of this notice. determined on a first-come, first-served prior to final adjournment. basis. IV. Oral Presentations (Catalog of Federal Domestic Assistance Persons wishing to attend this Program No. 93.773, Medicare—Hospital Individuals or organizations wishing meeting, which is located on Federal Insurance; and Program No. 93.774, to make 5-minute oral presentations property, must e-mail the DFO to Medicare—Supplementary Medical must submit hardcopy and electronic register in advance no later than 5 p.m. Insurance Program) versions of their presentations to the (e.d.t.), Wednesday, August 16, 2010. A DFO by 5 p.m. (e.d.t.), Monday, August confirmation will be sent to the Dated: June 18, 2010. 2, 2010, for consideration. requester(s) by return e-mail. Marilyn Tavenner, The number of oral presentations may The following personal information Acting Administrator and Chief Operating be limited by the time available. Oral must be e-mailed to the DFO by the date Officer, Centers for Medicare & Medicaid presentations should not exceed 5 and time above: Services. minutes in length for an individual or • Name(s) of attendee(s). [FR Doc. 2010–16163 Filed 6–30–10; 4:15 pm] an organization. • Title(s). BILLING CODE 4120–01–P

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DEPARTMENT OF HOMELAND (6) Update on the Small Vessel SUMMARY: This Notice identifies SECURITY Security Strategy. unutilized, underutilized, excess, and surplus Federal property reviewed by Procedural Coast Guard HUD for suitability for possible use to [USCG–2010–0586] This meeting is open to the public for assist the homeless. the morning session and will also be DATES: Effective Date: July 2, 2010. conducted via an online meeting format. National Maritime Security Advisory FOR FURTHER INFORMATION CONTACT: Please note that the public portion of Committee; Meeting Kathy Ezzell, Department of Housing the meeting may close early if all and Urban Development, 451 Seventh AGENCY: Coast Guard, DHS. business is finished. Seating is very Street, SW., Room 7262, Washington, ACTION: Notice of meeting. limited, and members of the public will DC 20410; telephone (202) 708–1234; require additional screening and an TTY number for the hearing- and SUMMARY: The National Maritime escort while in Coast Guard speech-impaired (202) 708–2565, (these Security Advisory Committee (NMSAC) Headquarters. Members of the public telephone numbers are not toll-free), or will meet in Washington, DC to discuss wishing to attend should register with call the toll-free Title V information line various issues relating to national Mr. Ryan Owens, ADFO of NMSAC, at 800–927–7588. maritime security. This meeting will be telephone 202–372–1108 or open to the public. [email protected] no later than July SUPPLEMENTARY INFORMATION: In DATES: The Committee will meet on 13, 2010. Additionally, if you would accordance with the December 12, 1988 Tuesday, July 20, 2010 from 9 a.m. to 4 like to participate in this meeting via the court order in National Coalition for the p.m. This meeting may close early if all online Web format, please log onto Homeless v. Veterans Administration, business is finished. Written material https://connect.hsin.gov/uscgnmsac/ No. 88–2503–OG (D.D.C.), HUD and requests to make oral presentations and follow the online instructions to publishes a Notice, on a weekly basis, should reach the Coast Guard on or register for this meeting. At the Chair’s identifying unutilized, underutilized, before July 13, 2010. Requests to have a discretion, members of the public may excess and surplus Federal buildings copy of your material distributed to make oral presentations during the and real property that HUD has each member of the committee should public portion of the meeting. If you reviewed for suitability for use to assist reach the Coast Guard on or before July would like to make an oral presentation the homeless. Today’s Notice is for the 13, 2010. at the public portion of the meeting, purpose of announcing that no ADDRESSES: The Committee will meet at please notify the ADFO no later than additional properties have been Coast Guard Headquarters, Room 4202, Tuesday, July 13, 2010. Written material determined suitable or unsuitable this 2100 2nd Street, SW., Washington, DC for distribution at a meeting should week. 20593. Additionally, this meeting will reach the Coast Guard no later than Dated: June 24, 2010. be broadcast via a web enabled Tuesday, July 13, 2010. If you would Mark R. Johnston, interactive online format. Send written like a copy of your material distributed Deputy Assistant Secretary for Special Needs. material and requests to make oral to each member of the committee in [FR Doc. 2010–15716 Filed 7–1–10; 8:45 am] presentations to Mr. Ryan Owens, advance of a meeting, please submit 25 BILLING CODE 4210–67–P Assistant Designated Federal Officer copies to the ADFO no later than (ADFO) of the National Maritime Tuesday, July 13, 2010. Security Advisory Committee, 2100 2nd DEPARTMENT OF THE INTERIOR Street SW., Stop 7581; Washington, DC Information on Services for Individuals With Disabilities 20593–7581. You may also e-mail Bureau of Land Management material to [email protected]. This For information on facilities or notice may be viewed in our online services for individuals with disabilities [F–19148–13, F–19148–14; LLAK964000– docket, USCG–2010–0586, at http:// or to request special assistance at the L14100000–HY0000–P] www.regulations.gov. meeting, contact the ADFO as soon as Alaska Native Claims Selection FOR FURTHER INFORMATION CONTACT: Mr. possible. Ryan Owens, ADFO of NMSAC, Dated: June 28, 2010. AGENCY: Bureau of Land Management, telephone 202–372–1108 or K.C. Kiefer, Interior. [email protected]. Captain, U.S. Coast Guard Chief, Office of ACTION: Notice of decision approving SUPPLEMENTARY INFORMATION: Notice of Port and Facility Activities, Designated lands for conveyance. Federal Official, NMSAC. this meeting is given under the Federal SUMMARY: As required by 43 CFR Advisory Committee Act, 5 U.S.C. App. [FR Doc. 2010–16112 Filed 7–1–10; 8:45 am] BILLING CODE 9110–04–P 2650.7(d), notice is hereby given that (Pub. L. 92–463). the Bureau of Land Management (BLM) Agenda of Public Meeting will issue an appealable decision approving the conveyance of surface The agenda for the Public part of the DEPARTMENT OF HOUSING AND and subsurface estates for certain lands May 4 Committee meeting is as follows: URBAN DEVELOPMENT to Arctic Slope Regional Corporation, (1) TWIC Update. (2) Discussion on creation of a [Docket No. FR–5375–N–25] pursuant to the Alaska Native Claims National Infrastructure Protection Plan Settlement Act. The lands are in the Federal Property Suitable as Facilities (NIPP) Sub-Committee. vicinity of the Colville River, Alaska To Assist the Homeless (3) DHS Global Supply Chain Security and are located: Strategy initiative. AGENCY: Office of the Assistant Umiat Meridian, Alaska (4) Maritime Transportation Security Secretary for Community Planning and T. 5 S., R. 9 W., Act update. Development, HUD. Secs. 1, 7, 12, and 13; (5) Update from CDC Strategy ACTION: Notice. Secs. 16, 17, and 18; Working Group. Secs. 21 to 28, inclusive;

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Secs. 35 and 36. Service (FIRS) at 1–800–877–8339, 24 FOR FURTHER INFORMATION, CONTACT: The Containing 3,647.71 acres. hours a day, 7 days a week. BLM by phone at 907–271–5960, or by T. 4 S., R. 10 W., e-mail at ak.blm.conveyance@ak. Hillary Woods, Secs. 16 to 21, inclusive; blm.gov. Persons who use a Secs. 26 to 29, inclusive; Land Law Examiner, Land Transfer telecommunication device (TTD) may Adjudication II Branch. Secs. 34, 35, and 36. contact the BLM by calling the Federal Containing 3,698.85 acres. [FR Doc. 2010–16246 Filed 7–1–10; 8:45 am] Information Relay Service (FIRS) at 1– T. 5 S., R. 10 W., BILLING CODE 4310–JA–P 800–877–8339, 24 hours a day, 7 days Secs. 1 and 2; Secs. 11, 12, and 13. a week. Containing 2,057.51 acres. DEPARTMENT OF THE INTERIOR Dina L. Torres, T. 4 S., R. 11 W., Land Transfer Resolution Specialist, Branch Sec. 13; Bureau of Land Management of Preparation and Resolution. Secs. 15 to 28, inclusive; [FR Doc. 2010–16244 Filed 7–1–10; 8:45 am] Sec. 30. [AA–11960, AA–12011, AA–12010, AA– 11963, AA–11974, AA–11999, AA–12019, BILLING CODE 4310–JA–P Containing 5,143.55 acres. AA–12000, AA–12001, AA–12002, AA– T. 4 S., R. 12 W., 11975, AA–11998, AA–11997, AA–11976, Sec. 13; AA–11966, AA–11965, AA–12009, AA– DEPARTMENT OF THE INTERIOR Secs. 19 to 30, inclusive. 12007, AA–12008, AA–11955, AA–11953, Containing 3,883.28 acres. AA–11954, AA–12006, AA–11945, AA– Bureau of Land Management T. 4 S., R. 13 W., 11970, AA–11969, AA–11958, AA–11978, Secs. 25 to 29, inclusive; AA–11979, AA–11977; LLAK–962000– [F–19155–22; LLAK965000–L14100000– Secs. 31, 32, and 33. L14100000–HY0000–P] KC0000–P] Containing 2,479.82 acres. T. 4 S., R. 14 W., Alaska Native Claims Selection Alaska Native Claims Selection Secs. 27 to 36, inclusive. AGENCY: Bureau of Land Management, AGENCY: Bureau of Land Management, Containing 2,777.72 acres. Interior. T. 5 S., R. 14 W., Interior. Secs. 3, 4, and 5. ACTION: Notice of decision approving ACTION: Notice of decision approving Containing 1,813.65 acres. lands for conveyance. lands for conveyance. T. 4 S., R. 15 W., SUMMARY: As required by 43 CFR SUMMARY: Secs. 35 and 36. As required by 43 CFR 2650.7(d), notice is hereby given that 2650.7(d), notice is hereby given that Containing 298.65 acres. the Bureau of Land Management (BLM) Aggregating 25,800.74 acres. the Bureau of Land Management (BLM) will issue an appealable decision to The will issue an appealable decision Notice of the decision will also be Aleut Corporation. The decision will approving the conveyance of surface published four times in the Arctic Sounder. approve the conveyance of only the and subsurface estates for certain lands DATES: Any party claiming a property surface estate for certain lands pursuant to Doyon, Limited, pursuant to the interest in the lands affected by the to the Alaska Native Claims Settlement Alaska Native Claims Settlement Act. decision may appeal the decision within Act. The lands are located on the Rat The lands are in the vicinity of Manley the following time limits: Islands, west of Adak, Alaska, Hot Springs, Alaska, and are located in: aggregating 370.81 acres. Notice of the 1. Unknown parties, parties unable to Fairbanks Meridian, Alaska be located after reasonable efforts have decision will also be published four times in the Anchorage Daily News. T. 1 N, R. 15 W., been expended to locate, parties who Secs. 1 and 12. DATES: Any party claiming a property fail or refuse to sign their return receipt, Containing 1,256.69 acres. and parties who receive a copy of the interest in the lands affected by the decision by regular mail which is not decision may appeal the decision within Notice of the decision will also be certified, return receipt requested, shall the following time limits: published four times in the Fairbanks have until August 2, 2010 to file an 1. Unknown parties, parties unable to Daily News-Miner. appeal. be located after reasonable efforts have DATES: Any party claiming a property been expended to locate, parties who interest in the lands affected by the 2. Parties receiving service of the fail or refuse to sign their return receipt, decision may appeal the decision within decision by certified mail shall have 30 and parties who receive a copy of the the following time limits: days from the date of receipt to file an decision by regular mail which is not 1. Unknown parties, parties unable to appeal. certified, return receipt requested, shall be located after reasonable efforts have Parties who do not file an appeal in have until August 2, 2010 to file an been expended to locate, parties who accordance with the requirements of 43 appeal. fail or refuse to sign their return receipt, CFR part 4, subpart E, shall be deemed 2. Parties receiving service of the and parties who receive a copy of the to have waived their rights. decision by certified mail shall have 30 decision by regular mail which is not days from the date of receipt to file an certified, return receipt requested, shall ADDRESSES: A copy of the decision may appeal. have until August 2, 2010 to file an be obtained from: Bureau of Land Parties who do not file an appeal in appeal. Management, Alaska State Office, 222 accordance with the requirements of 43 2. Parties receiving service of the West Seventh Avenue, #13, Anchorage, CFR part 4, subpart E, shall be deemed decision by certified mail shall have 30 Alaska 99513–7504. to have waived their rights. days from the date of receipt to file an FOR FURTHER INFORMATION, CONTACT: The ADDRESSES: A copy of the decision may appeal. BLM by phone at 907–271–5960, by e- be obtained from: Bureau of Land Parties who do not file an appeal in mail at [email protected], or Management, Alaska State Office, 222 accordance with the requirements of 43 by telecommunication device (TTD) West Seventh Avenue, #13, Anchorage, CFR part 4, subpart E, shall be deemed through the Federal Information Relay Alaska 99513–7504. to have waived their rights.

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ADDRESSES: A copy of the decision may decisions pertinent to oil and gas prior advisory committee experience, or be obtained from: Bureau of Land activities in the Pinedale Anticline career achievements related to the Management, Alaska State Office, 222 Project Area. interest to be represented); West Seventh Avenue, #13, Anchorage, PAWG members are expected to 9. Experience in collaborative Alaska 99513–7504. attend the scheduled PAWG meetings. management techniques, such as long- FOR FURTHER INFORMATION CONTACT: The Additional information about the term planning, management across BLM by phone at 907–271–5960, by e- PAWG, its membership and activities, jurisdictional boundaries, data sharing, mail at [email protected], or and the nomination process can be information exchange, and partnerships; by telecommunication device (TTD) found at: http://www.blm.gov/wy/st/en/ 10. Experience in data analysis and _ through the Federal Information Relay field offices/Pinedale/pawg.html. interpretation, problem identification, Service (FIRS) at 1–800–877–8339, 24 Nominations are being solicited for and evaluation of proposals; hours a day, 7 days a week. the following positions: 11. Knowledge of issues involving oil 1. An employee of a state agency and gas development; John Leaf, responsible for the management of 12. List any leases, licenses, permits, Land Law Examiner, Land Transfer natural resources, land, or water; and contracts, or claims held by the Adjudication II Branch. 2. An affected member of the public- Nominee that involve lands or resources [FR Doc. 2010–16168 Filed 7–1–10; 8:45 am] at-large. administered by the BLM; BILLING CODE 4310–JA–P Requisite nomination information is 13. A minimum of two letters of listed below and may be found at: reference from interest or organization http://www.blm.gov/wy/st/en/ to be represented; DEPARTMENT OF THE INTERIOR field_offices/Pinedale/pawg.html. 14. Nominator’s name, address, and On June 25, 2008, the Secretary of the telephone numbers (if not self- Bureau of Land Management Interior renewed the PAWG Charter. nominated); and [LLWYD01000–2009–LL13100000–NB0000– The charter established membership 15. Date of nomination. LXSI016K0000] selection criteria and operational A group nominating more than one procedures as follows: person should indicate its preferred Notice of Intent To Solicit 1. The PAWG is comprised of nine order of appointment selection. Nominations: Pinedale Anticline members who reside in the State of Note: The Obama Administration prohibits Working Group, Wyoming Wyoming. The PAWG members will be individuals who are currently federally appointed by and serve at the pleasure registered lobbyists to serve on all FACA and AGENCY: Bureau of Land Management, of the Secretary of the Interior. non-FACA boards, committees or councils. Interior. 2. All members should have a ACTION: Notice of call for nominations. demonstrated ability to analyze and Donald A. Simpson, interpret data and information, evaluate State Director. SUMMARY: Nominations are being proposals, identify problems, and [FR Doc. 2010–16251 Filed 7–1–10; 8:45 am] solicited for two positions on the promote the use of collaborative BILLING CODE 4310–22–P Pinedale Anticline Working Group management techniques (Such as: Long- (PAWG) that will become open on May term planning, management across 28, 2010. jurisdictional boundaries, data sharing, DEPARTMENT OF THE INTERIOR DATES: Individuals or groups wishing to information exchange, and submit a nomination must send the partnerships), and a knowledge of issues Bureau of Reclamation required information within 30 days of involving oil and gas development this Notice. All nominations should be Central Valley Project Improvement activities. Act, Water Management Plans postmarked within 30 days from date of 3. The service of the PAWG members publication in the Federal Register. shall be as follows: AGENCY: Bureau of Reclamation, Final appointments will be made by the a. The PAWG members will be Interior. Secretary of the Interior. appointed to 2-year terms, subject to ACTION: Notice of availability. ADDRESSES: Nominations should be sent removal by the Secretary of the Interior. to Ms. Shelley Gregory, Bureau of Land At the Secretary’s discretion, members SUMMARY: The following Water Management, Pinedale Field Office, may be reappointed to additional terms. Management Plans are available for 1625 West Pine Street, P.O. Box 768, b. The Chairperson of the PAWG will review: Pinedale, Wyoming 82941, or e-mailed be selected by the PAWG. • The Westside Irrigation District to [email protected]. c. The term of the Chairperson will • Maine Prairie Water District not exceed 2 years. • Solano Irrigation District FOR FURTHER INFORMATION CONTACT: Ms. • Shelley Gregory, Bureau of Land Nominations should contain the Corning Water District • Proberta Water District Management, Pinedale Field Office, following information: • Lindsay-Strathmore Irrigation 1625 West Pine Street, P.O. Box 768, 1. Representative category; District Pinedale, Wyoming 82941; 307–367– 2. Full name; 3. Business address and phone To meet the requirements of the 5328, or e-mail: Central Valley Project Improvement Act [email protected]. number; 4. Home address and phone number; of 1992 (CVPIA) and the Reclamation SUPPLEMENTARY INFORMATION: The 5. Email address; Reform Act of 1982, the Bureau of PAWG is chartered under the Federal 6. Occupation title; Reclamation developed and published Advisory Committee Act (FACA) and 7. Qualifications (education, the Criteria for Evaluating Water tasked with providing balanced including colleges, degrees, major fields Management Plans (Criteria). For the recommendations through consensus to of study and/or training); purpose of this announcement, Water the BLM on the development and 8. Career highlights (significant Management Plans (Plans) are implementation of monitoring plans, related experience, civic and considered the same as Water mitigation, and adaptive management professional activities, elected offices, Conservation Plans. The above entities

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have developed a Plan, which practice is to make comments, including ADDRESSES: Copies of the Final Reclamation has evaluated and names and home addresses of Supplemental EIS are available for preliminarily determined to meet the respondents, available for public inspection at the BLM, Elko District requirements of these Criteria. review. Office, 3900 Idaho Street, Elko, Nevada Reclamation is publishing this notice in Public Disclosure 89801. Interested persons may also order to allow the public to review the review the Final Supplemental EIS on plans and comment on the preliminary Before including your name, address, the following Elko District Office Web determinations. Public comment on phone number, e-mail address, or other site: http://www.blm.gov/nv/st/en/fo/ Reclamation’s preliminary (i.e., draft) personal identifying information in your elko_field_office.html. determination is invited at this time. comment, you should be aware that DATES: All public comments must be your entire comment—including your FOR FURTHER INFORMATION CONTACT: For received by August 2, 2010. personal identifying information—may further information contact Deb ADDRESSES: Please mail comments to be made publicly available at any time. McFarlane, (775) 753–0200, or e-mail: Ms. Laurie Sharp, Bureau of While you can ask us in your comment [email protected]. Reclamation, 2800 Cottage Way, MP– to withhold your personal identifying SUPPLEMENTARY INFORMATION: 410, Sacramento, California 95825, or information from public review, we The BLM contact at 916–978–5232 (TDD 978– cannot guarantee that we will be able to signed a Record of Decision (ROD) for 5608), or e-mail at [email protected]. do so. Newmont Mining Corporation’s Leeville If you wish to review a copy of these Project, an underground gold mine FOR FURTHER INFORMATION CONTACT: To be placed on a mailing list for any Plans, please contact Ms. Laurie Sharp located on the Carlin Trend in subsequent information, please contact to find the office nearest you. northeastern Nevada, on September 25, Ms. Laurie Sharp at the e-mail address Dated: June 15, 2010. 2002. Four years of legal review resulted or telephone number above. Richard J. Woodley, in the United States Court of Appeals SUPPLEMENTARY INFORMATION: We are Regional Resources Manager, Mid-Pacific for the Ninth Circuit partially reversing inviting the public to comment on our Region, Bureau of Reclamation. the ROD. The Final Supplemental EIS preliminary (i.e., draft) determination of [FR Doc. 2010–16126 Filed 7–1–10; 8:45 am] updates analysis of some cumulative Plan adequacy. Section 3405(e) of the BILLING CODE 4310–MN–P impacts including potential impacts to CVPIA (Title 34 Pub. L. 102–575), air quality, minerals, Native American requires the Secretary of the Interior to and cultural resources, water, establish and administer an office on DEPARTMENT OF THE INTERIOR vegetation, grazing, recreation, noise, Central Valley Project water visual resources, wilderness resources, conservation best management practices Bureau of Land Management threatened and endangered species, and that shall ‘‘ * * * develop criteria for socioeconomics. evaluating the adequacy of all water [LLNVE00000 L19900000.EX0000 241A; 10– The Leeville Project includes three 08807; MO#4500012653; TAS: 14X1109] conservation plans developed by project main ore bodies located approximately contractors, including those plans Notice of Availability of Final 2,500 feet below ground’s surface. required by section 210 of the Newmont Mining Corporation is ’’ Supplemental Environmental Impact Reclamation Reform Act of 1982. Also, authorized to construct ancillary mine according to Section 3405(e)(1), these Statement Updating Cumulative facilities, including construction of five criteria must be developed ‘‘ * * * with Effects Analysis for the Newmont shafts to access the ore bodies, shaft the purpose of promoting the highest Mining Corporation Leeville Project, level of water use efficiency reasonably Nevada hoists, a waste rock disposal facility, achievable by project contractors using refractory ore stockpiles, facilities to AGENCY: Bureau of Land Management, support mine dewatering, and facilities best available cost-effective technology Interior. and best management practices.’’ These to support backfill operations. Surface ACTION: criteria state that all parties Notice of Availability. disturbance totals 486 acres. (Contractors) that contract with SUMMARY: In accordance with the A Notice of Intent to Prepare a Reclamation for water supplies National Environmental Policy Act of Supplemental EIS Updating Cumulative (municipal and industrial contracts over 1969, as amended, and the Federal Land Effects Analysis for the Newmont 2,000 acre-feet and agricultural Policy and Management Act of 1976, as Mining Corporation Leeville Project, contracts over 2,000 irrigable acres) amended, the Bureau of Land Nevada, was published in the Federal must prepare Plans that contain the Management (BLM), Elko District Office Register on March 7, 2007 [72 FR following information: prepared a Final Supplemental 10241]. The Notice of Availability for 1. Description of the District. Environmental Impact Statement (EIS) the Draft Supplemental EIS for the 2. Inventory of Water Resources. to update the cumulative effects Leeville Project was published in the 3. Best Management Practices (BMPs) analysis for Newmont Mining for Agricultural Contractors. Federal Register on September 6, 2007 Corporation’s Leeville Project gold mine 4. BMPs for Urban Contractors. [72 FR 51248]. in Eureka and Elko counties, Nevada, 5. Plan Implementation. Authority: 40 CFR 1506.6 and 1506.10. 6. Exemption Process. and by this notice is announcing its 7. Regional Criteria. availability. The project was authorized Kenneth E. Miller, 8. Five-Year Revisions. in 2002. Elko District Manager. Reclamation will evaluate Plans based DATES: The BLM will not issue a final [FR Doc. 2010–16033 Filed 7–1–10; 8:45 am] on these criteria. A copy of these Plans decision on the proposal for a minimum BILLING CODE 4310–HC–P will be available for review at of 30 days after the date that the Reclamation’s Mid-Pacific (MP) Environmental Protection Agency Regional Office located in Sacramento, publishes its notice in the Federal California, and the local area office. Our Register.

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DEPARTMENT OF THE INTERIOR threatened and endangered species, and BLM Alaska Public Information Center socioeconomics. and you can obtain copies from this Bureau of Land Management The SOAPA authorized Newmont office for a minimum recovery fee. [LLNVE00000 L19900000.EX0000 241A; 10– Mining Corporation to mine an The plat will not be officially filed 08807; MO#450012780; TAS: 14X1109] additional 350 feet below what had been until the day after BLM has accepted or previously authorized, to expand waste dismissed all protests and they have Notice of Availability of Final rock disposal facilities and leach become final, including decisions on Supplemental Environmental Impact facilities by 139 acres, to continue appeals. Statement Updating Cumulative dewatering and ground water discharge Authority: 43 U.S.C. 3; 53. Effects Analysis for the Newmont to Maggie Creek, and to construct Mining Corporation South Operations associated ancillary facilities. Dated: June 24, 2010. Area Project Amendment, Nevada A Notice of Intent to Prepare a Stephen B. Hamrick, Supplemental EIS Updating Cumulative Chief Cadastral Surveyor. AGENCY: Bureau of Land Management, [FR Doc. 2010–16220 Filed 7–1–10; 8:45 am] Interior. Effects Analysis for the Newmont Mining Corporation South Operations BILLING CODE 4310–JA–P ACTION: Notice of Availability. Area Project Amendment, Nevada, was SUMMARY: In accordance with the published in the Federal Register on National Environmental Policy Act of March 7, 2007 [72 FR 10241]. The DEPARTMENT OF THE INTERIOR Notice of Availability for the Draft 1969, as amended and the Federal Land Bureau of Land Management Policy Management Act of 1976, as Supplemental EIS was published in the amended, the Bureau of Land Federal Register on September 6, 2007 [LLCON04000–L12200000–PA0000] Management (BLM), Elko District Office [72 FR 51249]. Notice of Final Supplementary Rules prepared a Final Supplemental Authority: 40 CFR 1506.6 and 1506.10. Environmental Impact Statement (EIS) for Public Lands in Colorado: McInnis to update the cumulative effects Kenneth E. Miller, Canyons National Conservation Area Elko District Manager. analysis for Newmont Mining AGENCY: Bureau of Land Management, Corporation’s South Operations Area [FR Doc. 2010–16031 Filed 7–1–10; 8:45 am] Interior. Project Amendment gold mine in BILLING CODE 4310–HC–P ACTION: Notice of Final Supplementary Eureka and Elko counties, Nevada and Rules. by this Notice is announcing its DEPARTMENT OF THE INTERIOR availability. SUMMARY: The Bureau of Land DATES: The BLM will not issue a final Bureau of Land Management Management (BLM) Grand Junction decision on the proposal for a minimum Field Office (GJFO) is implementing of 30 days after the date that the [LLAK920000–L14100000–BJ0000] supplementary rules to regulate conduct Environmental Protection Agency on public lands within the McInnis publishes its notice of availability in the Notice of Filing of Plats of Survey, Canyons National Conservation Area Federal Register. Alaska (MCNCA). These supplementary rules ADDRESSES: Copies of the Final AGENCY: Bureau of Land Management, are needed to implement decisions Supplemental EIS are available for Interior. found in the McInnis Canyons National Conservation Area Resource public inspection at the BLM Elko ACTION: Notice. District Office, 3900 Idaho Street, Elko, Management Plan (RMP) to provide for Nevada 89801. Interested persons may SUMMARY: Notice of Filing of Plats of the protection of persons, property, and also review the Final Supplemental EIS Survey, Alaska. public lands and resources. on the following Web site: http:// DATES: The Alaska State Office, Bureau DATES: These rules are effective August www.blm.gov/nv/st/en/fo/ of Land Management, Anchorage, 2, 2010. _ _ elko field office.html. Alaska, must receive comments on or ADDRESSES: You may send inquiries to FOR FURTHER INFORMATION CONTACT: For before August 2, 2010. the Bureau of Land Management, 2815 further information contact Deb ADDRESS: Bureau of Land Management, H Road, Grand Junction, Colorado McFarlane, (775) 753–0200, or e-mail: Alaska State Office; 222 W. 7th Ave., 81506; or e-mail comments to _ [email protected]. Stop 13; Anchorage, AK 99513–7599. gjfo [email protected], Attn: ‘‘McInnis Canyons.’’ SUPPLEMENTARY INFORMATION: The BLM FOR FURTHER INFORMATION CONTACT: signed a Record of Decision (ROD) for Stephen B. Hamrick, 907–271–5481, fax FOR FURTHER INFORMATION CONTACT: Newmont Mining Corporation’s South 907–271–4549, e-mail Katie Stevens, McInnis Canyons Operations Area Project Amendment [email protected]. National Conservation Area, (970) 244– 3049, e-mail: [email protected]. (SOAPA), an open-pit gold mine located SUPPLEMENTARY INFORMATION: This on the Carlin Trend in northeastern survey of an Indian Allotment held in SUPPLEMENTARY INFORMATION: Nevada, on July 26, 2002. Four years of trust status and located on the left bank I. Background legal review resulted in the United of the Kenai River near Soldotna, States Court of Appeals for the Ninth Alaska, was executed at the request of These final supplementary rules Circuit partially reversing the ROD. The the Bureau of Indian Affairs, Alaska apply to the MCNCA, approximately Final Supplemental EIS updates the Region. The legal description of this 122,300 acres of public lands which analysis of some cumulative impacts trust allotment is: include the 75,550-acre Black Ridge including potential impacts to air Canyons Wilderness. The MCNCA, quality, minerals, Native American and Lot 4, Section 35, Township 5 North, Range originally known as the Colorado cultural resources, water, vegetation, 10 West, Seward Meridian, Alaska. Canyons National Conservation Area, grazing, recreation, noise, visual Copies of the survey plat and field was established by Public Law 106–353 resources, wilderness resources, notes are available to the public at the on October 24, 2000, and was renamed

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in honor of Representative Scott IV. Procedural Matters RMP and Final EIS for the Colorado McInnis by Public Law 108–400 on Canyons National Conservation Area Executive Order 12866, Regulatory January 1, 2005. (now McInnis Canyons National Planning and Review The MCNCA is located 10 miles west Conservation Area), which includes the These supplementary rules are not Black Ridge Canyons Wilderness. of Grand Junction, Colorado, bordered significant regulatory actions and not by the Colorado National Monument to During the National Environmental subject to review by the Office of Policy Act process, proposed decisions the east and the Colorado/Utah State Management and Budget under were fully analyzed, including the line to the west. A small portion of the Executive Order 12866. These substance of these supplementary rules. Black Ridge Canyons Wilderness (5,200 supplementary rules will not have an The pertinent analysis can be found in acres) extends into Grand County, Utah. annual effect of $100 million or more on Chapter 2, Alternatives, of the RMP. The The final supplementary rules will help the economy. They will not adversely Record of Decision for the RMP was the BLM achieve management objectives affect in a material way the economy, signed by the BLM Colorado State and implement decisions in the MCNCA productivity, competition, jobs, the Director in October 2004. These final RMP approved on October 24, 2004. environment, public health or safety, or supplementary rules provide for II. Discussion of Public Comments State, local, or Tribal governments or implementation of the decisions in the communities. These supplementary RMP. The rationale for the decisions The BLM GJFO proposed these rules will not create a serious made in the plan is fully covered in the supplementary rules in the Federal inconsistency or otherwise interfere EIS. The EIS is available for review in Register on July 13, 2009 (74 FR 33466). with an action taken or planned by the BLM administrative record at the Public comments were accepted for a another agency. The supplementary address specified in the ADDRESSES period of 60 days ending on September rules do not materially alter the section. budgetary effects of entitlements, grants, 11, 2009. The BLM received one Regulatory Flexibility Act comment from the Colorado Division of user fees, or loan programs or the rights Wildlife (CDOW). The CDOW comment or obligations of their recipients; and Congress enacted the Regulatory asked the BLM to consider revising the they do not raise novel legal or policy Flexibility Act (RFA) of 1980, as supplementary rule (#8) addressing issues. These supplementary rules are amended (5 U.S.C. 601–612) to ensure areas designated as ‘‘day use.’’ The merely rules of conduct for public use that Government regulations do not CDOW encouraged the BLM to modify of a limited area of public lands. unnecessarily or disproportionately burden small entities. The RFA requires the rule to allow hunters in these areas Clarity of the Supplementary Rules during periods of darkness. Pursuant to a regulatory flexibility analysis if a rule Colorado State law, hunters in the Executive Order 12866 requires each would have a significant economic legitimate pursuit of game are agency to write regulations that are impact, either detrimental or beneficial, authorized to hunt 30 minutes before simple and easy to understand. We on a substantial number of small sunrise and 30 minutes after sunset. invite your comments on how to make entities. These supplementary rules these final supplementary rules easier to merely establish rules of conduct for BLM Response: The BLM agrees with understand, including answers to public use of a limited area of public this additional clarification and changed questions such as the following: lands. Therefore, the BLM has the supplementary rule (#8) addressing (1) Are the requirements in the final determined under the RFA that the ‘‘day use areas’’ to allow legitimate supplementary rules clearly state? supplementary rules would not have a hunters in the pursuit of game to access (2) Do the final supplementary rules significant economic impact on a ‘‘day use’’ areas during the time periods contain technical language or jargon that substantial number of small entities. defined as ‘‘legal hunting hours’’ by the interferes with their clarity? CDOW. (3) Does the format of the final Small Business Regulatory Enforcement supplementary rules (grouping and Fairness Act III. Discussion of the Supplementary order of sections, use of headings, These supplementary rules are not Rules paragraphing, etc.) aid or reduce their considered a ‘‘major rule’’ as defined In preparing the RMP, the BLM clarity? under 5 U.S.C. 804(2). The sought public review of four alternatives (4) Would the supplementary rules be supplementary rules are rules of including its preferred alternative. The easier to understand if they were conduct for public use of a limited area preferred alternative incorporated an divided into more (but shorter) sections? of public lands and do not affect (5) Is the description of the final adaptive management approach to allow commercial or business activities of any supplementary rules in the for flexibility in management actions kind. SUPPLEMENTARY INFORMATION section of based on the results of resource and this preamble helpful to your Unfunded Mandates Reform Act visitor monitoring. understanding of the Final These supplementary rules do not The RMP includes specific supplementary rules? How could this impose an unfunded mandate on State, management actions that restrict certain description be more helpful in making local, or Tribal governments in the activities and define allowable uses. The the Final supplementary rules easier to aggregate, or the private sector of more final supplementary rules implement understand? than $100 million per year; nor do they these management actions within the Please send any comments you have on have a significant or unique effect on MCNCA. Many of the final the clarity of the supplementary rules to small governments. The rules have no supplementary rules apply to the entire the address specified in the ADDRESSES effect on governmental or Tribal entities area but some apply to specific areas section. and would impose no requirements on within the MCNCA. The final any of these entities. The supplementary supplementary rules are written to National Environmental Policy Act rules merely establish rules of conduct allow for the management flexibility In July 2004, the BLM completed an for public use of a limited selection of that is available under the principles of environmental impact statement (EIS) as public lands and do not affect Tribal, adaptive management. part of the development of the Proposed commercial, or business activities of any

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kind. Therefore, the BLM is not required on energy supplies, production, or which is comprised of public lands to prepare a statement containing the consumption. The rules would have no administered by the Bureau of Land information required by the Unfunded conceivable connection with energy Management (BLM) near Grand Mandates Reform Act (2 U.S.C. 1531 et policy. Junction, Colorado. These seq.). supplementary rules are in effect on a Executive Order 13352, Facilitation of year-round basis and will remain in Executive Order 12630, Governmental Cooperative Conservation effect until modified by the authorized Actions and Interference With In accordance with Executive Order officer. Constitutionally Protected Property 13352, the BLM has determined that Rights (Takings) these supplementary rules will not Prohibited Acts These supplementary rules do not impede facilitating cooperative 1. You must not camp in sites or areas have significant takings implications, conservation; will take appropriate not designated as open to camping by a nor are they capable of interfering with account of and consider the interests of BLM sign or map. Constitutionally-protected property persons with ownership or other legally 2. You must not start or maintain a rights. The supplementary rules merely recognized interests in land or other fire in sites or areas not designated as establish rules of conduct for public use natural resources; properly open for such use by a BLM sign or of a limited area of public lands and do accommodate local participation in the map. not affect anyone’s property rights. Federal decision-making process; and 3. In areas designated as open for Therefore, the BLM has determined that provide that the programs, projects, and starting or maintaining a fire, any fire these rules will not cause a ‘‘taking’’ of activities are consistent with protecting must be fully contained in a metal fire private property or require preparation public health and safety. These rules grate, fire pan, or other metal device to of a takings assessment under this merely establish rules of conduct for contain ashes. Mechanical stoves and Executive Order. recreational use of certain public lands. other appliances that are fueled by gas, and equipped with a valve that allows Executive Order 13132, Federalism Paperwork Reduction Act the operator to control the flame, are These supplementary rules will not These supplementary rules do not among the devices that meet this have a substantial direct effect on the directly provide for any information requirement. States, the relationship between the collection that the Office of 4. When starting or maintaining a fire national government and the States, nor Management and Budget must approve outside of a developed recreation site, the distribution of power and under the Paperwork Reduction Act, 44 you must contain and completely responsibilities among the various U.S.C. 3501 et seq. Any information remove fire ashes and debris from BLM levels of government. These collection that may result from Federal land. supplementary rules do not come into criminal investigations or prosecution 5. You must not cut, collect, or use conflict with any State law or conducted under these proposed live, dead, or down wood except in regulation. Therefore, in accordance supplementary rules is exempt from the areas designated as open to such use by with Executive Order 13132, the BLM provisions of the Paperwork Reduction a BLM sign or map. has determined that these Act of 1995, as provided at 44 U.S.C. 6. The hours of operation are sunrise supplementary rules do not have 3518(c)(1). to sunset in any area that is for day-use sufficient Federalism implications to only as indicated by a BLM sign or map. Information Quality Act warrant preparation of a Federalism You must not enter or remain in such Assessment. In developing these supplementary an area after sunset or before sunrise. rules, the BLM did not conduct or use Licensed hunters in legitimate pursuit Executive Order 12988, Civil Justice a study, experiment or survey requiring of game during the proper season may Reform peer review under the Information access and remain in day use-only areas Under Executive Order 12988, the Quality Act (Section 515 of Pub. L. 106– during the time periods defined as legal BLM has determined that these rules 554). hunting hours by the Colorado Division will not unduly burden the judicial of Wildlife. Author system and that they meet the 7. You must not park in areas not requirements of sections 3(a) and 3(b)(2) The principal author of this designated for parking by a BLM sign or of the Order. supplementary rule is Eric Boik, Law map. Enforcement Officer, Bureau of Land 8. Exceeding group size limits, as Executive Order 13175, Consultation Management Colorado, Grand Junction indicated by a BLM sign or map, is and Coordination With Indian Tribal Field Office, Grand Junction, CO. prohibited. Governments For the reasons stated in the 9. Exceeding length of stay limits, as In accordance with Executive Order preamble, and under the authorities for indicated by a BLM sign or map, is 13175, the BLM has found that these supplementary rules found at 43 U.S.C. prohibited. supplementary rules do not include 1740 and 43 CFR 8365.1–6, the 10. Individuals and/or groups must policies that have Tribal implications. Colorado State Director, Bureau of Land register and possess proof of registration The supplementary rules do not affect Management, issues supplementary as indicated by a BLM sign or map. land held for the benefit, nor impede the rules for public lands managed by the 11. You must not use roads and/or rights of Indians or Alaska Natives. BLM in Colorado, to read as follows: trails by motorized or mechanized vehicle or equestrian or pedestrian Executive Order 13211, Actions Final Supplementary Rules for Public travel except where designated as open Concerning Regulations That Lands in Colorado: McInnis Canyons to such use by a BLM sign or map. Significantly Affect Energy Supply, National Conservation Area 12. You must not discharge a firearm Distribution, or Use These supplementary rules apply, of any kind, including those used for These final supplementary rules do except as specifically exempted, to target shooting or paintball. Licensed not comprise a significant energy action. activities within the McInnis Canyons hunters in legitimate pursuit of game The rules will not have an adverse effect National Conservation Area (MCNCA), during the proper season with

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appropriate firearms, as defined by the DEPARTMENT OF THE INTERIOR awards, please contact Neil Mark, Colorado Division of Wildlife, are USGS, 12201 Sunrise Valley Drive, MS exempt from this rule. Bureau of Reclamation 201, Reston, Virginia 20192, voice (703) 13. You must not collect or disturb 648–4344, fax (703) 648–7219, or e-mail Klamath Hydroelectric Settlement [email protected]. rocks, minerals, fossils, chipped rocks, Agreement, Including Secretarial arrowheads, or other paleontological, Determination on Whether To Remove SUPPLEMENTARY INFORMATION: This prehistoric or historical artifacts. Four Dams on the Klamath River in notice is submitted to meet the 14. You must not enter an area that is California and Oregon requirements of 35 U.S.C. 208 et seq. designated as closed by a BLM sign or AGENCY: Department of the Interior. Dated: June 16, 2010. map. ACTION: Notice; correction. Karen D. Baker, 15. You must remove and properly Associate Director, Office of Administrative dispose of canine solid waste when and SUMMARY: The Department of the Policy and Services. where indicated by a BLM sign or map. Interior (Department) through the [FR Doc. 2010–15670 Filed 7–1–10; 8:45 am] Bureau of Reclamation published a 16. You must not bring any dog into notice of intent and notice of public BILLING CODE 4311–AM–P the MCNCA that is not controlled by scoping meetings for an Environmental visual, audible, or physical means. Impact Statement/Environmental DEPARTMENT OF THE INTERIOR 17. You must not burn wood or other Impact Report (EIS/EIR) in the Federal material containing nails, glass, or any Register on June 14, 2010. The notice Bureau of Land Management metal. contained an incorrect date for when the Department will accept scoping 18. You must dispose of solid human comments for this EIS/EIR. CA–920–1310–FI; CACA 46594] waste as indicated by a BLM sign or FOR FURTHER INFORMATION CONTACT: map. Proposed Reinstatement of Terminated Tanya Sommer, Bureau of Reclamation, Oil and Gas Lease CACA 46594 Exemptions 916–978–6153, [email protected]. AGENCY: Bureau of Land Management, The following persons are exempt Correction Interior. from these supplementary rules: In the Federal Register of June 14, A. Any Federal, State, local and/or 2010, (75 FR 33634), in column 2, ACTION: Notice of Reinstatement of military in the scope of their duties; correct the DATES caption to read: Terminated Oil and Gas Lease. DATES: Written comments on the scope B. Members of any organized rescue of the EIS/EIR and potential alternatives SUMMARY: Under the provisions of 30 or fire-fighting force in performance of to be analyzed are requested by July 21, U.S.C. 188(d) and (e), and 43 CFR an official duty; 2010. Oral comments will also be 3108.2–3(a) and (b)(1), the Bureau of C. Persons, agencies, municipalities, accepted during the public scoping Land Management (BLM) received a or companies holding an existing meetings. Please see the SUPPLEMENTARY petition for reinstatement of oil and gas special-use permit inside the MCNCA INFORMATION section for public scoping lease CACA 46594 from Gasco and operating within the scope of their meeting dates and locations. Production Company. The petition was permit. Dated: June 23, 2010. filed on time and was accompanied by all required rentals and royalties Penalties Dennis Lynch, Program Manager, Klamath Basin Secretarial accruing from January 1, 2010, the date Under the Taylor Grazing Act of 1934, Determination. of termination. 43 U.S.C. 315a, any willful violation of [FR Doc. 2010–16134 Filed 7–1–10; 8:45 am] FOR FURTHER INFORMATION CONTACT: Rita these supplementary rules on public BILLING CODE 4310–MN–P Altamira, Land Law Examiner, Branch lands within a grazing district shall be of Adjudication, Division of Energy & punishable by a fine of not more than Minerals, BLM California State Office, $500. DEPARTMENT OF THE INTERIOR 2800 Cottage Way, W–1623, Sacramento, California 95825, Under Section 303(a) of the Federal Geological Survey Land Policy and Management Act of (916) 978–4378. 1976, 43 U.S.C. 1733(a), and 43 CFR Patent, Trademark and Copyright Acts SUPPLEMENTARY INFORMATION: No 8360.0–7, any person who violates any AGENCY: Geological Survey, Interior. intervening valid lease has been issued of these supplementary rules may be affecting the lands. The lessee has ACTION: Notice of prospective intent to tried before a United States Magistrate award exclusive license. agreed to new lease terms for rentals and fined no more than $1,000, and royalties at rates of $5.00 per acre imprisoned for no more than 12 months, SUMMARY: The United States Geological or fraction thereof and 162⁄3 percent, or both. Survey (USGS) is contemplating respectively. The lessee has paid the Such violations may also be subject to awarding an exclusive license to: Ozone required $500 administrative fee and the enhanced fines provided for by 18 Technologies Group, Inc., 253 Portman has reimbursed the BLM for the cost of U.S.C. 3571. Lane, Suite 107, Bridgeville, PA 15017 this Federal Register notice. The Lessee on U.S. Patent No. 6,485,696 B1, has met all the requirements for Anna Marie Burden, entitled ‘‘Recovery/Removal of Metallic reinstatement of the lease as set out in Acting State Director. Elements from Waste Water Using Sections 31(d) and (e) of the Mineral [FR Doc. 2010–16148 Filed 7–1–10; 8:45 am] Ozone.’’ Leasing Act of 1920 (30 U.S.C. 188), and Inquiries: If other parties are the BLM is proposing to reinstate the BILLING CODE 4310–JB–P interested in similar activities, or have lease effective January 1, 2010, subject comments related to the prospective to the original terms and conditions of

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the lease and the increased rental and application to extend the withdrawal made available for public inspection in royalty rates cited above. established by PLO No. 6818 for an their entirety. additional 20-year term. The withdrawal Notice is hereby given that an Debra Marsh, was made to protect the Tonopah opportunity for a public meeting is Supervisor, Branch of Adjudication, Division Administrative Site and contains 5 acres afforded in connection with the of Energy and Minerals. in Nye County. proposed withdrawal extension. All [FR Doc. 2010–16150 Filed 7–1–10; 8:45 am] The purpose of the proposed interested persons who desire a public BILLING CODE 4310–40–P extension is to continue the withdrawal meeting for the purpose of being heard created by PLO No. 6818 for an on the proposed extension must submit a written request to the Field Manager, DEPARTMENT OF THE INTERIOR additional 20-year term for protection of the capital investment in the Tonopah BLM Tonopah Field Office, by Bureau of Land Management Administrative Site. September 30, 2010. The use of a right-of-way, interagency, This withdrawal extension proposal [LLNVB00000 L14300000.ET0000 241A; or cooperative agreement would not will be processed in accordance with the NVN–50507; MO#4500012779; 10–08807; regulations set forth in 43 CFR 2310.4. TAS: 14X1109] adequately constrain nondiscretionary uses which could result in the loss of Authority: 43 CFR 2310.3–1. the capital investment. Notice of Proposed Withdrawal Brian C. Amme, Extension and Opportunity for Public There are no suitable alternative sites as the land described contains Acting Deputy State Director, Resources, Meeting; Nevada Lands and Planning. permanent Federal facilities. Structures AGENCY: Bureau of Land Management, and improvements on the site include [FR Doc. 2010–16149 Filed 7–1–10; 8:45 am] Interior. the Tonopah administrative office, BILLING CODE 4310–HC–P ACTION: Notice. employee covered break area, visitor SUMMARY: The Assistant Secretary of the and employee parking area, two DEPARTMENT OF THE INTERIOR Interior for Land and Minerals warehouses, garage/storage building, Management proposes to extend the and storage yard for equipment and Bureau of Land Management duration of Public Land Order (PLO) vehicles. No water rights would be needed to [LLMTM01000–L14300000.ET0000; MTM No. 6818 for an additional 20-year term. 89170] PLO No. 6818 withdrew 5 acres of fulfill the purpose of the requested public land from settlement, sale, withdrawal extension. Notice of Proposed Withdrawal location, or entry under the general land For a period of 90 days from the date Extension and Opportunity for Public laws, including the United States of publication of this notice, all persons Meeting; Montana mining laws, to protect the Bureau of who wish to submit comments, AGENCY: Bureau of Land Management, Land Management’s Tonopah suggestions, or objections in connection Interior. Administrative Site in Nye County. The with the proposed withdrawal extension ACTION: withdrawal created by PLO No. 6818 may present their views in writing to Notice. the Field Manager, BLM Tonopah Field will expire on November 28, 2010, SUMMARY: The Assistant Secretary of the Office at the address noted above. unless extended. This notice gives an Interior for Land and Minerals Comments, including names and street opportunity to comment on the Management proposes to extend the addresses of respondents, and records proposed action and to request a public duration of Public Land Order (PLO) relating to the application, will be meeting. No. 7464, as extended by PLO 7643, for available for public review at the DATES: Comments and requests for a an additional 5-year term. This PLO address stated above, during regular public meeting must be received by withdrew 3,530.62 acres of public land business hours 8 a.m. to 4:30 p.m., September 30, 2010. Upon in Phillips County, Montana, from Monday through Friday, except determination by the authorized officer settlement, sale, location, or entry under holidays. Before including your address, that a public meeting will be held, a the general land laws, including the phone number, e-mail address, or other notice of the time and place will be mining laws, to protect the reclamation personal identifying information in your published in the Federal Register and at of the Zortman-Landusky mining area. comment, you should be aware that least one local newspaper 30 days The withdrawal created by Public Land your entire comment—including your before the scheduled date of the Order No. 7464, as extended, will expire personal identifying information—may meeting. on October 4, 2010, unless extended. be made publicly available at any time. This notice also gives an opportunity to ADDRESSES: Comments and meeting While you can ask us in your comment comment on the proposed action and to requests may be mailed to the Field to withhold your personal identifying request a public meeting. Manager, BLM Tonopah Field Office, information from public review, we Attn: NVN–50507 Tonopah cannot guarantee that we will be able to DATES: Comments and requests for a Administrative Site Withdrawal do so. If you wish to withhold your public meeting must be received by Extension, P.O. Box 911, Tonopah, name or address from public review or September 30, 2010. Nevada 89049. from disclosure under the Freedom of ADDRESSES: Comments and meeting FOR FURTHER INFORMATION CONTACT: Information Act, you must state this requests should be sent to the Montana Jacqueline M. Gratton, 775–861–6532, prominently at the beginning of your State Director, BLM, 5001 Southgate or e-mail: [email protected]. comments. Such requests will be Drive, Billings, Montana 59101–4669. SUPPLEMENTARY INFORMATION: The honored to the extent allowed by law. FOR FURTHER INFORMATION CONTACT: withdrawal created by PLO No. 6818 (55 All submissions from organizations or Micah Lee, Malta Field Office, 406–262– FR 49522 (1990)) will expire on businesses, and from individuals 2851, or Sandra Ward, BLM Montana November 28, 2010, unless extended. identifying themselves as State Office, 406–896–5052. PLO No. 6818 is incorporated herein by representatives or officials of SUPPLEMENTARY INFORMATION: The reference. The BLM has filed a petition/ organizations or businesses, will be Bureau of Land Management (BLM) has

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filed an application to extend the and in at least one local newspaper not miles northwest of Lund, Nevada, at the duration of the withdrawal established less than 30 days before the scheduled junction of U.S. Highway 6 and State by Public Land Order No. 7464 (65 FR date of the meeting. Route 318, and is legally described as: 59463 (2000)), which withdrew 3,530.62 This application will be processed in Mount Diablo Meridian, Nevada acres of public land in Phillips County, accordance with the regulations set Montana, from settlement, sale, forth in 43 CFR 2310.4. T. 13 N., R. 61 E. Sec. 9, SW1⁄4NE1⁄4SW1⁄4SW1⁄4. location, or entry under the general land (Authority: 43 CFR 2310.3–1) laws, including the United States The area described contains 2.5 acres, more mining laws, for an additional 5-year Dated: June 28, 2010. or less. term, subject to valid existing rights. Cynthia Staszak, This parcel of public land is proposed PLO 7464 is incorporated herein by Chief, Branch of Land Resources. for competitive auction at not less than reference. [FR Doc. 2010–16347 Filed 6–30–10; 4:15 pm] the appraised FMV of $6,900. Maps The purpose of the proposed BILLING CODE 4310–DN–P delineating the proposed sale parcel extension is to continue the protection will be available for public review at the of the reclamation of the Zortman and following Web site: http://www.blm.gov/ Landusky mining area. DEPARTMENT OF THE INTERIOR nv/ (click on the Ely District), and at the The use of a right-of-way, interagency BLM Ely District Office, until August agreement, or cooperative agreement Bureau of Land Management 16, 2010. would not provide adequate protection. [LLNVL01000 L14300000.EU0000 241A; N– Consistent with Section 203 of There are no suitable alternative sites 86667; 10–08807; MO #4500012445; TAS: FLPMA, the tract of public lands may be available where the withdrawal would 14X5232] sold as a result of approved land use facilitate mine reclamation since the planning if the sale of the tract meets location of the mines and necessary Notice of Realty Action: Competitive the disposal criteria. The sale is in reclamation materials are fixed. Auction of Public Lands in White Pine conformance with the Ely District No water rights will be needed to County, NV Record of Decision and Resource fulfill the purpose of the requested Management Plan (RMP), approved in withdrawal. AGENCY: Bureau of Land Management, All persons who wish to submit Interior. August 2008. The BLM has determined that the proposed action conforms to the comments, suggestions, or objections in ACTION: Notice of Realty Action. connection with the proposed RMP (LR–11) under the authority of withdrawal may present their views in SUMMARY: The Bureau of Land FLPMA. The lands are also identified as writing to the BLM Montana State Management (BLM) proposes to offer suitable for disposal and are in Director by September 30, 2010, at the one parcel of public land of compliance with Public Law 109–432, address above. approximately 2.5 acres in White Pine the Tax Relief and Health Care Act of Comments, including names and County, Nevada for competitive sale at 2006. No significant resource values street addresses of respondents, and not less than the appraised fair market will be affected by this disposal. This records relating to the application will value (FMV). The sale will be subject to parcel is not required for any Federal be available for public review at the the applicable provisions of Sections purposes. Malta Field Office, 501 South 2nd Street 203 and 209 of the Federal Land Policy These public lands have been East, HC 65, Box 5000, Malta, Montana and Management Act of 1976 (FLPMA), examined and found suitable for 59538–0047, during regular business 43 U.S.C. 1713 and 1719, respectively, disposal using competitive sale hours. and the BLM land sale and mineral procedures at 43 CFR 2711–3–1. The Individual respondents may request conveyance regulations at 43 CFR 2710 use of competitive sale procedures is confidentiality. Before including your and 2720. consistent with 43 CFR 2710.0– address, phone number, e-mail address, DATES: Interested persons may submit 6(c)(3)(i), which states ‘‘this title is the or other personal identifying written comments regarding this general procedure for sales of public information in your comment, be proposed sale of public lands until lands and may be used where there advised that your entire comment— August 16, 2010. If the BLM decision is would be a number of interested parties including your personal identifying to proceed with the sale, a sale date and bidding for the lands and (A) wherever information—may be made publicly time will be announced in local news in the judgment of the authorized officer available at any time. While you can ask papers and on the BLM Ely website at the lands are accessible and usable in your comment to withhold from least 15 days in advance of the sale. In regardless of adjoining land ownership.’’ public review your personal identifying no case will the lands be sold prior to If the BLM decides to proceed with information, we cannot guarantee that 60 days following publication of this the sale, a public auction will be we will be able to do so. Notice of Realty Action. scheduled to be held at the BLM Ely Notice is hereby given that an ADDRESSES: Written comments may be District Office, 702 North Industrial opportunity for a public meeting is submitted by mail: BLM Manager, Egan Way, Ely, Nevada. This oral auction will afforded in connection with the Field Office, 702 North Industrial Way, be a day event. Bidding on the subject proposed withdrawal extension. All HC 33 Box 33500, Ely, Nevada 89301; parcel will begin at the established interested persons who desire a public Fax: 775–289–1910, Attn: Cynthia FMV. At the conclusion of the auction, meeting for the purpose of being heard Longinetti; or e-mail: the person declared to have entered the on the proposed withdrawal extension [email protected]. highest qualifying oral bid shall submit must submit a written request to the a bid deposit of not less than 20 percent BLM Montana State Director at the FOR FURTHER INFORMATION CONTACT: of the successful high bid amount. address above by September 30, 2010. Cynthia Longinetti at 775–289–1809 or Failure to submit the deposit will result Upon determination by the authorized e-mail: [email protected]. in forfeiture of the sale offer. If the high officer that a public meeting will be SUPPLEMENTARY INFORMATION: The bidder is unable to consummate the held, a notice of the time and place will following described land is located transaction, the second-highest bidder’s be published in the Federal Register southwest of Ely, Nevada, about 11 bid may then be considered for award.

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Payment must be in the form of a judgments of any kind or nature arising extent required by law, the parcel is bank draft, cashier’s check, certified from the past, present, and future acts subject to the requirements of Section check or U.S. postal money order, or or omissions of the patentee, its 120(h) of the CERCLA. any combination thereof, and made employees, agents, contractors, or Federal law requires that bidders payable in U.S. dollars to the lessees, or any third-party, arising out of must be (1) United States citizens 18 Department of the Interior—Bureau of or in connection with the patentee’s use, years of age or older; (2) a corporation Land Management, immediately occupancy, or operations on the subject to the laws of any state or of the following the close of the sale. Personal patented real property. This United States; (3) an entity including, or company checks will not be accepted. indemnification and hold harmless but not limited to associations or No contractual or other rights against agreement includes, but is not limited partnerships capable of acquiring and the United States may accrue until BLM to, acts and omissions of the patentee, owning real property, or interests officially accepts the offer to purchase its employees, agents, contractors, or therein, under the laws of the State of and the full bid price is paid. lessees, or any third party, arising out of Nevada; or (4) a state, state The remainder of the purchase price or in connection with the use and/or instrumentality, or political subdivision must be paid prior to the expiration of occupancy of the patented real property authorized to hold real property. U.S. the 180th day following the date of the which has already resulted or does citizenship is evidenced by presenting a sale offer. Failure to pay the full price hereafter result in: (1) Violations of birth certificate, passport, or prior to the expiration of the 180th day Federal, state, and local laws and naturalization papers. Failure to submit will disqualify the apparent high bidder regulations that are now or may in the the above requested documents to the and cause the 20 percent bid deposit to future become, applicable to the real BLM within 30 days from receipt of the be forfeited to the BLM. Forfeiture of the property; (2) judgments, claims or high bidder letter shall result in the 20 percent bid deposit is in accordance demands of any kind assessed against cancellation of the bid. with 43 CFR 2711.3–1(d). No exceptions the United States; (3) costs, expenses, or Parcels may be subject to land use will be made. Arrangements for damages of any kind incurred by the applications received prior to electronic fund transfer to BLM for the United States; (4) releases or threatened publication of this notice if processing balance due shall be made a minimum releases of solid or hazardous waste(s) the application would have no adverse of 2 weeks prior to the payment date. and/or hazardous substance(s), as effect on the marketability of title, or the Terms and Conditions: Certain defined by Federal or state FMV of the parcel. Encumbrances of minerals of the parcel will be reserved environmental laws, off, on, into or record that may appear in the BLM in accordance with the BLM’s Mineral under land, property and other interests public files for the parcel proposed for Potential report, dated June 2, 2009. An of the United States; (5) activities by sale are available for review during offer to purchase these parcels will which solid waste or hazardous business hours, 7:30 a.m. to 4:30 p.m., constitute an application for mineral substances or waste, as defined by Pacific Time (PT), Monday through conveyance of the ‘‘no known value’’ Federal and state environmental laws Friday, at the Ely District Office, except mineral interests. In conjunction with are generated, released, stored, used or during federally recognized holidays. the final payment, the applicant will be otherwise disposed of on the patented The parcel is subject to limitations required to pay a $50 non-refundable real property, and any cleanup prescribed by law and regulation and filing fee for processing the conveyance response, remedial action or other prior to patent issuance, a holder of any of the ‘‘no known value’’ mineral actions related in any manner to said right-of-way within the parcel may be interests which will be sold solid or hazardous substances or wastes; given the opportunity to amend the simultaneously with the surface or (6) natural resource damages as right-of-way for conversion to a new interests. The following numbered defined by Federal and state law. This term, including perpetuity, if terms, conditions, and reservations will covenant shall be construed as running applicable, or to an easement. appear on the conveyance document for with the patented real property, and The BLM will notify valid existing the parcel. may be enforced by the United States in right-of-way holders of their ability to 1. A right-of-way is reserved for a court of competent jurisdiction. convert their compliant rights-of-way to ditches and canals constructed by 6. Pursuant to the requirements perpetual rights-of-way or easements. authority of the United States under the established by Section 120(h) of the Each valid holder will be notified in Act of August 30, 1890 (43 U.S.C. 945). Comprehensive Environmental writing of their rights and then must 2. Oil, gas, and geothermal resources Response, Compensation, and Liability apply for the conversion of their current are reserved to the United States, its Act, 42 U.S.C. 9620(h) (CERCLA), as authorization. permittees, licensees and lessees, amended by the Superfund Unless other satisfactory together with the right to prospect for, Amendments and Reauthorization Act arrangements are approved in advance mine, and remove the minerals under of 1988, 100 Stat. 1670, notice is hereby by a BLM authorized officer, applicable law and such regulations as given that the above-described lands conveyance of title shall be through the the Secretary of the Interior may have been examined and no evidence use of escrow. Designation of the escrow prescribe, along with all necessary was found to indicate that any agent shall be through mutual access and exit rights. hazardous substances has been stored agreement between the BLM and the 3. The parcel is subject to valid for 1 year or more, nor had any prospective patentee, and costs of existing rights. hazardous substances been disposed of escrow shall be borne by the prospective 4. Under 43 CFR 2711.1–3, the grazing or released on the subject property. patentee. permittee has unconditionally waived No warranty of any kind, express or Requests for all escrow instructions the 2-year prior notification by signing implied, is given by the United States as must be received by the Ely District the proper form. to the title, whether or to what extent Office prior to 30 days before the 5. By accepting this patent, the the land may be developed, its physical bidder’s scheduled closing date. There patentee agrees to indemnify, defend, condition, future uses, or any other are no exceptions. and hold the United States harmless circumstance or condition. The All name changes and supporting from any costs, damages, claims, causes conveyance of the parcel will not be on documentation must be received at the of action, penalties, fines, liabilities, and a contingency basis. However, to the Ely District Office 30 days from the date

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on the high bidder letter by 4:30 p.m. future uses. Buyers should also make FOR FURTHER INFORMATION CONTACT: PT. Name changes will not be accepted themselves aware of any Federal or state BLM Upper Snake Field Office at the after that date. To submit a name law or regulation that may impact the above address or (208) 524–7500. change, the apparent high bidder must future use of the property. Any land SUPPLEMENTARY INFORMATION: The submit the name change on the lacking access from a public road or following described public land is Certificate of Eligibility form to the Ely highway will be conveyed as such, and proposed for sale: District Office in writing. Certificate of future access acquisition will be the Eligibility forms are available at the Ely responsibility of the buyer. Boise Meridian District Office and at the BLM Web site Only written comments will be T. 6 N., R. 38 E., at: http://www.blm.gov/nv/ (click on the considered properly filed. Sec. 26, lots 11, 12, and 13; Ely District). Before including your address, phone Sec. 27, lots 9 and 14. The BLM will not sign any documents number, e-mail address, or other The area described contains 139.76 acres, related to 1031 Exchange transactions. personal identifying information in your more or less, in Madison County, Idaho. The timing for completion of the comment, you should be aware that The authority for the sale is found in exchange is the bidder’s responsibility your entire comment, including your Sections 203 and 209 of the Federal in accordance with Internal Revenue personal identifying information, may Land Policy and Management Act Service regulations. The BLM is not a be made publicly available at any time. (FLPMA) of October 21, 1976 (43 U.S.C. party to any 1031 Exchange. While you can ask us in your comment 1713 and 1719) and regulations found at All sales are made in accordance with to withhold your personal identifying 43 CFR 2710 and 2720. This property is and subject to the governing provisions information from public review, we not required for Federal purposes and of law and applicable regulations. cannot guarantee that we will be able to was identified for disposal in the In accordance with 43 CFR 2711.3– do so. 1(f), the BLM may accept or reject any November 25, 2008 amendment to the (Authority: 43 CFR 2711) or all offers to purchase, or withdraw BLM Medicine Lodge Resource any parcel of land or interest therein Jeffrey A. Weeks, Management Plan (1985). from sale, if, in the opinion of a BLM Field Manager, Egan Field Office. On July 2, 2010 the property will be segregated from all forms of authorized officer, consummation of the [FR Doc. 2010–16140 Filed 7–1–10; 8:45 am] appropriation under the public land sale would be inconsistent with any BILLING CODE 4310–HC–P law, or for other reasons. laws, including the mining laws, except If the parcel is not sold by competitive as it relates to a direct sale to Madison sale auction, it may be identified for sale DEPARTMENT OF THE INTERIOR County under Section 203 of FLPMA as at a later date without further legal herein proposed. The segregative effect notice. Bureau of Land Management will terminate upon issuance of a On publication of this notice and patent, publication in the Federal [LLIDI01000–L143000000.EU0000; IDI– until completion of the sale, the BLM is 19600–03] Register of a termination of the no longer accepting land use segregation, or on July 2, 2012, applications affecting the parcel Notice of Realty Action: Non- whichever occurs first. identified for sale. However, land use Competitive (Direct) Sale of Public In addition, the property was applications may be considered after Lands and Termination of a Recreation classified on September 27, 1983 under completion of the sale if the parcel is and Public Purposes Act the R&PPA. A portion of the property not sold. Classification, Madison County, ID was classified as suitable for recreation In order to determine the FMV, and public purposes (T. 6 N., R. 38 E., certain assumptions may have been AGENCY: Bureau of Land Management, lots 11 and 12 of sec. 26 and lots 9 and made concerning the attributes and Interior. 14 of sec. 27), and the remainder of the limitations of the lands and potential ACTION: Notice of realty action. property (T. 6 N., R. 38 E., lot 13 of sec. effects of local regulations and policies 26) was classified as non-suitable for SUMMARY: The Bureau of Land on potential future land uses. Through recreation and public purposes. This Management (BLM) proposes to sell a publication of this notice, the BLM notice terminates both the suitable and 139.76-acre parcel of public land in advises that these assumptions may not non-suitable R&PPA classifications on Madison County, Idaho, to Madison be endorsed or approved by units of these lands. These classifications are no County for continued use as a local government. It is the buyer’s longer needed, as the property is construction and demolition (C&D) responsibility to be aware of all proposed to be sold. On July 2, 2010, the landfill. In addition, this notice will applicable Federal, state, and local R&PPA classification identified above terminate the Recreational and Public government laws, regulations and and any associated segregations will be Purpose Act (R&PPA) classification that policies that may affect the subject terminated, and the lands described encumbers the land identified for sale. lands, including any required above shall be open to direct sale to dedication of lands for public uses. It is DATES: Comments regarding this direct Madison County under Section 203 of also the buyer’s responsibility to be sale must be received by the BLM at the FLPMA, subject to valid existing rights, aware of existing or prospective uses of address listed below by August 16, the provisions of existing withdrawals nearby properties. When conveyed out 2010. and other segregations of record, and the of Federal ownership, the lands will be ADDRESSES: Written comments requirements of applicable laws. The subject to any applicable laws, regarding the proposed sale should be Madison County Commissioners regulations, and policies of the addressed to Wendy Reynolds, Upper propose to continue using the property applicable local government for Snake Field Office Manager, BLM Upper as a C&D landfill to meet public needs. proposed future uses. It will be the Snake Field Office, 1405 Hollipark On November 23, 1983, the BLM responsibility of the purchaser to be Drive, Idaho Falls, Idaho 83401. issued Madison County a lease under aware through due diligence of those Comments received in electronic form, the R&PPA, as amended, for a municipal laws, regulations, and policies, and to such as e-mail or by fax, will not be solid waste landfill. In 1994, the County seek any required local approvals for considered. stopped using the site as a municipal

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solid waste landfill and changed the use give rise to, in whole or in part: (1) address, phone number, e-mail address, of the site to a C&D landfill. At this Violations of Federal, State and local or other personal identifying time, the County would like to purchase laws and regulations that are now, or information in your comment, you the property it leased under the R&PPA may in the future become, applicable to should be aware that your entire as well as an additional 39.46 acres to the real property and/or applicable to comment—including your personal be used as a source of material for cover the use, occupancy, and/or operations identifying information—may be made and future expansion of the C&D thereon; (2) judgments, claims, or publicly available at any time. While landfill. These lands are being offered demands of any kind assessed against you can ask us in your comment to for direct sale to Madison County at no the United States; (3) costs, expenses, or withhold your personal information less than the appraised Fair Market damages of any kind incurred by the from public review, we cannot Value of $38,500. The sale meets the United States; (4) releases or threatened guarantee that we will be able to do so. criteria for direct sale, pursuant to 43 releases of solid or hazardous waste(s) Any adverse comments will be CFR 2711.3–3, which allows direct sales and/or hazardous substance(s), reviewed by the BLM State Director, when in the opinion of the authorized pollutant(s), or contaminant(s), and/or Idaho State Office, who may sustain, officer a competitive sale is not petroleum product(s) or derivative(s) of vacate, or modify this realty action in appropriate and the public interest a petroleum product, as defined by whole or in part. In the absence of any would best be served by a direct sale, Federal or State environmental laws; of, adverse comments, this realty action such as a sale to a State or local on, into, or under land, property, and will become the final determination of government. other interests of the United States; (5) the Department of the Interior. Upon patent, if and when issued, the natural resource damages as defined by Information concerning the proposed unreserved mineral interests will be Federal and State law; or (6) other land sale, including the appraisal report, conveyed simultaneously with the sale activities by which solid or hazardous planning and environmental of the land. These unreserved mineral substance(s) or waste(s), pollutant(s) or documents, and the mineral report is interests have been determined to have contaminant(s), or petroleum product(s) available for review in the BLM Upper no known mineral values pursuant to 43 or derivative(s) of a petroleum product Snake Field Office at the address listed CFR 2720.2(a). Acceptance of the sale as defined by Federal or State above. offer will constitute an application for environmental laws are generated, These parcels will not be sold until at conveyance of those unreserved mineral stored, used, or otherwise disposed of least August 31, 2010. interests. The Purchaser will be required on the patented real property, and any to pay a $50.00 non-refundable fee for cleanup response, remedial action, or Authority: 43 CFR 2711.1–2. conveyance of the mineral interests. other actions related in any manner to Wendy Reynolds, The patent, if and when issued, will the said solid or hazardous substance(s) Field Manager, BLM Upper Snake Field contain the following reservations, or waste(s) or contaminant(s), or Office. covenants, terms and conditions: petroleum product(s) or derivative(s) of [FR Doc. 2010–16260 Filed 7–1–10; 8:45 am] 1. Rights-of-way for ditches and a petroleum product as defined by BILLING CODE 4310–GG–P canals constructed by the authority of Federal or State laws. Patentee shall the United States will be reserved stipulate that it will be solely pursuant to the Act of August 30, 1890 responsible for compliance with all DEPARTMENT OF THE INTERIOR (43 U.S.C. 945). applicable Federal, State, and local 2. The conveyance will be subject to environmental laws and regulatory Bureau of Land Management valid existing rights of record, provisions, throughout the life of the including, but not limited to, those facility, including any closure and/or [LLNVC02000 L57000000.BX0000 241A; 10– 08807; MO# 4500013122; TAS: 14X5017] documented on the BLM public land post-closure requirements that may be records at the time of conveyance of the imposed with respect to any physical Notice of Temporary Closures of lands. plant and or facility upon the real Public Lands in Washoe County, NV 3. Pursuant to the requirements property under any Federal, State, or established by Section 120(h) of the local environmental laws or regulatory AGENCY: Bureau of Land Management, Comprehensive Environmental provisions. This covenant shall be Interior. Response, Compensation and Liabilities construed as running with the patented ACTION: Notice of Temporary Closure. Act (CERCLA), 42 U.S.C. 9620(h), as real property and may be enforced by amended by the Superfund the United States in a court of SUMMARY: As authorized under the Amendments and Reauthorization Act competent jurisdiction. provisions of the Federal Land Policy of 1988, (100 Stat. 1670), the patentee, 4. The conveyance will be also subject and Management Act of 1976, notice is its successors or assigns, by accepting a to additional terms and conditions that hereby given that certain public lands patent, will agree to indemnify, defend, the authorized officer deems near Stead, Nevada, will be temporarily and hold harmless the United States, its appropriate to ensure proper land use closed to all public use to provide for officers, agents, representatives, and and protection of the public interest. public safety during the 2010 Reno Air employees (hereinafter ‘‘United States’’) Public Comments: For a period until Racing Association Pylon Racing from any costs, damages, claims, causes August 16, 2010, interested parties and Seminar and the Reno National of action in connection with the the general public may submit written Championship Air Races. patentee’s use, occupancy, or operations comments to the BLM Upper Snake DATES: Effective Dates: Closure periods on the patented real property. This Field Office at the address above. to all public use are September 11 agreement includes, but is not limited Comments, including names and street through September 19, 2010. to, acts or omissions of the patentee and addresses of respondents, will be FOR FURTHER INFORMATION CONTACT: its employees, agents, contractors, available for public review at the BLM Linda J. Kelly, (775) 885–6000, e-mail: lessees, or any third party arising out of, Upper Snake Field Office during regular _ _ or in connection with, the patentee’s business hours, except holidays. Linda J [email protected]. use, occupancy, or operations on the Individual respondents may request SUPPLEMENTARY INFORMATION: This patented real property which cause or confidentiality. Before including your closure applies to all public use,

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including pedestrian use and vehicles. Member—James M. Lyons. 205–3459 or [email protected]) The public lands affected by this closure Member—Stephen A. McLaughlin. or Services Division Chief Richard are described as follows: Member—Lyn M. Schlitt. Brown (202–205–3438 or This notice is published in the [email protected]) for Mount Diablo Meridian, Nevada Federal Register pursuant to the information specific to this T. 21 N., R. 19 E., requirement of 5 U.S.C. 4314(c)(4). investigation. For information on the Sec. 8, N1⁄2NE1⁄4, SE1⁄4NE1⁄4, E1⁄2SE1⁄4; Hearing-impaired individuals are legal aspects of these investigations, Sec.16, N1⁄2, SE1⁄4. advised that information on this matter contact William Gearhart of the The area described contains approximately can be obtained by contacting our TDD Commission’s Office of the General 680 acres. The closure notice and map of the terminal on (202) 205–1810. Counsel (202–205–3091 or closure area will be posted at the BLM By order of the Chairman. [email protected]). The media Carson City District Office, 5665 Morgan Mill Issued: June 29, 2010. should contact Margaret O’Laughlin, Road, Carson City, Nevada and on the BLM Web site: http://www.blm.gov/nv/st/en/fo/ Marilyn R. Abbott, Office of External Relations (202–205– carson_city_field.html. Roads leading into Secretary to the Commission. 1819 or [email protected]). the public lands under closure will be posted [FR Doc. 2010–16120 Filed 7–1–10; 8:45 am] Hearing-impaired individuals may obtain information on this matter by to notify the public of the closure. BILLING CODE 7020–02–P Exceptions: Closure restrictions do not contacting the Commission’s TDD apply to event officials, medical and rescue terminal at 202–205–1810. General personnel, law enforcement, and agency INTERNATIONAL TRADE information concerning the Commission personnel monitoring the events. COMMISSION may also be obtained by accessing its Penalties: Any person who fails to comply Internet server (http://www.usitc.gov). with the closure orders is subject to arrest [Investigation No. 332–345] and, upon conviction, may be fined not more Persons with mobility impairments who than $1,000 and/or imprisoned for not more Recent Trends in U.S. Services Trade, will need special assistance in gaining than 12 months under 43 CFR 8360.0–7, 2011 Annual Report access to the Commission should violations may also be subject to the contact the Office of the Secretary at provisions of title 18, U.S.C. sections 3571 AGENCY: United States International 202–205–2000. and 3581. Trade Commission. BACKGROUND: Under this investigation, Authority: 43 CFR 8360.0–7 and 8364.1. ACTION: Schedule for 2011 report and the Commission publishes two annual opportunity to submit information; reports, one on services trade (Recent Linda J. Kelly, availability of 2010 report. Trends in U.S. Services Trade), and a Manager, Sierra Front Field Office. second on merchandise trade (Shifts in [FR Doc. 2010–16151 Filed 7–1–10; 8:45 am] SUMMARY: The Commission has U.S. Merchandise Trade). The latest BILLING CODE 4310–HC–P prepared and published annual reports version of the Commission’s Recent in this series under investigation No. Trends in U.S. Services Trade is now 332–345 since 1996. The 2010 report is available online at http://www.usitc.gov; INTERNATIONAL TRADE now available from the Commission it is also available in CD and printed COMMISSION online and in CD and printed form. The form from the Office of the Secretary at 2011 report, which the Commission 202–205–2000 or by fax at 202–205– Notice of Appointment of Individuals plans to publish in June 2011, will cover 2104. To Serve as Members of Performance cross-border trade for the period ending The initial notice of institution of this Review Board in 2009 and transactions by affiliates investigation was published in the based outside the country of their parent Federal Register on September 8, 1993 AGENCY: United States International firm for the period ending in 2008. The (58 FR 47287) and provided for what is Trade Commission. Commission is inviting interested now the report on merchandise trade. ACTION: Appointment of Individuals to members of the public to furnish The Commission expanded the scope of Serve as Members of Performance information in connection with the 2011 the investigation to cover services trade Review Board. report. in a separate report, which it announced DATES: in a notice published in the Federal DATES: Effective Date: June 23, 2010. October 12, 2010: Deadline for filing Register of December 28, 1994 (59 FR FOR FURTHER INFORMATION CONTACT: written submissions of information to 66974). The separate report on services Cynthia Roscoe, Director of Human the Commission. trade has been published annually since Resources, U.S. International Trade June 30, 2011: Anticipated date for 1996, except in 2005. As in past years, Commission (202) 205–2651. publishing the report. the report will summarize trade in SUPPLEMENTARY INFORMATION: The ADDRESSES: All Commission offices are services in the aggregate and provide Chairman of the U.S. International located in the United States analyses of trends and developments in Trade Commission has appointed the International Trade Commission selected services during the latest following individuals to serve on the Building, 500 E Street, SW., period for which data are published by Commission’s Performance Review Washington, DC. All written the U.S. Department of Commerce, Board (PRB): submissions should be addressed to the Bureau of Economic Analysis (for the Chair of the PRB: Commissioner Secretary, United States International 2011 report, data for the periods Daniel R. Pearson. Trade Commission, 500 E Street, SW., described above). The 2011 report will Vice-Chair of the PRB: Commissioner Washington, DC 20436. The public focus on selected business and Dean A. Pinkert. record for this investigation may be professional services, alternating with Member—David Beck. viewed on the Commission’s electronic the focus of the 2010 report on Member—Catherine DeFilippo. docket (EDIS) at https://edis.usitc.gov/ infrastructure services. Member—Robert B. Koopman. edis3-internal/app. Written Submissions: Interested Member—Karen Laney. FOR FURTHER INFORMATION CONTACT: parties are invited to submit written Member—Lynn I. Levine. Project Leader Samantha Brady (202– statements and other information

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concerning the matters to be addressed By order of the Commission. period, the Decree may also be by the Commission in its report on this Marilyn R. Abbott, examined on the following Department investigation. Submissions should be Secretary. of Justice Web site, http:// addressed to the Secretary. To be [FR Doc. 2010–16078 Filed 7–1–10; 8:45 am] www.usdoj.gov/enrd/ _ assured of consideration by the BILLING CODE 7020–02–P Consent Decrees.html. A copy of the Commission, written submissions Decree may also be obtained by mail related to the Commission’s report from the Consent Decree Library, P.O. should be submitted at the earliest DEPARTMENT OF JUSTICE Box 7611, U.S. Department of Justice, practical date and should be received Washington, DC 20044–7611 or by not later than 5:15 p.m., October 12, Notice of Lodging of Consent Decree faxing or e-mailing a request to Tonia 2010. All written submissions must Under the Clean Air Act Fleetwood ([email protected]), conform with the provisions of section fax no. (202) 514–0097, phone Notice is hereby given that on June 201.8 of the Commission’s Rules of confirmation number (202) 514–1547. In 28, 2010, a proposed Consent Decree Practice and Procedure (19 CFR 201.8). requesting a copy from the Consent (‘‘Decree’’) in United States v. West Side Decree Library, please enclose a check Section 201.8 requires that a signed Metals Corp., Civil Action No. 1:10–cv– original (or a copy so designated) and in the amount of $6.25 (25 cents per 01427, was lodged with the United page reproduction cost) payable to the fourteen (14) copies of each document States District Court for the Northern be filed. In the event that confidential U.S. Treasury or, if by email or fax, District of Ohio. forward a check in that amount to the treatment of a document is requested, at In this action the United States, on least four (4) additional copies must be Consent Decree Library at the stated behalf of the U.S. Environmental address. filed, in which the confidential Protection Agency (‘‘U.S. EPA’’), sought information must be deleted (see the penalties and injunctive relief under the Maureen Katz, following paragraph for further Clean Air Act (‘‘CAA’’) against West Side Assistant Chief, Environmental Enforcement information regarding confidential Metals Corp. (‘‘Defendant’’) relating to Section, Environment and Natural Resources business information). The Defendant’s Cleveland, Ohio facility Division. Commission’s rules authorize filing (‘‘Facility’’). The Complaint alleges that [FR Doc. 2010–16099 Filed 7–1–10; 8:45 am] submissions with the Secretary by Defendant has violated Section BILLING CODE 4410–15–P facsimile or electronic means only to the 608(b)(1)of the CAA, 42 U.S.C. extent permitted by section 201.8 of the 7671g(b)(1) (National Recycling and rules (see Handbook for Electronic Emission Reduction Program) and the DEPARTMENT OF JUSTICE Filing Procedures, http://www.usitc.gov/ regulations promulgated thereunder, 40 Notice of Lodging of Consent Decree secretary/fed_reg_notices/rules/ CFR Part 82, Subpart F, by failing to Under the Comprehensive documents/ follow the requirement to recover or Environmental Response, handbook_on_electronic_filing.pdf). verify recovery of refrigerant from Compensation, and Liability Act Persons with questions regarding appliances it accepts for disposal. The electronic filing should contact the Consent Decree provides for a civil Consistent with Section 122 of the Secretary (202–205–2000). penalty of $10,000 based upon ability to Comprehensive Environmental Any submissions that contain pay. The Decree also requires Defendant Response, Compensation, and Liability confidential business information (CBI) to (1) purchase equipment to recover Act of 1980, as amended (‘‘CERCLA’’), must also conform with the refrigerant or contract for such services 42 U.S.C. 9622(d), and 28 CFR 50.7, requirements of section 201.6 of the and provide such service at no notice is hereby given that on June 28, Commission’s Rules of Practice and additional cost; (2) no longer accept 2010, the United States lodged a Partial Procedure (19 CFR 201.6). Section 201.6 appliances with cut lines unless the Consent Decree with El Dorado County, of the rules requires that the cover of the supplier can provide appropriate California (the ‘‘County’’) in United document and the individual pages be verification that such appliances have States of America v. El Dorado County, clearly marked as to whether they are not leaked; (3) require its suppliers to California, et al., Civil No. S–01–1520 the ‘‘confidential’’ or ‘‘non-confidential’’ use the verification statement provided MCE GGH (E.D. Cal.), with respect to version, and that the confidential in Appendix A; and (4) keep a the Meyers Landfill Site, located in business information be clearly refrigerant recovery log regarding Meyers, El Dorado County, California identified by means of brackets. All refrigerant that it has recovered. (the ‘‘Site’’). written submissions, except for The Department of Justice will receive On August 3, 2001, Plaintiff United confidential business information, will for a period of thirty (30) days from the States of America (‘‘United States’’), on be made available for inspection by date of this publication comments behalf of the United States Department interested parties. relating to the Decree. Comments should of Agriculture, Forest Service (‘‘Forest be addressed to the Assistant Attorney Service’’), filed a complaint in this The Commission intends to prepare General, Environment and Natural matter pursuant to Section 107 of the only a public report in this Resources Division, P.O. Box 7611, U.S. Comprehensive Environmental investigation. The report that the Department of Justice, Washington, DC Response, Compensation, and Liability Commission makes available to the 20044–7611, and either e-mailed to Act (‘‘CERCLA’’), 42 U.S.C. 9607, against public will not contain confidential [email protected] or Defendants, El Dorado County, business information. Any confidential mailed to P.O. Box 7611, U.S. California (the ‘‘County’’) and the City of business information received by the Department of Justice, Washington, DC South Lake Tahoe, California (‘‘the Commission in this investigation and 20044–7611, and should refer to United City’’). The complaint filed by the used in preparing the report will not be States, et al. v. West Side Metals Corp., United States seeks recovery of published in a manner that would D.J. Ref. 90–5–2–1–09619. The Decree environmental response costs, with reveal the operations of the firm may be examined at U.S. EPA, Region accrued interest, incurred by the Forest supplying the information. 5, 77 West Jackson Blvd., Chicago, IL Service related to the release or Issued: June 28, 2010. 60604. During the public comment threatened release and/or disposal of

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hazardous substances at or from the The Partial Consent Decree may be Security Act of 1974 (ERISA or the Act) Meyers Landfill Site, a former examined at U.S. Department of and/or the Internal Revenue Code of municipal waste disposal facility Agriculture, Office of General Counsel, 1986 (the Code). located on National Forest Service 33 New Montgomery Street, 17th Floor, A notice was published in the Federal System lands administered by the Lake San Francisco, CA 94150 (contact Rose Register of the pendency before the Tahoe Basin Management Unit of the Miksovsky, (415) 744–3158). During the Department of a proposal to grant such Forest Service, and a declaration of the public comment period, the Partial exemption. The notice set forth a County’s and the City’s liability for Consent Decree may also be examined summary of facts and representations future response costs incurred by the on the following Department of Justice contained in the application for United States related to the Site. The Web site: http://www.usdoj.gov/enrd/ _ exemption and referred interested County filed a counterclaim for Consent Decrees.html. A copy of the persons to the application for a contribution against the United States as Partial Consent Decree may also be complete statement of the facts and well as a Third Party Complaint for obtained by mail from the Consent representations. The application has Decree Library, U.S. Department of contribution against a number of third been available for public inspection at Justice, P.O. Box 7611, Washington, D.C. party defendants. the Department in Washington, DC. The 20044–7611 or by faxing or e-mailing a Under the proposed Partial Consent notice also invited interested persons to request to Tonia Fleetwood Decree, the County will implement the submit comments on the requested ([email protected]), fax no. Operable Unit One (‘‘OU–1’’) remedy, exemption to the Department. In (202) 514–0097, phone confirmation which involves consolidating the addition the notice stated that any number (202) 514–1547. In requesting a landfill waste and encasing it under an interested person might submit a copy from the Consent Decree Library, impervious cap and construction of written request that a public hearing be please refer to United States of America certain enhanced drainage features held (where appropriate). The applicant v. El Dorado County, California, et al., around the cap. The County will also has represented that it has complied pay $1,651,000 to resolve the United Civil No. S–01–1520 MCE GGH (E.D. Cal.) (DOJ Ref. No. 90–11–3–06554) with the requirements of the notification States’ claim for Past Response Costs (as to interested persons. No requests for a defined in the proposed Partial Consent (Partial Consent Decree with El Dorado County), and enclose a check in the hearing were received by the Decree) at the Site. In exchange, the Department. Public comments were County will receive from the United amount of $66.50 (25 cents per page reproduction cost) payable to the U.S. received by the Department as described States a covenant not to sue or to take in the granted exemption. administrative action pursuant to Treasury or, if by e-mail or fax, forward Sections 106 or 107 of CERCLA, 42 a check in that amount to the Consent The notice of proposed exemption U.S.C. 9606 and 9607, for the Decree Library at the stated address. was issued and the exemption is being performance of response actions at OU– granted solely by the Department Maureen Katz, because, effective December 31, 1978, 1 and for the United States’ Past Assistant Section Chief, Environmental Response Costs and Future Oversight section 102 of Reorganization Plan No. Enforcement Section, Environment and 4 of 1978, 5 U.S.C. App. 1 (1996), Costs (as defined in the proposed Partial Natural Resources Division. Consent Decree). transferred the authority of the Secretary [FR Doc. 2010–16119 Filed 7–1–10; 8:45 am] of the Treasury to issue exemptions of In addition, the proposed Partial BILLING CODE 4410–15–P the type proposed to the Secretary of Consent Decree resolves the County’s Labor. contribution counterclaims against the United States regarding response costs DEPARTMENT OF LABOR Statutory Findings incurred, or to be incurred, by the County at OU–1, referred to in the Employee Benefits Security In accordance with section 408(a) of proposed Partial Consent Decree as Administration the Act and/or section 4975(c)(2) of the ‘‘Settling Defendant Past Response Code and the procedures set forth in 29 Costs’’ and ‘‘Settling Defendant Future Prohibited Transaction Exemptions CFR Part 2570, Subpart B (55 FR 32836, OU–1 Response Costs,’’ in exchange for and Grant of Individual Exemptions 32847, August 10, 1990) and based upon a payment of $1,612,349 to the County. Involving D–11448, The PNC Financial the entire record, the Department makes The County, in turn, must deposit that Services Group, Inc., 2010–19; D– the following findings: amount into a special account to fund 11514, Citigroup Inc. and its Affiliates (a) The exemption is administratively implementation of the OU–1 remedy. (Citigroup or the Applicant), 2010–20; feasible; The Department of Justice will receive D–11527, Barclays California (b) The exemption is in the interests of the for a period of thirty (30) days from the Corporation (Barcal), 2010–21; D– plan and its participants and beneficiaries; date of this publication comments 11533 and D–11534, Respectively, and relating to the Partial Consent Decree. CUNA Mutual Pension Plan for (c) The exemption is protective of the Comments should be addressed to the Represented Employees and CUNA rights of the participants and beneficiaries of Assistant Attorney General, Mutual Pension Plan for Non- the plan. Environment and Natural Resources Represented Employees (Together, the Division, and either e-mailed to Plans), 2010–22 Exemption [email protected] or AGENCY: Employee Benefits Security Section I—Exemption for In-Kind mailed to P.O. Box 7611, U.S. Administration, Labor. Redemption of Assets Department of Justice, Washington, DC ACTION: Grant of individual exemptions. 20044–7611, and should refer to United The restrictions in sections States of America v. El Dorado County, SUMMARY: This document contains 406(a)(1)(A) through (D) and 406(b)(1) California, et al., Civil No. S–01–1520 exemptions issued by the Department of and (b)(2) of the Act, and the sanctions MCE GGH (E.D. Cal.) (DOJ Ref. No. 90– Labor (the Department) from certain of resulting from the application of section 11–3–06554) (Partial Consent Decree the prohibited transaction restrictions of 4975 of the Code, by reason of section with El Dorado County). the Employee Retirement Income 4975(c)(1)(A) through (E) of the Code,

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shall not apply 1 to certain in-kind (G) Prior to a Redemption, based on November 1, 2007 to liquidate the redemptions (the Redemption(s)) by The the disclosures provided to the securities that the Mercantile Plan Employees’ Thrift Plan of Mercantile Independent Fiduciary, the Independent received in kind pursuant to a Bankshares Corporation and Fiduciary determined that the terms of Redemption; and (ii) provided the Participating Affiliates (the Mercantile the Redemption were fair to the Department with written documentation Plan) that occurred overnight on Mercantile Plan, and comparable to and indicating reimbursement to the PNC October 31, 2007, of shares (the Shares) no less favorable than terms obtainable Plan for such brokerage costs; of proprietary mutual funds (the Funds) at arm’s length between unaffiliated (M) PNC maintains, or causes to be for which The PNC Financial Services parties, and that the Redemption was in maintained, for a period of six years Group, Inc. (PNC) or an affiliate thereof the best interests of the Mercantile Plan from the date of any covered transaction provides investment advisory and other and its participants and beneficiaries; such records as are necessary to enable services, provided that the following (H) Not later than thirty (30) business the persons described in paragraph (N) conditions were satisfied: days after the completion of a below to determine whether the (A) No sales commissions, Redemption, the Independent Fiduciary conditions of this exemption have been redemption fees, or other similar fees received a written confirmation met, except that (i) a separate prohibited were paid in connection with the regarding such Redemption containing: transaction will not be considered to Redemptions (other than customary (i) The number of Shares held by the have occurred if, due to circumstances transfer charges paid to parties other Mercantile Plan immediately before the beyond the control of PNC, the records than PNC and any affiliates of PNC Redemption (and the related per Share are lost or destroyed prior to the end of (PNC Affiliates)); net asset value and the total dollar value the six-year period and (ii) no party in (B) The assets transferred to the of the Shares held) for each Fund; interest with respect to the Mercantile Mercantile Plan pursuant to the (ii) The identity (and related aggregate Plan other than PNC shall be subject to Redemptions consisted entirely of cash dollar value) of each security provided the civil penalty that may be assessed and Transferable Securities, as such to the Mercantile Plan pursuant to the under section 502(i) of the Act or to the term is defined in Section II, below; Redemption, including each security taxes imposed by section 4975(a) and (b) (C) In each Redemption, the valued in accordance with Rule 2a–4 of the Code if such records are not Mercantile Plan received its pro rata under the 1940 Act and procedures maintained or are not available for portion of the securities with respect to adopted by the Board of Directors of examination as required by paragraph the Capital Opportunities Fund, and PNC Funds, Inc. (using sources (N) below; certain securities, selected pursuant to a independent of PNC and PNC (N)(1) Except as provided in verifiable methodology, that were Affiliates); subparagraph (2) of this paragraph (N), approved by an independent fiduciary (iii) The current market price of each and notwithstanding any provisions of (Independent Fiduciary, as such term is security received by the Mercantile Plan section 504(a)(2) and (b) of the Act, the defined in Section II) with respect to the pursuant to the Redemption; and records referred to in paragraph (M) other four Funds covered by this (iv) If applicable, the identity of each above are unconditionally available at exemption, such that the securities pricing service or market maker their customary locations for received were equal in value to that of consulted in determining the value of examination during normal business the number of Shares redeemed, as such securities; hours by (i) any duly authorized (I) The value of the securities received determined in a single valuation (using employee or representative of the by the Mercantile Plan for each sources independent of PNC and PNC Department, the Internal Revenue redeemed Share equaled the net asset Service, or the Securities and Exchange Affiliates) performed in the same value of such Share at the time of the Commission (SEC), (ii) any fiduciary of manner and as of the close of business transaction, and such value equaled the the PNC Plan as the successor to the on the same day, in accordance with value that would have been received by Mercantile Plan or any duly authorized Rule 2a–4 under the Investment any other investor for shares of the same representative of such fiduciary, (iii) Company Act of 1940, as amended (the class of the Fund at that time; any participant or beneficiary of the 1940 Act) and the then-existing (J) Subsequent to the Redemptions, PNC Plan as the successor to the procedures adopted by the Board of the Independent Fiduciary performed a Mercantile Plan or duly authorized Directors of PNC Funds, Inc., which post-transaction review that included, representative of such participant or were in compliance with all applicable among other things, a random sampling beneficiary, and (iv) any employer securities laws; of the pricing information it received; whose employees are covered by the (D) Neither PNC nor any PNC Affiliate (K) Each of the Mercantile Plan’s PNC Plan as the successor to the received any direct or indirect dealings with the Funds, the investment Mercantile Plan and any employee compensation or any fees, including any advisors to the Funds, the principal organization whose members are fees payable pursuant to Rule 12b–1 underwriter for the Funds, or any covered by such plan; under the 1940 Act, in connection with affiliated person thereof, were on a basis (2) None of the persons described in any Redemption of the Shares; no less favorable to the Mercantile Plan paragraphs (N)(1)(ii), (iii) and (iv) shall (E) Prior to a Redemption, the than dealings between the Funds and be authorized to examine trade secrets Independent Fiduciary received a full other shareholders holding shares of the of PNC or the Funds, or commercial or written disclosure of information same class as the Shares; financial information which is regarding the Redemption; (L) ) Prior to the publication of this privileged or confidential; (F) Prior to a Redemption, the final exemption in the Federal Register (3) Should PNC or the Funds refuse to Independent Fiduciary communicated regarding the subject transactions, PNC: disclose information on the basis that its approval for such Redemption to (i) Reimbursed The PNC Financial such information is exempt from PNC; Services Group, Inc. Incentive Savings disclosure pursuant to paragraph (N)(2) Plan (the PNC Plan), into which the above, PNC or the Funds shall, by the 1 For purposes of this exemption, references to specific provisions of Title I of the Act, unless Mercantile Plan was merged on close of the thirtieth (30th) day otherwise specified, refer also to the corresponding November 1, 2007, for all brokerage following the request, provide a written provisions of the Code. costs incurred by the Mercantile Plan on notice advising that person of the

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reasons for the refusal and that the Act) from persons independent of PNC For a more complete statement of the Department may request such and (2) which are not: facts and representations supporting the information. (i) Securities that, if publicly offered Department’s decision to grant this or sold, would require registration exemption, refer to the notice of Section II—Definitions under the Securities Act of 1933; proposed exemption published on For purposes of this exemption— (ii) Securities issued by entities in January 19, 2010 at 75 FR 3060. (A) The term ‘‘affiliate’’ means: countries which (a) restrict or prohibit Written Comments (1) Any person (including corporation the holding of securities by non- or partnership) directly or indirectly nationals other than through qualified No substantive comments were through one or more intermediaries, investment vehicles, such as the Funds, received by the Department with respect controlling, controlled by, or under or (b) permit transfers of ownership of to the notice of proposed exemption. common control with the person; securities to be effected only by For Further Information Contact: Ms. (2) Any officer, director, employee, transactions conducted on a local stock Karin Weng of the Department, relative, or partner in any such person; exchange; telephone (202) 693–8557. (This is not and (iii) Certain portfolio positions (such a toll-free number.) (3) Any corporation or partnership of as forward foreign currency contracts, Exemption which such person is an officer, futures and options contracts, swap director, partner, or employee. transactions, certificates of deposit, and Section I. Sales of Auction Rate (B) The term ‘‘control’’ means the repurchase agreements) that, although Securities From Plans to Citigroup: power to exercise a controlling liquid and marketable, involve the Unrelated to a Settlement Agreement influence over the management or assumption of contractual obligations, The restrictions of section policies of a person other than an require special trading facilities, or can 406(a)(1)(A) and (D) and section individual. only be traded with the counter-party to 406(b)(1) and (2) of the Act and the (C) The term ‘‘net asset value’’ means the transaction to effect a change in sanctions resulting from the application the amount for purposes of pricing all beneficial ownership; of section 4975 of the Code, by reason purchases and sales calculated by (iv) Cash equivalents (such as of section 4975(c)(1)(A), (D), and (E) of dividing the value of all securities, certificates of deposit, commercial the Code, shall not apply, effective determined by a method as set forth in paper, and repurchase agreements); February 1, 2008, to the sale by a Plan the Fund’s prospectus and statement of (v) Other assets that are not readily (as defined in Section V(e)) of an additional information, and other assets distributable (including receivables and Auction Rate Security (as defined in belonging to the Fund, less the prepaid expenses), net of all liabilities Section V(c)) to Citigroup, where such liabilities charged to each such Fund, by (including accounts payable); and sale (an Unrelated Sale) is unrelated to, the number of outstanding shares. (vi) Securities subject to ‘‘stop and not made in connection with, a (D) The term ‘‘Independent Fiduciary’’ transfer’’ instructions or similar Settlement Agreement (as defined in means a fiduciary who is: (i) contractual restrictions on transfer. Section V(f)), provided that the independent of and unrelated to PNC (F) The term ‘‘relative’’ means a conditions set forth in Section II have and its affiliates, and (ii) appointed to ‘‘relative’’ as that term is defined in been met.3 act on behalf of the Mercantile Plan section 3(15) of the Act (or a ‘‘member of the family’’ as that term is defined in Section II. Conditions Applicable to with respect to the in-kind transfer of Transactions Described in Section I assets from one or more Funds to, or for section 4975(e)(6) of the Code), or a the benefit of, the Mercantile Plan. For brother, sister, or a spouse of a brother (a) The Plan acquired the Auction purposes of this exemption, a fiduciary or a sister. Rate Security in connection with will not be deemed to be independent Effective Date: The exemption is brokerage or advisory services provided of and unrelated to PNC if: (i) Such effective as of October 31, 2007.2 by Citigroup to the Plan; fiduciary directly or indirectly controls, (b) The last auction for the Auction 2 is controlled by, or is under common As a general matter, it is the Department’s view Rate Security was unsuccessful; that the model practice to effect an in-kind control with, PNC; (ii) such fiduciary (c) Except in the case of a Plan redemption by a mutual fund to a shareholder- sponsored by Citigroup for its own directly or indirectly receives any pension plan, subject to Title I of ERISA, is through compensation or other consideration in a pro rata distribution because the adoption of such employees (a Citigroup Plan), the connection with any transaction a method ensures that the individual stocks Unrelated Sale is made pursuant to a selected for the in-kind redemption are objectively described in this exemption (except that written offer by Citigroup (the Offer) determined. The Department recognizes that the in- containing all of the material terms of an independent fiduciary may receive kind redemption for which exemptive relief is compensation from PNC in connection provided involves unique circumstances because, the Unrelated Sale. Either the Offer or with the transactions contemplated among other things, it facilitated the transfer of plan other materials available to the Plan assets and the merger of The Employees’ Thrift Plan herein if the amount or payment of such provide: (1) The identity and par value of Mercantile Bankshares Corporation and of the Auction Rate Security; (2) the compensation is not contingent upon, or Participating Affiliates (the Mercantile Plan) with in any way affected by, the independent The PNC Financial Services Group, Inc. Incentive interest or dividend amounts that are fiduciary’s decision); and (iii) an Savings Plan (the PNC Plan). See also Facts and due and unpaid with respect to the Representations #12 contained in the notice of amount equal to more than one percent Auction Rate Security; and (3) the most proposed exemption, which summarizes the basis recent rate information for the Auction (1%) of such fiduciary’s gross income for satisfying the section 408(a) statutory criteria for (for federal income tax purposes, in its providing exemptive relief. In this regard, an prior tax year), is paid by PNC and its important condition of this exemption is that PNC prohibited transaction exemptive relief. Although paid all brokerage commissions associated with the the applicant requested both retroactive and affiliates to the fiduciary in 2007, the Mercantile Plan’s sale of the securities received in prospective exemptive relief, the Department is year at issue. the Redemptions. See Section I(L) of the exemption. granting only retroactive exemptive relief relating to (E) The term ‘‘Transferable Securities’’ Further, the Department encourages applicants, the October 31, 2007 Redemptions. their advisers and counsel to confer, in advance, 3 For purposes of this exemption, references to means securities (1) for which market with EBSA’s Office of Exemption Determinations as section 406 of the Act should be read to refer as quotations are readily available (as to whether a contemplated non-pro rata in-kind well to the corresponding provisions of section determined under Rule 2a–4 of the 1940 redemption involving plan assets may qualify for 4975 of the Code.

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

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redeem or otherwise dispose of the Exemption STIFs (after deducting all reasonable Auction Rate Securities; The restrictions of sections 406(a), expenses incurred in connection with (11) A description of the risk factors 406(b)(1) and (b)(2) of the Act, section the recovery); relating to the Offer as Citigroup deems (h) BGI maintains, or causes to be 8477(c)(2) of the Federal Employees’ appropriate; maintained, for a period of six (6) years Retirement System Act of 1986, as (12) How to obtain additional from the date of any covered transaction amended (FERSA), and the sanctions information concerning the Offer; and such records as are necessary to enable resulting from the application of section (13) The manner in which the persons described below in 4975 of the Code, by reason of section information concerning material paragraph (i)(1), to determine whether 4975(c)(1)(A) through (E) of the Code, amendments or changes to the Offer will the conditions of this exemption have shall not apply, effective September 4, be communicated to the Plan; been met, except that— (c) The terms of the Settlement Sale 2008, to the cash sales (the Sales) by the (1) No party in interest with respect are consistent with the requirements set Barclays Global Investors ‘‘Money to a Plan which engages in the covered forth in the Settlement Agreement; and Market Fund’’ and ‘‘Cash Equivalent transactions, other than BGI and its (d) All of the conditions in Section II Fund II,’’ which are short-term collective affiliates, shall be subject to a civil have been met. investment funds (STIFs) managed or penalty under section 502(i) of the Act maintained by Barclays Global Section V. Definitions or the taxes imposed by section 4975(a) Investors, N.A. (BGI, or together with and (b) of the Code, if such records are For purposes of this exemption: Barcal and any of their affiliates, not maintained, or not available for (a) The term ‘‘affiliate’’ means any collectively, ‘‘the Applicant’’), of certain examination, as required, below, by person directly or indirectly, through short-term debt instruments (the Notes) one or more intermediaries, controlling, paragraph (i)(1); to Barcal, provided that the following (2) A separate prohibited transaction controlled by, or under common control conditions are met: shall not be considered to have occurred with such other person; (a) The Sales were one-time solely because due to circumstances (b) The term ‘‘control’’ means the transactions for cash payment made on power to exercise a controlling beyond the control of BGI, such records a delivery versus payment (i.e., same are lost or destroyed prior to the end of influence over the management or day) basis in the amount described in policies of a person other than an the six-year period. (i)(1) Except as paragraph (b); provided, below, in paragraph (i)(2), and individual; (b) The STIFs received an amount (c) The term ‘‘Auction Rate Security’’ notwithstanding any provisions of equal to the greater of: subsections (a)(2) and (b) of section 504 or ‘‘ARS’’ means a security: (1) That is (1) The amortized cost (including either a debt instrument (generally with of the Act, the records referred to, accrued and unpaid interest) of the above, in paragraph (h) are a long-term nominal maturity) or Notes, determined as of the dates of the preferred stock; and (2) with an interest unconditionally available at their Sales, or customary location for examination rate or dividend that is reset at specific (2) the fair market value (including intervals through a Dutch auction during normal business hours by— accrued and unpaid interest) of the (A) Any duly authorized employee or process; Notes, determined by an independent (d) A person is ‘‘independent’’ of representative of the Department or of third party source; Citigroup if the person is: (1) not the Internal Revenue Service; or (c) The STIFs did not bear any Citigroup or an affiliate; and (2) not a (B) Any fiduciary of any Plan that commissions, transaction costs or other relative (as defined in section 3(15) of engages in the covered transactions, or expenses in connection with the Sales; the Act) of the party engaging in the any duly authorized employee or (d) The terms and conditions of the transaction; representative of such fiduciary; or (e) The term ‘‘Plan’’ means an Sales were at least as favorable to the (C) Any employer of participants and individual retirement account or similar STIFs as those available in an arm’s- beneficiaries and any employee account described in section length transaction with an unrelated organization whose members are 4975(e)(1)(B) through (F) of the Code (an party. covered by a Plan that engages in the IRA); an employee benefit plan as (e) BGI, as fiduciary of the STIFs, covered transactions, or any authorized defined in section 3(3) of the Act; or an determined that the Sales were in the employee or representative of these entity holding plan assets within the best interest of the STIFs and any entities; or meaning of 29 CFR 2510.3–101, as employee benefit plans (the Plans) (D) Any participant or beneficiary of modified by section 3(42) of the Act; invested in the STIFs as of the dates of a Plan that engages in a covered and the Sales. transaction, or duly authorized (f) The term ‘‘Settlement Agreement’’ (f) BGI took all appropriate actions employee or representative of such means a legal settlement involving necessary to safeguard the interests of participant or beneficiary; Citigroup and a U.S. state or federal the STIFs and any Plans invested in the (2) None of the persons described, authority that provides for the purchase STIFs in connection with the Sales. above, in paragraph (i)(1)(B)–(D) shall be of an ARS by Citigroup from a Plan. (g) If the exercise of any of Barcal’s authorized to examine trade secrets of Effective Date: This exemption is rights, claims, or causes of action in BGI, or commercial or financial effective as of February 1, 2008. connection with its ownership of the information which is privileged or For a more complete statement of the Notes results in Barcal recovering from confidential; and facts and representations supporting the the issuer of the Notes, or from any third (3) Should BGI refuse to disclose Department’s decision to grant this party, an aggregate amount that is more information on the basis that such exemption, refer to the notice of than the sum of: information is exempt from disclosure, proposed exemption published on (1) The purchase price paid for such BGI shall, by the close of the thirtieth February 23, 2010 at 75 FR 8128. Notes by Barcal; and (30th) day following the request, For Further Information Contact: (2) the interest due on the notes from provide a written notice advising that Brian Shiker of the Department, and after the date Barcal purchased the person of the reasons for the refusal and telephone (202) 693–8552. (This is not Notes from the STIFs, Barcal will refund that the Department may request such a toll-free number.) such excess amount promptly to the information.

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For a more complete statement of the available pursuant to the grant of Plans’ interests in the Funds to the facts and representations supporting the exemptive relief. Accordingly, the Applicant, and determined that the Department’s decision to grant this Department has not made this requested terms of the original Sale and exemption, refer to the notice of change to the condition contained in subsequent Top-Up Payments were proposed exemption (the Notice) section (i) of the Notice. especially beneficial to each of the Plans published on March 15, 2010 at 75 FR The Department has given full because: (i) On February 20, 2009, the 12308. consideration to the entire record, Plans received a return of their aggregate Effective Date: This exemption is including the comment letter received. cost basis of their interests in the Funds effective September 4, 2008. The Department has determined to grant (which cost basis was determined by the the exemption, with the one change as Written Comments independent fiduciary to exceed the noted above. aggregate fair market value of the Plans’ The only written comment received For Further Information Contact: Gary interests in the Funds as of October 31, by the Department was submitted by the H. Lefkowitz of the Department, 2008), plus interest accrued on the Applicant. The Applicant requested telephone (202) 693–8546. (This is not Funds from their date of acquisition by changes with respect to condition (i) of a toll-free number.) each Plan through the date of the Sale; the Notice concerning the entities to Exemption and (ii) On September 14, 2009, the whom the records maintained pursuant independent fiduciary determined that, to condition (h) of the Notice are The restrictions of sections in instances where the fair market value required to be made available by BGI. 406(a)(1)(A), 406(a)(1)(B), 406(a)(1)(D), of any Fund on December 31, 2008 First, the Applicant requested that the 406(b)(1), and (b)(2) of the Act, and the exceeded its original cost basis, each of records need not be made sanctions resulting from the application the Plans received a Top-Up Payment unconditionally available to duly of section 4975 of the Code, by reason on September 14, 2009 comprised of the authorized employees or representatives of section 4975(c)(1)(A) through (E) of increased value of such Fund, plus of the Securities and Exchange the Code, shall not apply to: (i) the interest accrued on such increased value Commission (the SEC) because, unlike February 20, 2009 cash sale (the Sale), from December 31, 2008 to the date of the cases involving Auction Rate at aggregate cost basis plus interest, by the Top-Up Payments (September 14, Securities, the subject Sales were not each of the Plans of interests in certain 2009). required by an SEC settlement; nor are private equity funds (the Funds) to the the STIFs within the jurisdiction of the CUNA Mutual Insurance Society (the Written Comments SEC. The Department accepts these Applicant), the sponsor of the Plans and The Notice of Proposed Exemption representations by the Applicant and a party in interest with respect to the (The Notice), Published in the Federal has amended the grant accordingly. Plans, pursuant to a contract between Register on April 2, 2010 beginning on Second, the Applicant requested that the Applicant and the trustee of the page 16849, invited all interested the records need not be made Plans concluded on that same date; (ii) persons to submit written comments unconditionally available to any the September 14, 2009 payment by the and requests for a hearing to the participant or beneficiary of a Plan that Applicant of certain additional cash Department within forty-five (45) days engages in a covered transaction, or amounts, including interest (the Top-Up of the date of its publication. At the duly authorized employee or Payments); to the Plans pursuant to the close of the comment period, the representative of such participant or terms of the foregoing contract; and (iii) Department received a single written beneficiary. The Applicant noted that the extension of credit between the comment from two current beneficiaries there are nearly 1,000 Plans whose Plans and the Applicant from the date of the CUNA Mutual Pension Plan for fiduciaries will have access to these of the Sale (February 20, 2009) to the Non-Represented Employees. While records. There are millions of date of the Top-Up Payments expressing concern about the Plan’s participants in these Plans, none of (September 14, 2009), provided that the initial decision to invest in the Funds, whom have a relationship with the following conditions were satisfied: the comment letter was supportive of Applicant. In order to protect the (a) An independent fiduciary the proposed exemption for the sale of confidentiality of Plan arrangements, reviewed the terms and conditions of the Plan’s interests in the Funds as every time a Plan participant sought to the Sale and of the Top-Up Payments described in the Notice. The Department review these records, the Applicant prior to their execution, and determined did not receive any other written would be required to contact a Plan that both were protective of the interests comments from interested persons with fiduciary to verify that the participant of the Plans; respect to the Notice during the was in fact a participant in the Plan on (b) The independent fiduciary aforementioned 45-day comment the date of the transaction and is still a determined that the terms and period, nor did it receive any requests participant in the Plan. This would conditions of both the Sale and of the for a hearing. cause the Applicant to spend countless Top-Up Payments were at least as For a more complete statement of the hours just so that a participant or his or favorable to the Plans as those that facts and representations supporting the her representative could review material would have been obtained in an arm’s Department’s decision to grant this that the Plan fiduciary already had in its length transaction between unrelated exemption, refer to the text of the Notice possession. The Applicant stated that parties; at 75 FR 16849. this would impose a considerable and (c) The terms and conditions of both For Further Information Contact: Mr. unwarranted burden. However, because the Sale and of the Top-Up Payments Mark Judge of the Department at (202) participants and beneficiaries of the were at least as favorable to the Plans as 693–8550. (This is not a toll-free Plans are affected by the subject Sales those that would have been obtained in number). and have an interest in the fiduciary an arm’s length transaction between management of their Plan assets, it is unrelated parties; and General Information the Department’s view that they also (d) The independent fiduciary The attention of interested persons is should have access to the records provided its opinion in written reports directed to the following: maintained by BGI, which are otherwise on behalf of the Plans as to the fairness (1) The fact that a transaction is the required to be maintained and made and reasonableness of the Sale of the subject of an exemption under section

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408(a) of the Act and/or section the Internal Revenue Code of 1986 (the in the Federal Register. Such notice 4975(c)(2) of the Code does not relieve Code). shall include a copy of the notice of a fiduciary or other party in interest or proposed exemption as published in the Written Comments and Hearing disqualified person from certain other Federal Register and shall inform Requests provisions to which the exemption does interested persons of their right to not apply and the general fiduciary All interested persons are invited to comment and to request a hearing responsibility provisions of section 404 submit written comments or requests for (where appropriate). a hearing on the pending exemptions, of the Act, which among other things SUPPLEMENTARY INFORMATION: The require a fiduciary to discharge his unless otherwise stated in the Notice of proposed exemptions were requested in duties respecting the plan solely in the Proposed Exemption, within 45 days applications filed pursuant to section interest of the participants and from the date of publication of this 408(a) of the Act and/or section beneficiaries of the plan and in a Federal Register Notice. Comments and 4975(c)(2) of the Code, and in requests for a hearing should state: (1) prudent fashion in accordance with accordance with procedures set forth in The name, address, and telephone section 404(a)(1)(B) of the Act; nor does 29 CFR part 2570, subpart B (55 FR number of the person making the it affect the requirement of section 32836, 32847, August 10, 1990). comment or request, and (2) the nature 401(a) of the Code that the plan must Effective December 31, 1978, section of the person’s interest in the exemption operate for the exclusive benefit of the 102 of Reorganization Plan No. 4 of and the manner in which the person employees of the employer maintaining 1978, 5 U.S.C. App. 1 (1996), transferred would be adversely affected by the the plan and their beneficiaries; the authority of the Secretary of the exemption. A request for a hearing must (2) This exemption is supplemental to Treasury to issue exemptions of the type also state the issues to be addressed and and not in derogation of, any other requested to the Secretary of Labor. include a general description of the provisions of the Act and/or the Code, evidence to be presented at the hearing. Therefore, these notices of proposed including statutory or administrative exemption are issued solely by the ADDRESSES: exemptions and transactional rules. All written comments and Department. Furthermore, the fact that a transaction requests for a hearing (at least three The applications contain copies) should be sent to the Employee is subject to an administrative or representations with regard to the Benefits Security Administration statutory exemption is not dispositive of proposed exemptions which are (EBSA), Office of Exemption whether the transaction is in fact a summarized below. Interested persons Determinations, Room N–5700, U.S. prohibited transaction; and are referred to the applications on file Department of Labor, 200 Constitution with the Department for a complete (3) The availability of this exemption Avenue, NW., Washington, DC 20210. statement of the facts and is subject to the express condition that Attention: Application No.___, stated in representations. the material facts and representations each Notice of Proposed Exemption. contained in the application accurately Interested persons are also invited to Proposed Exemption describes all material terms of the submit comments and/or hearing The Department is considering transaction which is the subject of the requests to EBSA via e-mail or FAX. exemption. granting an exemption under the Any such comments or requests should authority of section 408(a) of the Signed at Washington, DC, this 28th day of be sent either by e-mail to: Employee Retirement Income Security June, 2010. ‘‘ ’’ [email protected] , or by FAX to Act of 1974 (ERISA) and section Ivan Strasfeld, (202) 219–0204 by the end of the 4975(c)(2) of the Internal Revenue Code Director of Exemption Determinations, scheduled comment period. The of 1974 (the Code), and in accordance applications for exemption and the Employee Benefits Security Administration, with the procedures set forth in 29 CFR U.S. Department of Labor. comments received will be available for part 2570, subpart B (55 FR 32836, public inspection in the Public [FR Doc. 2010–16097 Filed 7–1–10; 8:45 am] 32847, August 10, 1990). BILLING CODE 4510–29–P Documents Room of the Employee Benefits Security Administration, U.S. Section I. Transactions Involving Plans Department of Labor, Room N–1513, Described in Both Title I and Title II of DEPARTMENT OF LABOR 200 Constitution Avenue, NW., ERISA Washington, DC 20210. If the proposed exemption is granted, Employee Benefits Security Warning: If you submit written the restrictions of section 406(a)(1)(A) Administration comments or hearing requests, do not through (D) and section 406(b) of include any personally-identifiable or ERISA, and the sanctions resulting from Application Nos. and Proposed confidential business information that the application of sections 4975(a) and Exemptions; D–11489, Morgan Stanley you do not want to be publicly- (b) of the Code, by reason of section & Co., Incorporated; L–11609, The disclosed. All comments and hearing 4975(c)(1) of the Code, shall not apply, Finishing Trades Institute of the Mid- requests are posted on the Internet effective February 1, 2008, to the Atlantic Region (the Plan) et al. exactly as they are received, and they following transactions, if the conditions can be retrieved by most Internet search AGENCY: Employee Benefits Security set forth in Section III have been met: 1 engines. The Department will make no Administration, Labor. (a) The sale or exchange of an deletions, modifications or redactions to ‘‘Auction Rate Security’’ (as defined in ACTION: Notice of proposed exemptions. the comments or hearing requests Section IV (b)) by a ‘‘Plan’’ (as defined received, as they are public records. SUMMARY: This document contains in Section IV(h)) to the ‘‘Sponsor’’ (as notices of pendency before the Notice to Interested Persons defined in Section IV (g)) of such Plan; Department of Labor (the Department) of Notice of the proposed exemptions or proposed exemptions from certain of the will be provided to all interested 1 For purposes of this proposed exemption, prohibited transaction restrictions of the persons in the manner agreed upon by references to section 406 of ERISA should be read Employee Retirement Income Security the applicant and the Department to refer also to the corresponding provisions of Act of 1974 (ERISA or the Act) and/or within 15 days of the date of publication section 4975 of the Code.

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(b) A lending of money or other understanding designed to benefit a material terms of the loan, including the extension of credit to a Plan in party in interest or disqualified person; consequences of default; connection with the holding of an (g) With respect to any sale described (2) The Plan does not pay an interest Auction Rate Security by the Plan, from in Section I(a) or Section II(a): rate that exceeds one of the following (1) Morgan Stanley & Co. Incorporated (1) The sale is for no consideration three rates as of the commencement of or an Affiliate (Morgan Stanley); (2) an other than cash payment against prompt the loan: ‘‘Introducing Broker’’ (as defined in delivery of the Auction Rate Security; (A) The coupon rate for the Auction Section IV (f)); or (3) a ‘‘Clearing Broker’’ and Rate Security; (as defined in Section IV (d))—where (2) For purposes of the sale, the (B) The Federal Funds Rate; or the loan is (i) repaid in accordance with Auction Rate Security is valued at par, (C) The Prime Rate; 2 its terms, and (ii) guaranteed by the Plan plus any accrued but unpaid interest; (3) The loan is unsecured; and Sponsor. (h) With respect to an in-kind (4) The amount of the loan is not more exchange described in Section (I)(a) or than the total par value of the Auction II. Transactions Involving Plans Section II(a), the exchange involves the Rate Securities held by the Plan. Described in Title II of ERISA Only transfer by a Plan of an Auction Rate (j) Morgan Stanley maintains, or If the proposed exemption is granted, Security in return for a ‘‘Delivered causes to be maintained, for a period of the sanctions resulting from the Security,’’ as such term is defined in at least six (6) years from the date of a application of section 4975(a) and (b) of Section IV(j), where: covered transaction, such records as are the Code, by reason of section 4975(c)(1) (1) The exchange is unconditional; necessary to enable the persons of the Code, shall not apply, effective (2) For purposes of the exchange, the described in paragraph (k), below, to February 1, 2008, to the following Auction Rate Security is valued at par, determine whether the conditions of transactions, if the conditions set forth plus any accrued but unpaid interest; this exemption, if granted, have been (3) The Delivered Security is valued at in Section III have been met: (a) The sale met, except that— fair market value, as determined at the or exchange of an Auction Rate Security (1) No party in interest with respect time of the in-kind exchange by a third by a ‘‘Title II-Only Plan’’ (as defined in to a Plan that engages in a covered party pricing service or other objective Section IV(i)) to the Beneficial Owner’’ transaction, other than Morgan Stanley source; shall be subject to a civil penalty under (as defined in Section IV(c)) of such (4) The Delivered Security is Plan; or (b) A lending of money or other section 502(i) of ERISA or the taxes appropriate for the Plan and is a imposed by section 4975(a) and (b) of extension of credit to a Title II-Only security that the Plan is otherwise Plan in connection with the holding of the Code, if such records are not permitted to hold under applicable maintained, or are not available for an Auction Rate Security by the Title II- 3 law; examination, as required, below, by Only Plan, from (1) Morgan Stanley; (2) (5) The total value of the Auction Rate an Introducing Broker; or (3) a Clearing paragraph (k); and Security (i.e., par, plus any accrued but (2) A separate prohibited transaction Broker—where the loan is (i) repaid in unpaid interest) is equal to the fair accordance with its terms, and (ii) shall not be considered to have occurred market value of the Delivered Security; solely because, due to circumstances guaranteed by the Beneficial Owner. (i) With respect to a loan described in beyond the control of Morgan Stanley, III. Conditions Section I(b) or II(b): (1) The loan is documented in a such records are lost or destroyed prior (a) Morgan Stanley acted as a broker written agreement containing all of the to the end of the six-year period; and or dealer, non-bank custodian, or (k)(1) Except as provided in fiduciary in connection with the 2 The Department notes that this proposed subparagraph (2), below, and acquisition or holding of the Auction exemption does not address tax issues. The notwithstanding any provisions of Rate Security that is the subject of the Department has been informed by the Internal subsections (a)(2) and (b) of section 504 Revenue Service and the Department of the of ERISA, the records referred to in transaction; Treasury that they are considering providing (b) For transactions involving a Plan limited relief from the requirements of sections paragraph (j), above, are unconditionally (including a Title II-Only Plan) not 72(t)(4), 401(a)(9), and 4974 of the Code with available at their customary location for sponsored by Morgan Stanley for its respect to retirement plans that hold Auction Rate examination during normal business Securities. The Department has also been informed hours by— own employees, the decision to enter by the Internal Revenue Service that if Auction Rate into the transaction is made by a Plan Securities are purchased from a Plan in a (A) Any duly authorized employee or fiduciary who is ‘‘Independent’’ (as transaction described in Sections I and II at a price representative of the Department, the defined in Section IV(e)) of Morgan that exceeds the fair market value of those Internal Revenue Service, or the U.S. securities, then the excess value would be treated Stanley. Notwithstanding the foregoing, as a contribution for purposes of applying Securities and Exchange Commission; an employee of Morgan Stanley who is applicable contribution and deduction limits under (B) Any fiduciary of any Plan, the Beneficial Owner of a Title II-Only sections 219, 404, 408, and 415 of the Code. including any IRA owner, or any duly 3 Plan may direct such Plan to engage in The Department notes that ERISA’s general authorized employee or representative standards of fiduciary conduct would also apply to of such fiduciary; or a transaction described in Section II, if the transactions described herein. In this regard, all of the other conditions of this section 404 requires, among other things, that a (C) Any employer of participants and Section III have been met; fiduciary discharge his duties respecting a plan beneficiaries and any employee solely in the interest of the plan’s participants and organization whose members are (c) The last auction for the Auction beneficiaries and in a prudent manner. Rate Security was unsuccessful; Accordingly, a plan fiduciary must act prudently covered by the Plan that engages in a (d) The Plan does not waive any rights with respect to, among other things: (1) The covered transaction, or any authorized or claims in connection with the loan or decision to exchange an Auction Rate Security for employee or representative of these a Delivered Security; and (2) the negotiation of the entities; sale as a condition of engaging in the terms of such exchange (or a cash sale or loan above described transaction; described above), including the pricing of such (2) None of the persons described (e) The Plan does not pay any fees or securities. The Department further emphasizes that above in paragraph (k)(1)(B) or (C) shall commissions in connection with the it expects plan fiduciaries, prior to entering into any be authorized to examine trade secrets of the transactions, to fully understand the risks of Morgan Stanley, or commercial or transaction; associated with these types of transactions, (f) The transaction is not part of an following disclosure by Morgan Stanley of all the financial information which is arrangement, agreement, or relevant information. privileged or confidential; and

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(3) Should Morgan Stanley refuse to of the two highest generic rating liabilities) used primarily in the disclose information on the basis that categories from an Independent contributed businesses. Generally, in such information is exempt from nationally recognized statistical rating the case of Citigroup, the contributed disclosure, Morgan Stanley shall, by the organization (e.g., a highly rated businesses include Citigroup’s retail close of the thirtieth (30th) day municipal bond or a highly rated brokerage and futures business operated following the request, provide a written corporate bond); or (4) A certificate of under the name ‘‘Smith Barney’’ in the notice advising that person of the deposit insured by the Federal Deposit United States and Australia and reasons for the refusal and that the Insurance Corporation. Notwithstanding operated under the name ‘‘Quilter’’ in Department may request such the above, the term ‘‘Delivered Security’’ the United Kingdom, Ireland and information. shall not include any Auction Rate Channel Islands. Certain investment Security, or any related Auction Rate advisory and other businesses of IV. Definitions Security, including derivatives or Citigroup are also included. In the case (a) The term ‘‘Affiliate’’ means any securities materially comprised of of Morgan Stanley, the contributed person, directly or indirectly, through Auction Rate Securities or any illiquid businesses generally consist of Morgan one or more intermediaries, controlling, securities. Stanley’s global wealth management controlled by, or under common control Summary of Facts and Representations (retail brokerage) and private wealth with such other person; management businesses. (b) The term ‘‘Auction Rate Security’’ 1. The applicant Morgan Stanley & As of September 30, 2009, Morgan or ‘‘ARS’’ means a security: Co. Incorporated and its Affiliates Stanley employed 62,000 individuals ‘‘ ’’ (1) That is either a debt instrument (hereinafter, either Morgan Stanley or and operates 1200 offices in 36 ‘‘ ’’ (generally with a long-term nominal the applicant ), headquartered in New countries with over $1.5 trillion in York, New York, is one of the nation’s maturity) or preferred stock; and client assets held at its broker-dealer. (2) With an interest rate or dividend pre-eminent global financial services The applicant requests both that is reset at specific intervals through firms. Morgan Stanley serves a large and retroactive and prospective exemptive a Dutch Auction process; diversified group of clients and relief for transactions involving certain (c) The term ‘‘Beneficial Owner’’ customers, including corporations, of Morgan Stanley’s client accounts in means the individual for whose benefit governments, financial institutions, and the time frame prior to the formation of the Title II-Only Plan is established and individuals around the world. On the joint venture and going forward. includes a relative or family trust with September 21, 2008 Morgan Stanley respect to such individual; obtained approval from the Board of 2. Among other things, Morgan (d) The term ‘‘Clearing Broker’’ means Governors of the Federal Reserve Stanley acts as a broker and dealer with a member of a securities exchange who System to become a bank holding respect to the purchase and sale of acts as a liaison between an investor and company upon the conversion of its securities, including Auction Rate a clearing corporation, helps to ensure wholly owned indirect subsidiary, Securities (ARS). The applicant that a trade is settled appropriately, Morgan Stanley Bank (Utah), from a describes ARS and the arrangement by ensures that the transaction is Utah industrial bank to a national bank. which ARS are bought and sold as successfully completed, and is On September 23, 2008 the Office of the follows. ARS are securities (issued as responsible for maintaining the paper Comptroller of the Currency authorized debt or preferred stock) with an interest work associated with the clearing and Morgan Stanley Bank (Utah) to rate or dividend that is reset at periodic execution of a transaction; commence business as a national bank, intervals pursuant to a process called a (e) The term ‘‘Independent’’ means a operating as Morgan Stanley Bank, N.A. Dutch Auction. Investors submit orders person who is (1) not Morgan Stanley or Concurrent with this conversion, to buy, hold, or sell a specific ARS to an Affiliate, and (2) not a ‘‘relative’’ (as Morgan Stanley became a financial a broker-dealer selected by the entity defined in ERISA section 3(15)) of the holding company under the Bank that issued the ARS. The broker-dealers, party engaging in the transaction; Holding Company Act of 1956, as in turn, submit all of these orders to an (f) The term ‘‘Introducing Broker’’ amended. Morgan Stanley & Co. auction agent. The auction agent’s means a registered broker who is able to Incorporated, Morgan Stanley’s primary functions include collecting orders from perform all the functions of a broker, operating unit, is also both a registered all participating broker-dealers by the except for the ability to accept money, investment adviser subject to the auction deadline, determining the securities, or property from a customer; Investment Advisers Act of 1940 and a amount of securities available for sale, (g) The term ‘‘Sponsor’’ means a plan SEC-registered broker-dealer subject to and organizing the bids to determine the sponsor as described in section 3(16)(B) the supervision of various governmental winning bid. If there are any buy orders of ERISA and any Affiliates; and self-regulatory bodies. Morgan placed into the auction at a specific rate, (h) The term ‘‘Plan’’ means any plan Stanley offers a full array of investment- the auction agent accepts bids with the described in section 3(3) of ERISA and/ related services, including securities lowest rate above any applicable or section 4975(e)(1) of the Code; research, brokerage, execution, asset minimum rate and then successively (i) The term ‘‘Title II-Only Plan’’ allocation, financial planning, higher rates up to the maximum means any plan described in section investment advice, discretionary asset applicable rate, until all sell orders and 4975(e)(1) of the Code that is not an management services, sweep, and trust/ orders that are treated as sell orders are employee benefit plan covered by Title custody services. filled. Bids below any applicable I of ERISA; Morgan Stanley Smith Barney has minimum rate or above the applicable (j) The term ‘‘Delivered Security’’ recently been formed as a joint venture. maximum rate are rejected. After means a security that is (1) Listed on a Under the joint venture agreement, determining the clearing rate for all of national securities exchange (excluding Citigroup, Inc. (Citigroup) and Morgan the securities at auction, the auction OTC Bulletin Board-eligible securities Stanley (including their respective agent allocates the ARS available for and Pink Sheets-quoted securities); or subsidiaries) each contributed specified sale to the participating broker-dealers (2) A U.S. Treasury obligation; or (3) A businesses to the joint venture, together based on the orders they submitted. If fixed income security that has a rating with all contracts, employees, property there are multiple bids at the clearing at the time of the exchange that is in one licenses, and other assets (as well as rate, the auction agent will allocate

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securities among the bidders at such caused a Plan to acquire and hold an national securities exchange (excluding rate on a pro rata basis. ARS and thus may be considered a OTC Bulletin Board-eligible securities 3. The applicant represents that fiduciary to the Plan so that a loan to the and Pink Sheets-quoted securities); or Morgan Stanley is permitted, but not Plan by Morgan Stanley may violate (2) a U.S. Treasury obligation; or (3) a obligated, to submit orders in auctions section 406(a) and (b) of ERISA; in fixed income security that has a rating for its own account either as a bidder or addition, a sale between a Plan and its at the time of the exchange that is in one a seller and routinely does so in the sponsor or an IRA and its Beneficial of the two highest generic rating ARS market in its sole discretion. Owner violates ERISA section 406 categories from an independent Morgan Stanley may routinely place one and/or section 4975(c)(1) of the Code.5 nationally recognized statistical rating or more bids in an auction for its own The applicant is therefore requesting organization (e.g., a highly rated account to acquire ARS for its relief for the following transactions, municipal bond or a highly rated inventory, to prevent (1) a failed auction involving all employee benefit plans: (1) corporate bond); or (4) a certificate of (i.e., an event where there are The sale or exchange of an ARS from a deposit insured by the Federal Deposit insufficient clearing bids that would Plan to the Plan’s Sponsor; 6 and (2) a Insurance Corporation. The Delivered result in the auction rate being set at a lending of money or other extension of Security must be appropriate for the specified rate); or (2) an auction from credit to a Plan in connection with the Plan and must be a security that the clearing at a rate that Morgan Stanley holding of an ARS from Morgan Stanley, Plan is permitted to hold under believes does not reflect the market for an Introducing Broker, or a Clearing applicable law. The proposed the particular ARS being auctioned. Broker—where the subsequent exemption further requires that the 4. The applicant represents that for repayment of the loan is made in Delivered Security be valued at its fair many ARS, Morgan Stanley has been accordance with its terms and is market value, as determined at the time appointed by the issuer of the securities guaranteed by the Plan Sponsor. of the exchange from a third party to serve as a dealer in the auction and 8. The applicant is requesting similar pricing service or other objective source is paid by the issuer for its services. relief for plans covered by only Title II and must equal the total value of the Morgan Stanley is typically appointed of ERISA. In this regard, the applicant ARS being exchanged (i.e., par value, to serve as a dealer in the auctions is requesting relief for: (1) The sale or plus any accrued interest). pursuant to an agreement between the exchange of an ARS from a Title II-Only 11. With respect to a loan to a Plan issuer and Morgan Stanley. That Plan to the Beneficial Owner of such holding an ARS, such loan must be agreement provides that Morgan Stanley Plan; and (2) a lending of money or documented in a written agreement will receive from the issuer auction other extension of credit to a Title II- containing all of the material terms of dealer fees based on the principal Only Plan in connection with the the loan, including the consequences of amount of the securities placed through holding of an ARS from Morgan Stanley, default. Further, the Plan may not pay Morgan Stanley. an Introducing Broker, or a Clearing an interest rate that exceeds one of the 5. The applicant states that Morgan Broker—where the subsequent following three rates as of the Stanley may share a portion of the repayment of the loan is made in commencement of the loan: The coupon accordance with its terms and is auction rate dealer fees it receives from rate for the ARS, the Federal Funds guaranteed by the Beneficial Owner. the issuer with other broker-dealers that Rate, or the Prime Rate. Additionally, submit orders through Morgan Stanley, 9. The applicant represents that the proposed transactions are in the such loan must be unsecured and for an for those orders that Morgan Stanley amount that is no more than the total successfully places in the auctions. interests of the Plans. In this regard, the applicant represents that the exemption, par value of ARS held by the affected Similarly, with respect to ARS for Plan. which broker-dealers other than Morgan if granted, will provide Plan fiduciaries with liquidity, notwithstanding changes 12. Additional conditions apply to Stanley act as dealer, such other broker- each transaction covered by the dealers may share auction dealer fees that have occurred in the ARS markets. The applicant also notes that, other than exemption, if granted. Among other with Morgan Stanley for orders things, the Plan may not pay any fees or submitted by Morgan Stanley. for Plans sponsored by the applicant, the decision to enter into a transaction commissions in connection with the 6. According to the applicant, since transaction and the transaction may not February 2008, a minority of auctions described herein will be made by a Plan fiduciary who is Independent of Morgan be part of an arrangement, agreement, or have cleared, particularly involving understanding designed to benefit a municipalities. As a result, Plans Stanley. 10. The proposed exemption contains party in interest or disqualified person. holding ARS may not have sufficient Further, any waiver of rights or claims liquidity to make benefit payments, a number of safeguards designed to protect the interests of each Plan. With by a Plan is prohibited, in connection mandatory payments and withdrawals, with the sale or exchange of an ARS by 4 respect to the sale of an ARS by a Plan, and expense payments when due. a Plan, or a lending of money or other 7. The applicant represents that, in the Plan must receive cash equal to the par value of the Security, plus any extension of credit to a Plan holding an certain instances, Morgan Stanley may ARS. have previously advised or otherwise accrued interest. The sale must also be unconditional, other than being for 13. In summary, the applicant represents that the transactions 4 The Department notes that Prohibited payment against prompt delivery. For Transaction Exemption (PTE) 80–26 (45 FR 28545 in-kind exchanges covered by the described herein satisfy the statutory (Apr. 29, 1980), as amended at 71 FR 17917 (Apr. proposed exemption, the security criteria set forth in section 408(a) of 7, 2006)) is a class exemption that permits interest- delivered to the Plan (i.e., the Delivered ERISA and section 4975(c)(2) of the free loans or other extensions of credit from a party Security) must be: (1) Listed on a Code because: in interest to a plan if, among other things, the proceeds of the loan or extension of credit are used (1) Any sale will be: only (1) for the payment of ordinary operating 5 The Department notes that the relief contained (A) For no consideration other than expenses of the plan, including the payment of in this proposed exemption does not extend to the cash against prompt delivery of the benefits in accordance with the terms of the plan fiduciary provisions of section 404 of ERISA. ARS; and and periodic premiums under an insurance or 6 The Applicant represents that, as of May 7, annuity contract, or (2) for a purpose incidental to 2010, no in-kind exchanges have occurred but may (B) At par, plus any accrued but the ordinary operation of the plan. in the future. unpaid interest;

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(2) Any in-kind exchange will be property (the Land) 7 owned by the Plan, training for career advancement to unconditional, other than being for provided that the following conditions journeyperson status and continued payment against prompt delivery, and are met: education in the Union’s construction will involve Delivered Securities that (a) The terms and conditions of the industries. As of February 15, 2010, the are: Loan are at least as favorable to the Plan Plan had approximately 5,000 (A) Appropriate for the Plan; as those which the Plan could have Participants and approximately (B) Listed on a national securities obtained in an arm’s length transaction $5,649,370 in total assets. exchange (but not OTC Bulletin Board- with an unrelated party; 2. Among the Plan’s assets is the eligible securities and Pink Sheets- (b) The Plan’s trustees determine in Facility, which is located at 2190 Hornig quoted securities); U.S. Treasury writing that the Loan is appropriate for Road, Philadelphia, PA. The Facility is obligations; fixed income securities; or the Plan and in the best interests of the comprised mainly of classrooms and certificates of deposit; and Plan’s participants and beneficiaries; indoor work areas, and it is used by (C) Securities that the Plan is (c) A qualified, independent fiduciary Participants to acquire construction permitted to hold under applicable law; that is acting on behalf of the Plan (the training. and, Qualified Independent Fiduciary) 3. In 2004, the Trustees determined a (3) Any loan will be: reviews the terms of the Loan and need to purchase a training facility to (A) Documented in a written determines that the Loan is an better serve the ongoing needs of the agreement containing all of the material appropriate investment for the Plan and Participants due to the increasingly terms of the loan, including the protective of and in the best interests of sophisticated requirements of workers consequences of default; the Plan and its participants and in the finishing trades, particularly with (B) At an interest rate not in excess of beneficiaries; regard to glazing and architectural glass the coupon rate for the ARS, the Federal (d) In determining the fair market and metalworking. In November 2004, Funds Rate, or the Prime Rate; value of the Property that serves as the Trustees identified the Property as a (C) Unsecured; and collateral for the Loan, the Qualified viable option to serve their training (D) For an amount that is not more Independent Fiduciary (1) obtains an needs. than the total par value of ARS held by appraisal of the Property from a 4. The Trustees secured third party the affected Plan. qualified, independent appraiser (the financing of $1,200,000 to assist in the Notice to Interested Persons Qualified Independent Appraiser); and purchase of the Property, for a total (2) ensures that the appraisal prepared purchase price of $2,600,000 (the The applicant represents that all the by the Qualified Independent Appraiser Purchase).8 The Property was purchased potentially interested persons cannot be is consistent with sound principles of from a party that was not related to the identified and that, therefore, the only valuation; Plan or the Union. To finance the practicable means of notifying (e) The Qualified Independent Purchase, the Trustees caused the Plan interested persons of this proposed Fiduciary monitors the Loan, as well as to receive the Original Loan from the exemption is by the publication of this the terms and conditions of the Bank. The Original Loan was entered notice in the Federal Register. exemption, and takes whatever actions into on March 23, 2005. Comments and requests for a hearing are are necessary and appropriate to 5. The Original Loan, which is in the due within 45 days from the date of safeguard the interests of the Plan and principal amount of $1,200,000, has a publication of this notice of proposed its participants and beneficiaries under term of 15 years, and it requires the Plan exemption in the Federal Register. the Loan; to pay an adjustable rate of interest. At FOR FURTHER INFORMATION CONTACT: Ms. (f) The Loan is repaid by the Plan the time the Original Loan was made, Karin Weng of the Department, solely with the funds the Plan retains the interest rate was set at the prime rate telephone (202) 693–8557. (This is not after paying all of its operational published in The Wall Street Journal, or a toll-free number.) expenses; and 5.5%, calculated based on a 360-day Proposed Exemption (g) The Plan does not pay any fees or year. Since entering into the Original other expenses in connection with the Loan with the Plan, the Bank has The Department is considering servicing or administration of the Loan. reduced the interest rate to 3.5%. The granting an exemption under the Bank is required to review the annual Summary of Facts and Representations authority of section 408(a) of the Act (or interest rate of the Original Loan on the ERISA), and in accordance with the 1. The Union is located in fifth and tenth anniversaries of the procedures set forth in 29 CFR Part Philadelphia, Pennsylvania, and it Original Loan, but the annual interest 2570, Subpart B (55 FR 32836, 32847, represents members in the finishing rate cannot exceed 5.5%. August 10, 1990). trades, such as painters, drywall Under the terms of the Original Loan, If the proposed exemption is granted, finishers, wall coverers, glaziers and the Plan is required to make, the restrictions of sections 406(a)(1)(A) glass workers, in Pennsylvania and New commencing May 1, 2005, 179 through (D) and 406(b)(1) and (b)(2) of Jersey. The Plan was established by the consecutive monthly installments of the Act shall not apply to the proposed Union in 1966 as a training program for principal and interest, amortized over loan of approximately $1,081,416 (the individuals who are Union members the fifteen (15) year loan period in an Loan) to the Plan by the International and are employed by contributing amount equal to $9,805, followed by Union of Painters and Allied Trades, employers with regard to the Plan. The one final payment of all outstanding District Council 21 (the Union), a party Plan has twelve (12) trustees (the principal, interest and fees on the in interest with respect to the Plan, for Trustees). Half of the Trustees represent maturity date of April 1, 2020. (1) the repayment of an outstanding loan Union members and half of the Trustees Further, under the Original Loan, the (the Original Loan) made to the Plan by represent contributing employers. The Plan has assigned its lessor’s interest in Commerce Bank and currently held by purpose of the Plan is to provide eligible all rents, income and profits arising TD Bank (the Bank), both of which are participants (the Participants) with from leases pertaining to the Property as unrelated parties; and (2) to facilitate the expansion of a training facility (the 7 Unless otherwise stated herein, the Facility and 8 The difference between $2,600,000 and Facility) that is situated on certain real the Land are together referred to as the ‘‘Property.’’ $1,200,000 was paid with a cash down payment.

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well as all contracts, licenses and administrative exemption is requested proceeds from the Loan, thus allowing permits associated with its ownership of from the Department. the Plan to offer training sessions in a the Property, and it has executed an 7. The Loan will have a fixed rate of broader range of subjects and to a higher environmental indemnity agreement. In interest of 4% per annum, and the Loan number of Participants. addition, the Original Loan allows the will not be able to be called by the Finally, the Trustees assert that the Bank to reserve the right to elect, on the Union, except in the event of a complete Plan will repay the Loan solely with fifth and tenth anniversaries of the default upon the Loan. Under the terms funds retained by the Plan after paying Original Loan, to call such loan in full of the Loan, the Plan will be required to for all of its operational expenses (the and require the Plan to repay the make 180 consecutive monthly Excess Funds).11 remaining principal of the Original Loan installments of principal and interest, 9. The Plan retained Louis A. Iatarola, and any interest then due and payable. amortized over the fifteen (15) year loan MAI, SRA, to appraise the Property. Mr. Finally, as security for the Original period, calculated over a 365-day year, Iatarola is a Qualified Independent Loan, the Plan has granted the Bank a followed by one final payment of all Appraiser who is affiliated with the real first lien interest in both the Facility and outstanding principal, interest and fees estate appraisal firm of Louis A. Iatarola the Land. As of March 23, 2010, the on the maturity date. The Plan will not Appraisal Group, Ltd., located in principal balance outstanding on the be required to assign its lessor’s interest Philadelphia, PA. Mr. Iatarola has no Original Loan was $881.418.95.9 in rents, income and profits arising from present or prospective interest in the 6. In March 2010, despite the fact that leases pertaining to the Property or its Loan transaction, and he is unrelated to the Plan has made all of the payments interests in contracts, licenses and the Union. During 2009, he derived less required under the Original Loan on permits associated with its ownership of than one percent of his gross revenue time without any defaults or the Property. In addition, the Loan will from parties in interest with respect to delinquencies, the Bank indicated that it not require the Plan to execute an the Plan. Mr. Iatarola visited the may elect to call the Original Loan by environmental indemnity agreement. As Property on November 17, 2009, July 1, 2010. Therefore, the Union security for the Loan, the Plan will grant prepared a valuation report, dated proposes to lend the Plan, as of March the Union a first lien interest in the December 16, 2009, and examined 23, 2010, $1,081,416 under the terms of Facility and the Land. Finally, the Plan relevant public records. As of November a replacement loan (i.e., the Loan). The will not be required to pay any fees or 17, 2009, Mr. Iatarola opined in his Loan will enable the Plan to repay the other expenses in connection with the appraisal report that an unencumbered Original Loan and provide servicing or the administration of the fee simple interest in the Property had approximately $200,000 in additional Loan. a fair market value $4,000,000, with funds to finance an expansion of the 8. The Trustees represent that the such opinion based on a reconciliation Facility by adding two new Loan will be beneficial to the Plan since of value estimates derived from the classrooms.10 Accordingly, an it allows the Plan to forecast more Sales Comparison Approach and the accurately the cost of its debt service Income Capitalization Approach to 9 The outstanding principal balance on the over the life of the Loan. Further, the valuation. Original Loan will decline with each monthly Trustees explain that the potential for 10. The terms of the Loan have been payment made by the Plan. As a result, the the interest rate of the Original Loan to anticipated Loan amount will be adjusted to reflect initially reviewed and, thereafter, will any such decline. reset on the fifth and tenth anniversaries be monitored by John Ward, an attorney 10 The Department is expressing no opinion in of the Original Loan raises problems for in Washington, DC, who will act as the this proposed exemption regarding whether the the Plan’s ability to conduct accurate Plan’s Qualified Independent Fiduciary. Loan violates any of the fiduciary responsibility expense forecasting. Mr. Ward has no present or prospective provisions of Part 4 of Title I of the Act. In this regard, the Department notes that section 404(a) of The Trustees also represent that the interest in the Loan transaction, and he the Act requires, among other things, that a terms of the Loan are more favorable to is unrelated to the Union. Mr. Ward has fiduciary of a plan act prudently, solely in the the Plan than the terms of the Original represented labor unions and their interest of the plan’s participants and beneficiaries, Loan for several reasons. First, the Loan and for the exclusive purpose of providing benefits associated benefit funds throughout his to participants and beneficiaries when making cannot be called by the Union except in career, and he has focused his investment decisions on behalf of a plan. Section the event of a complete default upon the professional energies on tax and ERISA 404(a) of the Act also states that a plan fiduciary Loan. Second, unlike the Original Loan, matters faced by those organizations. should diversify the investments of a plan so as to the Loan does not require provisions minimize the risk of large losses, unless under the During 2009, Mr. Ward derived less circumstances it is clearly prudent not to do so. such as environmental indemnity than one percent of his gross revenue Moreover, the Department is not providing any agreements; assignments of contracts, from parties in interest with respect to opinion as to whether a particular category of licenses and permits; and assignments the Plan. Mr. Ward represents that he is investments or investment strategy would be of leases and rents. Third, the Loan qualified to act as the Qualified considered prudent or in the best interests of a plan provides a more favorable interest as required by section 404 of the Act. The determination of the prudence of a particular calculation in comparison to the 11 The Union represents that the Plan’s investment or investment course of action must be Original Loan, with such interest being operational expenses are funded by contributions made by a plan fiduciary after appropriate calculated based on a 365-day year made to the Plan by contributing employers. These consideration of those facts and circumstances that, instead of a 360-day year. contributions are based on a portion of each given the scope of such fiduciary’s investment Further, the Trustees state that the Participant’s hourly wage paid by such employers. duties, the fiduciary knows or should know are The Union represents that the Participants’ hourly relevant to the particular investment or investment Loan will be beneficial to the Plan in wage rate is negotiated periodically between the course of action involved, including a plan’s that it will allow the Plan to expand the Union and the contributing employers. Thus, the potential exposure to losses and the role the Facility to better serve the Participants. Union represents that the Participants’ wage investment or investment course of action plays in The Trustees note that the Plan will add deduction amount for contributions made by the that portion of the plan’s portfolio with respect to employers to the Plan is determined by the parties which the fiduciary has investment duties (see 29 two classrooms with $200,000 of the each year. CFR 2550.404a–1). The Department also notes that The Union further represents that the in order to act prudently in making investment in preference to other alternative investments, computation of the amount of Excess Funds decisions, a plan fiduciary must consider, among would generally not be prudent if such investment available for repayment of the Loan will be other factors, the availability, risks and potential involves a greater risk to the security of a plan’s according to generally accepted accounting return of alternative investments for the plan. Thus, assets than other comparable investments offering principles by a certified public accountant a particular investment by a plan, which is selected a similar return or result. representing the Plan.

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Independent Fiduciary, and he able to match the terms provided in the the servicing or administration of the understands and accepts the duties, Loan. In this regard, the PNC Bank Loan. responsibilities and liabilities in acting representative informed Mr. Ward that a as a fiduciary with respect to the Plan. fixed rate loan at 4% for 15 years FOR FURTHER INFORMATION CONTACT: Mr. In this regard, Mr. Ward states (a) that seemed rather low and that a 6% rate Brian Shiker of the Department, the Loan is both an appropriate would be more realistic for a 15 year telephone (202) 693–8552. (This is not investment for the Plan and in the best commercial loan. The Wachovia Bank/ a toll-free number.) interest of the Plan and its participants Wells Fargo representative concurred General Information and beneficiaries and (b) that he will with the guidance offered by the PNC continue to monitor the Plan’s Bank representative. The attention of interested persons is repayment of the Loan and will take In conclusion, Mr. Ward opined that directed to the following: whatever actions are necessary to (a) the Loan is both an appropriate protect the interest of the Plan and its investment for the Plan and in the best (1) The fact that a transaction is the participants and beneficiaries. interest of the Plan and its participants subject of an exemption under section 11. As part of his review of the Loan and beneficiaries; and (b) the terms and 408(a) of the Act and/or section transaction, Mr. Ward engaged two conditions of the Loan are more 4975(c)(2) of the Code does not relieve additional Qualified Independent favorable to the Plan and its participants a fiduciary or other party in interest or Appraisers, George Calomiris, AIA, and beneficiaries than the terms of disqualified person from certain other CDS, Certified General Appraiser, and similar loans which might be made to provisions of the Act and/or the Code, Kevin Boyle, Certified Residential the Plan by an unrelated party in an including any prohibited transaction Appraiser, to confirm the accuracy of arm’s length transaction.12 provisions to which the exemption does the initial appraisal performed by Mr. 13. In summary, the Plan represents not apply and the general fiduciary Iatarola. Messrs. Calomiris and Boyle that the transaction satisfies the responsibility provisions of section 404 are affiliated with the real estate statutory criteria for an administrative of the Act, which, among other things, appraisal firm of William Calomiris exemption that are contained in section require a fiduciary to discharge his 408(a) of the Act for the following Company, LLC, located in Washington, duties respecting the plan solely in the reasons: (a) The terms and conditions of DC. They have no present or prospective interest of the participants and interest in the Loan transaction, and the Loan will be at least as favorable to beneficiaries of the plan and in a they are unrelated to the Plan and the the Plan as those which the Plan could prudent fashion in accordance with Union. During 2009, Messrs. Calomiris obtain in an arm’s length transaction and Boyle derived less than one percent with an unrelated party; (b) the Trustees section 404(a)(1)(b) of the Act; nor does of their gross revenue from parties in have determined in writing that the it affect the requirement of section interest with respect to the Plan. In Loan is appropriate for the Plan and in 401(a) of the Code that the plan must developing their opinion on the the best interests of the Plan’s operate for the exclusive benefit of the accuracy of Mr. Iatarola’s appraisal, participants and beneficiaries; (c) Mr. employees of the employer maintaining Messrs. Calomiris and Boyle visited the Ward, as the Plan’s Qualified the plan and their beneficiaries; Property, reviewed a valuation report Independent Fiduciary, has reviewed (2) Before an exemption may be prepared by Mr. Iatarola, and examined the terms of the Loan and has granted under section 408(a) of the Act relevant public records. In an appraisal determined that the Loan would be and/or section 4975(c)(2) of the Code, report dated February 19, 2010, Messrs. protective of and in the best interests of the Department must find that the Calomiris and Boyle confirmed the the Plan and its participants and exemption is administratively feasible, beneficiaries; (d) in determining the fair opinion of Mr. Iatarola that the Property in the interests of the plan and of its would have a fair market value of at market value of the Property, Mr. Ward participants and beneficiaries, and least $4,000,000, which would place the has obtained an appraisal from a protective of the rights of participants loan-to-value ratio at 28%. Qualified Independent Appraiser and 12. Mr. Ward investigated the interest has ensured that the appraisal prepared and beneficiaries of the plan; rates that would be available to the Plan by the Qualified Independent Appraiser (3) The proposed exemptions, if were it to secure a fixed rate loan from is consistent with sound principles of granted, will be supplemental to, and an unrelated lender. In so doing, he valuation; (e) Mr. Ward will monitor the not in derogation of, any other noted that not only would any potential Loan, as well as the terms and provisions of the Act and/or the Code, lender benefit from the 28% loan to conditions of the proposed exemption including statutory or administrative value ratio, thereby making any (if granted), and will take whatever exemptions and transitional rules. potential loan highly secured, but that actions are necessary to safeguard the Furthermore, the fact that a transaction the Plan had consistently demonstrated interests of the Plan and its participants is subject to an administrative or over the past five (5) years that it was and beneficiaries under the Loan; (f) the statutory exemption is not dispositive of willing and able to make monthly Loan will be repaid by the Plan solely whether the transaction is in fact a mortgage payments on time and in full, with the funds the Plan retains after prohibited transaction; and with more than sufficient annual paying all of its operational expenses; income to easily cover monthly and (g) the Plan will not pay any fees (4) The proposed exemptions, if obligations under nearly any potential or other expenses in connection with granted, will be subject to the express mortgage loan. condition that the material facts and Mr. Ward also opined that the current 12 In an addendum to his Qualified Independent representations contained in each commercial interest rates would be Fiduciary report, dated May 6, 2010, Mr. Ward application are true and complete, and stated that he was unaware that the interest rate for higher than the rate charged by the the Original Loan at its outset had been 5.5%, with that each application accurately Union under the Loan. Specifically, Mr. the interest rate being lowered to 3.5% at a later describes all material terms of the Ward sampled senior loan officers at date. Nevertheless, he explained that the fact that transaction which is the subject of the PNC Bank and Wachovia Bank/Wells the Original Loan’s interest rate had been reduced from 5.5 to 3.5 percent would have no bearing on exemption. Fargo, and such senior loan officers his opinion regarding the appropriateness of the indicated that neither bank would be Loan.

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Signed at Washington, DC, this 28th day of • Enhance the quality, utility, and that appropriate arrangements can be June, 2010. clarity of the information to be made. Thirty-five hard copies of each Ivan Strasfeld, collected; and presentation or handout should be Director of Exemption Determinations, • Can help the agency minimize the provided to the DFO thirty minutes Employee Benefits Security Administration, burden of the collection of information before the meeting. In addition, one U.S. Department of Labor. on those who are to respond, including electronic copy of each presentation [FR Doc. 2010–16096 Filed 7–1–10; 8:45 am] through the use of electronic submission should be emailed to the DFO one day BILLING CODE 4510–29–P of responses through Grants.gov. before the meeting. If an electronic copy ADDRESSES: Send comments to Jillian cannot be provided within this Miller, Director, Office of Guidelines timeframe, presenters should provide the DFO with a CD containing each NATIONAL FOUNDATION ON THE and Panel Operations, National presentation at least thirty minutes ARTS AND THE HUMANITIES Endowment for the Arts, 1100 Pennsylvania Avenue, NW., Room 621, before the meeting. Electronic National Endowment for the Arts; Washington, DC 20506–0001; telephone recordings will be permitted only Proposed Collection; Comment (202) 682–5504 (this is not a toll-free during those portions of the meeting Request number), fax (202) 682–5049. that are open to the public. Detailed procedures for the conduct of and AGENCY: National Endowment for the Kathleen Edwards, participation in ACRS meetings were Arts, National Foundation on the Arts Director, Administrative Services, National published in the Federal Register on and the Humanities. Endowment for the Arts. October 14, 2009, (74 FR 58268–58269). ACTION: Notice. [FR Doc. 2010–16155 Filed 7–1–10; 8:45 am] Detailed meeting agendas and meeting BILLING CODE 7537–01–P transcripts are available on the NRC SUMMARY: The National Endowment for Web site at http://www.nrc.gov/reading- the Arts (NEA), as part of its continuing rm/doc-collections/acrs. Information effort to reduce paperwork and NUCLEAR REGULATORY regarding topics to be discussed, respondent burden, conducts a COMMISSION changes to the agenda, whether the preclearance consultation program to meeting has been canceled or provide the general public and federal Advisory Committee on Reactor rescheduled, and the time allotted to agencies with an opportunity to Safeguards (ACRS); Meeting of the present oral statements can be obtained comment on proposed and/or ACRS Subcommittee on ESBWR from the Web site cited above or by continuing collections of information in contacting the identified DFO. The ACRS Subcommittee on ESBWR accordance with the Paperwork Moreover, in view of the possibility that will hold a meeting on July 13, 2010, Reduction Act of 1995. This program the schedule for ACRS meetings may be Room T–2B1, 11545 Rockville Pike, helps to ensure that requested data is adjusted by the Chairman as necessary Rockville, Maryland. provided in the desired format; The entire meeting will be open to to facilitate the conduct of the meeting, reporting burden (time and financial public attendance, with the exception of persons planning to attend should check resources) is minimized; collection a portion that may be closed to protect with these references if such instruments are clearly understood; and information that is proprietary to rescheduling would result in a major the impact of collection requirements on General Electric—Hitachi Nuclear inconvenience. respondents is properly assessed. Americas, LLC (GEH) and its contractors Dated: June 25, 2010. Currently, the NEA is soliciting pursuant to 5 U.S.C. 552b(c)(4). Cayetano Santos, comments concerning the proposed The agenda for the subject meeting Chief, Reactor Safety Branch A, Advisory information collection of: Blanket shall be as follows: Committee on Reactor Safeguards. Justification for NEA Funding Application Guidelines and Reporting Tuesday, July 13, 2010—8:30 a.m. until [FR Doc. 2010–16170 Filed 7–1–10; 8:45 am] Requirements. A copy of the current 5 p.m. BILLING CODE 7590–01–P information collection request can be The Subcommittee will discuss issues obtained by contacting the office listed relating to long-term core cooling, NUCLEAR REGULATORY below in the address section of this containment peak pressure, vacuum COMMISSION notice. breaker isolation, and accumulation of DATES: Written comments must be hydrogen in containment. The Advisory Committee on Reactor submitted to the office listed in the Subcommittee will hear presentations Safeguards (ACRS) Meeting of the address section below within 60 days by and hold discussions with Subcommittee on Plant Operations from the date of this publication in the representatives of the NRC staff, GEH, and Fire Protection Federal Register. The NEA is and other interested persons regarding The ACRS Subcommittee on Plant particularly interested in comments this matter. The Subcommittee will Operations and Fire Protection will hold that: gather information, analyze relevant a meeting on July 29, 2010, at the U.S. • Evaluate whether the proposed issues and facts, and formulate NRC Region IV, Texas Health Resources collection of information is necessary proposed positions and actions, as Tower, 612 E. Lamar Blvd., Suite 400, for the proper performance of the appropriate, for deliberation by the Full Arlington, TX 76011–4125. functions of the agency, including Committee. The entire meeting will be open to whether the information will have Members of the public desiring to public attendance. practical utility; provide oral statements and/or written The agenda for the subject meeting • Evaluate the accuracy of the comments should notify the Designated shall be as follows: agency’s estimate of the burden of the Federal Official (DFO), Christopher Thursday, July 29, 2010—8:30 a.m. proposed collection of information, Brown (Telephone 301–415–7111 or until 2 p.m. including the validity of the Email [email protected]) five The Subcommittee will meet with the methodology and assumptions used; days prior to the meeting, if possible, so Administrator and Region IV staff on

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items of mutual interest. The the functions of the agency, including 3220–0008) from their railroad subcommittee will gather information, whether the information has practical employer. analyze relevant issues and facts, and utility; (b) the accuracy of the RRB’s The computer generated Form ID– formulate proposed positions and estimate of the burden of the collection 5S(SUP) includes pertinent identifying actions, as appropriate, for deliberation of the information; (c) ways to enhance information, the BA–4 adjustment by the Full Committee at a later date. the quality, utility, and clarity of the process date and the claimed months in Members of the public desiring to information to be collected; and (d) question. Space is provided on the provide oral statements and/or written ways to minimize the burden related to comments should notify the Designated the collection of information on report for the employer’s use in Federal Official (DFO), Mrs. Kathy respondents, including the use of supplying the information requested in Weaver, via e-mail automated collection techniques or the computer generated transmittal [email protected]) five days prior other forms of information technology. letter, Form ID–5S, which accompanies to the meeting, if possible, so that the report. The RRB estimates that 80 appropriate arrangements can be made. Title and Purpose of Information responses are received annually. Thirty-five hard copies of each Collection Completion is voluntary. Completion presentation or handout should be 1. Investigation of Claim for Possible time is estimated at 10 minutes. One provided to the DFO thirty minutes Days of Employment; OMB 3220–0196 response is requested of each before the meeting. Presenters should respondent. The RRB proposes no also provide the DFO with a CD Under Section 1(k) of the Railroad changes to Form ID–5S(SUP). containing each presentation at least 30 Unemployment Insurance Act (RUIA), 2. Designation of Contact Officials; minutes before the meeting. Electronic unemployment and sickness benefits are recordings will be permitted. Detailed not payable for any day with respect to 3220–0200 procedures for the conduct of and which remuneration is payable or Coordination between railroad accrues to the claimant. Also Section participation in ACRS meetings were employers and the RRB is essential to 4(a–1) of the RUIA provides that published in the Federal Register on properly administer the payment of unemployment or sickness benefits are October 14, 2009 (74 FR 58268–58269). benefits under the Railroad Retirement Detailed meeting agendas and meeting not payable for any day the claimant Act (RRA) and the Railroad transcripts are available on the NRC receives the same benefits under any Unemployment Insurance Act (RUIA). Web site at http://www.nrc.gov/ law other than the RUIA. Under In order to enhance timely coordination reading-rm/doc-collections/acrs. Railroad Retirement Board (RRB) Information regarding topics to be regulations, 20 CFR 322.4(a), a activity, the RRB utilizes Form G–117a, discussed, changes to the agenda, claimant’s certification or statement on Designation of Contact Officials. Form whether the meeting has been canceled an RRB provided claim form that he or G–117a is used by railroad employers to or rescheduled, and the time allotted to she did not work on any day claimed designate employees who are to act as present oral statements can be obtained and did not receive income such as point of contact with the RRB on a from the Web site cited above or by vacation pay or pay for time lost shall variety of RRA and RUIA-related contacting the identified DFO. constitute sufficient evidence unless matters. Moreover, in view of the possibility that there is conflicting evidence. Further, The RRB estimates that 100 responses the schedule for ACRS meetings may be under 20 CFR 322.4(b), when there is a are received annually. Completion is adjusted by the Chairman as necessary question raised as to whether or not voluntary. Completion time is estimated to facilitate the conduct of the meeting, remuneration is payable or has accrued at 15 minutes. One response is persons planning to attend should check to a claimant with respect to a claimed requested from each respondent. The day or days, investigation shall be made with these references if such RRB proposes no changes to Form G– with a view to obtaining information rescheduling would result in a major 117a. inconvenience. sufficient for a finding. Additional Information or Comments: Form ID–5S(SUP), Report of Cases for Date: June 23, 2010. To request more information or to Cayetano Santos, Which All Days Were Claimed During a Month Credited Per an Adjustment obtain a copy of the information Chief, Reactor Safety Branch A, Advisory collection justification, forms, and/or Committee on Reactor Safeguards. Report, collects information about compensation credited to an employee supporting material, please call the RRB [FR Doc. 2010–16183 Filed 7–1–10; 8:45 am] Clearance Officer at (312) 751–3363 or BILLING CODE 7590–01–P during a period when the employee claimed either unemployment or send an e-mail request to sickness benefits from a railroad [email protected]. Comments employer. The request is generated as a regarding the information collection RAILROAD RETIREMENT BOARD result of a computer match that should be addressed to Patricia Henaghan, Railroad Retirement Board, Proposed collection; comment request compares data which is maintained in the RRB’s RUIA Benefit Payment file 844 North Rush Street, Chicago, Illinois Summary: In accordance with the with data maintained in the RRB’s 60611–2092 or send an e-mail to requirement of Section 3506(c)(2)(A) of records of service. The ID–5S(SUP) is [email protected]. Written the Paperwork Reduction Act of 1995 generated annually when the computer comments should be received within 60 which provides opportunity for public match indicates that an employee(s) of days of this notice. comment on new or revised data the railroad employer was paid collections, the Railroad Retirement unemployment or sickness benefits for Charles Mierzwa, Board (RRB) will publish periodic every day in one or more months for Clearance Officer. summaries of proposed data collections. which creditable compensation was [FR Doc. 2010–16161 Filed 7–1–10; 8:45 am] Comments are invited on: (a) Whether adjusted due to the receipt of a report BILLING CODE 7905–01–P the proposed information collection is of creditable compensation adjustment necessary for the proper performance of (RRB Form BA–4, OMB Approved

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RECOVERY ACCOUNTABILITY AND sample would be approximately 200 demutualization Trading Permits, tier TRANSPARENCY BOARD recipients and should provide enough appointment and bandwidth packets. data to determine whether the jobs The text of the proposed rule change is Notice of Submission of Proposed numbers reported are reasonable. The available on the Exchange’s Web site Information Collection to OMB information requested would be limited (http://www.cboe.org/Legal/), at the Emergency Comment Request to the recipients’ policies and Exchange’s Office of the Secretary, at procedures for compiling and reporting the Commission’s Public Reference ACTION: Notice of proposed information the jobs data; documentation for the jobs Room, and on the Commission’s Web collection. reported; and identifying any on-going site at http://www.sec.gov. challenges faced in complying with the SUMMARY: The Recovery Accountability II. Self-Regulatory Organization’s job reporting requirements. The and Transparency Board (Board) has Statement of the Purpose of, and information requested in most submitted to the Office of Management Statutory Basis for, the Proposed Rule circumstances will be less than 10 and Budget (OMB) for clearance the Change following proposal for collection of pages. In its filing with the Commission, information under the emergency Affected Public: Recipients, as CBOE included statements concerning provisions of the Paperwork Reduction defined in section 1512(b)(1) of the the purpose of and basis for the Act of 1995 (44 U.S.C. Chapter 35). Recovery Act, of Recovery Act funds. Total Estimated Number or proposed rule change and discussed any DATES: Comments are due July 16, 2010. Respondents: 200. comments it received on the proposed ADDRESSES: Send all comments to Frequency of Responses: Once. rule change. The text of these statements Sharon Mar, Desk Officer for the Total Estimated Annual Burden may be examined at the places specified Recovery Accountability and Hours: 400. in Item IV below. CBOE has prepared Transparency Board, Office of Ivan J. Flores, summaries, set forth in Sections A, B, Management and Budget, New and C below, of the most significant Executive Office Building, Washington, Paralegal Specialist, Recovery Accountability and Transparency Board. aspects of such statements. DC 20503; fax 202–395–5167; or e-mail to [email protected]. [FR Doc. 2010–16125 Filed 7–1–10; 8:45 am] A. Self-Regulatory Organization’s Title of Collection: Jobs Reporting BILLING CODE 6820–GA–P Statement of the Purpose of, and under Section 1512 of the American Statutory Basis for, the Proposed Rule Recovery and Reinvestment Act of 2009. Change OMB Control No.: 0430—Pending. SECURITIES AND EXCHANGE 1. Purpose Description: Section 1512 of the COMMISSION American Recovery and Reinvestment In connection with the [Release No. 34–62386; File No. SR–CBOE– demutualization of the Exchange Act of 2009 (Pub. L. 111–5, 123 Stat. 115 2010–060] (2009)) (Recovery Act) requires through which the Exchange is recipients of Recovery Act funds to Self-Regulatory Organizations; restructuring from a non-stock report an estimate of the number of jobs Chicago Board Options Exchange, corporation to a stock corporation and a created or retained by particular projects Incorporated; Notice of Filing and wholly-owned subsidiary of CBOE or activities. These reports are Immediate Effectiveness of Proposed Holdings, Inc., the Exchange has submitted to FederalReporting.gov, and Rule Change Relating to the amended its Rules to provide for the use information from these reports is later Establishment of the Initial Fees for of Trading Permits, instead of posted to the publicly available Web site Post-Demutualization Trading Permits, memberships, to access the Exchange. CBOE Rule 2.20 grants the Exchange Recovery.gov. Among other things, the Tier Appointment and Bandwidth the authority to, from time to time, fix purpose of the Recovery Act is ‘‘to Packets the fees and charges payable by Trading preserve and create jobs and promote Permit Holders. The purpose of this economic recovery.’’ An integral part of June 25, 2010. proposed rule change is to establish the the nation’s recovery is the creation of Pursuant to Section 19(b)(1) of the initial fees for CBOE’s initial post- jobs. However, there has been very little Securities Exchange Act of 1934 1 2 demutualization Trading Permits, tier oversight of the job numbers reported by (‘‘Act’’), and Rule 19b–4 thereunder, appointment and bandwidth packets. recipients of Recovery funds. The U.S. notice is hereby given that on June 21, These post-demutualization Trading Government Accountability Office 2010, the Chicago Board Options ‘‘ ’’ Permits, tier appointment and (GAO) and the Inspectors General (IGs) Exchange, Incorporated ( CBOE or the ‘‘ ’’ bandwidth packets will become have done limited testing on some Exchange ) filed with the Securities effective immediately following the recipients. The limited testing to date and Exchange Commission (‘‘Commission’’) the proposed rule close of trading on the date of the has found the following: (1) Some change as described in Items I, II, and closing of the Exchange’s recipients were confused by the revised III below, which Items have been demutualization transaction, and CBOE guidance issued by the Office of prepared by CBOE. The Commission is members on the date of the closing of Management and Budget (OMB) on publishing this notice to solicit the demutualization transaction will December 18, 2009 (M–10–08); (2) some comments on the proposed rule change retain their then current access to the recipients decided not to use the from interested persons. Exchange until the close of trading on updated jobs reporting guidance; (3) one that date. The Exchange also proposes to state recipient estimated the number of I. Self-Regulatory Organization’s amend the CBOE Stock Exchange, LLC jobs that could potentially be created; Statement of the Terms of Substance of (‘‘CBSX’’) 3 Fees Schedule to cross- and (4) one recipient was calculating the Proposed Rule Change reference that CBSX Trading Permit jobs by dividing average salaries by the CBOE proposes to establish the initial access fees are set forth in the CBOE number of employees. Therefore, a fees for CBOE’s initial post- statistically valid sample test would 3 CBSX is a facility of CBOE for the trading of provide the insight needed to better 1 15 U.S.C. 78s(b)(1). non-option securities, and trading on CBSX is understand these jobs numbers. The 2 17 CFR 240.19b–4. governed by CBOE Rules.

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Fees Schedule. As further described credit of 1.0, a quoting and order entry The third type of Trading Permit is below, there is no access fee proposed bandwidth allowance, up to three the Electronic Access Permit that for CBSX-only Trading Permit Holders. logins, trading floor access and Trading entitles the holder to electronic access Trading Permit Fees: Permit Holder status. A Market-Maker to the Exchange. Electronic Access CBOE Rule 1.1(ggg) defines a Trading Trading Permit also provides trading Permit holders must be broker-dealers Permit as a license issued by the access to CBSX. The Exchange is registered with the Exchange in one or Exchange that grants the holder or the proposing to establish the initial fee for more of the following capacities: (a) holder’s nominee the right to access one a Market-Maker Trading Permit at Clearing Trading Permit Holder; (b) TPH or more of the facilities of the Exchange $7,500 per month, commencing July 1, organization approved to transact for the purpose of effecting transactions 2010. However, for the remainder of business with the public; (c) Proprietary in securities traded on the Exchange 2010, CBOE will provide a 20% Trading Permit Holder;5 and (d) order without the services of another person discount on this fee, such that the fee service firm. The Electronic Access acting as broker, and otherwise to access for a Market-Maker Trading Permit will Permit does not grant access to the the facilities of the Exchange for be $6,000 per month between July 2010 trading floor. This permit provides an purposes of trading or reporting and December 2010. order entry bandwidth allowance, up to transactions or transmitting orders or The quoting bandwidth allowance for three logins and Trading Permit Holder quotations in securities traded on the a Market-Maker Trading Permit is status. An Electronic Access Permit also Exchange, or to engage in other equivalent to a maximum of 31,200,000 provides access to CBSX. The Exchange activities that, under CBOE Rules, may quotes over the course of a trading day. is proposing to establish the initial fee only be engaged in by Trading Permit The quoting bandwidth allowance for a for an Electronic Access Permit at Holders, provided that the holder or the Market-Maker Trading Permit in which $2,000 per month, commencing July 1, holder’s nominee, as applicable, the holder has a Market-Maker 2010. However, for the remainder of satisfies any applicable qualification appointment in a Hybrid 3.0 option 2010, CBOE will provide a 20% requirements to exercise those rights. A class shall be proportionately reduced discount on this fee, such that the fee Trading Permit does not convey any by the appointment cost of the class. To for an Electronic Access Permit will be ownership interest in the Exchange, is the extent that a Market-Maker is able to $1,600 per month between July 2010 only available through the Exchange, submit electronic quotes in a Hybrid 3.0 and December 2010. and is subject to the terms and class (such as an LMM that streams The fourth type of Trading Permit is conditions set forth in CBOE Rule 3.1. quotes in the class), the Market-Maker a CBSX Trading Permit that entitles the Holders of Trading Permits fall within shall receive the quoting bandwidth holder to perform any of the trading the definition of ‘‘member’’ in Section allowance attributable to that Hybrid 3.0 functions of a Trading Permit Holder on 3(a)(3)(A) of the Securities Exchange of class to quote in, and only in, that class. CBSX and to receive the CBSX login and 1934, as amended (‘‘Act’’).4 For example, the appointment cost for bandwidth allowances. The CBSX CBOE Rule 3.1 provides, among other SPX, which is a Hybrid 3.0 class, is .95. Trading Permit provides trading access things, that the Exchange may issue Accordingly, the quoting bandwidth for only to CBSX. The proposed initial different types of Trading Permits and a Market-Maker Trading Permit in CBSX Trading Permit fee is the same as determine the fees for those Trading which the holder has a Market-Maker the access fee that applied with respect Permits. Specifically, under Rule appointment in SPX would be .05 of the to the CBSX trading permits that granted 3.1(a)(iv), the Exchange may issue quoting bandwidth for non-Hybrid 3.0 trading access to CBSX prior to CBOE’s different types of Trading Permits that classes, unless the Market-Maker is an demutualization in that there was no allow holders to trade one or more LMM and is using a Market-Maker access fee charged for pre- products authorized for trading on the Trading Permit to stream quotes in SPX. demutualization CBSX trading permits Exchange and to act in one or more With the exception of LMMs, Market- (just as there is no access fee initially trading functions authorized by CBOE Makers do not quote electronically in proposed to be charged with respect to Rules. The Exchange will have four Hybrid 3.0 classes so they are not post-demutualization CBSX Trading initial types of Trading Permits allocated quoting bandwidth with Permits). Because CBSX is a relatively immediately following its respect to Market-Maker appointments new trading venue, CBSX has sought to demutualization. These Trading Permits in those classes. This is consistent with encourage broker-dealers to become will be issued in accordance with the CBOE’s pre-demutualization quoting participants in CBSX’s market in order provisions of CBOE Rule 3.1A which bandwidth allocations to SPX Market- to build volume and market share by, addresses the initial issuance of post- Makers. among other things, not assessing an demutualization Trading Permits and The second type of Trading Permit is access fee. This proposed rule change Rule 3.1 which sets forth the general a Floor Broker Trading Permit that continues that approach with respect to provisions that are applicable to post- entitles the holder to act as a Floor the initial CBSX Trading Permit access demutualization Trading Permits. In Broker. This permit provides an order fee following CBOE’s demutualization. addition, Rule 3.1(a)(v) provides, in entry bandwidth allowance, up to three Trading Permit fees will be assessed relevant part, that Trading Permits will logins, trading floor access and Trading by the Exchange commencing on July 1, be subject to such fees and charges as Permit Holder Status. A Floor Broker 2010. The Exchange is delaying the are established by the Exchange from Trading Permit also provides access to commencement of the fee until then time to time pursuant to CBOE Rule CBSX. The Exchange is proposing to because the leases for the transferable 2.20 and the Exchange Fees Schedule. establish the initial fee for a Floor memberships that existed prior to The first type of Trading Permit is a Broker Trading Permit at $7,500 per CBOE’s demutualization generally Market-Maker Trading Permit that month, commencing July 1, 2010. provided for monthly lease payments entitles the holder to act as a Market- However, for the remainder of 2010, Maker (including a Market-Maker CBOE will provide a 20% discount on 5 A Proprietary Trading Permit Holder is a trading remotely), DPM, eDPM or LMM. this fee, such that the fee for a Floor proprietary broker-dealer engaged in principal trading. A proprietary broker-dealer may not use an This permit provides an appointment Broker Trading Permit will be $6,000 Electronic Access Permit to submit Market-Maker per month between July 2010 and orders (i.e., M orders) for its own account or an 4 15 U.S.C. 78c(a)(3)(A). December 2010. affiliated Market-Maker account.

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and the Exchange assessed temporary Appointment. A Market-Maker Trading month. In addition, the Exchange is members and Interim Trading Permit Permit Holder must obtain an SPX Tier proposing that the initial fee for an holders monthly access fees. Therefore, Appointment to act as a Market-Maker Order Entry Bandwidth Packet be set at most post-demutualization Trading in SPX. Further, consistent with the $2,000 per month. Bandwidth packet Permit holders have already paid to provisions of Rule 8.3(e), each SPX Tier fees will be assessed by the Exchange access the Exchange for the month of Appointment may only be used with commencing on July 1, 2010, the same June 2010 in some form. As a result, the one designated Market-Maker Trading date as the commencement of the Exchange will not charge an additional Permit. The Exchange is proposing that Trading Permit and SPX Tier amount for access to the Exchange the initial fee for an SPX Tier Appointment fees. However, for the during that month. Trading Permit fees Appointment be set at $3,000 per remainder of 2010, CBOE will provide are non-refundable and will be assessed month, commencing July 1, 2010, the a 20% discount on these fees, such that, through the integrated billing system same date as the commencement of the between July 2010 and December 2010, during the first week of the following Trading Permit fees. The SPX Tier the fee for a Quoting and Order Entry month.6 If a Trading Permit is issued Appointment fee is not eligible for the Bandwidth Packet will be $3,000 per during a calendar month after the first 20% discount for the remainder of 2010 month and the fee for an Order Entry trading day of the month, the access fee that is applicable to the Trading Permit Bandwidth Packet will be $1,600 per for the Trading Permit for that calendar fees. month. Bandwidth packet fees are non- month is prorated based on the SPX Tier Appointment fees are non- refundable and will be assessed through remaining trading days in the calendar refundable and will be assessed through the integrated billing system during the month. Trading Permits will be renewed the integrated billing system during the first week of the following month. If a automatically for the next month unless first week of the following month. The bandwidth packet is issued during a the Trading Permit Holder submits by SPX Tier Appointment fee will be calendar month after the first trading the 25th day of the prior month (or the assessed to any Market-Maker Trading day of the month, the bandwidth packet preceding business day if the 25th is not Permit Holder, registered with the fee for that calendar month is prorated a business day) a written notification 7 Exchange to conduct business on the based on the remaining trading days in to cancel the Trading Permit effective at Exchange as a Market-Maker, that either the calendar month. Bandwidth packets or prior to the end of the applicable (a) has an SPX Tier Appointment at any will be renewed automatically for the month.8 time during a calendar month; or (b) next month unless the Trading Permit The Exchange proposes to amend the conducts any open outcry transactions Holder submits by the 25th day of the CBOE Fees Schedule effective on June in SPX at any time during a calendar prior month (or the preceding business 21, 2010 to set forth the initial access month. SPX Tier Appointments will be day if the 25th is not a business day) a fees for these four initial Trading Permit renewed automatically for the next written notification to cancel the types by including in the Fees Schedule month unless the Trading Permit Holder bandwidth packet effective at or prior to the initial access fee applicable to each submits by the 25th day of the prior the end of the applicable month. Trading Permit type, the description of month (or the preceding business day if The same quoting and order entry each Trading Permit type included the 25th is not a business day) a written bandwidth allowance will be provided above, and the procedural provisions notification to cancel the SPX Tier for each Market-Maker Trading Permit included above describing the manner Appointment effective at or prior to the and each Quoting and Order Entry in which Trading Permit access fees will end of the applicable month. Bandwidth Packet (except to the extent be assessed by the Exchange. Bandwidth Packet Fees: described above with respect to each Tier Appointment Fee: CBOE is also proposing to establish Market-Maker Trading Permit in which CBOE Rule 8.3(e) provides that the fees for bandwidth packets. Bandwidth the holder has a Market-Maker Exchange may establish one or more packets provide Trading Permit Holders appointment in a Hybrid 3.0 option types of tier appointments. In with additional bandwidth to use to class). Similarly, the same order entry accordance with CBOE Rule 8.3(e), a tier electronically access the Exchange. bandwidth allowance will be provided appointment is an appointment to trade Market-Makers will be offered the for each Floor Broker Trading Permit, one or more options classes that must be opportunity to purchase one or more Electronic Access Permit, and Order held by a Market-Maker to be eligible to Quoting and Order Entry Bandwidth Entry Bandwidth Packet and the same act as a Market-Maker in the options Packets. Each Quoting and Order Entry bandwidth allowance will be made class or options classes subject to that Bandwidth Packet will entitle the available for each CBSX Trading Permit. appointment. The Exchange will have Trading Permit Holder to up to three Accordingly, bandwidth will be one type of tier appointment additional logins and contain the available to all Trading Permit Holders immediately following its standard Market-Maker quoting and on an equal basis. The Exchange has demutualization, the SPX Tier order entry bandwidth allowance, provided the Commission with a which may then be added onto the total detailed description of the foregoing 6 Thus, Trading Permit Fees for access during July bandwidth pool for a Market-Maker’s bandwidth allowances pursuant to a 2010 will be assessed through the integrated billing acronym(s) and Trading Permit(s) Freedom of Information Act confidential system during the first week of August 2010. without the Market-Maker having to 7 Written notification may be submitted to the treatment request. To the extent that the Registration Services Department by e-mail to obtain additional Trading Permits. All Exchange changes these bandwidth [email protected] or by other means of Trading Permit Holders will have the allowances in the future, the Exchange written notification, including, but not limited to, opportunity to purchase one or more will comply with the rule filing a hand-delivered letter or facsimile to the Order Entry Bandwidth Packets. Each 9 Registration Services Department. requirements of Section 19 of the Act. 8 Thus, if a Trading Permit Holder has a Trading Order Entry Bandwidth Packet will In addition to the proposed changes to Permit in July 2010, notice must be provided by entitle the Trading Permit Holder to up the Fees Schedule described above, July 23, 2010 (the preceding business day prior to to three additional logins and an order CBOE is proposing to revise its July 25, 2010 since July 25, 2010 is not a business entry bandwidth allowance. regulatory circular that sets forth the day) if the Trading Permit Holder would like to terminate the Trading Permit by the end of July The Exchange is proposing that the existing Trading Permit Holder 2010 and not be assessed the applicable Trading initial fee for a Quoting and Order Entry Permit Fee for August 2010. Bandwidth Packet be set at $3,750 per 9 15 U.S.C. 78s.

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application and other related fees. The the proposed rule change is consistent Number SR–CBOE–2010–060 on the Exchange proposes to revise this with Section 6(b) of the Act,12 in subject line. circular to incorporate the Trading general, and furthers the objectives of Permit, tier appointment and bandwidth Section 6(b)(4) of the Act 13 in Paper Comments packet fees. The proposed changes to particular, in that it is designed to • Send paper comments in triplicate the circular are included as Exhibit 2 to provide for the equitable allocation of to Elizabeth M. Murphy, Secretary, the Form 19b–4. reasonable dues, fees, and other charges Securities and Exchange Commission, CBOE believes that the proposed fees among persons using its facilities for the 100 F Street, NE., Washington DC are reasonable when compared to the reasons described above.14 average access fee previously charged to 20549–1090. B. Self-Regulatory Organization’s CBOE temporary members and interim All submissions should refer to File Statement on Burden on Competition trading permit holders by the Exchange Number SR–CBOE–2010–060. This file over the last twelve months. CBOE does not believe that the number should be included on the Specifically, the average of these access proposed rule change will impose any subject line if e-mail is used. To help the fees between July 2009 and June 2010 burden on competition that is not Commission process and review your was $8,967. Additionally, these access necessary or appropriate in furtherance comments more efficiently, please use fees were above $10,000 between July of the purposes of the Act. only one method. The Commission will 2009 and November 2009, peaking at $11,900 in October 2009. C. Self-Regulatory Organization’s post all comments on the Commission’s The Exchange may adjust the Statement on Comments on the Internet Web site (http://www.sec.gov/ proposed Trading Permit, tier Proposed Rule Change Received From rules/sro.shtml). Copies of the appointment and bandwidth packet fees Members, Participants or Others submission, all subsequent in the future if the Exchange determines No written comments were solicited amendments, all written statements that it would be appropriate to do so or received with respect to the proposed with respect to the proposed rule based upon the circumstances at the rule change. change that are filed with the time. The Exchange may also make Commission, and all written future additions or changes to the types III. Date of Effectiveness of the communications relating to the of Trading Permits, tier appointments or Proposed Rule Change and Timing for proposed rule change between the bandwidth packets in accordance with Commission Action Commission and any person, other than Exchange Rules. Any future Trading Because the foregoing rule change those that may be withheld from the Permit, tier appointment or bandwidth establishes or changes a due, fee, or public in accordance with the packet fee changes and the fees for any other charge imposed by the Exchange, provisions of 5 U.S.C. 552, will be new or modified types of Trading it has become effective pursuant to available for Web site viewing and Permits, tier appointments or Section 19(b)(3)(A) of the Act 15 and printing in the Commission’s Public bandwidth packets will be reflected in subparagraph (f)(2) of Rule 19b–4 16 Reference Room, 100 F Street, NE., amendments to the CBOE Fees Schedule thereunder. At any time within 60 days Washington, DC 20549, on official that will be submitted to the of the filing of the proposed rule change, business days between the hours of 10 Commission through further rule filings the Commission may summarily a.m. and 3 p.m. Copies of such filing pursuant to Section 19(b)(3)(A)(ii) of the abrogate such rule change if it appears also will be available for inspection and Act 10 (provided that the fee changes to the Commission that such action is copying at the principal office of the will only apply to Trading Permit necessary or appropriate in the public Exchange. All comments received will Holders and their associated persons). interest, for the protection of investors, be posted without change; the Any other such fee changes, including or otherwise in furtherance of the those that will be applicable to persons purposes of the Act. Commission does not edit personal that are not Trading Permit Holders or identifying information from associated persons of Trading Permit IV. Solicitation of Comments submissions. You should submit only Holders, will be submitted to the Interested persons are invited to information that you wish to make Commission through further rule filings submit written data, views, and available publicly. All submissions pursuant to Section 19(b)(2) of the arguments concerning the foregoing, should refer to File No. SR–CBOE– Act.11 including whether the proposed rule 2010–060 and should be submitted on or before July 23, 2010. 2. Statutory Basis change is consistent with the Act. Comments may be submitted by any of The proposed rule change will treat For the Commission, by the Division of the following methods: Trading and Markets, pursuant to delegated similarly situated Trading Permit 17 Holders in the same manner by Electronic Comments authority. assessing the same Trading Permit, tier • Use the Commission’s Internet Florence E. Harmon, appointment and bandwidth packet fees comment form (http://www.sec.gov/ Deputy Secretary. (and applying the same discount to the rules/sro.shtml); or [FR Doc. 2010–16141 Filed 7–1–10; 8:45 am] trading permit and bandwidth packet • Send an e-mail to rule- BILLING CODE 8011–01–P fees) to all Trading Permit Holders [email protected]. Please include File based on the type of Trading Permit(s), tier appointment and bandwidth 12 15 U.S.C. 78f(b). packet(s) requested and by assessing no 13 15 U.S.C. 78f(b)(4). Trading Permit fee to all Trading Permit 14 The Exchange also believes that it is equitable Holders with access solely to CBSX. to assess different access fees for trading permits that provide differential access as long as the same Accordingly, the Exchange believes that access fee is assessed to all Holders of the same type of Trading Permit. 10 15 U.S.C. 78s(b)(3)(A)(ii). 15 15 U.S.C. 78s(b)(3)(A). 11 15 U.S.C. 78s(b)(2). 16 17 CFR 240.19b–4(f)(2). 17 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE Supplementary Material .07 to Rule 504 price is less than $200, for options on COMMISSION to allow the Exchange to list options on TIRs. the Trust Issued Receipts (‘‘TIRs’’), [Release No. 34–62389; File No. SR–ISE– 2. Statutory Basis 2010–63] including Holding Company Depository Receipts (‘‘HOLDRs’’), in $1 or greater The Exchange believes that its Self-Regulatory Organizations; strike price intervals, where the strike proposal is consistent with Section 6(b) International Securities Exchange, price is $200 or less and $5 or greater of the Act 6 in general, and furthers the LLC; Notice of Filing and Immediate where the strike price is greater than objectives of Section 6(b)(5) of the Act 7 Effectiveness of Proposed Rule $200.3 in particular, in that it is designed to Change To List Options on Trust Currently, the strike price intervals for promote just and equitable principles of Issued Receipts in $1 Strike Intervals options on TIRs are as follows: (1) $2.50 trade, to remove impediments to and or greater where the strike price is perfect the mechanism of a free and June 28, 2010. $25.00 or less; (2) $5.00 or greater where open market and a national market Pursuant to Section 19(b)(1) of the the strike price is greater than $25.00; system, and, in general to protect Securities Exchange Act of 1934 (the and (3) $10.00 or greater where the investors and the public interest, by ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 strike price is greater than $200.4 allowing the Exchange to list options on notice is hereby given that, on June 24, The Exchange is seeking to permit $1 TIRs at $1 strike price intervals. The 2010, the International Securities strikes for options on TIRs (where the Exchange believes that the marketplace Exchange, LLC (the ‘‘Exchange’’ or the strike price is less than $200) because and investors expect options on TIRs to ‘‘ISE’’) filed with the Securities and TIRs have characteristics similar to trade in a similar manner to ETF options Exchange Commission (‘‘SEC’’ or exchange-traded funds (‘‘ETFs’’). and this filing would allow the ‘‘Commission’’) the proposed rule Specifically, TIRs are exchange-listed marketplace and investors the ability in change as described in Items I and II securities representing beneficial trading options on TIRs. The Exchange below, which Items have been prepared ownership of the specific deposited further believes that investors will be by the Exchange. The Commission is securities represented by the receipts. better served if $1 strike price intervals publishing this notice to solicit They are negotiable receipts issued by a are available for options on TIRs, where comments on the proposed rule change trust representing securities of issuers the strike price is less than $200. from interested persons. that have been deposited and held on behalf of the holders of the TIRs. TIRs, B. Self-Regulatory Organization’s I. Self-Regulatory Organization’s which trade in round-lots of 100, and Statement on Burden on Competition Statement of the Terms of Substance of multiples thereof, may be issued after the Proposed Rule Change The proposed rule change does not their initial offering through a deposit impose any burden on competition that The Exchange proposes to amend with the trustee of the required number is not necessary or appropriate in Rule 504 to allow the Exchange to list of shares of common stock of the furtherance of the purposes of the Act. options on Trust Issued Receipts in $1 underlying issuers. This characteristic strike price intervals. The text of the of TIRs is similar to that of ETFs which C. Self-Regulatory Organization’s proposed rule change is available on the also may be created on any business day Statement on Comments on the Exchange’s Web site at http:// upon receipt of the requisite securities Proposed Rule Change Received From www.ise.com, at the principal office of or other investment assets comprising a Members, Participants, or Others the Exchange, and at the Commission’s creation unit. The trust only issues The Exchange has not solicited, and Public Reference Room. receipts upon the deposit of the shares does not intend to solicit, comments on II. Self-Regulatory Organization’s of the underlying securities that are this proposed rule change. The Statement of the Purpose of, and represented by a round-lot of 100 Exchange has not received any Statutory Basis for, the Proposed Rule receipts. Likewise, the trust will cancel, unsolicited written comments from Change and an investor may obtain, hold, trade members or other interested parties. or surrender TIRs in a round-lot and In its filing with the Commission, the round-lot multiples of 100 receipts. III. Date of Effectiveness of the self-regulatory organization included Strike prices for ETF options are Proposed Rule Change and Timing for statements concerning the purpose of, permitted in $1 or greater intervals Commission Action and basis for, the proposed rule change where the strike price is $200 or less Because the foregoing proposed rule and discussed any comments it received and $5 or greater where the strike is change does not significantly affect the on the proposed rule change. The text greater than $200.5 Accordingly, the protection of investors or the public of these statements may be examined at Exchange believes that the rationale for interest, does not impose any significant the places specified in Item IV below. permitting $1 strikes for ETF options burden on competition, and, by its The self-regulatory organization has equally applies to permitting $1 strikes terms, does not become operative for 30 prepared summaries, set forth in for options on TIRs. days from the date on which it was sections A, B and C below, of the most The Exchange has analyzed its filed, or such shorter time as the significant aspects of such statements. capacity and represents that it believes Commission may designate, it has A. Self-Regulatory Organization’s the Exchange and the Options Price become effective pursuant to Section Statement of the Purpose of, and Reporting Authority have the necessary 19(b)(3)(A) of the Act 8 and Rule 19b– Statutory Basis for, the Proposed Rule system capacity to handle the additional 4(f)(6) thereunder.9 Change traffic associated with the listing and trading of $1 strikes, where the strike 6 15 U.S.C. 78f(b). 1. Purpose 7 15 U.S.C. 78f(b)(5). The purpose of the proposed rule 3 HOLDRs are a type of Trust Issued Receipt and 8 15 U.S.C. 78s(b)(3)(A). the current proposal would permit $1 strikes for 9 change is to amend Rule 504 by adding 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– options on HOLDRs (where the strike price is less 4(f)(6)(iii) requires the self-regulatory organization than $200). to submit to the Commission written notice of its 1 15 U.S.C. 78s(b)(1). 4 See ISE Rule 504(d). intent to file the proposed rule change, along with 2 17 CFR 240.19b–4. 5 See ISE Rule 504(h). a brief description and text of the proposed rule

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The Exchange has requested that the with respect to the proposed rule I. Self-Regulatory Organization’s Commission waive the 30-day operative change that are filed with the Statement of the Terms of the Substance delay. The Commission believes that Commission, and all written of the Proposed Rule Change waiver of the operative delay is communications relating to the The Exchange is filing with the consistent with the protection of proposed rule change between the Securities and Exchange Commission investors and the public interest Commission and any person, other than (‘‘SEC’’ or ‘‘Commission’’) a proposed because the proposal is substantially those that may be withheld from the rule change to establish pricing for 10Gb similar to a rule of another exchange public in accordance with the direct circuit connections and codify that has been approved by the provisions of 5 U.S.C. 552, will be pricing for 10Gb [sic] direct circuit 10 Commission. Therefore, the available for Web site viewing and connections for customers who are not Commission designates the proposal co-located in the Exchange’s datacenter. 11 printing in the Commission’s Public operative upon filing. Reference Room, 100 F Street, NE., The text of the proposed rule change is At any time within 60 days of the Washington, DC 20549, on official available at http:// filing of the proposed rule change, the nasdaq.cchwallstreet.com, at the Commission may summarily abrogate business days between the hours of 10 a.m. and 3 p.m. Copies of the filing Exchange’s principal office, and at the such rule change if it appears to the Commission’s Public Reference Room. Commission that such action is also will be available for inspection and necessary or appropriate in the public copying at the principal office of the II. Self-Regulatory Organization’s interest, for the protection of investors, Exchange. All comments received will Statement of the Purpose of, and or otherwise in furtherance of the be posted without change; the Statutory Basis for, the Proposed Rule purposes of the Act. Commission does not edit personal Change identifying information from IV. Solicitation of Comments In its filing with the Commission, the submissions. You should submit only Exchange included statements Interested persons are invited to information that you wish to make concerning the purpose of and basis for submit written data, views, and available publicly. All submissions the proposed rule change and discussed arguments concerning the foregoing, should refer to File Number SR–ISE– any comments it received on the including whether the proposed rule 2010–63 and should be submitted on or proposed rule change. The text of these change is consistent with the Act. before July 23, 2010. statements may be examined at the Comments may be submitted by any of places specified in Item IV below. The the following methods: For the Commission, by the Division of Trading and Markets, pursuant to delegated Exchange has prepared summaries, set Electronic Comments authority.12 forth in Sections A, B, and C below, of • Use the Commission’s Internet Florence E. Harmon, the most significant aspects of such statements. comment form (http://www.sec.gov/ Deputy Secretary. rules/sro.shtml); or [FR Doc. 2010–16142 Filed 7–1–10; 8:45 am] A. Self-Regulatory Organization’s • Send an e-mail to rule- BILLING CODE 8010–01–P Statement of the Purpose of, and [email protected]. Please include File Statutory Basis for, the Proposed Rule Number SR–ISE–2010–63 on the subject Change line. SECURITIES AND EXCHANGE 1. Purpose Paper Comments COMMISSION The Exchange is proposing to • Send paper comments in triplicate establish fees for direct 10Gb circuit to Elizabeth M. Murphy, Secretary, [Release No. 34–62393; File No. SR–BX– connections, and codify fees for direct Securities and Exchange Commission, 2010–043] circuit connections capable of 100 F Street, NE., Washington, DC Self-Regulatory Organizations; supporting up to 1Gb, for customers 20549–1090. who are not co-located at the Exchange’s NASDAQ OMX BX, Inc.; Notice of Filing All submissions should refer to File datacenter. Currently, the Exchange of Proposed Rule Change Relating to Number SR–ISE–2010–63. This file already makes available to co-located Pricing for Direct Circuit Connections number should be included on the customers a 10Gb circuit connection subject line if e-mail is used. To help the June 28, 2010. and charges for each a $1,000 initial Commission process and review your installation charge as well as an ongoing comments more efficiently, please use Pursuant to Section 19(b)(1) of the monthly fee of $5,000. The Exchange is only one method. The Commission will Securities Exchange Act of 1934 establishing the same fees for non co- post all comments on the Commission’s (‘‘Act’’),1 and Rule 19b–4 thereunder,2 located customers with a 10Gb circuit.3 Internet Web site (http://www.sec.gov/ notice is hereby given that on June 24, The Exchange also already makes rules/sro.shtml). Copies of the 2010, NASDAQ OMX BX, Inc. (the available to both co-located and non co- submission, all subsequent ‘‘Exchange’’ or ‘‘BX’’) filed with the located customers direct connections amendments, all written statements Securities and Exchange Commission capable of supporting up to 1Gb, with (‘‘Commission’’) the proposed rule per connection monthly fees of $500 for change, at least five business days prior to the date change as described in Items I, II, and co-located customers and $1,000 for non of filing of the proposed rule change, or such III below, which Items have been co-located customers. Monthly fees are shorter time as designated by the Commission. The Commission has waived the five-day pre-filing prepared by the Exchange. The higher for non co-located customers requirement in this case. Commission is publishing this notice to because direct connections require BX 10 See Securities Exchange Release No. 34–62141 solicit comments on the proposed rule (May 20, 2010), 75 FR 29787 (May 27, 2010) (SR– change from interested persons. 3 BX provides an additional 1Gb copper CBOE–2010–036). connection option to the Exchange for co-located 11 For purposes only of waiving the 30-day customers. Given the technological constraints of operative delay, the Commission has considered the 12 17 CFR 200.30–3(a)(12). copper connections over longer distances, the proposed rule’s impact on efficiency, competition, 1 15 U.S.C. 78s(b)(1). Exchange does not offer a copper connection option and capital formation. See 15 U.S.C. 78c(f). 2 17 CFR 240.19b–4. to users outside of its datacenter.

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to provide cabinet space and C. Self-Regulatory Organization’s those that may be withheld from the middleware for those customers’ third- Statement on Comments on the public in accordance with the party vendors to connect into the Proposed Rule Change Received From provisions of 5 U.S.C. 552, will be datacenter and, ultimately, to the Members, Participants, or Others available for Web site viewing and trading system. Finally, for non co- Written comments were neither printing in the Commission’s Public Reference Room, 100 F Street, NE., located customers the Exchange charges solicited nor received. an optional installation fee of $925 if the Washington, DC 20549, on official customer chooses to use an on-site III. Date of Effectiveness of the business days between the hours of 10 router. Proposed Rule Change and Timing for a.m. and 3 p.m. Copies of such filing Commission Action also will be available for inspection and 2. Statutory Basis Within 35 days of the date of copying at the principal office of the Exchange. All comments received will BX believes that the proposed rule publication of this notice in the Federal Register or within such longer period (i) be posted without change; the change is consistent with the provisions Commission does not edit personal of Section 6 of the Act,4 in general, and as the Commission may designate up to 90 days of such date if it finds such identifying information from with Sections 6(b)(5) of the Act,5 in submissions. You should submit only longer period to be appropriate and particular, in that the proposal is information that you wish to make publishes its reasons for so finding or designed to prevent fraudulent and available publicly. All submissions (ii) as to which the self-regulatory should refer to File Number SR–BX– manipulative acts and practices, to organization consents, the Commission 2010–043 and should be submitted on promote just and equitable principles of will: or before July 23, 2010. trade, to foster cooperation and (A) By order approve such proposed coordination with persons engaged in rule change, or For the Commission, by the Division of regulating, clearing, settling, processing Trading and Markets, pursuant to delegated (B) Institute proceedings to determine 8 information with respect to, and whether the proposed rule change authority. facilitating transactions in securities, to should be disapproved. Florence E. Harmon, remove impediments to and perfect the Deputy Secretary. mechanism of a free and open market IV. Solicitation of Comments [FR Doc. 2010–16143 Filed 7–1–10; 8:45 am] and a national market system, and, in Interested persons are invited to BILLING CODE 8010–01–P general, to protect investors and the submit written data, views, and public interest. In particular, the arguments concerning the foregoing, proposal will provide greater including whether the proposed rule SECURITIES AND EXCHANGE transparency into the connectivity change, as amended, is consistent with COMMISSION options available to market participants. the Act. Comments may be submitted by [Release No. 34–62373; File No. SR–BX– any of the following methods: 2010–038] The Exchange also believes that the proposed rule change is consistent with Electronic Comments Self-Regulatory Organizations; the provisions of Section 6 of the Act,6 • Use the Commission’s Internet NASDAQ OMX BX, Inc.; Notice of Filing in general, and with Section 6(b)(4) of comment form (http://www.sec.gov/ and Immediate Effectiveness of the Act,7 in particular, in that it rules/sro.shtml); or Proposed Rule Change To Eliminate provides for the equitable allocation of • Send an e-mail to rule- Certain Rule Text Which Has Been reasonable dues, fees and other charges [email protected]. Please include File Made Unnecessary Due to the among members and issuers and other Number SR–BX–2010–043 on the Decommissioning of the OCC Hub persons using any facility or system subject line. which the Exchange operates or June 24, 2010. Paper Comments Pursuant to Section 19(b)(1) of the controls. The filing codifies and makes Securities Exchange Act of 1934 (the transparent the fees imposed for direct • Send paper comments in triplicate ‘‘Act’’) 1 and Rule 19b–4 thereunder,2 connections to non co-located to Elizabeth M. Murphy, Secretary, Securities and Exchange Commission, notice is hereby given that, on June 21, customers. These fees are uniform for all 2010, NASDAQ OMX BX, Inc. (‘‘BX’’ or such customers and are either 100 F Street, NE., Washington, DC 20549–1090. the ‘‘Exchange’’) filed with the Securities comparable to fees charged to co-located and Exchange Commission (the customers or vary due to different costs All submissions should refer to File ‘‘Commission’’) the proposed rule associated with providing service to the Number SR–BX–2010–043. This file change as described in Items I and II two customer types. number should be included on the below, which Items have been prepared subject line if e-mail is used. To help the by the Exchange. The Commission is B. Self-Regulatory Organization’s Commission process and review your Statement on Burden on Competition publishing this notice to solicit comments more efficiently, please use comments on the proposed rule change only one method. The Commission will from interested persons. BX does not believe that the proposed post all comments on the Commission’s rule change will result in any burden on Internet Web site (http://www.sec.gov/ I. Self-Regulatory Organization’s competition that is not necessary or rules/sro.shtml). Copies of the Statement of the Terms of Substance of appropriate in furtherance of the submission, all subsequent the Proposed Rule Change purposes of the Act, as amended. amendments, all written statements NASDAQ OMX BX, Inc. (the with respect to the proposed rule ‘‘Exchange’’) proposes to amend the change that are filed with the Rules of the Boston Options Exchange 4 15 U.S.C. 78f. Commission, and all written 5 15 U.S.C. 78f(b)(5). communications relating to the 8 17 CFR 200.30–3(a)(12). 6 15 U.S.C. 78f. proposed rule change between the 1 15 U.S.C. 78s(b)(1). 7 15 U.S.C. 78f(b)(4). Commission and any person, other than 2 17 CFR 240.19b–4.

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Group, LLC (‘‘BOX’’) to eliminate certain establishing a framework for a non- remove impediments to and perfect the rule text which has been made exclusive method of providing and mechanism for a free and open market unnecessary due to the achieving order protection and and a national market system and, in decommissioning of the Options addressing Locked and Crossed Markets general, to protect investors and the Clearing Corporation (‘‘OCC’’) Hub. The in Eligible Options Classes. Upon the public interest. In particular, the text of the proposed rule change is migration from the Linkage Plan to the proposed changes will render the BOX available on BX’s Web site, on the Decentralized Plan, and for a short Rules consistent with current Exchange Commission’s Web site, at BX, and at period thereafter, BOX and BOX practices and provide great clarity to the Commission’s Public Reference Options Participants continued to BOX Options Participants. Room. utilize the sending of P and P/A Orders via the OCC Hub to fulfill their B. Self-Regulatory Organization’s II. Self-Regulatory Organization’s obligations to seek the best price Statement on Burden on Competition Statement of the Purpose of, and available for their customers and to The Exchange does not believe that Statutory Basis for, the Proposed Rule prevent Trade-Throughs. Thus the the proposed rule change will impose Change Exchange maintained and enforced any burden on competition not In its filing with the Commission, the certain rule text regarding the sending necessary or appropriate in furtherance self-regulatory organization included and receipt of P and P/A Orders and use of the purposes of the Act. statements concerning the purpose of, of the OCC Hub. and basis for, the proposed rule change BOX has not utilized the sending of C. Self-Regulatory Organization’s and discussed any comments it received P and P/A Orders or the OCC Hub since Statement on Comments on the on the proposed rule change. The text it began using non-affiliated third party Proposed Rule Change Received From of those statements may be examined at routing (‘‘TPR’’) broker/dealers (‘‘Routing Members, Participants, or Others the places specified in Item IV below. Broker(s)’’) to route options Eligible The Exchange has neither solicited The Exchange has prepared summaries, Orders to one or more Away nor received comments on the proposed set forth in sections A, B, and C below, Exchange(s) when such Away rule change. of the most significant parts of such Exchange(s) display the Best Bid or Best III. Date of Effectiveness of the statements. Offer in accordance with the Decentralized Plan.5 The recent Proposed Rule Change and Timing for A. Self-Regulatory Organization’s decommissioning of the OCC Hub has Commission Action Statement of the Purpose of, and rendered the legacy rule text pertaining Because the foregoing proposed rule Statutory Basis for, the Proposed Rule to the Linkage Plan obsolete, including change: (i) Does not significantly affect Change rule text regarding P and P/A Orders the protection of investors or the public 1. Purpose and the OCC Hub. This proposal seeks interest; (ii) does not impose any to remove such rule text, and make such significant burden on competition; and The Exchange was previously a party other changes to the BOX Rules, as to the Plan for the Purpose of Creating (iii) by its terms, does not become necessary, so as to render the BOX Rules operative for 30 days from the date on and Operating an InterMarket Option consistent with current Exchange 3 which it was filed, or such shorter time Linkage (‘‘Linkage Plan’’). One of the practices. essential aspects of the Linkage Plan as the Commission may designate, if was the central data and 2. Statutory Basis consistent with the protection of investors and the public interest, it has communications network (‘‘Hub’’), The Exchange believes that the become effective pursuant to Section operated and maintained by the OCC proposal is consistent with the 19(b)(3)(A) of the Act 8 and Rule 19b– that electronically linked the several requirements of Section 6(b) of the Act,6 4(f)(6) thereunder.9 options exchanges. The Linkage Plan in general, and Section 6(b)(5) of the At any time within 60 days of the was recently replaced by the Options Act,7 in particular, in that it is designed filing of the proposed rule change, the Order Protection and Locked/Crossed to foster cooperation and coordination Market Plan (‘‘Decentralized Plan’’).4 with persons engaged in regulating, Commission may summarily abrogate Unlike the Linkage Plan, which clearing, settling, processing such rule change if it appears to the exclusively required use of the OCC information with respect to, and Commission that such action is Hub, the Decentralized Plan enables the facilitating transactions in securities, to necessary or appropriate in the public Plan Participants thereto to act jointly in interest, for the protection of investors, 5 See Securities Exchange Act Release No. 60832 or otherwise in furtherance of the 3 See Securities Exchange Act Release No. 43086 (October 16, 2009), 74 FR 54607 (October 22, 2009) purposes of the Act. (July 28, 2000), 65 FR 48023 (August 4, 2000) (File (SR–BX–2009–066) (Notice of Filings and Order No. 4–429) (Order approving the Linkage Plan and Granting Accelerated Approval of Proposed Rule IV. Solicitation of Comments the original parties thereto). The Exchange became Change Relating to Chapter XII of the BOX Rules). Interested persons are invited to a party to the Linkage Plan on January 14, 2004 by See also Securities Exchange Act Release No. 61399 executing a copy of said Linkage Plan with the (January 22, 2010), 75 FR 54607 (January 28, 2010) submit written data, views, and Commission as well as completing the other steps (SR–BX–2010–007) (Notice of Filing and Immediate arguments concerning the foregoing, required. Terms not otherwise defined herein shall Effectiveness of Proposed Rule Change Relating to including whether the proposed rule have the meaning assigned to them in the BOX the Order Routing Pilot on the Boston Options change is consistent with the Act. Rules, the Decentralized Plan, or the Linkage Plan, Exchange Facility). See also Securities Exchange respectively. Act Release No. 61536 (February 18, 2010), 75 FR 4 See Securities Exchange Act Release No. 60405 8763 (February 25, 2010) (SR–BX–2010–014) 8 15 U.S.C. 78s(b)(3)(A). (July 30, 2009), 74 FR 39362 (August 6, 2009) (File (Notice of Filing and Immediate Effectiveness of 9 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– No. 4–546) (Order Approving the National Market Proposed Rule Change Relating to Order Routing on 4(f)(6)(iii) requires the self-regulatory organization System Plan Relating to Options Order Protection the Boston Options Exchange Facility). Chapter XII, to submit to the Commission written notice of its and Locked/Crossed Market Plan). The Exchange Section 5, describes Eligible Orders, as ‘‘orders that intent to file the proposed rule change, along with amended the BOX Rules to reflect the Exchange’s are specifically designated by Options Participants a brief description and text of the proposed rule filing to become a participant in the Decentralized as eligible for routing will be routed to an Away change, at least five business days prior to the date Plan. See Securities Exchange Act Release No. Exchange.’’ of filing of the proposed rule change, or such 60530 (August 18, 2009), 74 FR 43200 (August 26, 6 15 U.S.C. 78f(b). shorter time as designated by the Commission. The 2009) (SR–BX–2009–028). 7 15 U.S.C. 78f(b)(5). Exchange has satisfied this requirement.

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Comments may be submitted by any of SECURITIES AND EXCHANGE statements concerning the purpose of, the following methods: COMMISSION and basis for, the proposed rule change and discussed any comments it received Electronic Comments [Release No. 34–62376; File No. SR– NYSEAmex–2010–58] on the proposed rule change. The text • Use the Commission’s Internet of those statements may be examined at comment form (http://www.sec.gov/ Self-Regulatory Organizations; Notice the places specified in Item IV below. rules/sro.shtml); or of Filing and Immediate Effectiveness The Exchange has prepared summaries, set forth in sections A, B, and C below, • Send an e-mail to rule- of Proposed Rule Change by NYSE Amex LLC To Amend the Bylaws of of the most significant parts of such [email protected]. Please include File statements. Number SR–BX–2010–038 on the NYSE Euronext To Adopt a Majority subject line. Voting Standard in Uncontested A. Self-Regulatory Organization’s Elections of Directors Statement of the Purpose of, and the Paper Comments June 25, 2010. Statutory Basis for, the Proposed Rule • Send paper comments in triplicate Pursuant to Section 19(b)(1) 1 of the Change to Elizabeth M. Murphy, Secretary, Securities Exchange Act of 1934 (the 1. Purpose Securities and Exchange Commission, ‘‘Act’’) 2 and Rule 19b–4 thereunder,3 The Exchange is submitting this rule 100 F Street, NE., Washington, DC notice is hereby given that on June 14, filing in connection with the 20549–1090. 2010, NYSE Amex LLC (‘‘NYSE Amex’’ Corporation’s proposal to amend its or the ‘‘Exchange’’) filed with the All submissions should refer to File Bylaws to replace the plurality vote Securities and Exchange Commission Number SR–BX–2010–038. This file standard for election of directors in (the ‘‘Commission’’) the proposed rule number should be included on the uncontested elections that is currently change as described in Items I and II subject line if e-mail is used. To help the in the Bylaws with a majority vote below, which Items have been prepared Commission process and review your standard for such elections. Specifically, by the self-regulatory organization. The comments more efficiently, please use the Bylaws currently provide that Commission is publishing this notice to only one method. The Commission will ‘‘directors shall be elected by a plurality solicit comments on the proposed rule post all comments on the Commission’s of the votes of the shares present in change from interested persons. Internet Web site (http://www.sec.gov/ person or represented by proxy at the rules/sro.shtml). Copies of the I. Self-Regulatory Organization’s meeting and entitled to vote on the submission, all subsequent Statement of the Terms of Substance of election of directors.’’ Under the amendments, all written statements the Proposed Rule Change Corporation’s corporate governance with respect to the proposed rule The Exchange is submitting this rule guidelines previously adopted by the change that are filed with the filing in connection with the proposal of Board of Directors of the Corporation Commission, and all written its ultimate parent, NYSE Euronext (the (‘‘Board’’), however, any director communications relating to the ‘‘Corporation’’),4 to amend its bylaws nominee in an uncontested election proposed rule change between the (‘‘Bylaws’’) to replace the plurality vote (being an election in which the number Commission and any person, other than standard for election of directors in of nominees equals the number of those that may be withheld from the uncontested elections that is currently directors to be elected) who receives a public in accordance with the in the Bylaws with a majority vote greater number of ‘‘withheld’’ votes than provisions of 5 U.S.C. 552, will be standard for such elections. The existing ‘‘for’’ votes (including any ‘‘against’’ available for Web site viewing and plurality vote standard will be retained votes if that option were to be made printing in the Commission’s Public in connection with contested elections available on the proxy card) must Reference Room, 100 F Street, NE., for directors. The proposed rule change immediately tender his or her Washington, DC 20549, on official is identical to a rule change filed by the resignation from the Board. The Board business days between the hours of 10 New York Stock Exchange LLC will then decide, through a process a.m. and 3 p.m. Copies of such filing (‘‘NYSE’’) that was recently approved by managed by the Nominating and also will be available for inspection and the Commission.5 The text of the Governance Committee and excluding copying at the principal office of the proposed rule change is available at the the nominee in question, whether to Exchange. All comments received will Exchange, the Commission’s Web site at accept the resignation. In a contested be posted without change; the http://www.sec.gov, the Commission’s election (being an election in which the Commission does not edit personal Public Reference Room, and http:// number of nominees exceeds the identifying information from www.nyse.com. number of directors to be elected), the submissions. You should submit only unqualified plurality vote standard information that you wish to make II. Self-Regulatory Organization’s controls. available publicly. All submissions Statement of the Purpose of, and Uncontested Election should refer to File Number SR–BX– Statutory Basis for, the Proposed Rule 2010–038 and should be submitted on Change The Corporation is proposing to add or before July 23, 2010. In its filing with the Commission, the an explicit majority voting provision for uncontested director elections to the For the Commission, by the Division of self-regulatory organization included Bylaws, thereby replacing the plurality Trading and Markets, pursuant to delegated authority.10 1 15 U.S.C. 78s(b)(1). vote standard for election of directors in 2 15 U.S.C. 78a. such elections that is currently in the Florence E. Harmon, 3 17 CFR 240.19b–4. Bylaws. The existing plurality vote Deputy Secretary. 4 NYSE Amex, a Delaware limited liability standard will be retained in connection [FR Doc. 2010–16124 Filed 7–1–10; 8:45 am] company, is an indirect wholly-owned subsidiary of with contested elections for directors. NYSE Euronext. BILLING CODE 8010–01–P 5 Securities Exchange Act Release No. 61947 Under the proposed amendment to the (April 20, 2010), 75 FR 22169 (April 27, 2010) (SR– Bylaws, the proxy card would change 10 17 CFR 200.30–3(a)(12). NYSE–2010–18). for an uncontested election, and the

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stockholders would be given the choice Incorporation (involving a majority vote recalculated 10% voting limitation will to vote ‘‘for,’’ ‘‘against’’ or ‘‘abstain’’ with of the remaining directors then in office, be applicable. Any votes purported to be respect to each director nominee though less than a quorum, or by the cast in excess of this recalculated voting individually.6 In such an election, each sole remaining director) or (ii) decrease limitation will be disregarded.8 director would be elected by the vote of the size of the Board as provided in At each meeting of stockholders of the the majority of the votes cast with Section 3.1 of the Bylaws and Article VI, Corporation, except as otherwise respect to such director’s election, Section 3 of the Certificate of provided by law or the Certificate of meaning that the number of votes cast Incorporation (involving adoption of a Incorporation of the Corporation, the ‘‘for’’ such director’s election exceeded resolution by two-thirds of the directors holders of a majority of the voting the number of votes cast ‘‘against’’ that then in office). power of the outstanding shares of stock director’s election (with ‘‘abstentions’’ of the Corporation entitled to vote on a General Election Requirements not counted as a vote cast either ‘‘for’’ or matter at the meeting, present in person ‘‘against’’ such director’s election). In the The following applies to elections of or represented by proxy, will constitute event that any incumbent director fails directors and is not being amended. a quorum (it being understood that any to receive a majority of the votes cast, Section 2.7 of the Bylaws provides that, shares in excess of the applicable voting such director would be required to unless otherwise provided in the limitation discussed above will not be tender his or her resignation to the Certificate of Incorporation of the counted as present at the meeting and Nominating and Governance Committee Corporation, each stockholder entitled will not be counted as outstanding of the Board (or another committee to vote at any meeting of stockholders shares of stock of the Corporation for designated by the Board), and such shall be entitled to one vote for each purposes of determining whether there committee would make a share of stock held by such stockholder is a quorum, unless and only to the recommendation to the Board as to that has voting power upon the matter extent that such voting limitation shall whether to accept or reject such in question. This entitlement, however, have been duly waived as provided in resignation or whether other action is subject to the voting limitation in the the Certificate of Incorporation).9 should be taken. The Board would then Certificate of Incorporation that As noted above, the proposed rule act on the recommendation of such generally prohibits a beneficial owner, change is identical to a rule change filed committee and publicly disclose its either alone or together with related by the NYSE (the ‘‘NYSE Rule Change’’) decision regarding the tendered parties, from voting or causing the that was recently approved by the resignation and the rationale behind the voting of shares of stock of the Commission. decision. corporation, in person or by proxy or 2. Statutory Basis The proposed amendment to the through any voting agreement or other Bylaws also provides that a director arrangement, to the extent that such The proposed rule change is 10 who tenders his or her resignation as shares represent in the aggregate more consistent with Section 6(b) of the described above will not participate in than 10% of the then outstanding votes Act, in general, and furthers the 11 the recommendation by the Nominating entitled to be cast on such matter. Any objectives of Section 6(b)(1) of the and Governance Committee or the Board votes purported to be cast in excess of Act, which requires a national securities of Directors action regarding whether to this limitation will be disregarded.7 exchange to be so organized and have accept the tendered resignation. In the Relative to the foregoing, if any the capacity to carry out the purposes of event that each member of the beneficial owner of the Corporation’s the Act and to comply, and to enforce Nominating and Governance Committee stock, either alone or together with compliance by its members and persons fails to receive a majority of the votes related parties, is party to any associated with its members, with the cast in the same uncontested election, agreement, plan or other arrangement provisions of the Act. The proposed rule then the independent directors who with any other person or entity relating change is also consistent with, and received a majority of the votes cast in furthers the objectives of, Section to shares of stock of the Corporation 12 such election must appoint a committee entitled to vote on any matter under 6(b)(5) of the Act, in that it is among themselves to consider the circumstances in which (i) the result designed to prevent fraudulent and tendered resignation and recommend to would be that shares of stock of the manipulative acts and practices, to the Board whether to accept it. Corporation that would be subject to promote just and equitable principles of However, if the only directors who such agreement, plan or other trade, to foster cooperation and received a majority of the votes cast in arrangement would not be voted on any coordination with persons engaged in facilitating transactions in securities, to such election constitute three or fewer matter, or any proxy relating thereto remove impediments to and perfect the directors, all directors may participate would be withheld and (ii) the effect of mechanism of a free and open market in the action regarding whether to the agreement, plan or arrangement and a national market system and, in accept the tendered resignation. would be to enable a beneficial owner general, to protect investors and the Pursuant to the proposed amendment (but for these provisions), either alone public interest. Specifically, the to the Bylaws, if the Board accepts a or together with related parties, to vote, Exchange believes that the proposed director’s resignation as part of the possess the right to vote or cause the rule change will protect investors and process described above for uncontested voting of shares of the Corporation’s the public interest by codifying in the elections, or if a nominee for director is stock to exceed 10% of the then Bylaws the existing policy of the not elected and the nominee is not an outstanding votes entitled to be cast incumbent director, the Board may (i) Corporation aimed at ensuring better (assuming that all shares of stock of the corporate governance and accountability fill the remaining vacancy as provided Corporation that are subject to the in Section 3.6 of the Bylaws and Article agreement, plan or other arrangement VI, Section 6 of the Certificate of 8 See id. are not outstanding votes entitled to be 9 See NYSE Euronext Amended and Restated cast on such matter), then this Certificate of Incorporation at Article VIII, Section 6 Stockholders are currently given three choices 2. when voting for a slate of director nominees: They 10 can vote (1) ‘‘for’’ all nominees, (2) ‘‘withheld’’ for 7 See NYSE Euronext Amended and Restated 15 U.S.C. 78f(b). all nominees or (3) ‘‘withheld’’ for certain nominees Certificate of Incorporation at Article V, Section 11 15 U.S.C. 78f(b)(1). and ‘‘for’’ the remaining nominees. 1(A). 12 15 U.S.C. 78f(b)(5).

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to stockholders by means of a voting Rule Change.15 For these reasons, the days between the hours of 10 a.m. and procedure leading to election results Commission designates the proposed 3 p.m. Copies of the filing also will be that more accurately reflect the views of rule change as operative upon filing.16 available for inspection and copying at stockholders on the qualifications and At any time within 60 days of the the principal office of the Exchange. All suitability of individual director filing of the proposed rule change, the comments received will be posted nominees, even if there are no Commission may summarily abrogate without change; the Commission does alternative director nominees to vote for such rule change if it appears to the not edit personal identifying on the ballot. Commission that such action is information from submissions. You necessary or appropriate in the public should submit only information that B. Self-Regulatory Organization’s interest, for the protection of investors, you wish to make available publicly. All Statement on Burden on Competition or otherwise in furtherance of the submissions should refer to File The Exchange does not believe that purposes of the Act. Number SR–NYSEAmex–2010–58 and the proposed rule change will impose IV. Solicitation of Comments should be submitted on or before July any burden on competition that is not 23, 2010. Interested persons are invited to necessary or appropriate in furtherance For the Commission, by the Division of of the purposes of the Act. submit written data, views, and Trading and Markets, pursuant to delegated arguments concerning the foregoing, authority.17 C. Self-Regulatory Organization’s including whether the proposed rule Florence E. Harmon, Statement on Comments on the change is consistent with the Act. Deputy Secretary. Proposed Rule Change Received From Comments may be submitted by any of Members, Participants, or Others the following methods: [FR Doc. 2010–16105 Filed 7–1–10; 8:45 am] BILLING CODE 8010–01–P No written comments were solicited Electronic Comments or received with respect to the proposed • Use the Commission’s Internet rule change. comment form (http://www.sec.gov/ SECURITIES AND EXCHANGE COMMISSION III. Date of Effectiveness of the rules/sro.shtml); or • Proposed Rule Change and Timing for Send an e-mail to rule- [Release No. 34–62377; File No. SR– Commission Action [email protected]. Please include File NYSEArca–2010–55] Number SR–NYSEAmex–2010–58 on Because the proposed rule change the subject line. Self-Regulatory Organizations; Notice does not: (i) Significantly affect the of Filing of Proposed Rule Change by protection of investors or the public Paper Comments NYSE Arca, Inc. To Amend the Bylaws interest; (ii) impose any significant • Send paper comments in triplicate of NYSE Euronext To Adopt a Majority burden on competition; and (iii) become to Elizabeth M. Murphy, Secretary, Voting Standard in Uncontested operative for 30 days from the date on Securities and Exchange Commission, Elections of Directors which it was filed, or such shorter time 100 F Street, NE., Washington, DC as the Commission may designate, if 20549–1090. June 25, 2010. 1 consistent with the protection of All submissions should refer to File Pursuant to Section 19(b)(1) of the investors and the public interest, the Number SR–NYSEAmex–2010–58. This Securities Exchange Act of 1934 (the 2 3 proposed rule change has become file number should be included on the ‘‘Act’’) and Rule 19b–4 thereunder, effective pursuant to Section 19(b)(3)(A) subject line if e-mail is used. To help the notice is hereby given that on June 14, of the Act 13 and Rule 19b–4(f)(6) 14 Commission process and review your 2010, NYSE Arca, Inc. (‘‘NYSE Arca’’ or thereunder. comments more efficiently, please use the ‘‘Exchange’’) filed with the Securities The Exchange has asked the only one method. The Commission will and Exchange Commission (the ‘‘ ’’ Commission to waive the 30-day post all comments on the Commission’s Commission ) the proposed rule operative delay so that the proposal may Internet Web site (http://www.sec.gov/ change as described in Items I and II become operative on the date of its rules/sro.shtml). Copies of the below, which Items have been prepared approval by the Euronext College of submission, all subsequent by the self-regulatory organization. The Regulators, which approval the amendments, all written statements Commission is publishing this notice to Exchange believes is imminent. The with respect to the proposed rule solicit comments on the proposed rule Commission believes that waiving the change that are filed with the change from interested persons. 30-day operative delay is consistent Commission, and all written I. Self-Regulatory Organization’s with the protection of investors and the communications relating to the Statement of the Terms of Substance of public interest because such waiver will proposed rule change between the the Proposed Rule Change Commission and any person, other than enable the Exchange to implement the The Exchange is submitting this rule those that may be withheld from the proposed rule change immediately upon filing in connection with the proposal of public in accordance with the receiving the approval of the Euronext its ultimate parent, NYSE Euronext (the College of Regulators. In addition, as provisions of 5 U.S.C. 552, will be ‘‘Corporation’’),4 to amend its bylaws noted by the Exchange, the proposal is available for Web site viewing and (‘‘Bylaws’’) to replace the plurality vote identical to the recently approved NYSE printing in the Commission’s Public standard for election of directors in Reference Room, on official business uncontested elections that is currently 13 15 U.S.C. 78s(b)(3)(A). 14 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 15 See Securities Exchange Act Release No. 61947 17 17 CFR 200.30–3(a)(12). 4(f)(6) requires a self-regulatory organization to give (April 20, 2010), 75 FR 22169 (April 27, 2010) (SR– 1 the Commission written notice of its intent to file NYSE–2010–18) (order approving identical 15 U.S.C. 78s(b)(1). the proposed rule change at least five business days proposal submitted by NYSE). 2 15 U.S.C. 78a. prior to the date of filing of the proposed rule 16 For purposes only of waiving the 30-day 3 17 CFR 240.19b–4. change, or such shorter time as designated by the operative delay, the Commission has considered the 4 NYSE Arca, a Delaware corporation, is an Commission. The Exchange has satisfied this proposed rule’s impact on efficiency, competition, indirect wholly-owned subsidiary of NYSE requirement. and capital formation. See 15 U.S.C. 78c(f). Euronext.

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in the Bylaws with a majority vote will then decide, through a process cast in the same uncontested election, standard for such elections. The existing managed by the Nominating and then the independent directors who plurality vote standard will be retained Governance Committee and excluding received a majority of the votes cast in in connection with contested elections the nominee in question, whether to such election must appoint a committee for directors. The proposed rule change accept the resignation. In a contested among themselves to consider the is identical to a rule change filed by the election (being an election in which the tendered resignation and recommend to New York Stock Exchange LLC number of nominees exceeds the the Board whether to accept it. (‘‘NYSE’’) that was recently approved by number of directors to be elected), the However, if the only directors who the Commission.5 The text of the unqualified plurality vote standard received a majority of the votes cast in proposed rule change is available at the controls. such election constitute three or fewer Exchange, the Commission’s Web site at Uncontested Election: directors, all directors may participate http://www.sec.gov, the Commission’s The Corporation is proposing to add in the action regarding whether to Public Reference Room, and http:// an explicit majority voting provision for accept the tendered resignation. www.nyse.com. uncontested director elections to the Pursuant to the proposed amendment Bylaws, thereby replacing the plurality to the Bylaws, if the Board accepts a II. Self-Regulatory Organization’s vote standard for election of directors in director’s resignation as part of the Statement of the Purpose of, and such elections that is currently in the process described above for uncontested Statutory Basis for, the Proposed Rule Bylaws. The existing plurality vote Change elections, or if a nominee for director is standard will be retained in connection not elected and the nominee is not an In its filing with the Commission, the with contested elections for directors. incumbent director, the Board may (i) self-regulatory organization included Under the proposed amendment to the fill the remaining vacancy as provided statements concerning the purpose of, Bylaws, the proxy card would change in Section 3.6 of the Bylaws and Article and basis for, the proposed rule change for an uncontested election, and the VI, Section 6 of the Certificate of and discussed any comments it received stockholders would be given the choice Incorporation (involving a majority vote on the proposed rule change. The text to vote ‘‘for,’’ ‘‘against’’ or ‘‘abstain’’ with of the remaining directors then in office, of those statements may be examined at respect to each director nominee though less than a quorum, or by the the places specified in Item IV below. individually.6 In such an election, each sole remaining director) or (ii) decrease The Exchange has prepared summaries, director would be elected by the vote of the size of the Board as provided in set forth in sections A, B, and C below, the majority of the votes cast with Section 3.1 of the Bylaws and Article VI, of the most significant parts of such respect to such director’s election, Section 3 of the Certificate of statements. meaning that the number of votes cast Incorporation (involving adoption of a ‘‘for’’ such director’s election exceeded A. Self-Regulatory Organization’s resolution by two-thirds of the directors the number of votes cast ‘‘against’’ that Statement of the Purpose of, and the then in office). director’s election (with ‘‘abstentions’’ Statutory Basis for, the Proposed Rule General Election Requirements: not counted as a vote cast either ‘‘for’’ or Change The following applies to elections of ‘‘against’’ such director’s election). In the directors and is not being amended. 1. Purpose event that any incumbent director fails Section 2.7 of the Bylaws provides that, The Exchange is submitting this rule to receive a majority of the votes cast, unless otherwise provided in the filing in connection with the such director would be required to Certificate of Incorporation of the Corporation’s proposal to amend its tender his or her resignation to the Corporation, each stockholder entitled Bylaws to replace the plurality vote Nominating and Governance Committee to vote at any meeting of stockholders standard for election of directors in of the Board (or another committee shall be entitled to one vote for each uncontested elections that is currently designated by the Board), and such share of stock held by such stockholder in the Bylaws with a majority vote committee would make a that has voting power upon the matter standard for such elections. Specifically, recommendation to the Board as to in question. This entitlement, however, the Bylaws currently provide that whether to accept or reject such is subject to the voting limitation in the ‘‘directors shall be elected by a plurality resignation or whether other action Certificate of Incorporation that of the votes of the shares present in should be taken. The Board would then generally prohibits a beneficial owner, person or represented by proxy at the act on the recommendation of such either alone or together with related meeting and entitled to vote on the committee and publicly disclose its parties, from voting or causing the election of directors.’’ Under the decision regarding the tendered voting of shares of stock of the Corporation’s corporate governance resignation and the rationale behind the corporation, in person or by proxy or guidelines previously adopted by the decision. through any voting agreement or other The proposed amendment to the Board of Directors of the Corporation arrangement, to the extent that such Bylaws also provides that a director (‘‘Board’’), however, any director shares represent in the aggregate more who tenders his or her resignation as nominee in an uncontested election than 10% of the then outstanding votes described above will not participate in (being an election in which the number entitled to be cast on such matter. Any the recommendation by the Nominating of nominees equals the number of votes purported to be cast in excess of and Governance Committee or the Board directors to be elected) who receives a this limitation will be disregarded.7 greater number of ‘‘withheld’’ votes than of Directors action regarding whether to Relative to the foregoing, if any accept the tendered resignation. In the ‘‘for’’ votes (including any ‘‘against’’ beneficial owner of the Corporation’s event that each member of the votes if that option were to be made stock, either alone or together with Nominating and Governance Committee available on the proxy card) must related parties, is party to any fails to receive a majority of the votes immediately tender his or her agreement, plan or other arrangement resignation from the Board. The Board with any other person or entity relating 6 Stockholders are currently given three choices when voting for a slate of director nominees: They 5 Securities Exchange Act Release No. 61947 can vote (1) ‘‘for’’ all nominees, (2) ‘‘withheld’’ for 7 See NYSE Euronext Amended and Restated (April 20, 2010), 75 FR 22169 (April 27, 2010) (SR– all nominees or (3) ‘‘withheld’’ for certain nominees Certificate of Incorporation at Article V, Section NYSE–2010–18). and ‘‘for’’ the remaining nominees. 1(A).

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to shares of stock of the Corporation provisions of the Act. The proposed rule The Exchange has asked the entitled to vote on any matter under change is also consistent with, and Commission to waive the 30-day circumstances in which (i) the result furthers the objectives of, Section operative delay so that the proposal may would be that shares of stock of the 6(b)(5) 12 of the Act, in that it is become operative on the date of its Corporation that would be subject to designed to prevent fraudulent and approval by the Euronext College of such agreement, plan or other manipulative acts and practices, to Regulators, which approval the arrangement would not be voted on any promote just and equitable principles of Exchange believes is imminent. The matter, or any proxy relating thereto trade, to foster cooperation and Commission believes that waiving the would be withheld and (ii) the effect of coordination with persons engaged in 30-day operative delay is consistent the agreement, plan or arrangement facilitating transactions in securities, to with the protection of investors and the would be to enable a beneficial owner remove impediments to and perfect the public interest because such waiver will (but for these provisions), either alone mechanism of a free and open market enable the Exchange to implement the or together with related parties, to vote, and a national market system and, in proposed rule change immediately upon possess the right to vote or cause the general, to protect investors and the receiving the approval of the Euronext voting of shares of the Corporation’s public interest. Specifically, the College of Regulators. In addition, as stock to exceed 10% of the then Exchange believes that the proposed noted by the Exchange, the proposal is outstanding votes entitled to be cast rule change will protect investors and identical to the recently approved NYSE (assuming that all shares of stock of the the public interest by codifying in the Rule Change.15 For these reasons, the Corporation that are subject to the Bylaws the existing policy of the Commission designates the proposed agreement, plan or other arrangement Corporation aimed at ensuring better rule change as operative upon filing.16 are not outstanding votes entitled to be corporate governance and accountability At any time within 60 days of the cast on such matter), then this to stockholders by means of a voting filing of the proposed rule change, the recalculated 10% voting limitation will procedure leading to election results Commission may summarily abrogate be applicable. Any votes purported to be that more accurately reflect the views of such rule change if it appears to the cast in excess of this recalculated voting stockholders on the qualifications and Commission that such action is limitation will be disregarded.8 suitability of individual director necessary or appropriate in the public At each meeting of stockholders of the nominees, even if there are no interest, for the protection of investors, Corporation, except as otherwise alternative director nominees to vote for or otherwise in furtherance of the provided by law or the Certificate of on the ballot. purposes of the Act. Incorporation of the Corporation, the holders of a majority of the voting B. Self-Regulatory Organization’s IV. Solicitation of Comments power of the outstanding shares of stock Statement on Burden on Competition Interested persons are invited to of the Corporation entitled to vote on a The Exchange does not believe that submit written data, views, and matter at the meeting, present in person the proposed rule change will impose arguments concerning the foregoing, or represented by proxy, will constitute any burden on competition that is not including whether the proposed rule a quorum (it being understood that any necessary or appropriate in furtherance change is consistent with the Act. shares in excess of the applicable voting of the purposes of the Act. Comments may be submitted by any of limitation discussed above will not be C. Self-Regulatory Organization’s the following methods: counted as present at the meeting and Statement on Comments on the Electronic Comments will not be counted as outstanding Proposed Rule Change Received From • Use the Commission’s Internet shares of stock of the Corporation for Members, Participants, or Others purposes of determining whether there comment form (http://www.sec.gov/ is a quorum, unless and only to the No written comments were solicited rules/sro.shtml); or extent that such voting limitation shall or received with respect to the proposed • Send an e-mail to rule- have been duly waived as provided in rule change. [email protected]. Please include File 9 Number SR–NYSEArca–2010–55 on the the Certificate of Incorporation). III. Date of Effectiveness of the subject line. As noted above, the proposed rule Proposed Rule Change and Timing for change is identical to a rule change filed Commission Action Paper Comments by the NYSE (the ‘‘NYSE Rule Change’’) • that was recently approved by the Because the proposed rule change Send paper comments in triplicate Commission. does not: (i) Significantly affect the to Elizabeth M. Murphy, Secretary, protection of investors or the public Securities and Exchange Commission, 2. Statutory Basis interest; (ii) impose any significant 100 F Street, NE., Washington, DC The proposed rule change is burden on competition; and (iii) become 20549–1090. consistent with Section 6(b) 10 of the operative for 30 days from the date on All submissions should refer to File Act, in general, and furthers the which it was filed, or such shorter time Number SR–NYSEArca–2010–55. This objectives of Section 6(b)(1) 11 of the as the Commission may designate, if file number should be included on the Act, which requires a national securities consistent with the protection of subject line if e-mail is used. To help the exchange to be so organized and have investors and the public interest, the the capacity to carry out the purposes of proposed rule change has become prior to the date of filing of the proposed rule the Act and to comply, and to enforce effective pursuant to Section 19(b)(3)(A) change, or such shorter time as designated by the compliance by its members and persons of the Act 13 and Rule 19b–4(f)(6) 14 Commission. The Exchange has satisfied this associated with its members, with the requirement. thereunder. 15 See Securities Exchange Act Release No. 61947 (April 20, 2010), 75 FR 22169 (April 27, 2010) (SR– 8 See id. 12 15 U.S.C. 78f(b)(5). NYSE–2010–18) (order approving identical 9 See NYSE Euronext Amended and Restated 13 15 U.S.C. 78s(b)(3)(A). proposal submitted by NYSE). Certificate of Incorporation at Article VIII, Section 14 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 16 For purposes only of waiving the 30-day 2. 4(f)(6) requires a self-regulatory organization to give operative delay, the Commission has considered the 10 15 U.S.C. 78f(b). the Commission written notice of its intent to file proposed rule’s impact on efficiency, competition, 11 15 U.S.C. 78f(b)(1). the proposed rule change at least five business days and capital formation. See 15 U.S.C. 78c(f).

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Commission process and review your change as described in Items I, II, and allocated to long Members’ accounts by comments more efficiently, please use III below, which Items have been book-entry. only one method. The Commission will substantially prepared by NSCC. The NSCC is proposing changes to its post all comments on the Commission’s Commission is publishing this notice to ACATS system in connection with a Internet Web site (http://www.sec.gov/ solicit comments on the proposed rule concurrent rule change proposed by rules/sro.shtml). Copies of the change from interested persons. DTC.5 NSCC is proposing these changes submission, all subsequent for two general reasons. First, NSCC amendments, all written statements I. Self-Regulatory Organization’s would like to enhance protection for with respect to the proposed rule Statement of the Terms of the Substance customer securities in ACATS transfers change that are filed with the of the Proposed Rule Change Commission, and all written so that customer account transfers to The purpose of this proposed rule communications relating to the new firms would be maximized in the proposed rule change between the change is to enhance NSCC’s process for event of a Member failure. Accordingly, Commission and any person, other than transfers through the Automated NSCC would modify its ACATS those that may be withheld from the Customer Account Transfer Service processing and its Rules so that public in accordance with the (‘‘ACATS’’). deliveries or receives processed through CNS would satisfy a Member’s ACATS provisions of 5 U.S.C. 552, will be II. Self-Regulatory Organization’s receive or deliver obligation prior to available for Web site viewing and Statement of the Purpose of, and satisfying another CNS-related printing in the Commission’s Public Statutory Basis for, the Proposed Rule obligation of that Member in the same Reference Room, on official business Change days between the hours of 10 a.m. and security. NSCC would also track CNS 3 p.m. Copies of the filing also will be In its filing with the Commission, ACATS items to prevent reversal of available for inspection and copying at NSCC included statements concerning completed items in the event of a the principal office of the Exchange. All the purpose of and basis for the Member’s failure. Second, NSCC would comments received will be posted proposed rule change and discussed any like to facilitate compliance by its without change; the Commission does comments it received on the proposed Members with their securities not edit personal identifying rule change. The text of these statements possession and control requirements.6 information from submissions. You may be examined at the places specified To that end, NSCC proposes modifying should submit only information that in Item IV below. NSCC has prepared its Rules to clarify that in no event does you wish to make available publicly. All summaries, set forth in sections (A), (B), NSCC have a lien on securities carried submissions should refer to File and (C) below, of the most significant by a Member for the account of its Number SR–NYSEArca–2010–55 and aspects of these statements. customers that are delivered through the should be submitted on or before June CNS ACATS service.7 23, 2010. A. Self-Regulatory Organization’s 1. ACATS Transfers Through the CNS For the Commission, by the Division of Statement of the Purpose of, and Trading and Markets, pursuant to delegated Statutory Basis for, the Proposed Rule System authority.17 Change Through ACATS, an NSCC Member to Florence E. Harmon, NSCC’s ACATS system enables which a customer’s securities account is Deputy Secretary. Members to effect automated transfers of to be transferred (‘‘Receiving Member’’) [FR Doc. 2010–16106 Filed 7–1–10; 8:45 am] customer accounts among themselves.3 may submit a Transfer Initiation BILLING CODE 8011–01–P For ACATS transfers processed through Request to initiate the account transfer NSCC’s Continuous Net Settlement process. When a Receiving Member (‘‘CNS’’) system,4 long and short accepts a customer account transfer, SECURITIES AND EXCHANGE NSCC causes all CNS-eligible items in COMMISSION positions are passed against Members’ positions at The Depository Trust that customer account to enter NSCC’s [Release No. 34–62385; File No. SR–NSCC– Company (‘‘DTC’’) and available CNS accounting operation on the day 2010–05] securities are delivered from short before settlement date unless the Members’ accounts at DTC and Receiving Member notifies NSCC that Self-Regulatory Organizations; National Securities Clearing 3 5 Corporation; Notice of Filing of ACATS complements a Financial Industry DTC is proposing its concurrent rule change Regulatory Authority (‘‘FINRA’’) rule requiring with the Commission in filing SR–DTC–2010–09. Proposed Rule Change To Enhance FINRA members to use automated clearing agency 6 Commission Rule 15c3–3 provides that a broker- the Process for Transfers Through the customer account transfer services and to effect dealer shall promptly obtain and shall thereafter Automated Customer Account customer account transfers within specified time maintain the physical possession or control of all Transfer Service frames. fully paid securities and excess margin securities 4 CNS is an ongoing accounting system which carried for the account of customers. June 25, 2010. nets today’s settling trades with yesterday’s closing 7 DTC’s Settlement Service Guide currently positions to produce a net short or long position for provides that securities delivered to a receiving Pursuant to section 19(b)(1) of the a particular security for a particular Member. NSCC DTC Participant’s account from CNS are classified Securities Exchange Act of 1934 is the counter party for all positions. The positions as collateral which may otherwise be made (‘‘Act’’) 1 and rule 19b–4 thereunder 2 are then passed against the Member’s designated available to NSCC in the event that the DTC notice is hereby given that on June 4, depository positions and available securities are Participant fails to meet its NSCC settlement allocated by book-entry. This allocation of obligation. Pursuant to a separate rule filing, DTC 2010, National Securities Clearing securities is accomplished through an evening cycle is proposing revisions to its service guide so that Corporation (‘‘NSCC’’) filed with the followed by a day cycle. Positions which remain ACAT deliveries from CNS would be designated by Securities and Exchange Commission open after the evening cycle may be changed as a the DTC Participant as ‘‘Minimum Amount (‘‘Commission’’) the proposed rule result of trades accepted for settlement that day. Securities’’ when credited to the Participant’s CNS allocates deliveries in both the night and day account. This designation would prevent the cycles using an algorithm based on priority groups securities from being designated as collateral for 17 17 CFR 200.30–3(a)(12). in descending order, age of position within a either this purpose or for purposes of DTC’s Rules. 1 15 U.S.C. 78s(b)(1). priority group, and random numbers within age DTC Rule 1 for the definition of Minimum Amount 2 17 CFR 240.19b–4. groups. Securities.

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certain items should be withheld from Member in a security before satisfying 2. Possession and Control Requirements 8 CNS processing. another obligation in the same To facilitate the compliance of Ordinary CNS items enter the system 11 security. At the end of each processing Members with their securities at contract value, but ACATS items day, CNS ACATS fails would continue possession and control requirements in enter CNS unvalued. This reflects the to be marked to the full-market value ACATS transfers processed through nature of the ACATS CNS items as and netted with all other CNS CNS, NSCC proposes modifying its ‘‘free’’ transfers. To incentivize obligations under NSCC’s Rules. Rules to clarify that it does not maintain deliveries, ACATS items are marked-to- In the event of a Member failure, a lien over ACATS assets delivered to a the-market on the morning of settlement NSCC would use this proposed Receiving Member through CNS. date using their full CNS value as of the automated tracking capability to prior day’s closing price. Consequently, differentiate between completed and 3. Amendments to Rules and Procedures the Delivering Member’s CNS projection uncompleted CNS ACATS transactions. To provide for the modifications to report shows a short securities position, In a failure to settle situation, NSCC ACATS described in this filing, NSCC and its CNS cash reconciliation report would therefore be able to reverse proposes amending its rules as shows a cash debit for the ‘‘full value’’ pending ACATS obligations for described in the summaries below. The mark. Conversely, the Receiving uncompleted transfers of a failing proposed changes to NSCC’s Rules and Member’s projection report shows a Member while still allowing assets Procedures can be found in Exhibit 5 to long securities position, and its cash associated with completed ACATS proposed rule change SR–NSCC–2010– reconciliation report shows a cash credit transfers to remain with the Receiving 05 at http://www.dtcc.com/downloads/ equal to the ‘‘full value’’ mark. If the Member. NSCC believes this would help legal/rule_filings/2010/nscc/2010- Delivering Member fulfills its ACATS maximize CNS-related transfers of 05.pdf. delivery obligation, then its short customer accounts to new firms. (a) Amend Rule 18 (Procedures for position is cancelled, and the debit for An ACATS transfer of a failing When NSCC Declines or Ceases to Act). the mark is offset by a credit. Likewise, Member would be deemed uncompleted Section 7 of Rule 18 (Procedures for upon receipt of the securities by the if the failing Member is a Delivering when the Corporation Declines or Receiving Member, the Receiving Member and it failed to deliver to CNS Member’s long position is offset, and the Ceases to Act) provides that NSCC all or a portion of the securities maintains a lien on all property placed credit for the mark is offset by the debit. associated with the ACATS transfer. If The net result is a ‘‘free’’ transfer of in its possession by a Member as the failing Member is a Receiving security for any and all liabilities of that securities because no money is paid by Member and it failed to receive all or a either the Delivering Member or Member to NSCC. An existing exception portion of the securities associated with to this rule is where such a lien would Receiving Member. the ACATS transfer from CNS, then the For transactions processed through be prohibited under Commission Rules transfer would likewise be deemed CNS, NSCC normally becomes the 8c–1 and 15c2–1. NSCC proposes uncompleted. In either case, if the counter party to the transaction and modifying this section to clarify that it guarantees settlement.9 However, a CNS Delivering Member makes a partial does not maintain a lien on ACATS ACATS transfer is not guaranteed for a delivery of securities to CNS then the assets that have been delivered to a party that fails to pay any portion of its transfer would be deemed completed for Receiving Member through CNS. money settlement obligation on the amount of securities received from (b) Procedure VII (CNS Accounting settlement date.10 In this circumstance, CNS by the Receiving Member to the Operation). NSCC may reverse uncompleted ACATS extent that amount does not exceed the NSCC proposes modifying Procedure items and any associated debits or amount delivered to CNS by the VII to provide for the tracking of credits calculated using the marking Delivering Member. The transfer would customer transfers by stating that process described above would be be deemed uncompleted as to any deliveries of a particular security eliminated. remaining securities beyond that through CNS would be designated to Currently, ACATS transfers settled amount, and only the uncompleted apply to a Member’s ACATS receive and through CNS are fungible with all other portion of the item would be subject to deliver obligations before satisfying CNS activity. The CNS system does not reversal. Transfers would also be another obligation, such as a trade- distinguish between ACATS deemed uncompleted when the failing related obligation of that Member. In transactions and other transactions, Member is the Delivering Member and addition, the modified language would which means that CNS ACATS receives it has a flat or overall long CNS position indicate that this designation would be and delivers are netted with guaranteed or when the failing member is the provided to the Member’s Designated settling trades in the same securities. Receiving Member and it has a flat or Depository to facilitate its processing of Pursuant to this proposal, NSCC would CNS short position. the item. begin tracking ACATS receive and In the event a Delivering Member and (c) Rule 50 (ACATS). deliver obligations in CNS, and CNS Receiving Member fail on the same NSCC would amend Rule 50 to clarify allocations would be applied to ACATS settlement day and have an ACATS that NSCC may reverse uncompleted receive and deliver obligations for a transfer obligation between them, any ACATS items when either the transfer deemed uncompleted for the Delivering or Receiving Member failed 8 NSCC Rule 50 (Automated Customer Account Delivering Member would also be to meet its settlement obligation to Transfer Service). deemed uncompleted for the Receiving NSCC. In addition, this Rule would be 9 Pursuant to Addendum K of its Rules, NSCC Member. NSCC would notify the revised to note that in the event of such generally guarantees the completion of Continuous Net Settlement (‘‘CNS’’) and Balance Order trades affected Members of the details a reversal of uncompleted CNS ACAT that reach the later of midnight of T+1 or midnight associated with the assets subject to the obligations, NSCC would make files of the day they are reported to Members. Shortened reversal and the affected Members available to each Member to show each process trades, such as same-day and next-day would have to reestablish customer open security position due to settle that settling trades, are guaranteed upon comparison or trade recording processing. positions accordingly. day that would be subject to the reversal 10 This includes failure by a Member to pay a as well as such other information as mark-to-market charge. 11 This includes a trade-related obligation. NSCC may deem advisable. The

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proposed change also includes a Comments may be submitted by any of SECURITIES AND EXCHANGE technical correction to clarify that the following methods: COMMISSION ACATS transactions enter the CNS Electronic Comments [Release No. 34–62384; File No. SR–DTC– Accounting Operation on the day before 2010–09] Settlement Date (SD–1), rather than T+1. • Use the Commission’s Internet NSCC proposes implementing the comment form (http://www.sec.gov/ Self-Regulatory Organizations; the changes proposed in this filing during rules/sro.shtml) or • Depository Trust Company; Notice of the third quarter of 2010 and advising Send an e-mail to rule- Filing of Proposed Rule Change To Members of the implementation date [email protected]. Please include File Revise Its Procedures Regarding through issuance of NSCC Important Number SR–NSCC–2009–05 on the Securities Delivered To or From Notices. subject line. Participant Accounts Through the NSCC believes the proposed rule Paper Comments Automated Customer Account change is consistent with the Transfer Service of National Securities • Send paper comments in triplicate requirements of Section 17A of the Clearing Corporation Act 12 and the rules and regulations to Elizabeth M. Murphy, Secretary, thereunder because the proposed Securities and Exchange Commission, June 25, 2010. modifications would facilitate NSCC’s 100 F Street, NE., Washington, DC Pursuant to Section 19(b)(1) of the prompt and accurate clearance and 20549–1090. Securities Exchange Act of 1934 settlement of securities transactions by All submissions should refer to File (‘‘Act’’) 1 and Rule 19b–4 thereunder 2 implementing a tracking mechanism to Number SR–NSCC–2010–05. This file notice is hereby given that on June 4, distinguish ACATS activity from other number should be included on the 2010, The Depository Trust Company items processed through CNS and by subject line if e-mail is used. To help the (‘‘DTC’’) filed with the Securities and clarifying that NSCC does not maintain Commission process and review your Exchange Commission (‘‘Commission’’) a lien on ACATS assets delivered to a comments more efficiently, please use the proposed rule change as described Receiving Member through CNS. only one method. The Commission will in Items I, II, and III below, which Items post all comments on the Commission’s have been substantially prepared by B. Self-Regulatory Organization’s Internet Web site (http://www.sec.gov/ DTC. The Commission is publishing this Statement on Burden on Competition rules/sro.shtml). Copies of the notice to solicit comments on the NSCC does not believe that the submission, all subsequent proposed rule change from interested proposed rule change would impose any amendments, all written statements persons. burden on competition. with respect to the proposed rule change that are filed with the I. Self-Regulatory Organization’s C. Self-Regulatory Organization’s Commission, and all written Statement of the Terms of the Substance Statement on Comments on the communications relating to the of the Proposed Rule Change Proposed Rule Change Received From proposed rule change between the The purpose of this proposed rule Members, Participants or Others Commission and any person, other than change is to revise DTC’s Procedures Written comments relating to the those that may be withheld from the regarding securities delivered to or from proposed rule change have not been public in accordance with the Participant accounts through the solicited or received. NSCC will notify provisions of 5 U.S.C. 552, will be Automated Customer Account Transfer the Commission of any written available for Web site viewing and Service (‘‘ACATS’’) of National comments received by NSCC. printing in the Commission’s Public Securities Clearing Corporation ‘‘ ’’ III. Date of Effectiveness of the Reference Section, 100 F Street, NE., ( NSCC ). Proposed Rule Change and Timing for Washington, DC 20549–1090, on official II. Self-Regulatory Organization’s Commission Action business days between the hours of 10 Statement of the Purpose of, and a.m. and 3 p.m. Copies of such filings Within thirty-five days of the date of Statutory Basis for, the Proposed Rule will also be available for inspection and Change publication of this notice in the Federal copying at the principal office of the Register or within such longer period (i) NSCC and on NSCC’s Web site at In its filing with the Commission, as the Commission may designate up to http://www.dtcc.com/downloads/legal/ DTC included statements concerning ninety days of such date if it finds such rule_filings/2010/nscc/2010–05.pdf. the purpose of and basis for the longer period to be appropriate and All comments received will be posted proposed rule change and discussed any publishes its reasons for so finding or without change; the Commission does comments it received on the proposed (ii) as to which the self-regulatory not edit personal identifying rule change. The text of these statements organization consents, the Commission information from submissions. You may be examined at the places specified will: should submit only information that in Item IV below. DTC has prepared (A) By order approve the proposed rule you wish to make available publicly. All summaries, set forth in sections (A), (B), change or submissions should refer to File and (C) below, of the most significant (B) institute proceedings to determine Number SR–NSCC–2009–05 and should aspects of these statements. whether the proposed rule change should be be submitted on or before July 23, 2010. disapproved. A. Self-Regulatory Organization’s For the Commission by the Division of Statement of the Purpose of, and IV. Solicitation of Comments Trading and Markets, pursuant to delegated Statutory Basis for, the Proposed Rule 13 Interested persons are invited to authority. Change submit written data, views, and Florence E. Harmon, DTC proposes modifying certain arguments concerning the foregoing, Deputy Secretary. provisions of its Settlement Services including whether the proposed rule [FR Doc. 2010–16108 Filed 7–1–10; 8:45 am] Guide (‘‘Guide’’) in connection with change is consistent with the Act. BILLING CODE 8010–01–P 1 15 U.S.C. 78s(b)(1). 12 15 U.S.C. 78q–1. 13 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.

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concurrent rule changes proposed by proposed clarifications would help requirements of Section 17A of the NSCC concerning ACATS transfers NSCC Members and DTC Participants Act 12 and the rules and regulations through NSCC’s Continuous Net meet their legal obligations to maintain thereunder because the proposed Settlement (‘‘CNS’’) system.3 securities possession or control of changes would facilitate DTC’s prompt NSCC’s ACATS enables members to certain customer securities 8 and would and accurate clearance and settlement of effect automated transfers of customer concurrently protect the interests of securities transactions by clarifying accounts among themselves.4 For NSCC and DTC. when securities involved in ACATS ACATS transfers processed through DTC proposes modifying the CNS transfers through CNS are subject to a NSCC’s Continuous Net Settlement section of the Guide to clarify that when lien by DTC. (‘‘CNS’’) system,5 long and short a Participant holds securities in its DTC positions are passed against Members’ account in a no-lien location 9 and those B. Self-Regulatory Organization’s positions at The Depository Trust securities are part of an ACATS transfer Statement on Burden on Competition Company (‘‘DTC’’). Available securities through CNS, then DTC would not have DTC does not believe that the are delivered from short Members’ any lien on such securities to satisfy the proposed rule change would impose any accounts at DTC and allocated to long Participant’s CNS ACATS delivery burden on competition. Members’ accounts by book-entry. obligation. DTC also proposes clarifying An NSCC Member to which a within the Guide that ACAT deliveries C. Self-Regulatory Organization’s customer’s securities account is to be from CNS would be deemed to be Statement on Comments on the transferred through ACATS (‘‘Receiving designated by the receiving Participant Proposed Rule Change Received From Member’’) may initiate the transfer as ‘‘Minimum Amount Securities’’ when Members, Participants or Others process by submitting a Transfer they are credited to the receiving Written comments relating to the Initiation Request (‘‘TIF’’) to NSCC. For Participant’s account.10 Minimum proposed rule change have not been the transfer to be processed, the TIF Amount Securities are not considered solicited or received. DTC will notify must be accepted by the NSCC Member collateral under DTC’s rules.11 the Commission of any written from which the customer’s securities Additional clarification would be comments received by DTC. account is being transferred (‘‘Delivering included to explain that an ACATS Member’’). After a Delivering Member transfer would be deemed null and void III. Date of Effectiveness of the accepts a customer account transfer and and the underlying securities could be Proposed Rule Change and Timing for all other preconditions of NSCC’s rules used to satisfy settlement obligations to Commission Action for processing ACATS transfer are met, NSCC if NSCC determines that a Within thirty-five days of the date of all CNS-eligible items in the account Delivering Member and a Receiving publication of this notice in the Federal will be entered into NSCC’s CNS Member defaulted on their settlement Register or within such longer period (i) accounting operation on the day before obligations to NSCC and the Delivering as the Commission may designate up to settlement date unless the Receiving Member also fails to meet its ACATS ninety days of such date if it finds such Member notifies NSCC that certain delivery obligation. longer period to be appropriate and items should be withheld.6 DTC proposes implementing the publishes its reasons for so finding or DTC proposes modifying the Guide in proposed changes in this filing during (ii) as to which the self-regulatory several ways to clarify that securities the third quarter of 2010 and advising organization consents, the Commission moving through NSCC’s ACATS system Members of the specific implementation will: are not subject to a lien by DTC when date through issuance of DTC Important (A) By order approve the proposed they are debited from a delivering Notices. rule change or Participant’s DTC account or when they DTC believes the proposed rule (B) Institute proceedings to determine are credited to a receiving Participant’s changes are consistent with the whether the proposed rule change DTC account.7 DTC believes its should be disapproved. deliveries and receives in a particular security 3 NSCC is proposing these concurrent changes in processed through CNS would be designated by IV. Solicitation of Comments NSCC to satisfy a Member’s ACATS receive or filing SR–NSCC–2010–05 with the Commission. Interested persons are invited to 4 deliver obligation prior to satisfaction of other CNS- ACATS complements a Financial Industry related obligations for that Member in the same submit written data, views, and Regulatory Authority (‘‘FINRA’’) rule requiring security. This would allow NSCC to track the arguments concerning the foregoing, FINRA members to use automated clearing agency completion status of CNS ACATS deliveries and customer account transfer services and to effect would facilitate NSCC’s ability to notify DTC of including whether the proposed rule customer account transfers within specified time which CNS deliveries are ACATS transfers. change is consistent with the Act. frames. 8 Commission Rule 15c3–3 provides that a broker 5 Comments may be submitted by any of CNS is an ongoing accounting system which dealer shall promptly obtain and shall thereafter the following methods: nets today’s Settling Trades with yesterday’s maintain the physical possession or control of all Closing Positions to produce a net short or long fully-paid securities and excess margin securities, Electronic Comments position for a particular security for a particular in each case, carried by a broker or dealer for the Member. NSCC is the contra party for all positions. account of customers. • Use the Commissions Internet The positions are then passed against the Member’s 9 For example, when the securities are designated comment form (http://www.sec.gov/ Designated Depository positions and available as ‘‘Minimum Amount Securities’’ and not as Net securities are allocated by book-entry. This rules/sro.shtml) or Additions. • allocation of securities is accomplished through an 10 As ‘‘Minimum Amount Securities’’, DTC would Send an e-mail to rule- evening cycle followed by a day cycle. Positions not have any lien on such securities transferred [email protected]. Please include File which remain open after the evening cycle may be through ACATS and received from CNS. Such Number SR–DTC–2010–09 on the changed as a result of trades accepted for settlement securities would not constitute collateral to which subject line. that day. CNS allocates deliveries in both the night DTC could assert a claim, and accordingly they and day cycles using an algorithm based on priority would not be counted as part of the Participant’s Paper Comments groups in descending order, age of position within Collateral Monitor unless the receiving Participant a priority group, and random numbers within age designates such securities as ‘‘Net Additions’’ in • Send paper comments in triplicate groups. accordance with DTC Rules and Procedures. to Elizabeth M. Murphy, Secretary, 6 NSCC Rule 50 (Automated Customer Account 11 DTC Rule 1 and DTC Rule 4(A) respectively for Transfer Service). the definition of Minimum Amount Securities and Securities and Exchange Commission, 7 As part of NSCC’s companion rule filing, NSCC for the implications of this designation in protecting proposes amending its Rules to provide that any such securities from any lien or other claim of DTC. 12 15 U.S.C. 78q–1.

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100 F Street, NE., Washington, DC (‘‘Act’’),1 and Rule 19b–4 thereunder,2 establishing the same fees for non co- 20549–1090. notice is hereby given that on June 24, located customers with a 10Gb circuit.3 All submissions should refer to File 2010, NASDAQ OMX PHLX, Inc. The Exchange also already makes Number SR–DTC–2010–09. This file (‘‘Phlx’’ or ‘‘Exchange’’) filed with the available to both co-located and non co- number should be included on the Securities and Exchange Commission located customers direct connections subject line if e-mail is used. To help the (‘‘Commission’’) the proposed rule capable of supporting up to 1Gb, with Commission process and review your change as described in Items I, II, and per connection monthly fees of $500 for comments more efficiently, please use III below, which Items have been co-located customers and $1000 for non only one method. The Commission will prepared by the Exchange. The co-located customers. Monthly fees are post all comments on the Commission’s Commission is publishing this notice to higher for non co-located customers Internet Web site (http://www.sec.gov/ solicit comments on the proposed rule because direct connections require the rules/sro.shtml). Copies of the change from interested persons. Exchange to provide cabinet space and middleware for those customers’ third- submission, all subsequent I. Self-Regulatory Organization’s amendments, all written statements Statement of the Terms of the Substance party vendors to connect into the with respect to the proposed rule of the Proposed Rule Change datacenter and, ultimately, to the change that are filed with the trading system. Finally, for non co- The Exchange is filing with the Commission, and all written located customers the Exchange charges Securities and Exchange Commission communications relating to the an optional installation fee of $925 if the (‘‘SEC’’ or ‘‘Commission’’) a proposed proposed rule change between the customer chooses to use an on-site rule change to establish pricing for 10Gb Commission and any person, other than router. direct circuit connections and codify those that may be withheld from the pricing for 10Gb [sic] direct circuit 2. Statutory Basis public in accordance with the connections for customers who are not provisions of 5 U.S.C. 552, will be The Exchange believes that the co-located in the Exchange’s datacenter. available for Web site viewing and proposed rule change is consistent with The text of the proposed rule change is the provisions of Section 6 of the Act,4 printing in the Commission’s Public available at http://nasdaqtrader.com/ Reference Section, 100 F Street, NE., in general, and with Sections 6(b)(5) of micro.aspx?id=PHLXfilings, on the 5 Washington, DC 20549–1090, on official the Act, in particular, in that the Commission’s Web site at http:// proposal is designed to prevent business days between the hours of 10 www.sec.gov, at the Exchange’s a.m. and 3 p.m. Copies of such filings fraudulent and manipulative acts and principal office, and at the practices, to promote just and equitable will also be available for inspection and Commission’s Public Reference Room. copying at the principal office of the principles of trade, to foster cooperation DTC and on DTC’s Web site at http:// II. Self-Regulatory Organization’s and coordination with persons engaged www.dtcc.com/downloads/legal/ Statement of the Purpose of, and in regulating, clearing, settling, rule_filings/2010/dtc/2010-09.pdf. All Statutory Basis for, the Proposed Rule processing information with respect to, comments received will be posted Change and facilitating transactions in without change; the Commission does securities, to remove impediments to In its filing with the Commission, the and perfect the mechanism of a free and not edit personal identifying Exchange included statements information from submissions. You open market and a national market concerning the purpose of and basis for system, and, in general, to protect should submit only information that the proposed rule change and discussed investors and the public interest. In you wish to make available publicly. All any comments it received on the particular, the proposal will provide submissions should refer to File proposed rule change. The text of these greater transparency into the Number SR–DTC–2010–09 and should statements may be examined at the connectivity options available to market be submitted on or before July 23, 2010. places specified in Item IV below. The participants. For the Commission by the Division of Exchange has prepared summaries, set The Exchange also believes that the Trading and Markets, pursuant to delegated forth in Sections A, B, and C below, of proposed rule change is consistent with 13 the most significant aspects of such authority. the provisions of Section 6 of the Act,6 statements. Florence E. Harmon, in general, and with Section 6(b)(4) of Deputy Secretary. A. Self-Regulatory Organization’s the Act,7 in particular, in that it [FR Doc. 2010–16107 Filed 7–1–10; 8:45 am] Statement of the Purpose of, and provides for the equitable allocation of BILLING CODE 8010–01–P Statutory Basis for, the Proposed Rule reasonable dues, fees and other charges Change among members and issuers and other persons using any facility or system 1. Purpose SECURITIES AND EXCHANGE which the Exchange operates or COMMISSION The Exchange is proposing to controls. The filing codifies and makes establish fees for direct 10Gb circuit [Release No. 34–62394; File No. SR–Phlx– transparent the fees imposed for direct 2010–89] connections, and codify fees for direct connections to non co-located circuit connections capable of customers. These fees are uniform for all Self-Regulatory Organizations; supporting up to 1Gb, for customers such customers and are either NASDAQ OMX PHLX, Inc.; Notice of who are not co-located at the Exchange’s Filing of Proposed Rule Change datacenter. Currently, the Exchange 3 The Exchange provides an additional 1Gb Relating to Pricing for Direct Circuit already makes available to co-located copper connection option to the Exchange for co- Connections customers a 10Gb circuit connection located customers. Given the technological and charges for each a $1000 initial constraints of copper connections over longer June 28, 2010. distances, the Exchange does not offer a copper installation charge as well as an ongoing connection option to users outside of its datacenter. Pursuant to Section 19(b)(1) of the monthly fee of $5000. The Exchange is 4 15 U.S.C. 78f. Securities Exchange Act of 1934 5 15 U.S.C. 78f(b)(5). 1 15 U.S.C. 78s(b)(1). 6 15 U.S.C. 78f. 13 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. 7 15 U.S.C. 78f(b)(4).

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comparable to fees charged to co-located only one method. The Commission will the Federal Register on February 9, customers or vary due to different costs post all comments on the Commission’s 2010.3 The Commission received no associated with providing service to the Internet Web site (http://www.sec.gov/ comment letters on the proposal. This two customer types. rules/sro.shtml). Copies of the order approves the proposed rule submission, all subsequent change. B. Self-Regulatory Organization’s amendments, all written statements Statement on Burden on Competition with respect to the proposed rule II. Description The Exchange does not believe that change that are filed with the As described in the Notice, the the proposed rule change will result in Commission, and all written Exchange is proposing to codify fees for any burden on competition that is not communications relating to the its existing co-location services. Co- necessary or appropriate in furtherance proposed rule change between the location services are a suite of hardware, of the purposes of the Act, as amended. Commission and any person, other than power, telecommunication, and other those that may be withheld from the ancillary products and services that C. Self-Regulatory Organization’s public in accordance with the allows market participants and vendors Statement on Comments on the provisions of 5 U.S.C. 552, will be to place their trading and Proposed Rule Change Received From available for Web site viewing and communications equipment in close Members, Participants, or Others printing in the Commission’s Public physical proximity to the quoting and Written comments were neither Reference Room, 100 F Street, NE., execution facilities of the Exchange. solicited nor received. Washington, DC 20549, on official Phlx provides co-location services and III. Date of Effectiveness of the business days between the hours of 10 imposes fees through Nasdaq Proposed Rule Change and Timing for a.m. and 3 p.m. Copies of such filing Technology Services LLC and pursuant Commission Action also will be available for inspection and to agreements with the owner/operator copying at the principal office of the of its data center where both the Within 35 days of the date of Exchange. All comments received will Exchange’s quoting and trading facilities publication of this notice in the Federal be posted without change; the and co-located customer equipment are Register or within such longer period (i) Commission does not edit personal housed.4 Users of co-location services as the Commission may designate up to identifying information from include private extranet providers, data 90 days of such date if it finds such submissions. You should submit only vendors, as well as the Exchange longer period to be appropriate and information that you wish to make members and non-members. The use of publishes its reasons for so finding or available publicly. All submissions co-location services is entirely (ii) as to which the self-regulatory should refer to File Number SR–Phlx– voluntary. organization consents, the Commission 2010–89 and should be submitted on or As detailed in its fee schedule, the will: before July 23, 2010. Exchange imposes a uniform set of fees (A) By order approve such proposed For the Commission, by the Division of for various co-location services, rule change, or Trading and Markets, pursuant to delegated including: fees for cabinet space usage, (B) institute proceedings to determine authority.8 or options for future space usage; whether the proposed rule change Florence E. Harmon, installation and related power provision should be disapproved. Deputy Secretary. for hosted equipment; connectivity IV. Solicitation of Comments [FR Doc. 2010–16144 Filed 7–1–10; 8:45 am] among multiple cabinets being used by the same customer as well as customer BILLING CODE 8010–01–P Interested persons are invited to connectivity to the Exchange and submit written data, views, and telecommunications providers; 5 and arguments concerning the foregoing, related maintenance and consulting including whether the proposed rule SECURITIES AND EXCHANGE COMMISSION services. Fees related to cabinet and change, as amended, is consistent with power usage are incremental, with the Act. Comments may be submitted by [Release No. 34–62395; File No. SR–Phlx– additional charges being imposed based 2010–18] any of the following methods: on higher levels of cabinet and/or power Electronic Comments Self-Regulatory Organizations; usage, the use of non-standard cabinet sizes or special cabinet cooling • Use the Commission’s Internet NASDAQ OMX PHLX, Inc.; Order equipment, or the re-selling of cabinet comment form (http://www.sec.gov/ Approving a Proposed Rule Change To Codify Prices for Co-Location Services space. rules/sro.shtml); or NASDAQ OMX PHLX is • Send an e-mail to rule- June 28, 2010. implementing a Cabinet Proximity [email protected]. Please include File Option program where, for a monthly Number SR–Phlx–2010–89 on the I. Introduction fee, customers can obtain an option for subject line. On January 29, 2010, NASDAQ OMX future use on available currently-unused Paper Comments PHLX (‘‘Phlx’’ or ‘‘Exchange’’) filed with cabinet floor space in proximity to their • the Securities and Exchange existing equipment. Under the program, Send paper comments in triplicate Commission (‘‘Commission’’), pursuant to Elizabeth M. Murphy, Secretary, customers can reserve up to maximum to Section 19(b)(1) of the Securities of 20 cabinets that the Exchange will Securities and Exchange Commission, Exchange Act of 1934 (‘‘Act’’),1 and Rule 100 F Street, NE., Washington, DC 19b-4 thereunder,2 a proposed rule 3 20549–1090. See Securities Exchange Act Release No. 61486 change relating to co-location services (February 3, 2010), 75 FR 6426 (‘‘Notice’’). All submissions should refer to File and related fees. The proposed rule 4 Currently, the Exchange provides its co-location Number SR–Phlx–2010–89. This file change was published for comment in services through data centers located in the New number should be included on the York City and Mid-Atlantic areas. 5 The Exchange states that these fees are for subject line if e-mail is used. To help the 8 17 CFR 200.30–3(a)(12). telecommunications connectivity only. Market data Commission process and review your 1 15 U.S.C. 78s(b)(1). fees are charged independently by NASDAQ OMX comments more efficiently, please use 2 17 CFR 240.19b–4. PHLX and other exchanges.

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endeavor to provide as close as The Exchange also has represented The Commission notes that charges may reasonably possible to the customer’s that co-location services are generally vary depending on the use of cabinet existing cabinet space, taking into available to all qualified market space and/or power usage. In addition, consideration power availability within participants who desire them. With the the Commission believes that the co- segments of the datacenter and the exception of customers participating in location services described in the overall efficiency of use of datacenter the Cabinet Proximity Option program, proposed rule change are not unfairly resources as determined by the the Exchange allocates cabinets and discriminatory because: (1) Co-location Exchange. Should reserved datacenter power on a first-come/first-serve basis. services are offered to all interested space be needed for use, the reserving Should available cabinet inventory market participants who request them customer will have three business days shrink to 40 cabinets or less, the and pay the appropriate fees; (2) as to formally contract with the Exchange Exchange will limit new cabinet orders represented by Phlx, the Exchange has for full payment for the reserved cabinet to a maximum of 4 cabinets each, and architected its systems so as to reduce space in contention or it will be all new cabinets will be limited to a or eliminate differences among users of reassigned. In making determinations to maximum power level of 5kW. Should its systems, whether co-located or not; require exercise or relinquishment of available cabinet inventory shrink to and (3) the Exchange has stated that it reserved space as among numerous zero, the Exchange will place firms has sufficient space to accommodate customers, the Exchange will take into seeking services on a waiting list based new co-locaters and has set forth in the consideration several factors, including: on that the Exchange receives signed proposed rule change objective Proximity between available reserved orders for the services from the firm. In procedures to allocate space should it cabinet space and the existing space of order to be placed on the waiting list, become limited in the future. a customer seeking additional space for a firm must have utilized all existing IV. Conclusion actual cabinet usage; a customer’s ratio cabinets they already have in the of cabinets in use to those reserved; the datacenter. Once on the list, the firms, It is therefore ordered, pursuant to length of time that a particular on a rolling basis, will be allocated a Section 19(b)(2) of the Act,10 that the reservation(s) has been in place; and any single 5kW cabinet each time one proposed rule change (SR–Phlx–2010– other factor that the Exchange deems becomes available. After receiving a 18) be, and hereby is, approved. cabinet, the firm will move to the relevant to ensure overall efficiency in For the Commission, by the Division of use of the datacenter space. bottom of the waiting list. Trading and Markets, pursuant to delegated In the Notice, the Exchange made III. Discussion and Commission’s authority.11 certain representations regarding its co- Findings Florence E. Harmon, location services. First, the Exchange After careful review, the Commission Deputy Secretary. represents that co-location customers finds that the proposed rule change is [FR Doc. 2010–16145 Filed 7–1–10; 8:45 am] are not provided any separate or consistent with the requirements of the BILLING CODE 8010–01–P superior means of direct access to the Act and the rules and regulations Exchange quoting and trading facilities, thereunder applicable to a national nor does the Exchange offer any securities exchange.7 In particular, the SECURITIES AND EXCHANGE separate or superior means of access to Commission finds that the proposed COMMISSION the Exchange quoting and trading rule change is consistent with Section facilities as among co-location 6(b)(4) of the Act,8 which requires that [Release No. 34–62396; File No. SR–BX– customers themselves within the the rules of a national securities 2010–012] datacenter. Second, the Exchange exchange provide for the equitable represents that it does not make allocation of reasonable dues, fees and Self-Regulatory Organizations; available to co-located customers any other charges among its members and NASDAQ OMX BX, Inc.; Order market data or data feed product or issuers and other persons using its Approving a Proposed Rule Change To service for data going into, or out of, the facilities, and with Section 6(b)(5) of the Codify Prices for Co-Location Services Exchange systems that is not likewise 9 Act, which requires, among other June 28, 2010. available to all the Exchange members.6 things, that that the rules of a national Finally, the Exchange represents that all securities exchange be designed to I. Introduction orders sent to the Exchange market enter promote just and equitable principles of On January 29, 2010, NASDAQ OMX the marketplace through the same trade, to remove impediments to and BX, Inc. (‘‘BX’’ or ‘‘Exchange’’) filed with central system quote and order gateway perfect the mechanism of a free and the Securities and Exchange regardless of whether the sender is co- open market and a national market Commission (‘‘Commission’’), pursuant located in the Exchange data center or system and, in general, to protect to Section 19(b)(1) of the Securities not. In short, according to the Exchange, investors and the public interest, and Exchange Act of 1934 (‘‘Act’’),1 and Rule it has created no special market not be designed to permit unfair 19b–4 thereunder,2 a proposed rule technology or programming that is discrimination between customers, change relating to co-location services available only to co-located customers issuers, brokers, or dealers. and related fees. The proposed rule The Commission believes that the and has organized its systems to change was published for comment in proposed co-location fees are reasonable minimize, to the greatest extent the Federal Register on February 10, and equitably allocated insofar as they possible, any advantage for one 2010.3 The Commission received no customer versus another. are applied on the same terms to similarly-situated market participants. comment letters on the proposal. This 6 The Exchange made a 10Gb fiber connection 10 15 U.S.C. 78s(b)(2). available to co-located customers early in the first 7 In approving this proposal, the Commission has 11 quarter of 2010. On March 26, 2010, the Exchange considered the proposed rule’s impact on 17 CFR 200.30–3(a)(12). filed a proposed rule change that would, among efficiency, competition, and capital formation. See 1 15 U.S.C. 78s(b)(1). other things, establish pricing for 10Gb fiber 15 U.S.C. 78c(f). 2 17 CFR 240.19b–4. connections for customers who are not co-located 8 15 U.S.C. 78f(b)(4). 3 See Securities Exchange Act Release No. 61487 in Phlx’s datacenter. See SR–Phlx–2010–89. 9 15 U.S.C. 78f(b)(5). (February 3, 2010), 75 FR 6746 (‘‘Notice’’).

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order approves the proposed rule overall efficiency of use of datacenter power on a first-come/first-serve basis. change. resources as determined by the Should available cabinet inventory Exchange. Should reserved datacenter shrink to 40 cabinets or less, the II. Description space be needed for use, the reserving Exchange will limit new cabinet orders As described in the Notice, the customer will have three business days to a maximum of 4 cabinets each, and Exchange is proposing to codify fees for to formally contract with the Exchange all new cabinets will be limited to a its existing co-location services. Co- for full payment for the reserved cabinet maximum power level of 5kW. Should location services are a suite of hardware, space in contention or it will be available cabinet inventory shrink to power, telecommunication, and other reassigned. In making determinations to zero, the Exchange will place firms ancillary products and services that require exercise or relinquishment of seeking services on a waiting list based allows market participants and vendors reserved space as among numerous on that date the Exchange receives to place their trading and customers, the Exchange will take into signed orders for the services from the communications equipment in close consideration several factors, including: firm. In order to be placed on the physical proximity to the quoting and Proximity between available reserved waiting list, a firm must have utilized execution facilities of the Exchange. BX cabinet space and the existing space of all existing cabinets they already have provides co-location services and a customer seeking additional space for in the datacenter. Once on the list, the imposes fees through Nasdaq actual cabinet usage; a customer’s ratio firms, on a rolling basis, will be Technology Services LLC and pursuant of cabinets in use to those reserved; the allocated a single 5kW cabinet each time to agreements with the owner/operator length of time that a particular one becomes available. After receiving a of its data center where both the reservation(s) has been in place; and any cabinet, the firm will move to the Exchange’s quoting and trading facilities other factor that the Exchange deems bottom of the waiting list. and co-located customer equipment are relevant to ensure overall efficiency in III. Discussion and Commission’s housed.4 Users of co-location services use of the datacenter space. include private extranet providers, data In the Notice, the Exchange made Findings vendors, as well as the Exchange certain representations regarding its co- After careful review, the Commission members and non-members. The use of location services. First, the Exchange finds that the proposed rule change is co-location services is entirely represents that co-location customers consistent with the requirements of the voluntary. are not provided any separate or Act and the rules and regulations As detailed in its fee schedule, the superior means of direct access to the thereunder applicable to a national Exchange imposes a uniform set of fees Exchange quoting and trading facilities, securities exchange.7 In particular, the for various co-location services, nor does the Exchange offer any Commission finds that the proposed including: fees for cabinet space usage, separate or superior means of access to rule change is consistent with Section or options for future space usage; the Exchange quoting and trading 6(b)(4) of the Act,8 which requires that installation and related power provision facilities as among co-location the rules of a national securities for hosted equipment; connectivity customers themselves within the exchange provide for the equitable among multiple cabinets being used by datacenter. Second, BX represents that it allocation of reasonable dues, fees and the same customer as well as customer does not make available to co-located other charges among its members and connectivity to the Exchange and customers any market data or data feed issuers and other persons using its telecommunications providers; 5 and product or service for data going into, or facilities, and with Section 6(b)(5) of the related maintenance and consulting out of, the Exchange systems that is not Act,9 which requires, among other services. Fees related to cabinet and likewise available to all the Exchange things, that that the rules of a national power usage are incremental, with members.6 Finally, the Exchange securities exchange be designed to additional charges being imposed based represents that all orders sent to the promote just and equitable principles of on higher levels of cabinet and/or power Exchange market enter the marketplace trade, to remove impediments to and usage, the use of non-standard cabinet through the same central system quote perfect the mechanism of a free and sizes or special cabinet cooling and order gateway regardless of whether open market and a national market equipment, or the re-selling of cabinet the sender is co-located in the Exchange system and, in general, to protect space. data center or not. In short, according to investors and the public interest, and NASDAQ OMX BX is implementing a the Exchange, it has created no special not be designed to permit unfair Cabinet Proximity Option program market technology or programming that discrimination between customers, where, for a monthly a fee, customers is available only to co-located customers issuers, brokers, or dealers. can obtain an option for future use on and has organized its systems to The Commission believes that the available currently-unused cabinet floor minimize, to the greatest extent proposed co-location fees are reasonable space in proximity to their existing possible, any advantage for one and equitably allocated insofar as they equipment. Under the program, customer versus another. are applied on the same terms to customers can reserve up to maximum The Exchange also has represented similarly-situated market participants. of 20 cabinets that the Exchange will that co-location services are generally The Commission notes that charges may endeavor to provide as close as available to all qualified market vary depending on the use of cabinet reasonably possible to the customer’s participants who desire them. With the space and/or power usage. In addition, existing cabinet space, taking into exception of customers participating in the Commission believes that the co- consideration power availability within the Cabinet Proximity Option program, location services described in the segments of the datacenter and the the Exchange allocates cabinets and proposed rule change are not unfairly discriminatory because: (1) Co-location 4 Currently, NASDAQ OMX BX provides its co- 6 The Exchange made a 10Gb fiber connection location services through data centers located in the available to co-located customers early in the first 7 In approving this proposal, the Commission has New York City and Mid-Atlantic areas. quarter of 2010. On March 26, 2010, the Exchange considered the proposed rule’s impact on 5 The Exchange states that these fees are for filed a proposed rule change that would, among efficiency, competition, and capital formation. See telecommunications connectivity only. Market data other things, establish pricing for 10Gb fiber 15 U.S.C. 78c(f). fees are charged independently by NASDAQ OMX connections for customers who are not co-located 8 15 U.S.C. 78f(b)(4). BX and other exchanges. in BX’s datacenter. See SR–BX–2010–043. 9 15 U.S.C. 78f(b)(5).

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services are offered to all interested II. Description of the Proposed Rule the Act,9 which requires, among other market participants who request them Change things, that the rules of a national and pay the appropriate fees; (2) as ISE proposes to establish subscription securities exchange be designed to represented by BX, the Exchange has fees for the sale of the ISE Order Feed, promote just and equitable principles of architected its systems so as to, as much which provides real-time updates every trade, to remove impediments to and as possible, reduce or eliminate time a new limit order that is not perfect the mechanism of a free and open market and a national market differences among users of its systems, immediately executable at the best bid/ system and, in general, to protect whether co-located or not; and (3) the offer (‘‘BBO’’) is placed on the ISE order investors and the public interest, and Exchange has stated that it has sufficient book.4 ISE Order Feed contains not be designed to permit unfair space to accommodate new co-locaters information on individual limit orders discrimination between customers, has set forth in the proposed rule including the order type (buy/sell), the issuers, brokers, or dealers. The change objective procedures to allocate order price, the order size, and customer Commission also finds that the space should it become limited in the indicator (which reflects whether the proposed rule change is consistent with future. order is a customer order), as well as the provisions of Section 6(b)(8) of the details for each instrument series, IV. Conclusion Act,10 which requires that the rules of including the symbols (series and an exchange not impose any burden on It is therefore ordered, pursuant to underlying security), put or call Section 19(b)(2) of the Act,10 that the competition not necessary or indicator, the expiration and the strike appropriate in furtherance of the proposed rule change (SR–BX–2010– price of the series. 012) be, and hereby is, approved. purposes of the Act. The Exchange proposes to charge The Commission has reviewed the 5 For the Commission, by the Division of distributors of the ISE Order Feed proposal using the approach set forth in Trading and Markets, pursuant to delegated $2,000 per month and $10 per external the approval order for SR–NYSEArca- 6 authority.11 controlled device per month. For 2006–21 for non-core market data fees.11 Florence E. Harmon, subscribers who redistribute the ISE In the NYSE Arca Order, the Deputy Secretary. Order Feed externally, or redistribute Commission stated that ‘‘when possible, the ISE Order Feed internally and [FR Doc. 2010–16146 Filed 7–1–10; 8:45 am] reliance on competitive forces is the externally, the Exchange proposes to BILLING CODE 8010–01–P most appropriate and effective means to limit for any one month the combined assess whether the terms for the maximum amount of fees payable to distribution of non-core data are SECURITIES AND EXCHANGE $2,500. The ISE Order Feed will be equitable, fair and reasonable, and not COMMISSION made available to both members and unreasonably discriminatory.’’ 12 It non-members on a subscription basis. noted that the ‘‘existence of significant Upon Commission approval, the competition provides a substantial basis [Release No. 34–62399; File No. SR–ISE– Exchange intends to begin charging the 2010–34] for finding that the terms of an ISE Order Feed fees on July 1, 2010. exchange’s fee proposal are equitable, Self-Regulatory Organizations; III. Discussion and Commission fair, reasonable, and not unreasonably 13 International Securities Exchange, Findings or unfairly discriminatory.’’ If an LLC; Order Approving Proposed Rule exchange ‘‘was subject to significant The Commission finds that the Change Relating to Fees for the ISE competitive forces in setting the terms proposed rule change is consistent with Order Feed of a proposal,’’ the Commission will the requirements of the Act and the approve a proposal unless it determines June 28, 2010. rules and regulations thereunder that ‘‘there is a substantial applicable to a national securities countervailing basis to find that the I. Introduction exchange.7 In particular, it is consistent terms nevertheless fail to meet an 8 On May 11, 2010, the International with Section 6(b)(4) of the Act, which applicable requirement of the Exchange Securities Exchange, LLC (‘‘Exchange’’ requires that the rules of a national Act or the rules thereunder.’’ 14 or ‘‘ISE’’) filed with the Securities and securities exchange provide for the As noted in the NYSE Arca Order, the Exchange Commission (‘‘Commission’’), equitable allocation of reasonable dues, standards in Section 6 of the Act do not pursuant to Section 19(b)(1) of the fees, and other charges among its differentiate between types of data and Securities Exchange Act of 1934 members and issuers and other parties therefore apply to exchange proposals to (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 a using its facilities, and Section 6(b)(5) of distribute both core data and non-core proposed rule change to amend its data.15 All U.S. options exchanges are Schedule of Fees to adopt subscription 4 The ISE Order Feed does not include market required pursuant to the Plan for orders, immediate or cancel orders, quotes, or any fees for the sale of a new market data Reporting of Consolidated Options Last non-displayed interest. Sale Reports and Quotation Information offering called the ISE Order Feed. The 5 A ‘‘distributor’’ is any firm that receives the ISE proposed rule change was published for Order Feed directly from ISE or indirectly through (‘‘OPRA Plan’’) to provide ‘‘core data’’— comment in the Federal Register on a ‘‘redistributor’’ and then distributes it either the best-priced quotations and 3 internally or externally. All distributors will be comprehensive last sale reports—to May 25, 2010. The Commission required by the Exchange to execute an ISE received no comment letters on the distributor agreement. ‘‘Redistributors’’ include 9 proposed rule change. This order market data vendors and connectivity providers 15 U.S.C. 78f(b)(5). 10 approves the proposed rule change. such as extranets and private network providers. 15 U.S.C. 78f(b)(8). 6 A ‘‘controlled device’’ is as any device that a 11 See Securities Exchange Act Release No. 59039 distributor of the ISE Order Feed permits to access (December 2, 2008), 73 FR 74770 (December 9, 10 15 U.S.C. 78s(b)(2). the information in the ISE Order Feed. 2008) (SR–NYSEArca–2006–21) (‘‘NYSE Arca 11 17 CFR 200.30–3(a)(12). 7 In approving this proposed rule change, the Order’’). 1 15 U.S.C. 78s(b)(1). Commission has considered the proposed rule’s 12 Id. at 74771. 2 17 CFR 240.19b–4. impact on efficiency, competition, and capital 13 Id. at 74782. 3 See Securities Exchange Act Release No. 62117 formation. See 15 U.S.C. 78c(f). 14 Id. at 74781. (May 18, 2010), 75 FR 29381 (‘‘Notice’’). 8 15 U.S.C. 78f(b)(4). 15 Id. at 74779.

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OPRA, which data is then distributed to start of the options penny pilot 22 have respect, the core data feeds that include the public pursuant to the OPRA Plan.16 all further intensified intermarket an exchange’s own transaction In contrast, individual exchanges and competition for order flow. information are a significant alternative other market participants distribute ISE currently competes with seven to the exchange’s market data product.28 non-core data voluntarily.17 The options exchanges for order flow. Further, other options exchanges can mandatory nature of the core data Attracting order flow is an essential part produce their own market data 23 disclosure regime leaves little room for of ISE’s competitive success. If ISE products, and thus are sources of competitive forces to determine cannot attract order flow to its market, potential competition for ISE.29 In 18 it will not be able to execute products and fees. Non-core data addition, one or more securities firms transactions. If ISE cannot execute products and their fees are, by contrast, could act independently and distribute much more sensitive to competitive transactions on its market, it will not generate transaction revenue. If ISE their own order data, with or without a forces. The Commission therefore is able fee.30 to rely on competitive forces in its cannot attract orders or execute determination of whether an exchange’s transactions on its market, it will not The Commission believes that there proposal to distribute non-core data have market data to distribute, for a fee are a number of alternative sources of meets the standards of Section 6.19 or otherwise, and will not earn market information that impose significant data revenue and thus not be Because ISE’s instant proposal relates competitive pressures on ISE in setting competitive with other exchanges that to the distribution of non-core data, the the terms for distributing the ISE Order have this ability. Commission will apply the market- Feed. The Commission believes that the ISE must compete vigorously for order availability of those alternatives, as well based approach set forth in the NYSE flow to maintain its share of trading Arca Order. Pursuant to this approach, as ISE’s compelling need to attract order volume. This compelling need to attract flow, imposed significant competitive the first step is to determine whether order flow imposes significant pressure pressure on ISE to act equitably, fairly, ISE was subject to significant on ISE to act reasonably in setting its and reasonably in setting the terms of its competitive forces in setting the terms fees for ISE market data, particularly of its non-core market data proposal, given that the market participants that proposal. including the level of any fees. As in the will pay such fees often will be the same Because ISE was subject to significant NYSE Arca Order, in determining market participants from whom ISE competitive forces in setting the terms whether ISE was subject to significant must attract order flow. These market of the proposal, the Commission will competitive forces in setting the terms participants include broker-dealers that approve the proposal in the absence of of its proposal, the Commission has control the handling of a large volume a substantial countervailing basis to find analyzed ISE’s compelling need to of customer and proprietary order flow. that the terms of the proposal fail to attract order flow from market Given the portability of order flow from meet the applicable requirements of the participants, and the availability to one exchange to another, any exchange Act or the rules thereunder. An analysis market participants of alternatives to that sought to charge unreasonably high of the proposal does not provide such a purchasing ISE’s non-core market data. data fees would risk alienating many of basis. Further, the Commission did not The Commission believes that the the same customers on whose orders it receive any comment letters raising depends for competitive survival.24 options industry currently is subject to concerns of a substantial countervailing significant competitive forces.20 It is In addition to the need to attract order flow, the availability of alternatives to basis that the terms of the proposal generally accepted that the start of wide- failed to meet the requirements of the spread multiple listing of options across the ISE Order Feed significantly affects Act or the rules thereunder. exchanges in August 1999 greatly the terms on which ISE can distribute enhanced competition among the this market data.25 In setting the fees for IV. Conclusion exchanges.21 The launch of four options the ISE Order Feed, ISE must consider exchanges since that time, numerous the extent to which market participants It is therefore ordered, pursuant to market structure innovations, and the would choose one or more alternatives Section 19(b)(2) of the Act, that the instead of purchasing its data.26 The proposed rule change (SR–ISE–2010–34) 16 See OPRA Plan, Sections V(a)–(c). most basic source of information be, and it hereby is, approved. 17 See NYSE Arca Order, supra, note 11, at 74779. concerning the depth generally available 18 Id. at an exchange is the complete record of 19 Id. an exchange’s transactions that is 20 The Commission has previously stated that the provided in the core data feeds.27 In this options industry is subject to significant 28 Id. Information on transactions executed on ISE competitive forces. See Securities Exchange Act 22 See, e.g., Securities Exchange Act Release Nos. is available through OPRA. Release No. 59949 (May 20, 2009), 74FR 25593 55162 (January 24, 2007), 72 FR 4738 (February 1, 29 In its filing, ISE states that ‘‘[o]ther exchanges, (May 28, 2009) (SR–ISE–2007–97) (order approving 2007) (SR–Amex–2006–106); 55073 (January 9, including some who may enjoy greater market share the ISE’s proposal establishing fees for a real-time 2007), 72 FR 4741 (February 1, 2007) (SR–BSE– depth of market data offering). than ISE, are potential competitors as they too sell 2006–48); 55154 (January 23, 2007), 72 FR 4743 21 similar market data offerings that market See generally Concept Release: Competitive (February 1, 2007) (SR–CBOE–2006–92); 55161 Developments in the Options Markets, Securities participants may choose to purchase instead. For (January 24, 2007), 72 FR 4754 (February 1, 2007) example, NASDAQ OMX PHLX (‘‘PHLX’’) has filed Exchange Act Release No. 49175 (February 3, 2004), (SR–Phlx–2006–62); 55156 (January 23, 2007), 72 a proposed rule change to adopt fees for a market 69 FR 6124 (February 9, 2004); see also Battalio, FR 4759 (February 1, 2007) (SR–NYSEArca–2006– Robert, Hatch, Brian, and Jennings, Robert, Toward 73); and 55153 (January 23, 2007), 72 FR 4553 data product that includes a data feed that is similar a National Market System for U.S. Exchange-listed (January 31, 2007) (SR–Phlx–2006–74). to the ISE Order Feed. See Securities Exchange Act Equity Options, The Journal of Finance 59 (933– 23 ISE states in its filing that it ‘‘has a compelling Release No. 61878 (April 8, 2010), 75 FR 20023 961); De Fontnouvelle, Patrick, Fishe, Raymond P., need to attract order flow from market participants (April 16, 2010) (SR–PHLX–2010–48). The PHLX’ and Harris, Jeffrey H., The Behavior of Bid-Ask in order to maintain its share of trading volume.’’ Specialized Order Feed, which PHLX has proposed Spreads and Volume in Options Markets During the See Notice, supra note 3, at 29382. to integrate into its TOPO Plus Orders market data Competition for Listings in 1999, The Journal of 24 Finance 58 (2437–2463); and Mayhew, Stewart, Id. at 29383. offering, includes ‘real-time information to keep Competition, Market Structure, and Bid-Ask 25 See NYSE Arca Order, supra note 11, at 74784. track of single order book(s).’ ’’ See Notice, supra Spreads in Stock Option Markets, The Journal of 26 Id. at 74783. note 3, at 29383. Finance 57 (931–958). 27 Id. 30 Id.

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For the Commission, by the Division of DEPARTMENT OF STATE October 19, 1965 (79 Stat. 985; 22 U.S.C. Trading and Markets, pursuant to delegated 2459), Executive Order 12047 of March 31 [Public Notice: 7074] authority. 27, 1978, the Foreign Affairs Reform and Florence E. Harmon, Culturally Significant Objects Imported Restructuring Act of 1998 (112 Stat. Deputy Secretary. for Exhibition Determinations: ‘‘The 2681, et seq.; 22 U.S.C. 6501 note, et [FR Doc. 2010–16147 Filed 7–1–10; 8:45 am] Origins of Writing in the Ancient seq.), Delegation of Authority No. 234 of BILLING CODE 8010–01–P Middle East’’ October 1, 1999, Delegation of Authority No. 236 of October 19, 1999, as SUMMARY: Notice is hereby given of the amended, and Delegation of Authority following determinations: Pursuant to No. 257 of April 15, 2003 [68 FR 19875], SECURITIES AND EXCHANGE the authority vested in me by the Act of I hereby determine that the objects to be COMMISSION October 19, 1965 (79 Stat. 985; 22 U.S.C. included in the exhibition ‘‘Venice: 2459), Executive Order 12047 of March Canaletto and His Rivals,’’ imported [Release No. 34—62239; File No. SR— 27, 1978, the Foreign Affairs Reform and from abroad for temporary exhibition NYSEAMEX—2010—48] Restructuring Act of 1998 (112 Stat. within the United States, are of cultural 2681, et seq.; 22 U.S.C. 6501 note, et significance. The objects are imported Self–Regulatory Organizations; NYSE seq.), Delegation of Authority No. 234 of pursuant to loan agreements with the Amex LLC; Notice of Filing and October 1, 1999, Delegation of Authority foreign owners or custodians. I also Immediate Effectiveness of Proposed No. 236 of October 19, 1999, as determine that the exhibition or display Rule Change Deleting Rule 405(4)– amended, and Delegation of Authority of the exhibit objects at the National NYSE Amex Equities to Correspond No. 257 of April 15, 2003 [68 FR 19875], Gallery of Art, Washington, DC, from on with Rule Changes of the Financial I hereby determine that the objects to be or about February 20, 2011, until on or Industry Regulatory Authority, Inc. included in the exhibition ‘‘The Origins about May 30, 2011, and at possible of Writing in the Ancient Middle East,’’ June 8, 2010. additional exhibitions or venues yet to imported from abroad for temporary be determined, is in the national Correction exhibition within the United States, are interest. I have ordered that Public In notice document 2010–14360 of cultural significance. The objects are Notice of these Determinations be beginning on page 33880 in the issue of imported pursuant to a loan agreement published in the Federal Register. Tuesday, June 15, 2010, make the with the foreign owner or custodian. I FOR FURTHER INFORMATION CONTACT: For following correction: also determine that the exhibition or further information, including a list of On page 33880, in the first column, display of the exhibit objects at The the exhibit objects, contact Paul W. the docket number is corrected to read Oriental Institute Museum, Chicago, IL, Manning, Attorney-Adviser, Office of as it appears above. from on or about September 26, 2010, the Legal Adviser, U.S. Department of until on or about March 6, 2011, and at [FR Doc. C1–2010–14360 Filed 7–1–10; 8:45 am] State (telephone: 202–632–6469). The possible additional exhibitions or mailing address is U.S. Department of BILLING CODE 1505–01–D venues yet to be determined, is in the State, SA–5, L/PD, Fifth Floor (Suite national interest. I have ordered that 5H03), Washington, DC 20522–0505. Public Notice of these Determinations SECURITIES AND EXCHANGE be published in the Federal Register. Dated: June 25, 2010. COMMISSION Maura M. Pally, FOR FURTHER INFORMATION CONTACT: For further information, including a list of Deputy Assistant Secretary for Professional [Release No. 34—62161; File No. SR— and Cultural Exchanges, Bureau of ODD—2010—01] the exhibit objects, contact Julie Educational and Cultural Affairs, Department Simpson, Attorney-Adviser, Office of of State. Self-Regulatory Organizations; The the Legal Adviser, U.S. Department of [FR Doc. 2010–16211 Filed 7–1–10; 8:45 am] State (telephone: 202–632–6467). The Options Clearing Corporation; Order BILLING CODE 4710–05–P Granting Approval of Accelerated mailing address is U.S. Department of Delivery of Supplement to the Options State, SA–5, L/PD, Fifth Floor (Suite Disclosure Document Reflecting 5H03), Washington, DC 20522–0505. DEPARTMENT OF STATE Certain Changes to Disclosure Dated: June 21, 2010. [Public Notice: 7073] Regarding Options on Conventional Maura M. Pally, Index-Linked Securities and Deputy Assistant Secretary for Professional Culturally Significant Objects Imported Amendment to the Options Disclosure and Cultural Exchanges, Bureau of for Exhibition Determinations: Document Inside Front Cover Educational and Cultural Affairs, Department ‘‘Salvador Dali: The Late Work’’ of State. May 24, 2010. [FR Doc. 2010–16207 Filed 7–1–10; 8:45 am] SUMMARY: Notice is hereby given of the Correction BILLING CODE 4710–05–P following determinations: Pursuant to the authority vested in me by the Act of In notice document 2010–12986 October 19, 1965 (79 Stat. 985; 22 U.S.C. beginning on page 30451 in the issue of DEPARTMENT OF STATE 2459), Executive Order 12047 of March Tuesday, June 1, 2010, make the 27, 1978, the Foreign Affairs Reform and following correction: [Public Notice: 7072] Restructuring Act of 1998 (112 Stat. On page 30451, in the first column, Culturally Significant Objects Imported 2681, et seq.; 22 U.S.C. 6501 note, et the docket number is corrected to read seq.), Delegation of Authority No. 234 of as set forth above. for Exhibition Determinations: ‘‘Venice: Canaletto and His Rivals’’ October 1, 1999, Delegation of Authority [FR Doc. C1–2010–12986 Filed 7–1–10; 8:45 am] No. 236 of October 19, 1999, as BILLING CODE 1505–01–D SUMMARY: Notice is hereby given of the amended, and Delegation of Authority following determinations: Pursuant to No. 257 of April 15, 2003 [68 FR 19875], 31 17 CFR 200.30–3(a)(12). the authority vested in me by the Act of I hereby determine that the objects to be

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included in the exhibition ‘‘Salvador e-mail: [email protected]. Regular County, PA. Into-basin diversion of up Dali: The Late Work,’’ imported from mail inquiries may be sent to the above to 0.322 mgd from the Ohio River Basin. abroad for temporary exhibition within address. 6. Project Sponsor and Facility: KMI, the United States, are of cultural SUPPLEMENTARY INFORMATION: In LLC (West Branch Susquehanna River— significance. The objects are imported addition to the public hearing and its Owner), Mahaffey Borough, Clearfield pursuant to loan agreements with the related action items identified below, County, PA. Surface water withdrawal foreign owners or custodians. I also the following items were also presented of up to 2.000 mgd. determine that the exhibition or display or acted on at the business meeting: 7. Project Sponsor: New Morgan of the exhibit objects at the High (1) A presentation by the IMAX movie Landfill Company, Inc. Project Facility: Museum of Art, Atlanta, GA, from on or production staff at the Harrisburg Conestoga Landfill, Bethel Township, about August 7, 2010, until on or about Whitaker Center for Science and the Berks County, PA. Modification to January 9, 2011, and at possible Arts on development of an educational increase consumptive water use additional exhibitions or venues yet to production on the future of the approval (Docket No. 20061206). be determined, is in the national Chesapeake Bay; (2) a concluding report 8. Project Sponsor and Facility: P.H. interest. Public Notice of these on the Paxton Creek Stormwater Glatfelter Company, Spring Grove Determinations is ordered to be Management Project; (3) a progress Borough, York County, PA. published in the Federal Register. report on implementation of the SRBC Consumptive water use of up to 0.460 FOR FURTHER INFORMATION CONTACT: For Remote Water Quality Monitoring mgd. further information, including a list of Network; (4) a report on the present 9. Project Sponsor and Facility: the exhibit objects, contact Carol B. hydrologic conditions of the basin; Pennsylvania General Energy Company, Epstein, Attorney-Adviser, Office of the (5) approval for proposed rulemaking L.L.C. (Loyalsock Creek—Hershberger), Legal Adviser, U.S. Department of State amending 18 CFR parts 806 and 808, Gamble Township, Lycoming County, (telephone: 202/632–6473). The address and deleting and reserving part 807; PA. Surface water withdrawal of up to is U.S. Department of State, SA–5, L/PD, (6) ratification/approval of grants/ 0.918 mgd. Fifth Floor, Washington, DC 20522– contracts; (7) adoption of a FY-2012 10. Project Sponsor and Facility: 0505. budget commencing July 1, 2011; and Pennsylvania General Energy Company, Dated: June 24, 2010. (8) election of the member representing L.L.C. (Pine Creek—Poust), Watson Maura M. Pally, the State of New York as the new Chair Township, Lycoming County, PA. Surface water withdrawal of up to Deputy Assistant Secretary for Professional and the member representing the and Cultural Exchanges, Bureau of Commonwealth of Pennsylvania as the 0.918 mgd. Educational and Cultural Affairs, Department new Vice Chair of the Commission to 11. Project Sponsor and Facility: of State. serve in the next fiscal year. The Stone Energy Corporation (Wyalusing [FR Doc. 2010–16208 Filed 7–1–10; 8:45 am] Commission heard counsel’s report on Creek—Stang), Rush Township, BILLING CODE 4710–05–P legal matters affecting the Commission. Susquehanna County, PA. Surface water The Commission also convened a public withdrawal of up to 0.750 mgd. hearing and took the following actions: 12. Project Sponsor and Facility: Susquehanna Gas Field Services, L.L.C., SUSQUEHANNA RIVER BASIN Public Hearing—Projects Approved COMMISSION Meshoppen Borough, Wyoming County, 1. Project Sponsor and Facility: PA. Groundwater withdrawal of up to Notice of Actions Taken at June 11, Carrizo Oil & Gas, Inc. (East Branch 0.216 mgd from the Meshoppen Pizza 2010, Meeting Wyalusing Creek—Bonnice), Jessup Well. Township, Susquehanna County, PA. 13. Project Sponsor and Facility: AGENCY: Susquehanna River Basin Surface water withdrawal of up to Talisman Energy USA Inc. Commission. 0.720 mgd. (Susquehanna River—Welles), Terry ACTION: Notice of Commission Actions. 2. Project Sponsor: Chester County Township, Bradford County, PA. Solid Waste Authority. Project Facility: Surface water withdrawal of up to SUMMARY: At its regular business Lanchester Landfill, Salisbury and 2.000 mgd. meeting on June 11, 2010, in Harrisburg, Caernarvon Townships, Lancaster 14. Project Sponsor: United Water PA. Pennsylvania, the Commission held a County, PA. Groundwater withdrawal of Project Facility: Newberry System, public hearing as part of its regular 0.075 mgd (30-day average) from two Newberry Township, York County, PA. business meeting. At the public hearing, wells and six collection sumps; into- Groundwater withdrawal of up to 0.071 the Commission: (1) Approved and basin diversion of up to 0.050 mgd from mgd from Reeser Well 1 and tabled certain water resources projects, the Delaware River Basin; and 0.071 mgd from Reeser Well 2. including approval of two projects consumptive water use of up to 15. Project Sponsor: United Water PA. involving diversions into the basin; and 0.075 mgd. Project Facility: Newberry System, (2) approved amendments to its 3. Project Sponsor and Facility: Chief Newberry Township, York County, PA. Regulatory Program Fee Schedule. Oil & Gas LLC (Chest Creek—Kitchen), Groundwater withdrawal of up to DATES: June 11, 2010. Chest Township, Clearfield County, PA. 0.066 mgd from Susquehanna Village ADDRESSES: Susquehanna River Basin Surface water withdrawal of up to Well 1 and 0.066 mgd from Commission, 1721 N. Front Street, 0.216 mgd. Susquehanna Village Well 2. Harrisburg, PA 17102–2391. 4. Project Sponsor and Facility: East Public Hearing—Projects Tabled FOR FURTHER INFORMATION CONTACT: Resources, Inc. (Cowanesque River— Richard A. Cairo, General Counsel, Egleston), Nelson Township, Tioga 1. Project Sponsor and Facility: Linde telephone: (717) 238–0423, ext. 306; fax: County, PA. Surface water withdrawal Corporation (Lackawanna River— (717) 238–2436; e-mail: [email protected]; of up to 0.267 mgd. Carbondale Industrial Development or Stephanie L. Richardson, Secretary to 5. Project Sponsor: EOG Resources, Authority), Fell Township, Lackawanna the Commission, telephone: (717) 238– Inc. Project Facility: Blue Valley AMD County, PA. Application for surface 0423, ext. 304; fax: (717) 238–2436; Treatment Plant, Horton Township, Elk water withdrawal of up to 0.905 mgd.

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2. Project Sponsor and Facility: Novus Approvals by Rule Issued under 18 16. East Resources, Inc., Pad ID: Operating, LLC (Tioga River—Mitchell), CFR 806.22(f) Walker 438, ABR–20100516, Shippen Covington Township, Tioga County, PA. 1. East Resources, Inc., Pad ID: Township, Tioga County, Pa.; Approval Application for surface water Johnson 434, ABR–20100501, Shippen Date: May 12, 2010. withdrawal of up to 1.750 mgd. Township, Tioga County, Pa.; Approval 17. East Resources, Inc., Pad ID: 3. Project Sponsor and Facility: Date: May 3, 2010. Dandois 482, ABR–20100517, Sullivan Walker Township Water Association, 2. East Resources, Inc., Pad ID: Red Township, Tioga County, Pa.; Approval Walker Township, Centre County, PA. Run Mountain 736, ABR–20100502, Date: May 12, 2010. Modification to increase the total McIntyre Township, Lycoming County, 18. Cabot Oil & Gas Corporation, Pad groundwater system withdrawal limit Pa.; Approval Date: May 3, 2010. ID: WarrinerR P2, ABR–20100518, (30-day average) from 0.523 mgd to 3. East Resources, Inc., Pad ID: Dimock Township, Susquehanna 0.962 mgd (Docket No. 20070905). Newlin 476, ABR–20100503, Charleston County, Pa.; Approval Date: May 13, Public Hearing—Amended Regulatory Township, Tioga County, Pa.; Approval 2010. Program Fee Schedule Date: May 3, 2010. 19. Cabot Oil & Gas Corporation, Pad 4. Stone Energy Corporation, Pad ID: ID: WarrinerR P5, ABR–20100519, The Commission approved Loomis Well No. 2H, ABR–20100504, Dimock Township, Susquehanna amendments to its Regulatory Program Rush Township, Susquehanna County, County, Pa.; Approval Date: May 13, Fee Schedule intended to clarify the Pa.; Approval Date: May 4, 2010. 2010. application of fees to certain projects 5. Chief Oil & Gas, LLC, Pad ID: Flook 20. Cabot Oil & Gas Corporation, Pad and ease the impact of fees on Drilling Pad #1, ABR–20100505, Mifflin ID: CarsonJ P1, ABR–20100520, groundwater remediation and municipal Township, Lycoming County, Pa.; Springville Township, Susquehanna projects. There were no changes to the Approval Date: May 5, 2010. County, Pa.; Approval Date: May 15, fee amounts. 6. Chief Oil & Gas, LLC, Pad ID: Kerr 2010. Authority: Public Law 91–575, 84 Stat. Drilling Pad #1, ABR–20100506, 21. Cabot Oil & Gas Corporation, Pad 1509 et seq., 18 CFR parts 806, 807, and 808. Lathrop Township, Susquehanna ID: HawleyW P1, ABR–20100521, Dated: June 22, 2010. County, Pa.; Approval Date: May 5, Dimock Township, Susquehanna Thomas W. Beauduy, 2010. County, Pa.; Approval Date: May 15, 7. Chesapeake Appalachia, LLC, Pad 2010. Deputy Director. ID: Verex, ABR–20100507, Auburn [FR Doc. 2010–16121 Filed 7–1–10; 8:45 am] 22. Talisman Energy USA, Inc., Pad Township, Susquehanna County, Pa.; ID: Gardiner 01 071, ABR–20100522, BILLING CODE 7040–01–P Approval Date: May 6, 2010. Troy Township, Bradford County, Pa.; 8. Chesapeake Appalachia, LLC, Pad Approval Date: May 15, 2010. ID: Pauliny, ABR–20100508, Terry 23. Talisman Energy USA, Inc., Pad SUSQUEHANNA RIVER BASIN Township, Bradford County, Pa.; COMMISSION ID: Vanblarcom 03 054, ABR–20100523, Approval Date: May 6, 2010. Columbia Township, Bradford County, 9. Chesapeake Appalachia, LLC, Pad Notice of Projects Approved for Pa.; Approval Date: May 15, 2010. ID: Coates, ABR–20100509, Standing Consumptive Uses of Water 24. Chesapeake Appalachia, LLC, Pad Stone Township, Bradford County, Pa.; ID: Fred, ABR–20100524, Leroy AGENCY: Susquehanna River Basin Approval Date: May 6, 2010. Township, Bradford County, Pa.; 10. Chesapeake Appalachia, LLC, Pad Commission. Approval Date: May 15, 2010. ID: Woodburn, ABR–20100510, ACTION: Notice of Approved Projects. 25. Chesapeake Appalachia, LLC, Pad Armenia Township, Bradford County, ID: McConnell, ABR–20100525, Overton SUMMARY: This notice lists the projects Pa.; Approval Date: May 6, 2010. approved by rule by the Susquehanna 11. Chesapeake Appalachia, LLC, Pad Township, Bradford County, Pa.; River Basin Commission during the ID: Jack, ABR–20100511, Windham Approval Date: May 15, 2010. period set forth in DATES. Township, Wyoming County, Pa.; 26. Chesapeake Appalachia, LLC, Pad ID: Janet, ABR–20100526, Monroe DATES: May 1, 2010 through May 31, Approval Date: May 6, 2010. Township, Bradford County, Pa.; 2010. 12. EOG Resources, Inc., Pad ID: ROGERS 1H, ABR–20100512, Approval Date: May 15, 2010. ADDRESSES: Susquehanna River Basin Springfield Township, Bradford County, 27. Chesapeake Appalachia, LLC, Pad Commission, 1721 North Front Street, Pa.; Approval Date: May 10, 2010. ID: Treat, ABR–20100527, Rome Harrisburg, PA 17102–2391. 13. EXCO Resources (PA), Inc., Pad Township, Bradford County, Pa.; FOR FURTHER INFORMATION CONTACT: ID: Litke (Pad 2), ABR–20100513, Approval Date: May 15, 2010. Richard A. Cairo, General Counsel, Burnside Township, Centre County, Pa.; 28. Chesapeake Appalachia, LLC, Pad telephone: (717) 238–0423, ext. 306; fax: Approval Date: May 12, 2010, including ID: Morse, ABR–20100528, Leroy (717) 238–2436; e-mail: [email protected] a partial waiver of 18 CFR Section Township, Bradford County, Pa.; or Stephanie L. Richardson, Secretary to 806.15. Approval Date: May 15, 2010. the Commission, telephone: (717) 238– 14. EXCO Resources (PA), Inc., Pad 29. Ultra Resources, Inc.; Pad ID: Patel 0423, ext. 304; fax: (717) 238–2436; ID: Litke (Pad 3), ABR–20100514, 914, ABR–20100529, Abbott Township, e-mail: [email protected]. Regular Burnside Township, Centre County, Pa.; Potter County, Pa.; Approval Date: May mail inquiries may be sent to the above Approval Date: May 12, 2010, including 17, 2010. address. a partial waiver of 18 CFR Section 30. Anadarko E&P Company, LP, Pad SUPPLEMENTARY INFORMATION: This 806.15. ID: COP Tract 231 D, ABR–20100530, notice lists the projects, described 15. EXCO Resources (PA), Inc., Pad Snow Shoe Township, Centre County, below, receiving approval for the ID: Litke (Pad 5), ABR–20100515, Pa.; Approval Date: May 18, 2010, consumptive use of water pursuant to Burnside Township, Centre County, Pa.; including a partial waiver of 18 CFR the Commission’s approval by rule Approval Date: May 12, 2010, including Section 806.15 process set forth in and 18 CFR 806.22(f) a partial waiver of 18 CFR Section 31. EOG Resources, Inc., Pad ID: COP for the time period specified above: 806.15. Pad A, ABR–20100531, Lawrence

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Township, Clearfield County, Pa.; 48. Chesapeake Appalachia, LLC; Pad Branch Township, Potter County, Pa.; Approval Date: May 18, 2010. ID: Matt Will Farms, ABR–20100544, Approval Date: May 28, 2010. 32. East Resources, Inc., Pad ID: Troy Township, Bradford County, Pa.; 65. East Resources, Inc., Pad ID: Greenwood Hunting Lodge 427, ABR– Approval Date: May 26, 2010. Young 431, ABR–20100561, Shippen 20100532, McIntyre Township, 49. Ultra Resources, Inc., Pad ID: Township, Tioga County, Pa.; Approval Lycoming County, Pa.; Approval Date: Simonetti 817 (rev), ABR–20100545, Date: May 31, 2010. May 18, 2010. Gaines Township, Tioga County, Pa.; Authority: Pub. L. 91–575, 84 Stat. 1509 et 33. EOG Resources, Inc., Pad ID: PHC Approval Date: May 26, 2010. seq., 18 CFR Parts 806, 807, and 808. 28H/29H, ABR–20090918.1, Lawrence 50. Chief Oil & Gas, LLC, Pad ID: Township, Clearfield County, Pa.; Kitzmiller Drilling Pad #1, ABR– Dated: June 22, 2010. Approval Date: May 19, 2010. 20100546, Jordan Township, Lycoming Stephanie L. Richardson, 34. EOG Resources, Inc., Pad ID: PHC County, Pa.; Approval Date: May 27, Secretary to the Commission. 4H, ABR–20090501.1, Lawrence 2010. [FR Doc. 2010–16122 Filed 7–1–10; 8:45 am] Township, Clearfield County, Pa.; 51. Chief Oil & Gas, LLC, Pad ID: BILLING CODE 7040–01–P Approval Date: May 19, 2010. Severcool Drilling Pad #1, ABR– 35. EOG Resources, Inc., Pad ID: PHC 20100547, Forkston Township, 5H, ABR–20090502.1, Lawrence Wyoming County, Pa.; Approval Date: DEPARTMENT OF TRANSPORTATION Township, Clearfield County, Pa.; May 27, 2010. Approval Date: May 19, 2010. 52. Chief Oil & Gas, LLC, Pad ID: Federal Railroad Administration 36. EOG Resources, Inc., Pad ID: PHC R & D Drilling Pad #1, ABR–20100548, 6H, ABR–20090721.2, Lawrence Mehoopany Township, Wyoming Solicitation of Applications and Notice Township, Clearfield County, Pa.; County, Pa.; Approval Date: May 27, of Funding Availability for Reducing Approval Date: May 19, 2010. 2010. the Effects of Traumatic Exposure to 37. XTO Energy Incorporated, Pad ID: 53. Talisman Energy USA, Inc., Pad Grade Crossing and Trespasser Everbe Farms 8518H, ABR–20100533, ID: Cole 03 016, ABR–20100549, Incidents on Train Crews Franklin Township, Lycoming County, Columbia Township, Bradford County, Pa.; Approval Date: May 20, 2010. Pa.; Approval Date: May 27, 2010. AGENCY: Federal Railroad 38. Range Resources—Appalachia, 54. Cabot Oil & Gas Corporation, Pad Administration (FRA), Department of LLC; Pad ID: Arrowhead Hunting Club ID: PettyJ P1, ABR–20100550, Dimock Transportation (DOT). Unit, ABR–20100534, Gallagher Township, Susquehanna County, Pa.; ACTION: Notice of funds availability, Township, Clinton County, Pa.; Approval Date: May 27, 2010. solicitation of applications. Approval Date: May 20, 2010. 55. EOG Resources, Inc., Pad ID: PHC 39. Chesapeake Appalachia, LLC; Pad Pad Q, ABR–20100551, Lawrence SUMMARY: Under this notice, FRA is ID: Hayward New, ABR–20100535, Township, Clearfield County, Pa.; soliciting applications from interested Rome Township, Bradford County, Pa.; Approval Date: May 27, 2010. and responsible parties for a grant to Approval Date: May 20, 2010. 56. Talisman Energy USA, Inc., Pad assess the applicability of current 40. Chesapeake Appalachia, LLC; Pad ID: Wilber 03 065, ABR–20100552, knowledge about post traumatic ID: Madden, ABR–20100536, Asylum Columbia Township, Bradford County, interventions and to advance evidence- Township, Bradford County, Pa.; Pa.; Approval Date: May 27, 2010. based recommendations for controlling Approval Date: May 21, 2010. 57. East Resources, Inc.; Pad ID: Breon the risks associated with traumatic 41. Chesapeake Appalachia, LLC; Pad 492, ABR–20100553, Sullivan exposure in the railroad setting. ID: McGraw, ABR–20100537, Auburn Township, Tioga County, Pa.; Approval DATES: FRA will begin accepting Township, Susquehanna County, Pa.; Date: May 28, 2010. applications immediately after Approval Date: May 21, 2010. 58. Range Resources—Appalachia, publication of this notice in the Federal 42. Chesapeake Appalachia, LLC; Pad LLC; Pad ID: Harman, Lewis Unit #1H; Register. FRA will accept applications ID: Cerca, ABR–20100538, Wyalusing ABR–20100554, Moreland Township, for this grant opportunity until August Township, Bradford County, Pa.; Lycoming County, Pa.; Approval Date: 16, 2010. Reviews will be conducted Approval Date: May 21, 2010. May 28, 2010. immediately following the solicitation 43. Chesapeake Appalachia, LLC; Pad 59. EOG Resources, Inc., Pad ID: JBR close date and selection announcements ID: Rich, ABR–20100539, Troy PARTNERS 1V, ABR–20100555, Saint will be made promptly. Township, Bradford County, Pa.; Marys City, Elk County, Pa.; Approval ADDRESSES: Applications for grants Approval Date: May 21, 2010. Date: May 28, 2010. under this Program must be submitted 44. Chesapeake Appalachia, LLC; Pad 60. XTO Energy Incorporated, Pad ID: electronically to Grants.gov (http:// ID: Flash, ABR–20100540, Rome Tome 8522H, ABR–20100556, Moreland www.grants.gov) following the detailed Township, Bradford County, Pa.; Township, Lycoming County, Pa.; procedures in the grant application Approval Date: May 21, 2010. Approval Date: May 28, 2010. package online. The Grants.gov Web site 45. Anadarko E&P Company, LP, Pad 61. Chesapeake Appalachia, LLC; Pad ID: COP Tract 685 A, ABR–20100541, ID: Kenyon, ABR–20100557, Overton allows organizations to find and apply Cummings Township, Lycoming Township, Bradford County, Pa.; electronically for competitive grant County, Pa.; Approval Date: May 24, Approval Date: May 28, 2010. opportunities from all Federal grant- 2010, including a partial waiver of 18 62. Chesapeake Appalachia, LLC; Pad making agencies. Any entity wishing to CFR Section 806.15. ID: Feusner New, ABR–20100558, submit an application pursuant to this 46. Cabot Oil & Gas Corporation, Pad Litchfield Township, Bradford County, notice should immediately initiate the ID: RozellC P1, ABR–20100542, Jessup Pa.; Approval Date: May 28, 2010. process of registering with Grants.Gov. Township, Susquehanna County, Pa.; 63. Ultra Resources, Inc.; Pad ID: FOR FURTHER INFORMATION CONTACT: Approval Date: May 24, 2010. Miksis 831, ABR–20100559; Gaines Technical inquiries should be directed 47. Chesapeake Appalachia, LLC; Pad Township, Tioga County, Pa.; Approval to Mr. Michael Coplen, Human Factors ID: Burkett, ABR–20100543, Smithfield Date: May 28, 2010. Program Manager, FRA, Mail Stop 20, Township, Bradford County, Pa.; 64. Ultra Resources, Inc.; Pad ID: 1200 New Jersey Avenue, SE., Approval Date: May 25, 2010. Coon Hollow 904, ABR–20100560; West Washington, DC 20590 (Phone: (202)

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493–6346; e-mail: qualifications and demonstrated to 4:15 p.m., est., Monday through [email protected]). Non- experience of key personnel proposed to Friday, except Federal holidays. technical inquiries should be directed to lead and perform the technical efforts SUPPLEMENTARY INFORMATION: Ms. Jennifer Capps, Grants Officer, (e.g., holding a Ph.D. in psychology or Office of Acquisition and Grants related fields, having peer-reviewed Electronic Access Services, FRA, 1200 New Jersey publications relating to PTSD, ASD, or An electronic copy of this document Avenue, SE., Washington, DC 20590 other trauma interventions); and may be downloaded from the Federal (Phone: (202) 493–0112; e-mail: qualifications of primary and supporting Register’s home page at: http:// [email protected]). organizations to fully and successfully www.archives.gov and the Government Printing Office’s database at: http:// SUPPLEMENTARY INFORMATION: FRA’s execute the proposal plan within the www.access.gpo.gov/nara. Office of Research and Development proposed time frame and budget. and Office of Railroad Safety are 2. Technical Merit. Degree to which Background concerned about the health and safety of proposed ideas exhibit a basis in established scientific and psychological The FHWA’s Buy America policy in train crews who witness traumatic 23 CFR 635.410 requires a domestic events from grade crossing and principles and practices; and the perceived likelihood of technical and manufacturing process for any steel or trespasser incidents. These incidents iron products (including protective carry the risk of exposure to the sort of practical success in a railroad environment. coatings) that are permanently situations known to trigger severe incorporated in a Federal-aid Requirements and Conditions for emotional and psychological distress, construction project. The regulation also Grant Applications. Detailed including Post Traumatic Stress provides for a waiver of the Buy application requirements and Disorder (PTSD) and the more America requirements when the conditions may be found in the grant immediate Acute Distress Disorder application would be inconsistent with application guidance (CFDA Number (ASD). FRA seeks to fund a grant the public interest or when satisfactory 20.313) for this solicitation on assessing the applicability of current quality domestic steel and iron products knowledge about post traumatic Grants.gov. are not sufficiently available. This interventions and to advance evidence- Issued in Washington, DC, on June 28, notice provides information regarding based recommendations for controlling 2010. the FHWA’s finding that a Buy America the risks associated with traumatic Mark Yachmetz, waiver is appropriate to use non exposure in the railroad setting. The Associate Administrator for Railroad Policy domestic Gear-Motor Assembly with selected entity will develop one or more and Development. Horsepower 7.5, Output RPM 15, program designs suitable for [FR Doc. 2010–16156 Filed 7–1–10; 8:45 am] Torque 33011 in-lb, Voltage 220/460 implementation by rail carriers in BILLING CODE 4910–06–P and brakes torque 55.3 in-lb. The use of partnership with their respective unions the Gear-Motor assembly is for and researchers. FRA’s Office of replacement of original machinery that Research and Development has $50,000 DEPARTMENT OF TRANSPORTATION meets Federal design code, AASHTO available in fiscal year 2010 to fund a LRFD for Movable Highway Bridge grant for the initial development of an Federal Highway Administration Design Specifications for bascule intervention plan for reducing the bridges. effects of traumatic exposure to grade Buy America Waiver Notification In accordance with Division A, crossing and trespasser incidents in AGENCY: Federal Highway section 123 of the ‘‘Consolidated particular. Additional funding may be Administration (FHWA), DOT. Appropriations Act, 2010’’ (Pub. L. 111– available in future years for expansion 117), the FHWA published a notice of ACTION: and implementation of the intervention. Notice. intent to issue a waiver on its Web site Eligible Organizations. Any for Gear-Motor assembly (http:// SUMMARY: This notice provides individual or organization with information regarding the FHWA’s www.fhwa.dot.gov/construction/ previous experience designing and finding that a Buy America waiver is contracts/waivers.cfm?id=48) on May 5, implementing a PTSD intervention appropriate for the use of non domestic 2010. The FHWA received no comments program, along with the skills, Gear-Motor Assembly with Horsepower in response to the publication, which knowledge, and resources necessary to 7.5, Output RPM 15, Torque 33011 in- suggests that the Gear-Motor assembly carry out the proposed research as the lb, Voltage 220/460 and brakes torque may not be available domestically. project director/principal investigator, is 55.3 in-lb for rehabilitation of Federal- During the 15-day comment period, the invited to develop an application for aid project FPID 415386–2–38–01; West FHWA conducted additional support. Columbus Drive Bridge project in nationwide review to locate potential Selection Criteria. Proposals Tampa, Florida. domestic manufacturers for Gear-Motor submitted under this notice must, at a assembly with Horsepower 7.5, Output minimum, satisfy the following DATES: The effective date of the waiver RPM 15, Torque 33011 in-lb, Voltage requirement: The principal is July 6, 2010. 220/460 and brakes torque 55.3 in-lb. investigator(s) identified to lead the FOR FURTHER INFORMATION CONTACT: For Based on all the information available to technical effort under this program must questions about this notice, please the agency, the FHWA concludes that have demonstrated experience working contact Mr. Gerald Yakowenko, FHWA there are no domestic manufacturers for with employees and employers to Office of Program Administration, (202) Gear-Motor assembly; with Horsepower successfully implement programs 366–1562, or via e-mail at 7.5, Output RPM 15, Torque 33011 in- mediating the effects of employees’ [email protected]. For legal lb, Voltage 220/460 and brakes torque exposure to trauma. Proposals that meet questions, please contact Mr. Michael 55.3 in-lb. the minimum qualifications will be Harkins, FHWA Office of the Chief In accordance with the provisions of evaluated using the following criteria: Counsel, (202) 366–4928, or via e-mail section 117 of the SAFETEA–LU 1. Key Personnel and Supporting at [email protected]. Office Technical Corrections Act of 2008 (Pub. Organization. The technical hours for the FHWA are from 7:45 a.m. L. 110–244, 122 Stat.1572), the FHWA

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is providing this notice as its finding incorporated in a Federal-aid DEPARTMENT OF TRANSPORTATION that a waiver of Buy America construction project. The regulation also requirements is appropriate. The FHWA provides for a waiver of the Buy Federal Highway Administration invites public comment on this finding America requirements when the for an additional 15 days following the application would be inconsistent with Buy America Waiver Notification effective date of the finding. Comments the public interest or when satisfactory AGENCY: Federal Highway may be submitted to the FHWA’s web quality domestic steel and iron products Administration (FHWA), DOT. site via the link provided to the Florida are not sufficiently available. This ACTION: Notice. waiver page noted above. notice provides information regarding (Authority: 23 U.S.C. 313; Pub. L. 110–161, the FHWA’s finding that a Buy America SUMMARY: This notice provides 23 CFR 635.410) waiver is appropriate to use for the non- information regarding the FHWA’s domestic steel component for the finding that a Buy America waiver is Issued on: June 23, 2010. UNISTRUT fall protection system, appropriate for the use of non-domestic Victor M. Mendez, which is compatible with the existing high strength steel bars ASTM A722M Administrator. system. 150 ksi (17⁄8 inches in diameter) for [FR Doc. 2010–16088 Filed 7–1–10; 8:45 am] In accordance with section 123 of emergency repairs of broken eye bars on BILLING CODE 4910–22–P Division A, of the ‘‘Consolidated the San Francisco Oakland Bay Bridge Appropriations Act, 2010’’ (Pub. L. 111– in California. These emergency repairs 117), the FHWA published a notice of did not require prior FHWA DEPARTMENT OF TRANSPORTATION intent to issue a waiver on its Web site authorization. The California Federal Highway Administration for the steel component of the Department of Transportation (Caltrans) UNISTRUT fall protection system conducted a search and was not able to Buy America Waiver Notification (http://www.fhwa.dot.gov/construction/ find a domestic source for the high contracts/waivers.cfm?id=50) on May strength steel bars ASTM A722M 150 AGENCY: Federal Highway 25, 2010. The FHWA received three ksi (17⁄8 inches in diameter). As a result, Administration (FHWA), DOT. comments in response to the Caltrans proceeded to utilize a foreign ACTION: Notice. publication. The three comments source for this product. Based on the suggested different domestic emergency situation, and Caltrans’ SUMMARY: This notice provides manufacturers of fall protection systems reasonable efforts to comply with Buy information regarding the FHWA’s and opposed the approval of the waiver America, the FHWA concludes that a finding that a Buy America waiver is request. The New Jersey Department of public interest waiver is appropriate for appropriate for the use of the non- Transportation responded with a the use of non-domestic high strength domestic steel component of comment stating that the waiver is for steel bars for emergency repairs of UNISTRUT fall arrest system, for replacement of a component of the broken eye bars on the San Francisco replacement in kind on Stickel Bridge existing UNISTRUT fall protection Oakland Bridge in California. project no. BR–280–6(091) in New system and not for an entirely new fall DATES: The effective date of the waiver Jersey. protection system. During the 15-day is July 6, 2010. DATES: The effective date of the waiver comment period, the FHWA conducted FOR FURTHER INFORMATION CONTACT: For is July 6, 2010. additional nationwide review to locate questions about this notice, please FOR FURTHER INFORMATION CONTACT: For potential domestic manufacturers of a contact Mr. Gerald Yakowenko, FHWA questions about this notice, please compatible steel component for the Office of Program Administration, (202) contact Mr. Gerald Yakowenko, FHWA UNISTRUT fall protection system. 366–1562, or via e-mail at Office of Program Administration, Based on all the information available to [email protected]. For legal (202) 366–1562, or via e-mail at the agency, the FHWA concludes that questions, please contact Mr. Michael [email protected]. For legal there are no domestic manufacturers of Harkins, FHWA Office of the Chief questions, please contact Mr. Michael compatible steel components for the Counsel, (202) 366–4928, or via e-mail Harkins, FHWA Office of the Chief UNISTRUT fall protection system. at [email protected]. Office Counsel, (202) 366–4928, or via e-mail In accordance with the provisions of hours for the FHWA are from 7:45 a.m. at [email protected]. Office section 117 of the SAFETEA–LU to 4:15 p.m., est., Monday through hours for the FHWA are from 7:45 a.m. Technical Corrections Act of 2008 (Pub. Friday, except Federal holidays. to 4:15 p.m., et., Monday through L. 110–244, 122 Stat. 1572), the FHWA SUPPLEMENTARY INFORMATION: Friday, except Federal holidays. is providing this notice as its finding Electronic Access SUPPLEMENTARY INFORMATION: that a waiver of Buy America requirements is appropriate. The FHWA An electronic copy of this document Electronic Access invites public comment on this finding may be downloaded from the Federal An electronic copy of this document for an additional 15 days following the Register’s home page at: http:// may be downloaded from the Federal effective date of the finding. Comments www.archives.gov and the Government Register’s home page at: http:// may be submitted to the FHWA’s Web Printing Office’s database at: http:// www.archives.gov and the Government site via the link provided to the New www.access.gpo.gov/nara. Printing Office’s database at: http:// Jersey waiver page, noted above. Background www.access.gpo.gov/nara. (Authority: 23 U.S.C. 313; Pub. L. 110–161, 23 CFR 635.410) The FHWA’s Buy America policy in Background 23 CFR 635.410 requires a domestic The FHWA’s Buy America policy in Issued on: June 23, 2010. manufacturing process for any steel or 23 CFR 635.410 requires a domestic Victor M. Mendez, iron products (including protective manufacturing process for any steel or Administrator. coatings) that are permanently iron products (including protective [FR Doc. 2010–16082 Filed 7–1–10; 8:45 am] incorporated in a Federal-aid coatings) that are permanently BILLING CODE 4910–22–P construction project. The regulation also

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provides for a waiver of the Buy readily available for emergency repairs I. Background America requirements when the of the broken eye bars. application would be inconsistent with In accordance with the provisions of In July 2009, the Department of the public interest or when satisfactory section 117 of the SAFETEA–LU Transportation’s Office of Inspector quality domestic steel and iron products Technical Corrections Act of 2008 (Pub. General released the report Audit of the are not sufficiently available. This L. 110–244, 122 Stat.1572), the FHWA Data Integrity of the Commercial notice provides information regarding is providing this notice as its finding Driver’s License Information System as the FHWA’s finding that a Buy America that a waiver of Buy America required by the Safe, Accountable, waiver is appropriate to use non- requirements is appropriate. The FHWA Flexible, Efficient Transportation Equity domestic high strength steel bars based invites public comment on this finding Act: A Legacy for Users (SAFETEA–LU) on the public interest provision in for an additional 15 days following the (Pub. L. 109–59). CDLIS consists of a FHWA’s policy. effective date of the finding. Comments database, known as the Central Site, On October 27, 2009, a repair made may be submitted to the FHWA’s Web which maintains individual Master during the 2009 Labor Day weekend to site via the link provided to the Pointer Records (MPR) with identifying a cracked eye bar on the San Francisco California waiver page noted above. information for each CDL holder in the Oakland Bay Bridge failed, requiring the United States. This database directs or (Authority: 23 U.S.C. 313; Pub. L. 110–161, points inquirers to the database of each closure of the bridge. The San Francisco 23 CFR 635.410) of the 51 CDL-issuing jurisdictions for Oakland Bay Bridge carries over 280,000 Issued on: June 24, 2010. vehicles per day creating transportation more complete driver history records. Victor M. Mendez, gridlock in the area. Caltrans’ goals were Connectivity for the system is provided to ensure the safety of the bridge and Administrator. through an encrypted communications reopen it as soon as possible through an [FR Doc. 2010–16085 Filed 7–1–10; 8:45 am] network. The FMCSA has designated emergency repair contract. Caltrans BILLING CODE 4910–22–P the American Association of Motor contacted four steel fabricators Vehicle Administrators (AAMVA) as the regarding their ability to supply operator of the Central Site and the domestic high strength bars to meet the DEPARTMENT OF TRANSPORTATION communications network. States are schedule for the emergency repairs. responsible for ensuring their systems Federal Motor Carrier Safety comply with the CDLIS specifications They were unable to find a fabricator Administration who had domestic high strength steel on and procedures as published by AAMVA. hand that was able to meet their Guidance to States Regarding Driver schedule. History Record Information Security, In preparing its report, OIG evaluated In accordance with Division K, Continuity of Operation Planning, and several factors related to the information section 130 of the ‘‘Consolidated Disaster Recovery Planning stored at the CDLIS Central Site and on Appropriations Act, 2008’’ (Pub. L. 110– State databases. Specifically, OIG 161), the FHWA published a notice of AGENCY: Federal Motor Carrier Safety attempted to determine ‘‘whether CDLIS intent to issue a waiver on its Web site Administration, DOT. and State department of motor vehicles for the high strength steel bars (http:// ACTION: Notice. (DMV) information systems were www.fhwa.dot.gov/construction/ adequately secured,’’ and ‘‘the adequacy contracts/waivers.cfm?id=46) on March SUMMARY: The Federal Motor Carrier of contingency plans to ensure 22, 2010. The FHWA received four Safety Administration (FMCSA) continued CDLIS service to DMVs comments in response to the notice. announces guidance to State driver following a disaster or emergency.’’ One commenter suggested that Gerdau licensing agencies (SDLAs) to support (Note: The OIG report refers to DMVs. Ameristeel manufactures the high their efforts at maintaining the security However, as States continue to strength steel bars domestically. of information contained in the driver reorganize their organizations away Caltrans contacted Gerdau Ameristeel to history record of commercial driver’s from all-inclusive DMVs, FMCSA has verify availability of high strength steel license (CDL) holders. Further, FMCSA used the term ‘‘State Driver Licensing bars during the period of emergency provides States with recommendations Agencies’’ in previous rulemakings to repairs. Gerdau Ameristeel indicated related to continuity of operation and refer to these same agencies responsible that a lead time is required and the high disaster recovery planning to ensure the for issuing CDLs). strength steel bars would not have been permanence of information contained in The identifying information on the available for emergency repairs. Two the driver history record of a CDL MPR at the CDLIS Central Site includes comments were from Caltrans holder. This action is in response to the the name, date of birth, social security explaining the circumstances Department of Transportation Office of number, State of Record, and driver’s surrounding the project, as well as the the Inspector General’s (OIG) 2009 license number. Because this efforts made by Caltrans in contacting report Audit of the Data Integrity of the information, both as individual and potential domestic manufacturers. The Commercial Driver’s License cumulative data elements, is considered fourth comment expressed general Information System (CDLIS). personally identifiable information (PII), support for the Buy America FOR FURTHER INFORMATION CONTACT: possessors of the information must take requirement. Selden Fritschner, Chief, Commercial specific steps to prevent unauthorized During the 15-day comment period, Driver’s License Division, E-mail: access and dissemination. At the same the FHWA conducted additional [email protected], Telephone: time, because the information contained nationwide review to locate potential 202–366–0677, or Kelvin Taylor, at the CDLIS Central Site and on SDLA domestic manufacturers for the high Information Systems Security Officer, E- databases is crucial to highway safety strength steel bars. Based on all the mail: [email protected], Telephone: during the CDL issuance process and at information available to the agency, the 202–366–4028. Federal Motor Carrier roadside enforcement/inspection, it is FHWA concludes that there were no Safety Administration, 1200 New Jersey paramount that the data be available to domestic high strength steel bars ASTM Ave., SE., Washington, DC 20590. all authorized users with minimal A 722M 150ksi (17⁄8 inches diameter) SUPPLEMENTARY INFORMATION: disruption.

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In its report, OIG noted that FMCSA planning is necessary to document application, or computer facility after an had neither developed and standards and provide for continuous emergency. implemented sufficient comprehensive review and improvement. FMCSA Information Technology Contingency security policies and procedures to strongly encourages States to develop an Plan (ITCP)—A plan focused on protect the portal it uses to access Information Security Strategic Plan ensuring continuity-of-support for major CDLIS, nor had it developed complete (ISSP) that addresses organizational applications in the event of a disruption contingency and testing plans for this structure and governance, roles and in normal operations due to an system to ensure uninterrupted CDL responsibilities, and enterprise information services in the event of a architecture. From this ISSP, the State emergency. disaster or system outage. The FMCSA should develop specific policies and These plans should include a is currently addressing these findings by guidance to ensure information security. business impact analysis (BIA) to working directly with its service Further, a coordinated plan allows for determine: the interdependence of providers and is reporting its progress to systematic monitoring and systems and work priorities in the event OIG through corrective action plan improvement. of a disruption; actions necessary to updates. As the operator of CDLIS, While obviously not intended to be restore system operations on a short AAMVA is also modernizing the system comprehensive for large organizations term basis after a disruption until a to adhere to standards established by such as State driver licensing agencies, more permanent solution can be the Federal Information Security NIST Interagency Report (IR) 7621, implemented; and actions necessary to Management Act (FISMA). Similar Small Business Information Security: reconstitute a disrupted facility or lost FISMA standards are being applied to The Fundamentals provides basic data to its previous level of capability. the portal FMCSA owns and uses to information about information security The BIA should also include an analysis access CDLIS. issues. Topics in this publication of the organization’s reliance upon The OIG also noted similar include: Protecting information systems deficiencies in some State systems and contracted support and connectivity, a from damage by viruses, spyware, and prioritization list of the systems programs. In five of nine States malicious code; protecting internet reviewed, the OIG found that necessary for the organization’s mission- connections; using firewalls; updating critical functions, maximum allowable information security practices, operating systems and applications; outages for system components including continuity of operation and securing wireless access points and (measured in hours or days), and disaster recovery policies and plans, networks; controlling physical access to were either non-existent or informal, network components; training responsibilities associated with and that State continuity of operations, employees about information security; restoring critical functions (including a disaster recovery, and information and limiting employee authority to line of succession in cases of staff system contingency planners had never install software, access certain websites, unavailability). For further information engaged in adequate testing exercises. and gain access to network controls. on contingency planning, consult Guidance Though States are not required to NIST’s Special Publication 800–34: comply with FISMA, NIST Special Contingency Planning Guide for As a result of OIG’s findings, FMCSA Information Technology Systems. encourages States to evaluate their Publication (SP) 800–53, Recommended information security programs and Security Controls for Federal In addition to establishing plans for either establish or update policies, Information Systems and Organizations service disruption and disaster recovery, plans, and procedures, to provide an (Rev. 3, August 2009), provides a it is critical to perform tests that assure adequate level of protection to sustain comprehensive guide to information the plans will work. These tests should their operational mission and security standards. NIST SP 800–100, be designed as cost-effective ways of responsibilities. Information Security Handbook: A determining if contingency systems and While States are not required to meet Guide for Managers, also provides personnel perform as expected. The Federal information security standards, overview information for developing a tests also provide the organization and security plan. NIST currently makes each State should ensure that it has its personnel with the confidence and available over 30 additional adequate and comprehensive processes experience necessary to respond to a publications related specifically to and procedures in place to protect PII real event. Tests can range from and sensitive information and to sustain information security on topics ranging from wireless network access classroom exercises to full system its key operations during an outage. The testing that simulates a real event. Tests National Institute of Standards and authentication to enterprise password management. should be documented and the results Technology’s (NIST) Computer Security examined for lessons learned and Division maintains a Computer Security II. System and Service Unavailability improvements necessary to the Resource Center (CSRC) that provides contingency plans. For further free information to government and To mitigate the risks associated with information on contingency testing, non-governmental entities in an effort to system and service unavailability, protect information systems against FMCSA encourages States to establish consult NIST’s Special Publication 800– threats and ensure availability of and implement: 84: Guide to Test, Training, and information and services. FMCSA Continuity of Operations Plan Exercise Programs for IT Plans and recommends that States consider NIST (COOP)—A plan that focuses on Capabilities. standards and review the publications restoring an organization’s essential Issued on: June 23, 2010. functions at an alternate site and available at its Web site: http:// Anne S. Ferro, csrc.nist.gov/index.html. performing those functions for up to 30 days before returning to normal Administrator. I. Information Security operations. [FR Doc. 2010–16226 Filed 7–1–10; 8:45 am] The key deficiency in States that OIG Disaster Recovery Plan (DRP)—An BILLING CODE 4910–EX–P noted was the lack of current information technology plan designed to information security plans. Adequate restore operability of a system,

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DEPARTMENT OF TRANSPORTATION three individuals and requested The qualifications and medical comments from the public (75 FR condition of each applicant were stated Federal Motor Carrier Safety 25919). The public comment period and discussed in detail in the May 10, Administration closed on June 9, 2010 and one 2010, Federal Register Notice and they comment was received. will not be repeated in this Notice. [FMCSA Docket No. FMCSA–2010–0083] FMCSA has evaluated the eligibility Basis for Exemption Determination Qualification of Drivers; Exemption of the thirty-three applicants and Under 49 U.S.C. 31136(e) and 31315, Applications; Diabetes Mellitus determined that granting the exemptions to these individuals would FMCSA may grant an exemption from AGENCY: Federal Motor Carrier Safety achieve a level of safety equivalent to, the diabetes standard in 49 CFR Administration (FMCSA), DOT or greater than, the level that would be 391.41(b)(3) if the exemption is likely to ACTION: Notice of final disposition. achieved by complying with the current achieve an equivalent or greater level of regulation 49 CFR 391.41(b)(3). safety than would be achieved without SUMMARY: FMCSA announces its the exemption. The exemption allows decision to exempt thirty-three Diabetes Mellitus and Driving the applicants to operate CMVs in individuals from its rule prohibiting Experience of the Applicants interstate commerce. persons with insulin-treated diabetes The Agency established the current To evaluate the effect of these mellitus (ITDM) from operating standard for diabetes in 1970 because exemptions on safety, FMCSA commercial motor vehicles (CMVs) in several risk studies indicated that considered medical reports about the interstate commerce. The exemptions diabetic drivers had a higher rate of applicants’ ITDM and vision, and will enable these individuals to operate crash involvement than the general reviewed the treating endocrinologists’ CMVs in interstate commerce. population. The diabetes rule provides medical opinion related to the ability of DATES: The exemptions are effective July that ‘‘A person is physically qualified to the driver to safely operate a CMV while 2, 2010. The exemptions expire on July drive a commercial motor vehicle if that using insulin. Consequently, FMCSA finds that in 2, 2012. person has no established medical each case exempting these applicants history or clinical diagnosis of diabetes FOR FURTHER INFORMATION CONTACT: Dr. from the diabetes standard in 49 CFR mellitus currently requiring insulin for Mary D. Gunnels, Director, Medical 391.41(b)(3) is likely to achieve a level control’’ (49 CFR 391.41(b)(3)). Programs, (202) 366–4001, of safety equal to that existing without FMCSA established its diabetes [email protected], FMCSA, Room the exemption. W64–224, Department of exemption program, based on the Transportation, 1200 New Jersey Agency’s July 2000 study entitled ‘‘A Conditions and Requirements Avenue, SE., Washington, DC 20590– Report to Congress on the Feasibility of The terms and conditions of the 0001. Office hours are from 8:30 a.m. to a Program to Qualify Individuals with exemption will be provided to the 5 p.m., Monday through Friday, except Insulin-Treated Diabetes Mellitus to applicants in the exemption document Federal holidays. Operate in Interstate Commerce as and they include the following: (1) That SUPPLEMENTARY INFORMATION: Directed by the Transportation Act for each individual submit a quarterly the 21st Century.’’ The report concluded monitoring checklist completed by the Electronic Access that a safe and practicable protocol to treating endocrinologist as well as an You may see all the comments online allow some drivers with ITDM to annual checklist with a comprehensive through the Federal Document operate CMVs is feasible. The medical evaluation; (2) that each Management System (FDMS) at: http:// September 3, 2003 (68 FR 52441) individual reports within 2 business www.regulations.gov. Federal Register Notice in conjunction days of occurrence, all episodes of Docket: For access to the docket to with the November 8, 2005 (70 FR severe hypoglycemia, significant read background documents or 67777) Federal Register Notice provides complications, or inability to manage comments, go to http:// the current protocol for allowing such diabetes; also, any involvement in an www.regulations.gov and/or Room drivers to operate CMVs in interstate accident or any other adverse event in W12–140 on the ground level of the commerce. a CMV or personal vehicle, whether or West Building, 1200 New Jersey These thirty-three applicants have not it is related to an episode of Avenue, SE., Washington, DC, between had ITDM over a range of 1 to 28 years. hypoglycemia; (3) that each individual 9 a.m. and 5 p.m., Monday through These applicants report no provide a copy of the ophthalmologist’s Friday, except Federal holidays. hypoglycemic reaction that resulted in or optometrist’s report to the medical Privacy Act: Anyone may search the loss of consciousness or seizure, that examiner at the time of the annual electronic form of all comments required the assistance of another medical examination; and (4) that each received into any of DOT’s dockets by person, or resulted in impaired individual provide a copy of the annual the name of the individual submitting cognitive function without warning medical certification to the employer for the comment (or of the person signing symptoms in the past 5 years (with one retention in the driver’s qualification the comment, if submitted on behalf of year of stability following any such file, or keep a copy in his/her driver’s an association, business, labor union, or episode). In each case, an qualification file if he/she is self- other entity). You may review DOT’s endocrinologist has verified that the employed. The driver must also have a complete Privacy Act Statement in the driver has demonstrated a willingness to copy of the certification when driving, Federal Register (65 FR 19477, Apr. 11, properly monitor and manage his/her for presentation to a duly authorized 2000). This statement is also available at diabetes mellitus, received education Federal, State, or local enforcement http://www.regulations.gov. related to diabetes management, and is official. on a stable insulin regimen. These Background drivers report no other disqualifying Discussion of Comments On May 10, 2010, FMCSA published conditions, including diabetes-related FMCSA received one comment in this a Notice of receipt of Federal diabetes complications. Each meets the vision proceeding. The comment was exemption applications from thirty- standard at 49 CFR 391.41(b)(10). considered and discussed below.

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Bethany Pisulak stated the following, objectives of 49 U.S.C. 31136(e) and the name of the individual submitting ‘‘I feel that it is in the best safety to look 31315. If the exemption is still effective the comment (or of the person signing for possible downsides of these people at the end of the 2-year period, the the comment, if submitted on behalf of being able to work. They need to be person may apply to FMCSA for a an association, business, labor union, or focused for a long time, meaning they renewal under procedures in effect at other entity). You may review DOT’s may go awhile without food or drink, that time. complete Privacy Act Statement in the which could lower their sugars, making Issued on: June 25, 2010. Federal Register (65 FR 19477, Apr. 11, them need insulin. There should be 2000). This statement is also available at Larry W. Minor, multiple tests done to ensure that each http://www.regulations.gov. worker is qualified for the job or Associate Administrator for Policy and Program Development. Background position.’’ In response to this comment, [FR Doc. 2010–16222 Filed 7–1–10; 8:45 am] On May 21, 2010, FMCSA published FMCSA’s exemption process supports BILLING CODE 4910–EX–P a Notice of receipt of Federal diabetes drivers with ITDM who seek to operate exemption applications from thirty- in interstate commerce. In addition, seven individuals and requested FMCSA relies on the expert medical DEPARTMENT OF TRANSPORTATION comments from the public (75 FR 28677). The public comment period opinion of the endocrinologist and the Federal Motor Carrier Safety closed on June 21, 2010 and one medical examiner, who are required to Administration analyze individual ability to control and comment was received. manage the diabetic condition, [FMCSA Docket No. FMCSA–2010–0115] FMCSA has evaluated the eligibility including the individual ability and of the thirty-seven applicants and willingness of the driver to monitor Qualification of Drivers; Exemption determined that granting the blood glucose level on an ongoing basis. Applications; Diabetes Mellitus exemptions to these individuals would achieve a level of safety equivalent to, Until the Agency issues a Final Rule, AGENCY: Federal Motor Carrier Safety or greater than, the level that would be however, drivers with ITDM must Administration (FMCSA), DOT continue to apply for exemptions from achieved by complying with the current ACTION: Notice of final disposition. FMCSA, and request renewals of such regulation 49 CFR 391.41(b)(3). exemptions. FMCSA will grant SUMMARY: FMCSA announces its Diabetes Mellitus and Driving exemptions only to those applicants decision to exempt thirty-seven Experience of the Applicants who meet the specific conditions and individuals from its rule prohibiting The Agency established the current comply with all the requirements of the persons with insulin-treated diabetes standard for diabetes in 1970 because exemption. mellitus (ITDM) from operating several risk studies indicated that commercial motor vehicles (CMVs) in Conclusion drivers with diabetes had a higher rate interstate commerce. The exemptions Based upon its evaluation of the of crash involvement than the general will enable these individuals to operate thirty-three exemption applications, population. The diabetes rule provides CMVs in interstate commerce. FMCSA exempts, Spencer W. that ‘‘A person is physically qualified to Alexander, Nelson Alvarez, Cody R. DATES: The exemptions are effective July drive a commercial motor vehicle if that Anderson, Ronnie L. Barker, Eric D. 2, 2010. The exemptions expire on July person has no established medical Benham, Brian C. Blevins, Charles E. 2, 2012. history or clinical diagnosis of diabetes Bonner, Sr., Michael J. Brieske, FOR FURTHER INFORMATION CONTACT: Dr. mellitus currently requiring insulin for Frederick Brown, William D. Elam, Jr., Mary D. Gunnels, Director, Medical control’’ (49 CFR 391.41(b)(3)). Devin S. Gibson, Lewis M. Hendershott, Programs, (202) 366–4001, FMCSA established its diabetes Mark E. Henning, Duane C. Jackson, [email protected], FMCSA, Room exemption program, based on the John J. Long, Jerry A. McMurdy, Steven W64–224, Department of Agency’s July 2000 study entitled ‘‘A L. Miller, Joe E. Montoya, Jonathan A. Transportation, 1200 New Jersey Report to Congress on the Feasibility of Morisoli, Timothy J. Nowak, Lawrence Avenue, SE., Washington, DC 20590– a Program to Qualify Individuals with W. Patterson, Jr., Peter J. Pendola, 0001. Office hours are from 8:30 a.m. to Insulin-Treated Diabetes Mellitus to Frederick E. Robinson, Larry D. 5 p.m., Monday through Friday, except Operate in Interstate Commerce as Schweisberger, Joseph C. Shaw, Michael Federal holidays. Directed by the Transportation Act for Shuler, Kevin C. Simerick, Matthew E. SUPPLEMENTARY INFORMATION: the 21st Century.’’ The report concluded Sipel, Michael S. Tanko, James P. that a safe and practicable protocol to Tomasik, Leonard D. Tournear, Booker Electronic Access allow some drivers with ITDM to T. Ware and Joseph H. Watkins, from You may see all the comments online operate CMVs is feasible. The the ITDM standard in 49 CFR through the Federal Document September 3, 2003 (68 FR 52441) 391.41(b)(3), subject to the conditions Management System (FDMS) at: http:// Federal Register Notice in conjunction listed under ‘‘Conditions and www.regulations.gov. with the November 8, 2005 (70 FR Requirements’’ above. Docket: For access to the docket to 67777) Federal Register Notice provides In accordance with 49 U.S.C. 31136(e) read background documents or the current protocol for allowing such and 31315 each exemption will be valid comments, go to http:// drivers to operate CMVs in interstate for two years unless revoked earlier by www.regulations.gov and/or Room commerce. FMCSA. The exemption will be revoked W12–140 on the ground level of the These thirty-seven applicants have if: (1) The person fails to comply with West Building, 1200 New Jersey had ITDM over a range of 1 to 31 years. the terms and conditions of the Avenue, SE., Washington, DC, between These applicants report no exemption; (2) the exemption has 9 a.m. and 5 p.m., Monday through hypoglycemic reaction that resulted in resulted in a lower level of safety than Friday, except Federal holidays. loss of consciousness or seizure, that was maintained before it was granted; or Privacy Act: Anyone may search the required the assistance of another (3) continuation of the exemption would electronic form of all comments person, or resulted in impaired not be consistent with the goals and received into any of DOT’s dockets by cognitive function without warning

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symptoms in the past 5 years (with one retention in the driver’s qualification DEPARTMENT OF TRANSPORTATION year of stability following any such file, or keep a copy in his/her driver’s episode). In each case, an qualification file if he/she is self- Federal Motor Carrier Safety endocrinologist verified that the driver employed. The driver must also have a Administration has demonstrated a willingness to copy of the certification when driving, [Docket No. FMCSA–2010–0203] properly monitor and manage his/her for presentation to a duly authorized diabetes mellitus, received education Federal, State, or local enforcement Qualification of Drivers; Exemption related to diabetes management, and is official. Applications; Epilepsy and Seizure on a stable insulin regimen. These Disorders drivers report no other disqualifying Discussion of Comments conditions, including diabetes-related FMCSA received one comment in this AGENCY: Federal Motor Carrier Safety complications. Each meets the vision proceeding. The comment was Administration (FMCSA), DOT. standard at 49 CFR 391.41(b)(10). considered and discussed below. ACTION: Notice of applications for The qualifications and medical The Pennsylvania Department of exemption, request for comments. condition of each applicant were stated Transportation stated that it had and discussed in detail in the May 21, reviewed the driving record for Scott A. SUMMARY: FMCSA announces receipt of 2010, Federal Register Notice and they Yon and was in favor of granting a applications from seventeen individuals will not be repeated in this Notice. Federal diabetes exemption to this for an exemption from the prohibition Basis for Exemption Determination individual. against persons with a clinical diagnosis of epilepsy (or any other condition Conclusion Under 49 U.S.C. 31136(e) and 31315, which is likely to cause a loss of FMCSA may grant an exemption from Based upon its evaluation of the consciousness or any loss of ability to the diabetes standard in 49 CFR thirty-seven exemption applications, operate a commercial motor vehicle 391.41(b)(3) if the exemption is likely to FMCSA exempts, Billy Banks, Joseph P. (CMV)) from operating CMVs in achieve an equivalent or greater level of Beagan, John M. Charlton, Stuart A. interstate commerce. If granted, the safety than would be achieved without Dietz, Marie C. Eddy, Michael G. exemptions would enable these the exemption. The exemption allows Eikenberry, Francisco K. Gallardo, John individuals with seizure disorders to the applicants to operate CMVs in P. Gould, David B. Graef, Jason C. operate CMVs in interstate commerce. interstate commerce. Green, Kimmy D. Hall, Bruce G. DATES: Comments must be received on To evaluate the effect of these Hammill, Jr., Edward G. Harbin, or before August 2, 2010. exemptions on safety, FMCSA Timothy R. Hefling, Christopher M. ADDRESSES: considered medical reports about the Hultman, Michael R. Jackson, Gerald A. You may submit comments applicants’ ITDM and vision, and Johnson, Jay T. Kirschmann, Duane K. bearing the Federal Docket Management reviewed the treating endocrinologists’ Kohls, John F. Lohmuller, Rodney A. System (FDMS) Docket No. FMCSA– medical opinion related to the ability of Markham, Christopher P. Martin, H. 2010–0203 using any of the following the driver to safely operate a CMV while methods: Alan Miller, Andrew D. Monson, Cheryl • using insulin. T. Murphy, Kurt D. Oertelt, Joseph M. Federal eRulemaking Portal: Go to Consequently, FMCSA finds that in Pirrello, Audrey R. Roddy, Theodore J. http://www.regulations.gov. Follow the each case exempting these applicants Rolfe, Ross R. Romano, Max S. Sklarski, on-line instructions for submitting from the diabetes standard in 49 CFR comments. Gerald J. Solwey, Darren G. Steil, Jason • 391.41(b)(3) is likely to achieve a level D. Sweet, Robert M. Thomson, Kevin R. Mail: Docket Management Facility; of safety equal to that existing without Welch and Scott A. Yon, from the ITDM U.S. Department of Transportation, 1200 the exemption. standard in 49 CFR 391.41(b)(3), subject New Jersey Avenue, SE., West Building to the conditions listed under Ground Floor, Room W12–140, Conditions and Requirements Washington, DC 20590–0001. ‘‘Conditions and Requirements’’ above. • The terms and conditions of the In accordance with 49 U.S.C. 31136(e) Hand Delivery: West Building exemption will be provided to the and 31315 each exemption will be valid Ground Floor, Room W12–140, 1200 applicants in the exemption document for two years unless revoked earlier by New Jersey Avenue, SE., Washington, and they include the following: (1) That FMCSA. The exemption will be revoked DC, between 9 a.m. and 5 p.m., Monday each individual submit a quarterly if: (1) The person fails to comply with through Friday, except Federal monitoring checklist completed by the Holidays. the terms and conditions of the • treating endocrinologist as well as an exemption; (2) the exemption has Fax: 1–202–493–2251. annual checklist with a comprehensive resulted in a lower level of safety than Instructions: Each submission must medical evaluation; (2) that each was maintained before it was granted; or include the Agency name and the individual reports within 2 business (3) continuation of the exemption would docket No. for this Notice. Note that days of occurrence, all episodes of not be consistent with the goals and DOT posts all comments received severe hypoglycemia, significant objectives of 49 U.S.C. 31136(e) and without change to http:// complications, or inability to manage 31315. If the exemption is still effective www.regulations.gov, including any diabetes; also, any involvement in an at the end of the 2-year period, the personal information included in a accident or any other adverse event in person may apply to FMCSA for a comment. Please see the Privacy Act a CMV or personal vehicle, whether or renewal under procedures in effect at heading below. not it is related to an episode of that time. Docket: For access to the docket to hypoglycemia; (3) that each individual read background documents or provide a copy of the ophthalmologist’s Issued on: June 28, 2010. comments, go to http:// or optometrist’s report to the medical Larry W. Minor, www.regulations.gov at any time or examiner at the time of the annual Associate Administration for Policy and Room W12–140 on the ground level of medical examination; and (4) that each Program Development. the West Building, 1200 New Jersey individual provide a copy of the annual [FR Doc. 2010–16225 Filed 7–1–10; 8:45 am] Avenue, SE., Washington, DC, between medical certification to the employer for BILLING CODE 4910–EX–P 9 a.m. and 5 p.m., Monday through

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Friday, except Federal holidays. The a nonepileptic seizure or loss of because he has remained seizure free FDMS is available 24 hours each day, consciousness of unknown cause which and compliant on medication since 365 days each year. If you want did not require anti-seizure medication, 2007. acknowledgment that we received your the decision whether that person’s James Dyer comments, please include a self- condition is likely to cause the loss of addressed, stamped envelope or consciousness or loss of ability to Mr. Dyer is a CMV driver in the state postcard or print the acknowledgement control a commercial motor vehicle of Texas. He experienced a single page that appears after submitting should be made on an individual basis seizure like event in 2008 and was comments on-line. by the medical examiner in consultation placed on anti-seizure medication but Privacy Act: Anyone may search the with the treating physician. Before discontinued use in 2009. His electronic form of all comments certification is considered, it is neurologist states that he is stable, has received into any of our dockets by the suggested that a 6-month waiting period a low risk of future seizures, and has name of the individual submitting the elapse from the time of the episode. been seizure free for one year and 6 comment (or of the person signing the Following the waiting period, it is months. Mr. Dyer believes that he comment, if submitted on behalf of an suggested that the individual have a would achieve a level of safety that is association, business, labor union, etc.). complete neurological examination. If equivalent to the level of safety obtained You may review the DOT’s complete the results of the examination are by complying with the regulation Privacy Act Statement in the Federal negative and antiseizure medication is because he experienced a ‘‘seizure-like’’ Register published on April 11, 2000 not required, then the driver may be event, discontinued use of anti-seizure (65 FR 19477–78; Apr. 11, 2000). This qualified. medication, and has remained seizure- information is also available at http:// In those individual cases where a free for years. www.regulations.gov. driver had a seizure or an episode of Richard R. Gurda loss of consciousness that resulted from FOR FURTHER INFORMATION CONTACT: Dr. Mr. Gurda is a CMV driver in the state Mary D. Gunnels, Director, Medical a known medical condition (e.g., drug reaction, high temperature, acute of Wisconsin. He experienced a single Programs, (202) 366–4001, seizure event in 2005, and is currently [email protected], FMCSA, Room infectious disease, dehydration, or acute metabolic disturbance), certification taking anti-seizure medication Lamictal. W64–224, Department of His neurologist certified that he has Transportation, 1200 New Jersey should be deferred until the driver has fully recovered from that condition, has been seizure-free for four years since the Avenue, SE., Washington, DC 20590– single event and remains stable on his 0001. Office hours are from 8:30 a.m. to no existing residual complications, and is not taking anti-seizure medication. current dose of medication. Mr. Gurda 5 p.m., Monday through Friday, except believes that he would achieve a level Federal holidays. Drivers with a history of epilepsy/ seizures off anti-seizure medication and of safety that is equivalent to the level SUPPLEMENTARY INFORMATION: seizure-free for 10 years may be of safety obtained by complying with Background qualified to operate a CMV in interstate the regulation because he has commerce. Interstate drivers with a maintained good medication control Under 49 U.S.C. 31315 and 31136(e), and has remained seizure-free for four FMCSA may grant an exemption for a 2- history of a single unprovoked seizure may be qualified to drive a CMV in years. Mr. Gurda currently has a CDL year period if it finds ‘‘such exemption exemption issued by the state to operate would likely achieve a level of safety interstate commerce if seizure-free and off anti-seizure medication for a 5-year municipal/government vehicle in that is equivalent to, or greater than, the intrastate. level that would be achieved absent period or more. such exemption.’’ The statutes also Summary of Applications Christian E. Henry allow the Agency to renew exemptions Mr. Henry is a CMV driver in the state Bruce B. Baum at the end of the 2-year period. The of Pennsylvania. He has a history of seventeen individuals listed in this Mr. Baum is a CMV driver in the state seizures during medical procedures notice have recently requested an of New Mexico. He experienced a single when he was a juvenile. His doctor exemption from the epilepsy episode of a seizure in 1999, and is states that he has been seizure-free for prohibition in 49 CFR 391.41(b)(8), currently taking anti-seizure medication nine years on his current dose of which applies to drivers who operate Dilantin. His neurologist states that he medication and is stable to drive. Mr. CMVs as defined in 49 CFR 390.5, in has been seizure-free for five years. Mr. Henry believes that he would achieve a interstate commerce. Section Baum believes that he would achieve a level of safety that is equivalent to the 391.41(b)(8) states that a person is level of safety that is equivalent to the level of safety obtained by complying physically qualified to drive a level of safety obtained by complying with the regulation because he has commercial motor vehicle if that person with the regulation because he has remained seizure-free since 1998, has a has no established medical history or remained seizure free and compliant on safe driving record, and he’s compliant clinical diagnosis of epilepsy or any medication since 1999. with his medication. other condition which is likely to cause the loss of consciousness, or any loss of Todd A. Davis Denton L. Hineline ability to control a commercial motor Mr. Davis is a CMV driver in the state Mr. Hineline is a CMV driver in the vehicle. of Wisconsin. He experienced a single state of Florida. He has a history of FMCSA provides medical advisory episode of a seizure in 2007, and is nocturnal seizures and was diagnosed criteria for use by medical examiners in currently taking anti-seizure medication with epilepsy in 1978, and is currently determining whether drivers with Lamictal. His neurologist certified that taking anti-seizure medication Dilantin. certain medical conditions should be he has been seizure-free for three years. His doctor certified that he has been certified to operate commercial motor Mr. Davis believes that he would seizure-free for twenty-nine years on his vehicles in intrastate commerce. The achieve a level of safety that is current dose of medication. Mr. advisory criteria indicates that if an equivalent to the level of safety obtained Hineline believes that he would achieve individual has had a sudden episode of by complying with the regulation a level of safety that is equivalent to the

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level of safety obtained by complying his medication as directed by his doctor because he has remained seizure free with the regulation because he has and has remained seizure free. and is compliant with treatment. remained seizure-free since 1979 and Mike D. Rafalski he’s compliant with his medication. Paul C. Warren Mr. Rafalski is a CMV driver in the Henrietta M. Ketcham Mr. Warren is a CMV driver in the state of Michigan. He was diagnosed state of Maine. He was diagnosed with Ms. Ketcham is a CMV driver in the with epilepsy in 2002, and is currently epilepsy in 2000. He experienced his state of New York. She has a history of taking anti-seizure medications Keppra last seizure in 2002, and is currently seizure disorder since 1992. She and Trileptal. He experienced his last taking anti-seizure medication Keppra. experienced her last seizure in 2001, seizure in 2006. Mr. Rafalski believes His neurologist states that he has been and is currently taking anti-seizure that he would achieve a level of safety seizure free for seven years and is medication Topomax. Her doctor states that is equivalent to the level of safety that she has been seizure-free for seven obtained by complying with the compliant with treatment. Mr. Warren years on her current dose of medication regulation because he has remained believes that he would achieve a level and remains stable. Ms. Ketcham seizure-free on anti-seizure medication of safety that is equivalent to the level believes that she would achieve a level for four years. of safety obtained by complying with of safety that is equivalent to the level the regulation because he has a history Phillip S. Sage of safety obtained by complying with of safe driving in CMVs and has the regulation because she has Mr. Sage is a CMV driver in the state remained seizure free for seven years. maintained good medication control of Michigan. He developed seizures Jeffery P. Weis and has remained seizure-free for seven after a motor vehicle accident in 2007. years. He experienced his last seizure in 2008, Mr. Weis is a CMV driver in the state and was taking anti-seizure medication Danny Lingle of Illinois. He experienced seizures in Keppra. He has since discontinued anti- 2006 caused by metabolic derangement Mr. Lingle is a CMV driver in the state seizure medication in 2008. He believes related to stress and alcohol use. He was of Iowa. He states that he had a stroke that he would achieve a level of safety placed on Dilantin but discontinued use from a brain hemorrhage and not a that is equivalent to the level of safety per doctor’s orders after 6 months. He seizure in 2006. He did not take an anti- obtained by complying with the has remained seizure and medication seizure medication after the event. He regulation because he has a history of free for three years. Mr. Weis believes has not experienced another episode. safe driving and has discontinued the that he would achieve a level of safety His neurologist states that he is safe to medication and has remained seizure- that is equivalent to the level of safety drive without restrictions. Mr. Lingle free. obtained by complying with the believes that he would achieve a level Floyd R. Strader Jr. regulation because he has a history of of safety that is equivalent to the level safe driving, decreased alcohol of safety obtained by complying with Mr. Strader is a CMV driver in the consumption and has discontinued anti- the regulation because he did not state of North Carolina. He was experience a seizure and is a safe driver. diagnosed with a childhood seizure seizure medication and has remained disorder. His last seizure was in 2000, seizure-free. James C. Loiodice he was thirteen years old at this time. Brian H. Wetzel Mr. Loiodice is a CMV driver in the He discontinued the use of anti-seizure state of New York. He experienced an medication in 2001 when he was Mr. Wetzel is a CMV driver in the isolated seizure episode in 2001, and is fourteen. Mr. Strader experienced a state of Missouri. He was diagnosed currently taking anti-seizure medication motor vehicle collision which resulted with a seizure disorder after brain Carbatrol. His neurologist certified that in head-trauma. He did not experience surgery in 1976. He experienced his last he has been seizure-free for 8 years, is a seizure; however, he was treated for seizure in 1995, and is currently taking well controlled and has an extremely migraine headaches. Mr. Strader anti-seizure medication Carbamazepine. low risk of a breakthrough seizure. Mr. believes that he would achieve a level His neurologist’s medical opinion is that Loiodice believes that he would achieve of safety that is equivalent to the level he has been seizure free for fourteen a level of safety that is equivalent to the of safety obtained by complying with years and is safe to drive. Mr. Wetzel level of safety obtained by complying the regulation because he has remained believes that he would achieve a level with the regulation because he has seizure-free for nine years and off anti- of safety that is equivalent to the level remained seizure-free on anti-seizure seizure medication for eight years. of safety obtained by complying with medication for eight years. Joseph A. Suhy the regulation because he has been Leo J. Lombardio seizure free for fourteen years and is Mr. Suhy is CMV driver in the state compliant with treatment. Mr. Lombardio is a CMV driver in the of Pennsylvania. He was diagnosed with state of California. He experienced a a seizure disorder after a head injury in Request for Comments single seizure episode in 2007, and is 1986. His last seizure was in 1991 at the currently taking anti-seizure medication time he was taking Tegretol. In accordance with 49 U.S.C. 31315 Phenytoin. His doctor states that he has Subsequently his anti-seizure and 31136(e), FMCSA requests public been stable with no seizure activity on medication was changed to Valproic comment from all interested persons on medication since 2007. His medication acid and he remains on this medication the exemption application described in was changed from Keppra to Phenytoin to date. His doctor states that he has this notice. We will consider all in 2008 due to side effects. He believes been seizure-free for seventeen years. comments received before the close of that he would achieve a level of safety Mr. Suhy believes that he would business on the closing date indicated that is equivalent to the level of safety achieve a level of safety that is earlier in the notice. obtained by complying with the equivalent to the level of safety obtained regulation because he continues to take by complying with the regulation

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Issued on: June 25, 2010. p.m., Monday through Friday, except Exemption Decision Larry W. Minor, Federal Holidays. This Notice addresses 13 individuals Associate Administrator for Policy and • Fax: 1–202–493–2251. who have requested renewal of their Program Development. Instructions: Each submission must exemptions in accordance with FMCSA [FR Doc. 2010–16216 Filed 7–1–10; 8:45 am] include the Agency name and the procedures. FMCSA has evaluated these BILLING CODE P docket number for this Notice. Note that 13 applications for renewal on their DOT posts all comments received merits and decided to extend each exemption for a renewable two-year DEPARTMENT OF TRANSPORTATION without change to http:// www.regulations.gov, including any period. They are: Federal Motor Carrier Safety personal information included in a Manuel A. Almeida Administration comment. Please see the Privacy Act Ronald B. Brown heading below. Thomas L. Corey Lawrence M. Daley [Docket No. FMCSA–1999–5578; FMCSA– Docket: For access to the docket to Brian G. Hagen 1999–6480; FMCSA–2001–11426; FMCSA– read background documents or Alfred G. Jeffus 2003–14223; FMCSA–2003–16564; FMCSA– comments, go to http:// 2004–17195; FMCSA–2006–24015; FMCSA– Christopher P. Lefler www.regulations.gov at any time or 2006–24783; FMCSA–2008–0021] Michael G. Martin Room W12–140 on the ground level of Charles R. Murphy the West Building, 1200 New Jersey Qualification of Drivers; Exemption Willard L. Riggle Avenue, SE., Washington, DC between 9 Applications; Vision Robert H. Rogers a.m. and 5 p.m., Monday through Jose M. Suarez AGENCY: Federal Motor Carrier Safety Friday, except Federal holidays. The Barney J. Wade Administration (FMCSA), DOT. FDMS is available 24 hours each day, The exemptions are extended subject ACTION: 365 days each year. If you want Notice of renewal of to the following conditions: (1) That acknowledgment that we received your exemptions; request for comments. each individual has a physical comments, please include a self- examination every year (a) by an SUMMARY: FMCSA announces its addressed, stamped envelope or ophthalmologist or optometrist who decision to renew the exemptions from postcard or print the acknowledgement attests that the vision in the better eye the vision requirement in the Federal page that appears after submitting continues to meet the standard in 49 Motor Carrier Safety Regulations for 13 comments on-line. individuals. FMCSA has statutory CFR 391.41(b)(10), and (b) by a medical Privacy Act: Anyone may search the authority to exempt individuals from examiner who attests that the individual electronic form of all comments the vision requirement if the is otherwise physically qualified under received into any of our dockets by the exemptions granted will not 49 CFR 391.41; (2) that each individual name of the individual submitting the compromise safety. The Agency has provides a copy of the ophthalmologist’s comment (or of the person signing the concluded that granting these or optometrist’s report to the medical comment, if submitted on behalf of an exemption renewals will provide a level examiner at the time of the annual association, business, labor union, etc.). of safety that is equivalent to, or greater medical examination; and (3) that each You may review the DOT’s complete than, the level of safety maintained individual provide a copy of the annual Privacy Act Statement in the Federal without the exemptions for these medical certification to the employer for Register published on April 11, 2000 commercial motor vehicle (CMV) retention in the driver’s qualification (65 FR 19476). This information is also drivers. file and retains a copy of the available at http://www.regulations.gov. certification on his/her person while DATES: This decision is effective August FOR FURTHER INFORMATION CONTACT: Dr. driving for presentation to a duly 1, 2010. Comments must be received on authorized Federal, State, or local or before August 2, 2010. Mary D. Gunnels, Director, Medical Programs, (202) 366–4001, enforcement official. Each exemption ADDRESSES: You may submit comments [email protected], FMCSA, will be valid for two years unless bearing the Federal Docket Management Department of Transportation, 1200 rescinded earlier by FMCSA. The System (FDMS) Docket ID FMCSA– New Jersey Avenue, SE., Room W64– exemption will be rescinded if: (1) The 1999–5578; FMCSA–1999–6480; 224, Washington, DC 20590–0001. person fails to comply with the terms FMCSA–2001–11426; FMCSA–2003– Office hours are from 8:30 a.m. to 5 p.m. and conditions of the exemption; (2) the 14223; FMCSA–2003–16564; FMCSA– Monday through Friday, except Federal exemption has resulted in a lower level 2004–17195; FMCSA–2006–24015; holidays. of safety than was maintained before it FMCSA–2006–24783; FMCSA–2008– was granted; or (3) continuation of the 0021, using any of the following SUPPLEMENTARY INFORMATION: exemption would not be consistent with methods. Background the goals and objectives of 49 U.S.C. • Federal eRulemaking Portal: Go to 31136(e) and 31315. http://www.regulations.gov. Follow the Under 49 U.S.C. 31136(e) and 31315, on-line instructions for submitting FMCSA may renew an exemption from Basis for Renewing Exemptions comments. the vision requirements in 49 CFR Under 49 U.S.C. 31315(b)(1), an • Mail: Docket Management Facility; 391.41(b)(10), which applies to drivers exemption may be granted for no longer U.S. Department of Transportation, 1200 of CMVs in interstate commerce, for a than two years from its approval date New Jersey Avenue, SE., West Building two-year period if it finds ‘‘such and may be renewed upon application Ground Floor, Room W12–140, exemption would likely achieve a level for additional two year periods. In Washington, DC 20590–0001. of safety that is equivalent to, or greater accordance with 49 U.S.C. 31136(e) and • Hand Delivery or Courier: West than, the level that would be achieved 31315, each of the 13 applicants has Building Ground Floor, Room W12–140, absent such exemption.’’ The procedures satisfied the entry conditions for 1200 New Jersey Avenue, SE., for requesting an exemption (including obtaining an exemption from the vision Washington, DC between 9 a.m. and 5 renewals) are set out in 49 CFR part 381. requirements (64 FR 27027; 64 FR

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51568; 64 FR 68195; 65 FR 20251; 67 FR requirements. That information is Background 38311; 69 FR 26221; 71 FR 27033; 73 FR available by consulting the above cited Under 49 U.S.C. 31136(e) and 31315, 52451; 69 FR 26921; 73 FR 28186; 67 FR Federal Register publications. FMCSA may grant an exemption for a 2- 17102; 69 FR 17267; 71 FR 26601; 73 FR Interested parties or organizations year period if it finds ‘‘such exemption 27017; 67 FR 10471; 67 FR 19798; 69 FR possessing information that would would likely achieve a level of safety 19611; 71 FR 19604; 73 FR 27014; 68 FR otherwise show that any, or all, of these that is equivalent to, or greater than, the 10301; 68 FR 19596; 70 FR 74102; 73 FR drivers are not currently achieving the level that would be achieved absent 52451; 68 FR 74699; 69 FR 10503; 71 FR statutory level of safety should such exemption.’’ The statute also 16410; 73 FR 28188; 69 FR 17263; 69 FR immediately notify FMCSA. The allows the Agency to renew exemptions 31447; 71 FR 43556; 73 FR 52451; 73 FR Agency will evaluate any adverse at the end of the 2-year period. The 36954; 71 FR 14566; 71 FR 30227; 73 FR evidence submitted and, if safety is comment period ended on June 16, 2010 27014; 73 FR 52451; 71 FR 32183; 71 FR being compromised or if continuation of (75 FR 27623). 41310; 73 FR 15567; 73 FR 27015). Each the exemption would not be consistent of these 13 applicants has requested with the goals and objectives of 49 Discussion of Comments renewal of the exemption and has U.S.C. 31136(e) and 31315, FMCSA will FMCSA received no comments in this submitted evidence showing that the take immediate steps to revoke the proceeding. vision in the better eye continues to exemption of a driver. meet the standard specified at 49 CFR Issued on: June 28, 2010. Conclusion 391.41(b)(10) and that the vision impairment is stable. In addition, a Larry W. Minor, The Agency has not received any review of each record of safety while Associate Administrator for Policy and adverse evidence on any of these drivers driving with the respective vision Program Development. that indicates that safety is being deficiencies over the past two years [FR Doc. 2010–16180 Filed 7–1–10; 8:45 am] compromised. Based upon its indicates each applicant continues to BILLING CODE 4910–EX–P evaluation of the 21 renewal meet the vision exemption standards. applications, FMCSA renews the These factors provide an adequate basis Federal vision exemptions for James C. for predicting each driver’s ability to DEPARTMENT OF TRANSPORTATION Askin, Paul J. Bannon, Ernie E. Black, continue to drive safely in interstate Ronnie F. Bowman, Gary O. Brady, Federal Motor Carrier Safety Stephen H. Goldcamp, Steven F. Grass, commerce. Therefore, FMCSA Administration concludes that extending the exemption Wai F. King, Dennis E. Krone, Richard for each renewal applicant for a period [Docket No. FMCSA–1999–5578; FMCSA– J. McKenzie, Jr., Christopher J. Meerten, of two years is likely to achieve a level 1999–6480; FMCSA–2000–7006; FMCSA– Craig W. Miller, William J. Miller, of safety equal to that existing without 2000–7165; FMCSA–2000–7363; FMCSA– Robert J. Mohorter, James A. Mohr, the exemption. 2004–17195; FMCSA–2006–23773] Roderick F. Peterson, Tommy L. Ray, Jr., George S. Rayson, Donald W. Sidwell, Request for Comments Qualification of Drivers; Exemption Elmer K. Thomas and Raul R. Torres. FMCSA will review comments Renewals; Vision In accordance with 49 U.S.C. 31136(e) received at any time concerning a AGENCY: Federal Motor Carrier Safety and 31315, each renewal exemption will particular driver’s safety record and Administration (FMCSA), DOT. be valid for 2 years unless revoked determine if the continuation of the earlier by FMCSA. The exemption will ACTION: Notice of final disposition. exemption is consistent with the be revoked if: (1) The person fails to requirements at 49 U.S.C. 31136(e) and SUMMARY: FMCSA previously comply with the terms and conditions 31315. However, FMCSA requests that announced its decision to renew the of the exemption; (2) the exemption has interested parties with specific data exemptions from the vision requirement resulted in a lower level of safety than concerning the safety records of these in the Federal Motor Carrier Safety was maintained before it was granted; or drivers submit comments by August 2, Regulations for 21 individuals. FMCSA (3) continuation of the exemption would 2010. has statutory authority to exempt not be consistent with the goals and FMCSA believes that the individuals from the vision requirement objectives of 49 U.S.C. 31136 and 31315. requirements for a renewal of an if the exemptions granted will not Issued on: June 28, 2010. exemption under 49 U.S.C. 31136(e) and compromise safety. The Agency has 31315 can be satisfied by initially Larry W. Minor concluded that granting these Associate Administrator for Policy and granting the renewal and then exemptions will provide a level of safety requesting and evaluating, if needed, Program Development. that will be equivalent to, or greater [FR Doc. 2010–16210 Filed 7–1–10; 8:45 am] subsequent comments submitted by than, the level of safety maintained BILLING CODE 4910–EX–P interested parties. As indicated above, without the exemptions for these the Agency previously published commercial motor vehicle (CMV) Notices of final disposition announcing drivers. its decision to exempt these 13 DEPARTMENT OF TRANSPORTATION individuals from the vision requirement FOR FURTHER INFORMATION CONTACT: Dr. Federal Motor Carrier Safety in 49 CFR 391.41(b)(10). The final Mary D. Gunnels, Director, Medical Administration decision to grant an exemption to each Programs, (202)–366–4001, [email protected], FMCSA, of these individuals was made on the State Responsibility for the Timely Department of Transportation, 1200 merits of each case and made only after Reporting and Posting of Certain New Jersey Avenue, SE., Room W64– careful consideration of the comments Convictions and Disqualifications 224, Washington, DC 20590–0001. received to its Notices of applications. Involving Commercial Driver’s License Office hours are from 8:30 a.m. to 5 p.m. The Notices of applications stated in Holders detail the qualifications, experience, Monday through Friday, except Federal and medical condition of each applicant holidays. AGENCY: Federal Motor Carrier Safety for an exemption from the vision SUPPLEMENTARY INFORMATION: Administration, DOT.

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ACTION: Notice. licensing agencies. In its CDLIS report, compliance with the provisions of the OIG estimated that 500,000 active CDL Federal regulations related to the timely SUMMARY: The Federal Motor Carrier holders have convictions on their driver reporting and posting of convictions and Safety Administration announces history record (DHR) from States other disqualifications. guidance to State driver licensing than their SOR. The OIG further I. Incoming Conviction Reports on Paper agencies (SDLAs) to support their efforts estimated that up to 20 percent of those at achieving compliance with the CDL holders have convictions on their SDLAs that receive conviction data Federal Commercial Driver’s license DHR that were not reported to their SOR from courts on paper (either direct (CDL) rules concerning timely reporting and posted in a timely manner. mailing of the traffic citation with the and posting of convictions for traffic This reporting delay reduces highway disposition indicated or conviction offenses. This action is in response to safety by enabling CDL holders summary reports generated by the the Department of Transportation Office convicted of disqualifying offenses to courts) have several options to expedite of the Inspector General’s (OIG) 2009 continue driving without being detected processing: report Audit of the Data Integrity of the by roadside inspection officials. These • Sort incoming conviction data and Commercial Driver’s License delays also make it difficult for motor prioritize handling for any conviction Information System (CDLIS). carriers to identify and remove from that indicates the violation involved a FOR FURTHER INFORMATION CONTACT: service drivers who have been convicted CDL holder, a CMV that requires the Selden Fritschner, Chief, Commercial of disqualifying offenses. In some driver to hold a CDL, hazardous Driver’s License Division, Federal Motor instances, this includes drivers who material, or a passenger CMV Carrier Safety Administration, 1200 have been convicted of multiple major (collectively hereafter referred to as New Jersey Ave. SE, Washington, DC traffic offenses and who should be CDL/CMV convictions); 20590. E-mail: disqualified from holding a CDL for life. • Designate certain data entry [email protected], Telephone: As part of its mission to reduce the personnel within the SDLA to process 202–366–0677. number of fatalities, injuries, and CDL/CMV convictions exclusively, or as SUPPLEMENTARY INFORMATION: crashes involving large trucks and their highest priority when such data is I. Background buses, and as part of its responsibility to received; ensure State compliance with the • Request that courts pre-sort CDL/ Section 202 of the Motor Carrier minimum CDL program standards Safety Improvement Act of 1999 (PL CMV conviction data and provide established by Federal regulations, special markings when reporting it to 106–159) requires that whenever an FMCSA provides this notice and individual is convicted of certain traffic the SDLA (see section III for further guidance to all SDLAs on the conviction information); offenses in a State, and the individual reporting requirements. • has a commercial driver’s license (CDL) Request that courts send conviction issued by another State, the State of II. Requirements data related to CDL/CMV convictions as soon as practicable after disposition (the Conviction (SOC) must notify the Whenever a CDL holder, or a person driver’s State of Record (SOR) in a same day if possible); operating a CMV who is required to • timely manner. This includes all have a CDL, is convicted of a traffic Prioritize the correction of any convictions (as defined in 49 CFR offense in a State other than the State in internal or external data entry errors 383.5), in any type of motor vehicle, that involve CDL/CMV convictions; which he or she is licensed, the SOC • involving a State or local law relating to must notify the SOR within 10 days of Explore options for expedited motor vehicle traffic control (other than the conviction (See 49 CFR 384.209). delivery of CDL/CMV conviction data to a parking violation). This also includes Whenever a CDL holder is the SDLA; and • some convictions listed in 49 CFR disqualified or has his driving privileges Explore options for an electronic 383.51 that are not directly related to withdrawn or suspended from operating conviction transmission system (see motor vehicle traffic control but that are a CMV for longer than 60 days in a State section II for further information). deemed critical to ensuring highway other than the State in which he or she II. Incoming Conviction Reports via safety. is licensed, the State of Withdrawal Electronic Transmission On July 31, 2002, FMCSA published must notify the SOR within 10 days of a final rule (67 FR 49761) requiring the disqualification action. This SDLAs that receive CDL/CMV SOCs to begin notifying a driver’s SOR notification must include information conviction data from courts by an within 30 days for all convictions related to the disqualification and the electronic conviction transmission occurring after September 30, 2005. violation that resulted in the system are at an advantage. The data Beginning September 30, 2008, the disqualification, or suspension (See 49 entry is already completed and can be SOCs were required to report CFR 384.208). posted to the driver’s record with convictions to the SORs within 10 days Whenever a SDLA receives minimal effort, and the actual (49 CFR 384.209). notification of a conviction or transmission of the information is either In July 2009, the Department of disqualification from another State, it instantaneous or submitted daily Transportation’s Office of Inspector must post the information to the DHR through a batch process. SDLAs can General released the report Audit of the within 10 days of receipt (See 49 CFR expedite processing electronic Data Integrity of the Commercial 384.225(c) (1)). Further, whenever a transmission further if they: • Driver’s License Information System) as SDLA receives notification of a Request that courts process required by the Safe, Accountable, conviction occurring within the same dispositions for CDL/CMV offenses into Flexible, Efficient Transportation Equity State, it must post the information to the their case management systems the Act: A Legacy for Users (SAFETEA–LU) DHR within 10 days of the conviction same day as the final determination; (Pub. L. 109–59). In preparing this (See 49 CFR 384.225(c) (2)). • Request that courts alter their case report, OIG evaluated several factors management systems to transmit CDL/ related to CDLIS, including the Guidance CMV conviction data to the SDLA on a timeliness of convictions received from FMCSA provides the following daily basis (rather than weekly or courts and posted by State driver guidance to States on how to come into monthly);

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• Prioritize the correction of any V. Statutory Reporting Periods independently of any established transmission or processing errors If State statutes address the timely evaluation cycle or review process. involving CDL/CMV convictions; reporting and posting of convictions, FMCSA will begin posting maps and • Work to ensure that all courts use they must not conflict with the matrices providing details regarding electronic transmission of CDL/CMV applicable Federal regulations (this State compliance with timeliness requirements on the FMCSA Web site in convictions if it is an available includes court reporting convictions to the third quarter of fiscal year 2010. alternative; and the SDLA, the SDLA reporting out-of- FMCSA will post this information • State convictions to the SOR, or the Continuously improve the quarterly. States should review this SDLA posting in-State convictions to electronic conviction transmission status information to determine the the DHR). system to take advantage of emerging scope of the efforts needed to come into Some States have statutory or due technological advances. compliance. process requirements that prevent III. Judicial Outreach courts from sending a conviction to the Issued on: June 23, 2010. SDLAs should strengthen their SDLA immediately upon disposition. Anne S. Ferro, partnerships with the courts in their This requirement generally allows for Administrator. jurisdiction to bring about greater appeals or other procedural actions [FR Doc. 2010–16218 Filed 7–1–10; 8:45 am] success in achieving compliance with prior to the State posting the conviction BILLING CODE 4910–EX–P the reporting requirements. SDLAs can to the DHR or sending it to the SOR. take several steps to help strengthen States reported to FMCSA that these these partnerships and their judicial mandatory holding periods negatively DEPARTMENT OF TRANSPORTATION outreach efforts if they: impact their ability to comply with the timeliness requirements. In these Federal Highway Administration • Determine which court personnel instances, FMCSA stands ready to are most responsible for ensuring that Surface Transportation Environment discuss the requirements unique to each information related to CDL/CMV and Planning Cooperative Research State and discuss alternatives that may offenses are transmitted to the SDLA in Program (STEP) reduce or eliminate the negative impact a timely manner; this may be the Judge, to the State’s compliance. AGENCY: Federal Highway the Clerk of Court’s Office, or the Administration (FHWA), DOT. Prosecutor; VI. Funding ACTION: Notice. • Designate an individual or SDLAs have secured various funding organizational unit within the SDLA as sources for electronic conviction SUMMARY: Section 5207 of the Safe, having responsibility to engage in reporting systems, including fees Accountable, Flexible, Efficient judicial outreach activities; assessed against those convicted of Transportation Equity Act: A Legacy for • Ensure that all involved personnel traffic offenses, direct appropriation in Users (SAFETEA–LU) established the understand the importance of timely the State’s budget, or through other Surface Transportation Environment conviction reporting. FMCSA evaluates available revenue. The FMCSA and Planning Cooperative Research compliance of the SDLA and all encourages SDLAs to engage in direct Program (STEP). The FHWA anticipates involved entities that impact the State’s communication with other SDLAs to that the STEP or a similar program to CDL program and contribute to solicit ideas and implementation provide resources for national research compliance with the requirements of 49 strategies. on issues related to planning, CFR part 384; States also have the option of environment, and realty will be included in future surface • Engage in proactive steps to discuss requesting grants from various Federal transportation legislation. In Fiscal Year process improvement, including site agencies, including FMCSA’s CDL (FY) 2011, the FHWA expects to seek visits, routine e-mails or newsletters, Program Improvement grant (CDLPI). partnerships that can leverage limited and presentations at State or regional While CDLPI grants cannot fund an research funding in the STEP with other conferences; entire statewide electronic conviction system, and cannot be used to support stakeholders and partners in order to • Request assistance in outreach any effort indefinitely, States can increase the total amount of resources efforts from other State level agencies request financial assistance to establish available to meet the Nation’s surface and organizations if appropriate (e.g., demonstration projects and other proof- transportation research needs. Administrative Office of the Courts, the of-concept efforts that can help SDLAs The purpose of this notice is to Governor’s Highway Safety Office, secure additional funding through other announce revisions to the STEP Associations/Counsels for judges, means. implementation strategy for FY 2011 clerks, and prosecutors); and and to request suggested lines of • Request from FMCSA information Compliance research for the FY 2011 STEP via the and guidance on judicial training. FMCSA takes seriously its STEP Web site at http:// www.fhwa.dot.gov/hep/step/index.htm IV. Utilize CDLIS responsibility to ensure State compliance with all provisions of 49 in anticipation of future surface CDLIS has the capability to transmit CFR part 384, especially those involving transportation legislation. conviction and disqualification the timely reporting and posting of DATES: Suggestions for lines of research information to other States. All States convictions and disqualifications. should be submitted to the STEP Web now have the ability to receive these FMCSA will work with the States to the site on or before September 30, 2010. convictions and disqualifications greatest extent practicable to address the FOR FURTHER INFORMATION CONTACT: electronically. States should utilize this findings in the OIG report and to ensure Felicia Young, Office of Interstate and functionality whenever possible to compliance by using available Border Planning, (202) 366–1263, expedite the transmission and final electronic reporting and manual [email protected]; or Grace Reidy, posting of CDL/CMV convictions and auditing methods. FMCSA will examine Office of the Chief Counsel, (202) 366– disqualifications. these reports and conduct audits 6226; Federal Highway Administration,

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1200 New Jersey Avenue, SE., environmental performance of Issued on: June 21, 2010. Washington, DC 20590. Office hours are transportation systems to facilitate Victor M. Mendez, from 7:45 a.m. to 4:15 p.m., e.t., Monday alternative analysis; Administrator. through Friday, except Federal holidays. (3) Developing and deploying [FR Doc. 2010–15949 Filed 7–1–10; 8:45 am] SUPPLEMENTARY INFORMATION: research to address congestion BILLING CODE 4910–22–M Electronic Access reduction efforts; (4) Developing transportation safety An electronic copy of this notice may planning strategies for surface DEPARTMENT OF TRANSPORTATION be downloaded from the Office of the transportation systems and Federal Register’s home page at http:// improvements; Federal Highway Administration www.archives.gov and the Government Printing Office’s Web site at http:// (5) Improving planning, operation, [Docket No. FHWA–2010–0059] www.access.gpo.gov. and management of surface transportation systems and rights of Temporary Closure of I–70 (I–70/I–465 Background way; West Leg Interchange to the I–70/I–65 Section 5207 of the Safe, Accountable, (6) Enhancing knowledge of strategies South Split Interchange) on October 7, Flexible, Efficient Transportation Equity to improve transportation in rural areas 2010, in Indianapolis, IN Act: A Legacy for Users (SAFETEA–LU) and small communities; AGENCIES: Federal Highway (Pub. L. 109–59, Aug. 10, 2005), (7) Strengthening and advancing Administration (FHWA), DOT. established the Surface Transportation State/local and tribal capabilities ACTION: Notice and Request for Environment and Planning Cooperative regarding surface transportation and the Comment. Research Program, in section 507 of environment; Title 23, United States Code. The FHWA (8) Improving transportation SUMMARY: The Indiana Department of anticipates that the STEP or a similar decisionmaking and coordination across Transportation (INDOT) has requested program to provide resources for borders; FHWA approval of INDOT’s proposed national research on issues related to (9) Improving state of the practice plan to temporarily close a segment of planning, environment, and realty will regarding the impact of transportation I–70 (from the I–70/I–465 west leg be included in future surface on the environment; interchange to the I–70/I–65 south split transportation legislation. The general (10) Conducting research to promote interchange) on October 7, 2010, for a objective of the STEP is to improve environmental streamlining/ 12-hour period from 6 a.m. to 6 p.m. understanding of the complex stewardship and sustainability; The closure is requested to relationship between surface accommodate a concentrated I–70 transportation, planning, and the (11) Disseminating research results and advances in state of the practice beautification project sponsored by environment. INDOT. The request is based on the The SAFETEA–LU provided $16.875 through peer exchanges, workshops, conferences, etc; provisions 23 CFR 658.11 which million per year for FY 2006–2009 to authorizes the deletion of segments of implement this cooperative research (12) Meeting additional priorities as the federally designated routes that program. Due to obligation limitations, determined by the Secretary; and make up the National Network recissions, and congressional (13) Refining the scope and research designated in Appendix A of 23 CFR designation of Title V Research in emphases through active outreach and Part 658 upon approval by the FHWA. SAFETEA–LU, on average $14.5 million in consultation with stakeholders. The FHWA seeks comments from the of the $16.875 million authorized was The FHWA is issuing this notice to: (1) general public on this request submitted available each fiscal year. We anticipate To announce revisions to the STEP by INDOT for a deletion in accordance similar funding levels in the next Implementation Strategy for the FY with section 658.11(d) for the authorization. 2011 STEP in anticipation of future considerations discussed in this notice. The STEP is the primary source of surface transportation legislation, and DATES: Comments must be received on funds for FHWA to conduct research (2) to solicit comments on proposed and develop tools and technologies to or before 30 days after date of research activities to be undertaken in publication in the Federal Register. advance the state of the practice the FY 2011 STEP via the STEP Web ADDRESSES: regarding national surface site. The STEP Implementation Strategy The letter of request along transportation and environmental was revised to: Update information on with justifications can be viewed decisionmaking. In FY 2011, the FHWA the graph and chart regarding historical electronically at the docket established expects to seek partnerships that can planning and environment research for this notice at http:// leverage limited research funding in the funding, and to add information about www.regulations.gov. Hard copies of the STEP with other stakeholders and proposed FY 2011 STEP including documents will also be available for partners in order to increase the total proposed funding levels, goals, and viewing at the DOT address listed amount of resources available to meet potential research activities. below. Mail or hand deliver comments to the the nation’s surface transportation We invite the public to visit this Web research needs. U.S. Department of Transportation, site to obtain additional information on Dockets Management Facility, Room The FY 2011 STEP will support the the STEP, as well as information on the implementation of a national research W12–140, 1200 New Jersey Avenue, SE., process for forwarding comments to the Washington, DC 20590, or fax comments agenda that includes: FHWA regarding the STEP (1) Conducting research to develop to (202) 493–2251. Alternatively, implementation plan. The URL for the climate change mitigation, adaptation comments may be submitted via the STEP Web site is: and livability strategies; Federal eRulemaking Portal at http:// (2) Developing and/or supporting The FHWA will use this Web site as www.regulations.gov (follow the on-line accurate models and tools for evaluating a major mechanism for informing the instructions for submitting comments). transportation measures and developed public regarding the status of the STEP. All comments should include the indicators of economic, social, and Authority: 23 U.S.C. 507. docket number that appears in the

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heading of this document. All take place with the participation of I–70/I–65 south split interchange) from comments received will be available for approximately 9,100 Lilly ‘‘Day of the National Network on October 7, examination and copying at the above Service’’ volunteers. These volunteers beginning at 6 a.m., for one consecutive address from 9 a.m. to 5 p.m., e.t., will be working within five different 12-hour period. The temporary closure Monday through Friday, except Federal I–70 interchanges along both sides of of I–70 to general traffic should have a holidays. Those desiring notification of I–70. Approximately 5,600 volunteers negligible impact to interstate receipt of comments must include a self- will be assigned to work on the north commerce. Using a comparison of lane addressed, stamped postcard or you side of I–70 and approximately 3,500 mile computations, traffic will be may print the acknowledgment page workers will be assigned to the south detoured to I–465 around the south side that appears after submitting comments side. Both groups have 1 hour of Indianapolis adding only 2 to 3 electronically. All comments received appropriated for arrival and parking as minutes additional time to Interstate into any docket may be searched in well as 1 hour for departure from the travel. Re-routed I–70 through traffic via electronic format by the name of the construction corridor. A comprehensive I–465 is approximately 18 miles around individual submitting the comment (or plan for the arrival and departure times, the south side of I–465 (to get to the signing the comment, if submitted on parking, and emergency evacuation interchange of I–70 and I–465 on the behalf of an association, business, labor (should it be necessary) has been east side). If I–70 were to remain open union, etc.). Persons making comments developed. The INDOT has indicated with restrictions, the mileage to I–70 may review DOT’s complete Privacy Act that by closing the Interstate through the and I–465 on the east side would be Statement in the Federal Register work zone, lengthy delays caused by the approximately 16 miles. However, published on April 11, 2000 (Volume restriction of lanes will be eliminated as vehicles would be traveling at a reduced 65, Number 70, Pages 19477–78), or you well as distractions to the motoring speed limit, resulting in large queue may view the statement at http:// public caused by the 9,100 workers and lengths creating back-ups which would dms.dot.gov. associated activities. In addition, the add significant time to their commute. temporary closure would eliminate the The detour will have a negligible impact FOR FURTHER INFORMATION CONTACT: Mr. risk of work zone accidents in the area on interstate commerce as the I–465 Michael P. Onder, Team Leader Truck of these work zones. The INDOT diversion route would add little Size and Weight and Freight Operations believes that the best way to ensure the distance or time to an interstate or long and Technology Team, (202) 366–2639, safety of the workers will be to distance trip. Businesses requiring Raymond W. Cuprill, Office of the Chief eliminate vehicular travel through the deliveries adjacent to the closed area Counsel, (202) 366–0791, Federal corridor while the work in the will be encouraged to receive deliveries Highway Administration; 1200 New interchange areas is being conducted. before or after the October 7 closure Jersey Avenue, SE., Washington, DC The closure also provides additional times in order to minimize these local 20590, and Mr. Robert Tally, FHWA safety to the motorists by eliminating impacts. Division Administrator-Indiana, (317) the distraction that could be caused by Commercial motor vehicles will use 226–7476. Office hours for FHWA are the significant amount of workers I–465 around the south side of from 7:45 a.m. to 4:15 p.m., e.t., Monday within the interchanges and by Indianapolis. During the time of closure through Friday, except Federal holidays. eliminating the need for traffic there will be some INDOT construction SUPPLEMENTARY INFORMATION: restrictions in the actual work zone. A along the detour route and along Interstate I–465 on the west side of Electronic Access and Filing 12-hour condensed closure provides a safer condition for workers and provides Indianapolis. The detour route will have You may submit or retrieve comments better conditions than a long-term no lane restrictions for motorists during online through the Federal eRulemaking construction work zone with the this time and INDOT will not plan for portal at: http://www.regulations.gov. associated work zone set ups and any lane closures in other nearby The Web site is available 24 hours each restrictions that would otherwise take construction zones. The INDOT will day, 365 days each year. Electronic place over many days. increase the Hoosier Helper workforce submission and retrieval help and The FHWA is responsible for (freeway service patrols) along I–465 to guidelines are available under the help enforcing the Federal regulations address incident response and minimize section of the Web site. applicable to the National Network of any incident impacts. The INDOT will An electronic copy of this document highways that can safely and efficiently issue a press release to inform the may also be downloaded from Office of accommodate the large vehicles community of the closure and will post the Federal Register’s home page at: authorized by provisions of the Surface the closure in Road Restriction System http://www.archives.gov/federal_register Transportation Assistance Act of 1982 (RRS) and INDOT’s traveler information and the Government Printing Office’s (STAA), as amended, designated in Web site Traffic Wise (http:// Web page at: http://www.gpoaccess.gov. accordance with 23 CFR Part 658 and www.trafficwise.in.gov) to help with listed in Appendix A. In accordance notification to the motorists. Background with sec. 658.11, the FHWA may The temporary closure plan has been The INDOT has submitted a request to approve deletions or restrictions of the prepared in accordance with INDOT’s FHWA for approval of the temporary Interstate system or other National transportation plan and has been closure of a segment of I–70 in Indiana Network route based upon specified reviewed and approved by the city of (from the I–70/I–465 west leg justification criteria in sec. 658.11(d)(2). Indianapolis and the Indianapolis interchange to the I–70/I–65 south split Requests for deletions are published in Metropolitan Police Department. The interchange) on October 7, 2010, for a the Federal Register for notice and INDOT has reached out to Federal, 12-hour period from 6 a.m. to 6 p.m. comment. State, and local agencies to ensure a (The incoming request and supporting The FHWA seeks comments on this collaborative and coordinated effort to documents can be viewed electronically request for temporary deletion from the address the logistical challenges of the at the docket established for this notice National Network in accordance with 23 I–70 beautification project. The Illinois at http://www.regulations.gov.) This CFR 658.11(d). Specifically, the request Department of Transportation and the closure will be undertaken in support of is for deletion of I–70 (from the Ohio Department of Transportation have the I–70 beautification project that will I–70/I–465 west leg interchange to the been informed of this proposal.

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Additionally, efforts have been made to Avenue, NW., Washington, DC 20220. For the reasons set forth in this work with the various transit systems as The Department will make such preamble, the Department proposes to well as the American Trucking comments available for public alter system of records Treasury/DO Association. The INDOT has met with, inspection and copying in the .218, entitled ‘‘Home Affordable and gained support from the Indiana Department’s Library, Room 1428, Main Modification Program,’’ as follows: Motor Trucking Association, and has Treasury Building, 1500 Pennsylvania the endorsement of the city of Avenue, NW., Washington, DC 20220, TREASURY/DO .218 Indianapolis, specifically The Greater on official business days between the SYSTEM NAME: Indianapolis Chamber of Commerce and hours of 10 a.m. and 5 p.m. Eastern the local business districts adjacent to Time. You can make an appointment to Home Affordable Modification the closure. (Full list of endorsements inspect comments by telephoning (202) Program Records—Treasury/DO. can be viewed electronically at the 622–0990 (this is not a toll-free docket established for this notice at number). All comments, including SYSTEM LOCATION: http://www.regulations.gov). attachments and other supporting Description of change. Remove the The INDOT has carefully evaluated all materials, received are part of the public current entry and in its place add the possible alternatives and after doing so record and subject to public disclosure. following: ‘‘The Office of Financial believes the temporary closure of I–70 is You should submit only information Stability, Department of the Treasury, the best way to ensure the safety not that you wish to make available Washington, DC. Other facilities that only to the volunteer workers, but also publicly. maintain this system of records are to the motorists. The INDOT is actively FOR FURTHER INFORMATION CONTACT: located in: Urbana, MD, Dallas, TX, and working with KIB and Lilly to develop Theodore R. Kowalsky, Manager, Data & a backup facility located in Reston, VA, an aggressive communications plan Information Technology, Office of all belonging to the Federal National utilizing local business associations Financial Agents, Department of the Mortgage Association (‘‘Fannie Mae’’); in along the I–70 corridor, Indianapolis Treasury, 1500 Pennsylvania Avenue, McLean, VA, Herndon, VA, Reston, VA, Downtown, Inc., and media outlets. NW., Washington, DC 20220, at 202– Richardson, TX, and Denver, CO, Special consideration will be given to 927–9445 (not a toll free number) or at facilities operated by or on behalf of the local and national trucking publications. [email protected]. Federal Home Loan Mortgage Event day media staging areas and SUPPLEMENTARY INFORMATION: The Corporation (‘‘Freddie Mac’’); and command posts are also included in the Department established the Home facilities operated by or on behalf of the plan. Affordable Modification Program Bank of New York Mellon (‘‘BNYM’’) in Authority: 23 U.S.C. 127, 315 and 49 (HAMP), pursuant to the Emergency Nashville, TN, and a backup facility U.S.C. 31111, 31112, and 31114; 23 CFR Part Economic Stabilization Act of 2008 located in Somerset, NJ. Fannie Mae, 658. (Pub. L. 110–343) (the ‘‘EESA’’), to Freddie Mac and Bank of New York Issued on: June 22, 2010. enable eligible homeowners who have a Mellon have been designated as Victor M. Mendez, record of making timely mortgage Financial Agents for the Home Administrator. payments, but are experiencing Affordable Modification Program [FR Doc. 2010–16094 Filed 7–1–10; 8:45 am] hardships in doing so, to modify the (‘‘HAMP’’).’’ BILLING CODE 4910–22–P principal amounts and interest rates of * * * * * their mortgage loans. The purpose of this alteration to Routine Use (13) is to ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM, INCLUDING CATEGORIES OF USERS AND DEPARTMENT OF THE TREASURY increase the number of Federal entities to whom information may be disclosed THE PURPOSES OF SUCH USES: Departmental Offices: Privacy Act of under the routine use by adding the * * * * * 1974, as Amended Department of Justice (‘‘DOJ’’) and the Description of changes: The phrase Federal financial regulators who ‘‘the Federal financial regulators, the AGENCY: Departmental Offices, Treasury. supervise and regulate financial U.S. Department of Justice (DOJ),’’ is ACTION: Notice of Alteration of Privacy institutions that participate in or receive added to Routine Use (13) between the Act System of Records for the Home certain benefits from HAMP, or who phrases ‘‘Department of Housing & Affordable Modification Program. evaluate programs of similar design. Urban Development,’’ and ‘‘and the Additionally, the Bank of New York Federal Housing.’’ In addition, the SUMMARY: The U.S. Department of the ‘‘ ’’ Mellon ( BNYM ) has been designated phrase ‘‘to ensure compliance with Treasury gives notice of a proposed as another Financial Agent for the Home alteration to the system of records HAMP and other laws,’’ is added Affordable Modification Program between the words ‘‘HAMP’’ and ‘‘and to entitled ‘‘Home Affordable Modification (‘‘HAMP’’) and its facilities in Nashville, Program—Treasury/DO.’’ The system report’’ such that Routine Use (13) is TN, and Somerset, NJ are being added revised to read as follows: was last published in its entirety in the under the heading ‘‘System Location.’’ Federal Register on April 20, 2010, at The system of records notice was last ‘‘(13) Disclose information and 75 FR 20699. published in its entirety on April 20, statistics to the Department of Housing DATES: Comments should be received no 2010, at 75 FR 20699. & Urban Development, Federal financial later than July 2, 2010. The proposed The report of an altered system of regulators, the U.S. Department of routine use will be effective August 11, records, as required by 5 U.S.C. 552a(r) Justice (‘‘DOJ’’), and the Federal Housing 2010 unless the Department receives of the Privacy Act, has been provided to Finance Agency to improve the quality comments that would result in a the Committee on Oversight and of services provided under HAMP, to contrary determination. Government Reform of the House of ensure compliance with HAMP and ADDRESSES: Comments should be sent to Representatives, the Committee on other laws, and to report on the the Deputy Assistant Secretary Fiscal Homeland Security and Governmental program’s overall execution and Operations and Policy, Department of Affairs of the Senate, and the Office of progress;’’ the Treasury, 1500 Pennsylvania Management and Budget. * * * * *

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Dated: June 21, 2010. Melissa Hartman, Acting Deputy Assistant Secretary for Privacy, Transparency, and Records. [FR Doc. 2010–16162 Filed 7–1–10; 8:45 am] BILLING CODE 4810–25–P

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Part II

Department of Health and Human Services Administration for Children and Families 45 CFR Parts 301, 302, 303, 305, and 308

Child Support Enforcement Program; Intergovernmental Child Support; Final Rule

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DEPARTMENT OF HEALTH AND Reconciliation Act of 1996 (PRWORA) organizations apply for OCSE funding to HUMAN SERVICES (Pub.L. 104–193), amended the Act by operate Tribal IV–D programs. adding section 466(f), 42 U.S.C. 666(f), The complexities of child support Administration for Children and which mandated that all States have in enforcement are compounded when Families effect by January 1, 1998, the Uniform parents reside in different jurisdictions Interstate Family Support Act (UIFSA) and the interjurisdictional caseload is 45 CFR Parts 301, 302, 303, 305, and as approved by the American Bar substantial. In FY 2008, over a million 308 Association on February 9, 1993, and as cases were sent from one State to RIN 0970–AC–37 in effect on August 22, 1996, including another. This number does not include any amendments officially adopted as of cases where a single State established or Child Support Enforcement Program; such date by the National Conference of enforced a support obligation against a Intergovernmental Child Support Commissioners on Uniform State Laws nonresident using long-arm jurisdiction (NCCUSL). PRWORA also added or direct enforcement remedies without AGENCY: Office of Child Support sections 454(32) and 459A of the Act, 42 involving another IV–D agency. Enforcement (OCSE), Administration for U.S.C. 654(32) and 659a, requiring State Additionally, in FY 2008, interstate Children and Families (ACF), IV–D agencies to provide services in collections increased 13.2 percent over Department of Health and Human international cases and authorizing the FY 2004 collections. Services. Secretary of the Department of State The enactment of UIFSA by States ACTION: Final rule. (DOS), with the concurrence of the and nearly a decade of State experience Secretary, to enter into bilateral under this uniform law, as well as the SUMMARY: This rule revises Federal arrangements with foreign countries for passage of FFCCSOA, have served to requirements for establishing and child support enforcement, respectively. harmonize the interjurisdictional legal enforcing intergovernmental support The Federal Full Faith and Credit for framework. Expanded use of long-arm obligations in Child Support Child Support Orders Act of 1994 jurisdiction, administrative processes, Enforcement (IV–D) program cases (FFCCSOA), 28 U.S.C. 1738B, as and direct income withholding have receiving services under title IV–D of amended by PRWORA, requires each been instrumental in breaking down the Social Security Act (the Act). This State and Tribe to enforce, according to barriers and improving interstate child final rule revises previous interstate its terms, a child support order issued support. As a result, the former requirements to apply to case processing by a court or administrative authority of regulations governing interstate cases in all intergovernmental cases; requires another State or Tribe (See OCSE–AT– are outdated. While they broadly the responding State IV–D agency to pay 02–03). Further, section 455(f) of the addressed UIFSA, they did not fully the cost of genetic testing; clarifies Act, 42 U.S.C. 655(f), which authorized reflect the legal tools available under responsibility for determining in which direct funding of Tribal Child Support that Act, other Federal mandates and State tribunal a controlling order Enforcement programs, was added by remedies, improved technology, or IV– determination is made where multiple PRWORA and amended by the Balanced D obligations in Tribal and international support orders exist; recognizes and Budget Act of 1997 (Pub. L. 105–33). cases. incorporates electronic communication Additionally, although our regulatory advancements; and makes conforming II. Background authority extends only to States and changes to the Federal substantial A. Nature of the Problem Tribes operating IV–D programs, the IV– compliance audit and State self- D caseload includes cases from Tribal assessment requirements. The Child Support Enforcement (CSE) program is a Federal/State/Tribal/local IV–D programs, other States, and other DATES: This rule is effective January 3, partnership established to help families countries. The creation of the Tribal IV– 2011. by ensuring that parents support their D program pursuant to section 455(f) of FOR FURTHER INFORMATION CONTACT: children even when they live apart. the Act and implementing regulations at LaShawn Williams, OCSE Division of Payment of child support increases 45 CFR part 309, and the central role of Policy, 202–401–9386, e-mail: family income and promotes child well- OCSE and State IV–D agencies in [email protected]. Deaf being. Child support has become one of international cases under section 459A and hearing impaired individuals may the most substantial income supports of the Act, highlight the need to refocus call the Federal Dual Party Relay for low-income families who receive it. interstate regulations to address Service at 1–800–877–8339 between 8 All States and territories run a IV–D requirements for State IV–D programs’ a.m. and 7 p.m. eastern time. program. processing of intergovernmental IV–D cases. SUPPLEMENTARY INFORMATION: On March 30, 2004, the IV–D program expanded its scope to include federally- B. Current Law on Intergovernmental I. Statutory Authority recognized American Indian Tribes and Case Processing Section 454(9), 42 U.S.C. 654(9), of Tribal organizations with approved the Act addresses interstate cooperation. Tribal IV–D programs through the Final 1. Uniform Interstate Family Support These final rules are published under Rule on Tribal Child Support Act (UIFSA) the authority granted to the Secretary of Enforcement Programs (45 CFR part UIFSA is a comprehensive model Act the U.S. Department of Health and 309). Currently, thirty-six Tribes operate focusing on the interstate establishment, Human Services (the Secretary) by a comprehensive child support program modification, and enforcement of section 1102 of the Act, 42 U.S.C. 1302. and nine Tribes operate a start-up support obligations. As indicated Section 1102 authorizes the Secretary to program funded under title IV–D of the earlier, section 466(f) of the Act requires publish regulations, not inconsistent Social Security Act. From 2004 to 2008, all States to enact UIFSA as approved by with the Act, which may be necessary Comprehensive Tribal IV–D programs the American Bar Association on for the efficient administration of the collected more than $83.3 million in February 9, 1993, as in effect on August functions for which the Secretary is child support. The Tribal IV–D program 22, 1996, including any amendments responsible under the Act. The Personal continues to grow as more federally- officially adopted as of such date by Responsibility and Work Opportunity recognized Tribes and Tribal NCCUSL.

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Many of UIFSA’s provisions provide territories. Twenty-one States have Tribal provisions of PRWORA. The solutions to the problems inherent with adopted the 2001 amendments and direct Federal funding provisions the interstate establishment and received a State Plan exemption under provide Tribes with an opportunity to enforcement of child support section 466(d) of the Act, 42 U.S.C. administer their own IV–D programs to obligations. For example, UIFSA covers 666(d), from OCSE allowing use of the meet the needs of children and their all cases where the custodial and 2001 provisions. Currently, three States families. A Tribal IV–D agency must noncustodial parents reside in different have adopted UIFSA (2008), with the specify in its Tribal IV–D plan that the States. In addition to traditional State- effective date of the amendments Tribal IV–D agency will: to-State legal actions, it provides for delayed until the Hague Convention on • Extend the full range of services long-arm jurisdiction to establish the International Recovery of Child available under its IV–D plan to respond paternity or child support, continuing Support and Other Forms of Family to all requests from, and cooperate with, jurisdiction by a State to enforce an Maintenance, Nov. 23, 2007, is ratified State and other Tribal IV–D agencies; existing support order, and one-state and the U.S. deposits its instrument of and enforcement remedies such as direct ratification. OCSE does not require that • Recognize child support orders income withholding. UIFSA contains these States request an exemption. issued by other Tribes and Tribal enhanced evidentiary provisions, organizations, and by States, in 2. One-State Approaches to Interstate including use of teleconferencing, accordance with the requirements under Case Processing electronic transmission, and federally- the FFCCSOA, 28 U.S.C. 1738B. (See 45 mandated forms. It precludes the entry Historically, IV–D agencies have CFR 309.120). of a new (de novo) support order where sought to resolve cases involving Likewise, as stated in 45 CFR a valid order exists, ending the nonresident noncustodial parents by 302.36(a)(2), a State must extend the full longstanding practice of establishing using the State’s statutory authority to range of services available under its multiple support orders, and strictly obtain or retain personal jurisdiction IV–D plan to cases referred from Tribal prescribes when a State has the over the out-of-state party. The authority IV–D programs. authority to modify the child support of a State to subject a nonresident to its Regarding international cases, section order of another State, Tribe, or country. laws is set out in State statutes, subject 459A of the Act, 42 U.S.C. 659a UIFSA introduced the principle of to the due process provisions of the U.S. authorizes the Department of State continuing, exclusive jurisdiction (CEJ) Constitution. As described earlier, (DOS), with the concurrence of the to child support. CEJ requires that only UIFSA is a State law, containing both an Secretary, to enter into bilateral one valid current support order may be expansive long-arm provision (section arrangements with foreign countries for in effect at any one time. As long as one 201), continuing, exclusive jurisdiction child support enforcement. To date, the of the individual parties or the child to modify an existing support order, and U.S. has Federal-level arrangements continues to reside in the issuing State, continuing, although not exclusive, with fourteen countries and eleven and as long as the parties do not agree jurisdiction to enforce an existing order Canadian Provinces and Territories. to transfer the case to another (e.g. sections 205 and 206). Since 1984, Information about these arrangements jurisdiction, the issuing tribunal’s States have been required to adopt and guidance on working international authority to modify its order is procedures for enforcing the income cases is on the OCSE international Web continuing and exclusive. Jurisdiction withholding orders of another State site: http://www.acf.hhs.gov/programs/ to modify an order may be lost only if (section 466(b)(9) of the Act, 42 U.S.C. cse/international/. all the relevant persons have 466(b)(9)). UIFSA authorizes direct UIFSA recognizes the importance of permanently left the issuing State or if income withholding, allowing a State to the Tribes and foreign countries to the parties file a written consent to serve directly the obligor’s employer in provide for their children. Under UIFSA transfer jurisdiction of the case to the the other State with the income the term ‘‘State’’ includes Indian Tribes tribunal of another State. UIFSA withholding order/notice (e.g. sections (section 101(19)). The definition of provides that the one order remains in 501 and 502). These provisions afford ‘‘State’’ in UIFSA (2001) (section effect as the family or its individual IV–D agencies a greater opportunity to 102(21)) also includes foreign countries members move from one State to use one-state remedies in factually- or political subdivisions that have been another. appropriate cases, rather than involving declared to be a foreign reciprocating UIFSA includes a transitional a second State. As discussed later, country or political subdivision under procedure for the eventual elimination cooperation among States in requesting Federal law or that have established a of existing multiple support orders in an and providing limited services, such as reciprocal agreement for child support expeditious and efficient manner. To quick locate, coordination of genetic with a U.S. State. While UIFSA governs begin the process toward a one-order testing, and facilitation of gathering and State child support proceedings, it does system, UIFSA provides a relatively transmitting evidence, makes the use of not govern child support activities in straight-forward decision matrix one-state remedies more robust. other countries or Tribes. designed to identify a single valid order that is entitled to prospective 3. Tribal IV–D and International Child C. Need for and Purpose of This Rule enforcement in every State. This process Support Enforcement The interstate regulations that is referred to as determination of PRWORA authorized direct funding appeared in 45 CFR 303.7 prior to the controlling order (DCO). UIFSA of Tribes and Tribal organizations for publication of this rule were originally specifies in detail how the DCO should operating child support enforcement effective February 22, 1988. Many be made. If only one child support order programs under section 455(f) of the changes have taken place in the IV–D exists, it is the controlling order Act, 42 U.S.C. 655(f). The U.S. program since 1988, including the irrespective of when and where it was Department of Health and Human passage of UIFSA, PRWORA, and issued and whether any of the Services (the Department) acknowledges FFCCSOA (28 U.S.C. 1738B). individual parties or the child continues the special government-to-government State IV–D agencies have more to reside in the issuing State. relationship between the Federal authority to take actions directly across UIFSA is currently State law in all 50 Government and federally-recognized State lines than they used to. Because States, the District of Columbia and the Tribes in the implementation of the they have the authority to bypass IV–D

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agencies in other States, confusion can made. Specifically, the rule also applies agency is seeking only to collect support sometimes arise on the part of custodial to instances when an initiating agency arrearages, whether owed to the family and noncustodial parents, employers, is either engaging in preliminary fact- or assigned to the State.’’ and State IV–D workers about correct finding activities, such as taking steps To identify cases in which the State arrearage balances and how to account toward getting a determination of IV–D agency’s responsibility extends for collections. It is to address these controlling order, or is deciding whether only to cases involving two or more issues and otherwise update the to use a one-State approach and/or has States, we define Interstate IV–D case. interstate regulations that we revised 45 requested services from another agency In response to comments, we made CFR 303.7. using a one-state approach. several changes to the definition of This rule extensively reorganizes the Specific changes made in response to Interstate IV–D case by removing the 1988 interstate regulations at 45 CFR comments are discussed in more detail concept of one-state interstate from the 303.7 to clarify and streamline case under the Response to Comments definition, clarifying that there has to be processing responsibilities in section of this preamble. a referral between States, and including intergovernmental cases, incorporating cases in which the State is seeking only both optional and required procedures Part 301—State Plan Approval and Grant Procedures to collect assigned arrearages. In this under PRWORA and enhanced final rule, Interstate IV–D case means ‘‘a technology, particularly in the area of Section 301.1—General Definitions IV–D case in which the noncustodial communications. We also responded to This rule adds definitions of terms parent lives and/or works in a different specific changes requested by State IV– used in program regulations. In this State than the custodial parent and D agencies, for example, by revising child(ren) that has been referred by an responsibility for advancing the cost of section of the preamble, we have grouped the new definitions by topic for initiating State to a responding State for genetic testing. The rule addresses case services. An interstate IV–D case also processing ambiguities raised by a more coherent discussion, rather than alphabetically as they will appear in may include cases in which a State is practitioners regarding determination of seeking only to collect support controlling orders, interstate income § 301.1. Two definitions pertain particularly arrearages, whether owed to the family withholding, and case closure rules in or assigned to the State.’’ 45 CFR 303.11. Finally, the rule makes to international child support case processing. We define Country to In response to comments, OCSE conforming changes to the Federal omitted the proposed definition for substantial compliance audit (45 CFR include both a foreign reciprocating country (FRC) and any foreign country One-state interstate IV–D case and 305.63) and State self-assessment removed reference to the phrase in the requirements (45 CFR 308.2). (or political subdivision thereof) with which a State has entered into a final rule. We have added, however, the III. Provisions of the Regulation and reciprocal arrangement pursuant to definition for One-state remedies, which Changes Made in Response to section 459A(d) of the Act. We also includes both long-arm and direct Comments define Central Authority as the agency enforcement techniques. In the final The following is a summary of the designated by a government to facilitate rule, use of One-state remedies means regulatory provisions included in this support enforcement with an FRC. The ‘‘the exercise of a State’s jurisdiction final rule. The Notice of Proposed Federal statute requires that the country over a non-resident parent or direct Rulemaking (NPRM) was published in with which a Federal-level agreement is establishment, enforcement, or other the Federal Register on December 8, entered establish a central authority to action by a State against a non-resident 2008 (73 FR 74408). The comment facilitate implementation of support parent in accordance with the long-arm period ended February 6, 2009. During establishment and enforcement in cases provision of UIFSA or other State law.’’ the comment period, we received 25 involving residents of the U.S. Uniform Interstate Family Support sets of comments. In general, the In the final rule, in response to Act (UIFSA) means ‘‘the model act commenters were supportive of changes comments, we edited the proposed promulgated by the National Conference in the proposed rule to update and definition of Intergovernmental IV–D of Commissioners on Uniform State revise the rules for intergovernmental case to make the wording parallel to the Laws (NCCUSL) and mandated by cases. definition for Interstate IV–D case, section 466(f) of the Act to be in effect With a few exceptions explained in discussed below, since the concepts are in all States.’’ the applicable sections, we have similar. Also in response to comments, The definitions of Initiating agency substituted ‘‘intergovernmental’’ in lieu we clarified that an intergovernmental and Responding agency establish a of ‘‘interstate’’ throughout these IV–D case also may include cases in common understanding in the context provisions. The term encompasses not which the State is seeking only to of all intergovernmental IV–D cases. In only IV–D cases between States, but also collect assigned arrearages, and may no response to comments, Initiating agency all IV–D cases where the parents reside longer involve the parents and children. is no longer defined as an agency that in different jurisdictions, including In this final rule, the definition for has referred a case to another agency; cases between a State and Tribal IV–D Intergovernmental IV–D case reads as but instead as an agency in which an program, cases between a State and a follows: ‘‘Intergovernmental IV–D case individual has applied for or is foreign country under sections 454(32) means a IV–D case in which the receiving services. The definition now and 459A of the Act, and cases where noncustodial parent lives and/or works reads, ‘‘a State or Tribal IV–D agency or the State has asserted authority over a in a different jurisdiction than the an agency in a country, as defined in nonresident under long-arm custodial parent and child(ren) that has this rule, in which an individual has jurisdiction. Please note that while this been referred by an initiating agency to applied for or is receiving services.’’ intergovernmental regulation applies to a responding agency for services. An Responding agency means ‘‘the agency all cases involving referrals for services intergovernmental IV–D case may that is providing services in response to between States and other States, Tribes, include any combination of referrals a referral from an initiating agency in an or countries, the intergovernmental rule between States, Tribes, and countries. intergovernmental IV–D case.’’ Although also applies more broadly to include An intergovernmental IV–D case also the definitions are inclusive, the some cases where a referral has not been may include cases in which a State requirements in this rule only apply to

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State IV–D programs, not Tribal IV–D that the full range of services also be added the second sentence of programs or other countries. provided to: ‘‘Any country as defined in § 303.7(a)(4) to require the initiating Two other terms flow principally § 301.1 of this chapter.’’ In the final rule, State IV–D agency, when it sends a from UIFSA: Tribunal and Controlling we corrected the regulatory citation for paper version of the required Order State. Tribunal means ‘‘a court, the definition of the term ‘‘Country’’ by documents, to send the number of sets administrative agency, or quasi-judicial replacing § 303.1 with § 301.1. Section needed by the responding State if one entity authorized under State law to 302.36(b) is revised by substituting copy is not sufficient under the establish, enforce, or modify support ‘‘intergovernmental’’ for ‘‘interstate’’ and responding State’s law. orders or to determine parentage.’’ amending the reference to State central Section 303.7(a)(5) requires IV–D Because of the need to determine the registry responsibilities to § 303.7(b), agencies to: ‘‘Transmit requests for controlling order in multiple order consistent with changes we made to information and provide requested situations, we responded to requests § 303.7. information electronically to the greatest from our partners to set out State IV–D extent possible.’’ In response to Part 303—Standards for Program responsibilities when multiple support comments, we removed the proposed Operations orders exist in an interstate case. The phrase ‘‘in accordance with instructions rules regarding determination of Section 303.7—Provision of Services in issued by the Office.’’ Nevertheless, controlling order (DCO) are contained in Intergovernmental IV–D Cases OCSE may provide instructions to States § 303.7. We define Controlling Order We reorganized § 303.7 to clarify IV– if deemed necessary and appropriate. ‘‘ State as the State in which the only D agency responsibilities and to expand In response to State comments, we order was issued or, where multiple the scope from interstate to all clarified in the rule the responsibilities orders exist, the State in which the intergovernmental IV–D cases, as of IV–D agencies to determine which of order determined by a tribunal to defined by § 301.1. In many cases, multiple current support orders is control prospective current support existing paragraphs were moved with controlling prospectively. Section ’’ pursuant to the UIFSA was issued. minor language changes only to improve 303.7(a)(6) includes a general The definition of Form accommodates readability. Other paragraphs of this responsibility which requires all IV–D new storage and transmission section were revised to either shift agencies to: ‘‘Within 30 working days of technologies as they become available. responsibility between the initiating and receiving a request, provide any order In response to comments, we updated responding agencies or address new and payment record information the name of the income withholding case processing responsibilities. requested by a State IV–D agency for a form that is mentioned within the The heading of § 303.7 substitutes controlling order determination and definition. The definition reads, ‘‘Form ‘‘intergovernmental’’ for ‘‘interstate.’’ reconciliation of arrearages, or notify the means a federally-approved document (a) General responsibilities State IV–D agency when the information used for the establishment and Paragraph (a) contains requirements will be provided.’’ In response to enforcement of support obligations that apply to States, irrespective of the concerns by commenters that 30 whether compiled or transmitted in IV–D agency’s role in the case as either working days may be inadequate, we written or electronic format, including an initiating or responding agency. added an option in § 303.7(a)(6) to but not limited to the Income Paragraph (a)(1) requires a IV–D notify the State IV–D agency when the Withholding for Support form, and the agency to: ‘‘Establish and use procedures information will be provided if there is National Medical Support Notice. In for managing its intergovernmental IV– a delay. interstate IV–D cases, such forms D caseload that ensure provision of Section 303.7(a)(7) requires IV–D include those used for child support necessary services as required by this agencies to: ‘‘Notify the other agency enforcement proceedings under UIFSA. section and include maintenance of within 10 working days of receipt of Form also includes any federally- necessary records in accordance with new information on an mandated IV–D program reporting form, § 303.2 of this part.’’ This is a general intergovernmental case.’’ where appropriate.’’ Current versions of responsibility of all IV–D agencies. Section 303.7(a)(8) requires all IV–D these forms are located on the OCSE Similarly, § 303.7(a)(2) and (3) require agencies to: ‘‘Cooperate with requests for Web site at http://www.acf.hhs.gov/ the IV–D agency to periodically review the following limited services: quick programs/cse/forms/. program performance for effectiveness locate, service of process, assistance Part 302—State Plan Requirements and to ensure adequate organizational with discovery, assistance with genetic structure and staffing to provide testing, teleconferenced hearings, Section 302.36—Provision of Services in services in intergovernmental cases. administrative reviews, high-volume Intergovernmental IV–D Cases Section 303.7(a)(4) requires the IV–D automated administrative enforcement Former § 302.36 addressed State plan agency to: ‘‘Use federally-approved in interstate cases under section requirements in interstate and Tribal forms in intergovernmental IV–D cases, 466(a)(14) of the Act, and copies of IV–D cases. We made changes to both unless a country has provided court orders and payment records. the heading and the body of the section alternative forms as part of a chapter of Requests for other limited services may to address international IV–D cases. The A Caseworker’s Guide to Processing be honored at the State’s option.’’ In changes clarify that a State must provide Cases with Foreign Reciprocating response to comments, the final rule services in all intergovernmental IV–D Countries. When using a paper version, specifies the limited services that State cases as we defined that term in § 301.1. this requirement is met by providing the IV–D agencies must provide if requested Paragraph (a)(1) requires the State number of complete sets of required and adds that State IV–D agencies have plan to: ‘‘provide that, in accordance documents needed by the responding the option to honor requests for other with § 303.7 of this chapter, the State agency, if one is not sufficient under the types of limited services. will extend the full range of services responding agency’s law.’’ In response to (b) Central registry available under its IV–D plan to: (1) Any comments, we now mention the Section 303.7(b)(1) provides: ‘‘The other State.’’ Paragraph (a)(2) requires possibility that an FRC may request a State IV–D agency must establish a States to provide services to Tribal IV– State use a particular FRC-specific form. central registry responsible for D programs. Paragraph (a)(3) requires Also in response to comments, we receiving, transmitting, and responding

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to inquiries on all incoming Under § 303.7(c)(4), in response to agency to submit qualifying past-due intergovernmental IV–D cases.’’ comments, we made additional support for all Federal remedies, Paragraph (b)(2) requires that the clarifying changes. The final rule consistent with submittal rules for State’s central registry must: ‘‘Within 10 specifies that: ‘‘Within 20 calendar days Federal tax refund offset under working days of receipt of an of completing the actions required in § 303.72(a)(1). Our intent was to avoid intergovernmental IV–D case,’’ take the paragraphs (1) through (3), and, if both States submitting the same following four actions: ‘‘(i) Ensure that appropriate, receipt of any necessary arrearage in a single case; however, we the documentation submitted with the information needed to process the case,’’ have learned that there may be case has been reviewed to determine the initiating agency must under situations where the responding State completeness; (ii) Forward the case for paragraph (c)(4)(i), if multiple orders are IV–D agency may submit the case that necessary action either to the central in existence and identified under it is working on behalf of the initiating State Parent Locator Service for location paragraph (c)(1), ‘‘ask the appropriate State IV–D agency for administrative services or to the appropriate agency for intrastate tribunal, or refer the case to offset, passport denial, Federal processing; (iii) Acknowledge receipt of the appropriate responding State IV–D insurance match, and Multi State the case and request any missing agency, for a determination of the Financial Institution Data Match documentation; and (iv) Inform the controlling order and a reconciliation of (MSFIDM) on its own, or at the initiating agency where the case was arrearages if such a determination is initiating State IV–D agency’s request. sent for action.’’ necessary.’’ In addition, within the 20- Therefore, under paragraph (c)(8) in the Paragraph (b)(3) requires: ‘‘If the calendar-days time frame, under final rule, the initiating State IV–D documentation received with a case is paragraph (c)(4)(ii), the initiating agency agency must: ‘‘Submit all past-due incomplete and cannot be remedied by must ‘‘refer any intergovernmental IV–D support owed in IV–D cases that meet the central registry without the case to the appropriate State Central the certification requirements under assistance of the initiating agency, the Registry, Tribal IV–D program, or § 303.72 of this part for Federal tax central registry must forward the case Central Authority of a country for refund offset.’’ for any action that can be taken pending action, if one-state remedies are not Section 303.7(c)(9) requires that the necessary action by the initiating appropriate.’’ initiating State must send a request for agency.’’ In response to comments, we Section 303.7(c)(5) requires the a review of a support order and replaced ‘‘inadequate’’ with initiating agency to: ‘‘Provide the supporting documentation within 20 ‘‘incomplete.’’ responding agency sufficient, accurate calendar days of determining that such Paragraph (b)(4) requires the central information to act on the case by a request is required. registry to: ‘‘respond to inquiries from submitting with each case any necessary Section 303.7(c)(10) requires the initiating agencies within 5 working documentation and intergovernmental initiating State to: ‘‘Distribute and days of receipt of the request for a case forms required by the responding disburse any support collections status review.’’ agency.’’ Similarly, § 303.7(c)(6) requires received in accordance with this section (c) Initiating State IV–D agency the initiating agency to: ‘‘Within 30 and §§ 302.32, 302.51, and 302.52 of responsibilities calendar days of receipt of the request this chapter, sections 454(5), 454B, 457, The first step in deciding whether a for information, provide the responding and 1912 of the Act, and instructions determination of controlling order agency with an updated issued by the Office.’’ (DCO) is necessary is to identify all intergovernmental form and any Section 303.7(c)(11) requires an support orders. Accordingly, necessary additional documentation, or initiating State agency to: ‘‘Notify the § 303.7(c)(1) adds the requirement that notify the responding agency when the responding agency within 10 working an initiating agency must first: information will be provided.’’ days of case closure that the initiating ‘‘Determine whether or not there is a Section 303.7(c)(7) requires the State IV–D agency has closed its case support order or orders in effect in a initiating agency to: ‘‘Notify the pursuant to § 303.11 of this part, and the case using the Federal and State Case responding agency at least annually, basis for case closure.’’ In response to Registries, State records, information and upon request in an individual case, comments, we added the phrase, ‘‘and provided by the recipient of services, of interest charges, if any, owed on the basis for case closure.’’ and other relevant information available overdue support under an initiating Paragraph (c)(12) addresses the issue to the State.’’ State order being enforced in the of duplicate withholding notices/orders In paragraph (c)(2), the initiating responding jurisdiction.’’ In response to for the same obligor being sent to the agency must: ‘‘Determine in which State comments on the proposed rule, we obligor’s employer by both the initiating a determination of the controlling order added a requirement to provide notice and responding States in the same and reconciliation of arrearages may be annually, rather than quarterly as interstate case. We are requiring the made where multiple orders exist.’’ If previously proposed in the NPRM, and initiating agency under paragraph more than one State tribunal has the upon request in an individual case. (c)(12) to: ‘‘Instruct the responding jurisdiction to determine the controlling Under paragraph (c)(8), the initiating agency to close its interstate case and to order, pursuant to paragraph (c)(4)(i), State agency must: ‘‘Submit all past-due stop any withholding order or notice the the initiating agency must decide which support owed in IV–D cases that meet responding agency has sent to an State IV–D agency should file for such the certification requirements under employer before the initiating State relief. § 303.72 of this part for Federal tax transmits a withholding order or notice, Under paragraph (c)(3), the initiating refund offset.’’ As explained under the with respect to the same case, to the agency must: ‘‘Determine whether the discussion in response to comments, we same or another employer unless the noncustodial parent is in another deleted the proposed requirement that two States reach an alternative jurisdiction and whether it is only the initiating State could submit agreement on how to proceed.’’ The appropriate to use its one-state remedies past-due support for other Federal phrase ‘‘with respect to the same case’’ to establish paternity and establish, remedies, such as administrative offset was added to the final rule for clarity. modify, and enforce a support order, or passport denial. In the proposed rule, This procedure will avoid duplicate including medical support and income we expressly assigned responsibility in State income withholding orders or withholding.’’ an interstate case to the initiating notices; however, there is nothing in

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this rule that authorizes a State to Paragraph (d)(2)(i) requires the determination. In this case, the change the payee on another State’s responding State IV–D agency to: responding agency must under order through direct income ‘‘Provide location services in accordance paragraph (d)(5)(i): ‘‘File the controlling withholding. This prohibition is with § 303.3 of this part if the request is order determination request with the addressed in Policy Interpretation for location services or the form or appropriate tribunal in its State within Question PIQ–01–01, which states, ‘‘if a documentation does not include 30 calendar days of receipt of the support order or income withholding adequate location information on the request or location of the noncustodial order issued by one State designates the noncustodial parent.’’ Paragraph parent, whichever occurs later.’’ In person or agency to receive payments (d)(2)(ii) provides: ‘‘If unable to proceed response to comments we increased the and the address to which payments are with the case because of inadequate time frame from 10 working days to 30 to be forwarded, an individual or entity documentation, notify the initiating calendar days. Under paragraph in another State may not change the agency of the necessary additions or (d)(5)(ii), the responding State must: designation when sending an Order/ corrections to the form or ‘‘Notify the initiating State agency, the Notice to Withhold [Income for] Child documentation.’’ Paragraph (d)(2)(iii) Controlling Order State and any State Support.’’ (The Order/Notice to provides: ‘‘If the documentation where a support order in the case was Withhold Income for Child Support received with a case is incomplete and issued or registered, of the controlling form is now referred to as the ‘‘Income cannot be remedied without the order determination and any reconciled Withholding for Support’’ form.) While assistance of the initiating agency, arrearages within 30 calendar days of we recognize that section 466(f) of the process the case to the extent possible receipt of the determination from the Act requires States to enact UIFSA 1996, pending necessary action by the tribunal.’’ The 30-calendar-days time section 319(b) of UIFSA (2001) provides initiating agency.’’ In response to frame in paragraph (d)(5)(ii) is identical a mechanism for redirection of comments, we replaced ‘‘inadequate’’ to that included under section 207(f) of payments when neither the obligor, with ‘‘incomplete.’’ UIFSA, under which the party obtaining obligee, nor child reside in the State that In the proposed rule, OCSE requested the order shall file a certified copy of issued the controlling order. feedback regarding actions that should the order with each tribunal that issued The final requirement on initiating be taken when a noncustodial parent is or registered an earlier order of child IV–D agencies, § 303.7(c)(13) addresses located in a different State. Based on the support, within 30 calendar days after concerns about undistributed comments received, § 303.7(d)(3) was issuance of an order determining the collections in a responding State revised to replace the phrase ‘‘initiating controlling order. because the initiating State closed its State’’ with ‘‘initiating agency,’’ and the Section 303.7(d)(6) requires the case and refuses to accept any term ‘‘forward’’ with ‘‘forward/transmit.’’ responding agency to: ‘‘Provide any collections in that case from the In response to comments, we also have necessary services as it would in an responding State. Section 303.7(c)(13) clarified that the responding State’s own intrastate IV–D case,’’ including 6 requires the initiating State to: ‘‘If the central registry should be notified where specific services. Paragraph (d)(6)(i) initiating agency has closed its case that case has been sent. The paragraph requires responding State agencies to pursuant to § 303.11 and has not now reads as follows: ‘‘Within 10 provide services including: notified the responding agency to close working days of locating the ‘‘Establishing paternity in accordance its corresponding case, make a diligent noncustodial parent in a different State, with § 303.5 of this part and, if the effort to locate the obligee, including the responding agency must return the agency elects, attempting to obtain a use of the Federal Parent Locator forms and documentation, including the judgment for costs should paternity be Service and the State Parent Locator new location, to the initiating agency, established.’’ Paragraph (d)(6)(ii) Service, and accept, distribute and or, if directed by the initiating agency, requires responding State agencies to disburse any payment received from a forward/transmit the forms and provide services including: responding agency.’’ documentation to the central registry in ‘‘Establishing a child support obligation (d) Responding State IV–D agency the State where the noncustodial parent in accordance with § 302.56 of this responsibilities has been located and notify the chapter and §§ 303.4, 303.31 and In the final rule, we have revised the responding State’s own central registry 303.101 of this part.’’ In response to introductory language from the where the case has been sent.’’ comments, paragraph (d)(6)(i) allows proposed rule to clarify that the Paragraph (d)(4) requires the State IV–D agencies to attempt to obtain requirements in section 303.7(d) apply responding State IV–D agency to: a judgment for costs when paternity is to State IV–D agencies specifically. The ‘‘Within 10 working days of locating the established. introductory language now reads as noncustodial parent in a different In response to comments, we moved follows: ‘‘Upon receipt of a request for political subdivision within the State, the responsibility to report overdue services from an initiating agency, the forward/transmit the forms and support to Consumer Reporting responding State IV–D agency documentation to the appropriate Agencies, in accordance with section must* * *.’’ Section 303.7(d)(1) political subdivision and notify the 466(a)(7) of the Act and § 302.70(a)(7), requires a responding agency to: initiating agency and the responding from initiating State IV–D agencies, as ‘‘Accept and process an State’s own central registry of its suggested in the proposed rule, to intergovernmental request for services, action.’’ Again, we changed ‘‘initiating responding State IV–D agencies under regardless of whether the initiating State’’ to ‘‘initiating agency,’’ and paragraph (d)(6)(iii). agency elected not to use remedies that clarified that the central registry in the Paragraph (d)(6)(iv) addresses a may be available under the law of that responding State also should be notified responding State agency’s responsibility jurisdiction.’’ where the case has been sent. In for processing and enforcing orders The opening sentence in § 303.7(d)(2) addition, to avoid ambiguity, we referred by an initiating agency. In states that: ‘‘Within 75 calendar days of replaced the term ‘‘jurisdiction’’ with response to comments to the initiating receipt of an intergovernmental form ‘‘political subdivision.’’ State agency’s responsibility under and documentation from its central Paragraph (d)(5) adds a notice paragraph (c)(8), to submit past due registry* * *’’ the responding agency requirement where the initiating State support for Federal enforcement must take the specified action. agency has requested a controlling order remedies, we have added language to

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indicate that the responding State on its own case and an interstate case Paragraph (e)(2) reads as follows: agency may submit cases for other may better be addressed in the context ‘‘Each State IV–D agency may recover its Federal enforcement remedies such as of meetings on intergovernmental costs of providing services in administrative offset and passport cooperation rather than by regulation. intergovernmental non-IV–A cases in denial. The paragraph now reads as Section 303.7(d)(8) requires the accordance with § 302.33(d) of this follows: ‘‘Processing and enforcing responding State agency to: ‘‘Identify chapter, except that a IV–D agency may orders referred by an initiating agency, any fees or costs deducted from support not recover costs from an FRC or from whether pursuant to UIFSA or other payments when forwarding payments to a foreign obligee in that FRC, when legal processes, using appropriate the initiating agency in accordance with providing services under sections remedies applied in its own cases in paragraph (d)(6)(v) of this section.’’ 454(32) and 459A of the Act.’’ The accordance with §§ 303.6, 303.31, Section 303.7(d)(9) details the actions limitation on cost recovery has been 303.32, 303.100 through 303.102, and a responding State must take when an added as required by PRWORA. 303.104 of this part, and submit the case initiating State has elected to use direct Services between FRCs must be cost for such other Federal enforcement income withholding in an existing free. States entering a state-level techniques as the State determines to be intergovernmental IV–D case. The arrangement with a non-FRC country appropriate, such as administrative initiating State is authorized to use under section 459A may elect to provide offset under 31 CFR 285.1 and passport direct income withholding only where it cost-free services, but are not mandated denial under section 452(k) of the Act.’’ follows requirements to instruct the to do so. Accordingly, this section refers Paragraph (d)(6)(v) requires the responding agency to close its to FRCs rather than using the more responding agency to provide any corresponding case under § 303.7(c)(12). inclusive term ‘‘country.’’ However, necessary services as it would in an In the final rule, paragraph (d)(9) there is no similar prohibition to intrastate IV–D case including: requires the responding agency to: charging fees or recovering costs in ‘‘Collecting and monitoring any support ‘‘Within 10 working days of receipt of cases with Tribal IV–D agencies. In payments from the noncustodial parent instructions for case closure from an addition, Tribal IV–D agencies have the and forwarding payments to the location initiating agency under paragraph option under § 309.75(e) to charge fees specified by the initiating agency. The (c)(12) of this section, stop the and recover costs. IV–D agency must include sufficient responding State’s income withholding information to identify the case, order or notice and close the Part 303—Standards for Program indicate the date of collection as defined intergovernmental IV–D case, unless the Operation under § 302.51(a) of this chapter, and two States reach an alternative Section 303.11—Case Closure Criteria include the responding State’s case agreement on how to proceed.’’ In identifier and locator code, as defined in response to comments, the time frame Section 303.11(b)(12) allows a State accordance with instructions issued by by which a responding State must stop IV–D agency to close a case if: ‘‘The IV– this Office.’’ This change allows OCSE their income withholding order and D agency documents failure by the greater flexibility to define consistent close the intergovernmental case is initiating agency to take an action which identifier and locator codes, including clarified to be ‘‘working’’ days. Also in is essential for the next step in ones for FRCs (International Standards response to comments, we replaced the providing services.’’ Organization (ISO) codes) and Tribal words ‘‘a request’’ in the proposed rule Paragraph (b)(13) adds a case closure IV–D programs (Bureau of Indian Affairs with ‘‘instructions’’ to emphasize that criterion under which the responding (BIA) codes). OCSE DCL–07–02 (http:// this requirement is mandatory, not State agency is authorized to close its www.acf.hhs.gov/programs/cse/pol/ optional, and to be consistent with the intergovernmental case based on a DCL/2007/dcl-07–02.htm) provides language in the corresponding initiating notice under § 303.7(c)(11) from the locator code instructions, including for State responsibilities section, under initiating agency that it has closed its Tribal IV–D and international cases. paragraph (c)(12), which uses the word case. Under § 303.7(c)(11), an initiating Under paragraph (d)(6)(vi), the ‘‘instruct.’’ State agency must: ‘‘Notify the responding State IV–D agency is In the final rule, requirement (d)(10) responding agency within 10 working responsible for: ‘‘Reviewing and requires the responding State IV–D days of case closure that the initiating adjusting child support orders upon agency to: ‘‘Notify the initiating agency State IV–D agency has closed its case request in accordance with § 303.8 of when a case is closed pursuant to pursuant to § 303.11 of this part, and the this part.’’ §§ 303.11(b)(12) through (14) and basis for case closure.’’ Paragraph (b)(13) Paragraph (d)(7) requires the 303.7(d)(9) of this part.’’ We added the provides, ‘‘The initiating agency has responding State IV–D agency to: reference to § 303.7(d)(9) and the notified the responding State that the ‘‘Provide timely notice to the initiating applicable paragraphs in § 303.11 to initiating State has closed its case under agency in advance of any hearing before clarify the authority under which a § 303.7(c)(11).’’ a tribunal that may result in responding State IV–D agency may close In response to comments, paragraph establishment or adjustment of an an intergovernmental case and is (b)(14) adds a case closure criterion order.’’ required to notify the initiating agency. under which the responding State is In the NPRM, we added proposed (e) Payment and recovery of costs in authorized to close its § 303.7(d)(8) to address allocation of intergovernmental IV–D cases intergovernmental case based on a collections in interstate cases with Section 303.7(e)(1) reads: ‘‘The notice from the initiating agency that arrearages owed by the same obligor and responding IV–D agency must pay the the responding State’s assigned to the responding State in a costs it incurs in processing intergovernmental services are no longer different case. In response to comments, intergovernmental IV–D cases, needed. however, this requirement was removed including the costs of genetic testing. If For consistency with the language in from the final rule. Given the lack of paternity is established, the responding § 303.11(b)(12), which allows a State consensus reflected in the comments, agency, at its election, may seek a IV–D agency to close a case if the IV– we believe the issue of how a judgment for the costs of testing from D agency documents failure by the responding State should allocate the alleged father who denied initiating agency to take an action which collections between assigned arrearages paternity.’’ is essential for the next step in case

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processing, there is a technical change notification regarding case closure in improved communication between to § 303.11(c) to substitute the word both initiating (§ 308.2(g)(1)(iv)) and States. In response, one commenter ‘‘intergovernmental’’ for ‘‘interstate’’ and responding (§ 308.2(g)(2)(vii)) cases. suggested that OCSE encourage more ‘‘initiating agency’’ for ‘‘initiating State.’’ States to adopt Query Interstate Cases IV. Response to Comments Since § 303.11(b)(12) may be used in for Kids (QUICK) to improve interstate both intergovernmental cases received We received 25 sets of comments from case processing communication. from Tribal IV–D programs and other States, Tribes, and other interested Response: OCSE agrees that QUICK, countries, the requirement for pre-notice individuals. Below is a summary of the an electronic communication format of closure applies to these cases as well. comments and our responses. that allows caseworkers to view Therefore, the case closure notice that General Comments interstate case information in real time, responding States must give if they can be an important interstate 1. Comment: One commenter pointed intend to close a case under communication tool and encourages out that the acronym SCR is used for § 303.11(b)(12) must be provided to all State use. As of November 2009, 21 both State Case Registry and State initiating agencies, and the responding States are in production with QUICK, 10 State must keep the case open if that Central Registry in the NPRM. Response: OCSE agrees that using the States are in the development phase, initiating agency supplies useable and more States are in the pre- information in response to the notice. same acronym for two different terms in the preamble is confusing. Typically we development stage. These numbers Part 305—Program Performance use the acronym SCR to stand for State demonstrate that many States recognize Measures, Standards, Financial Case Registry. The final rule text does the benefits of utilizing QUICK for Incentives, and Penalties not use an acronym for either term. interstate communications. OCSE will continue its outreach and technical Section 305.63—Standards for 2. Comment: The same commenter also raised concern about the lack of assistance efforts to further encourage Determining Substantial Compliance and support States’ development of With IV–D Requirements recourse for States that are trying to process intergovernmental cases when QUICK for their use. We have made conforming changes to other States are not meeting mandated 4. Comment: The same commenter Part 305 at § 305.63 to correct outdated processing deadlines. The commenter also suggested an enhancement to cross-references and to revise cross- suggested that OCSE add a § 303.7(f) to CSENet to allow States to include references to § 303.7. the intergovernmental regulation to set electronic documents in CSENet transactions. Part 308—Annual State Self- out responsibilities for the Federal Response: Electronic transmission of Assessment Review and Report Government to help States resolve complex intergovernmental case issues. intergovernmental forms, court orders Section 308.2—Required Program Response: OCSE acknowledges that and other supporting documentation Compliance Criteria intergovernmental case processing can was assessed by OCSE within the last We have made conforming changes to be challenging and is concerned that several years. While technically feasible, Part 308 at § 308.2 to correct outdated some States may not be meeting States’ comments during this cross-references and to revise cross- processing deadlines. A procedure assessment process indicated that their references to § 303.7. The language in currently exists for States to work with statewide systems were not prepared to paragraph (g) has been revised to reflect OCSE in situations where they may transmit those documents or that their the corresponding changes to referenced need assistance resolving courts would not accept those provisions in § 303.7, and we also added intergovernmental case issues with documents. OCSE will revisit this issue two new program compliance criteria other States. The current procedure with States in 2010 when we review the for State Self-Assessments. allows States to contact their Federal intergovernmental forms as required by First, there is a performance criterion regional program manager, report the the Paperwork Reduction Act of 1995. for both initiating (§ 308.2(g)(1)(vi)) and issue and then work with the program 5. Comment: Another commenter responding (§ 308.2(g)(2)(vi)) cases manager and other States to resolve the suggested that OCSE add more CSENet under which, in accordance with the issue. In addition, case closure functions, specifying that all States time frame under § 303.7(a)(6), the regulations under § 303.11(b)(12) offer should have the same functions with initiating and responding State IV–D responding States the option to close correct information, such as telephone agencies must, within 30 working days cases without permission from the numbers, FIPS codes, and fax numbers. of receipt of a request, provide: ‘‘any initiating agency by documenting lack Response: OCSE has encouraged order and payment record information of cooperation by the initiating agency. States to develop programs for all requested by a State IV–D agency for a This criterion was devised so that CSENet functional areas for several controlling order determination and responding States would have grounds years. We continue outreach efforts on reconciliation of arrearages, or notify the to close unworkable cases, provided the an individual basis with States that do State IV–D agency when the information 60-calendar-day notice is given to the not have all seven functional areas will be provided.’’ The phrase: ‘‘or notify initiating agency, as required under (Quick Locate, Case Status Information, the State IV–D agency when the § 303.11(c). Also the responding State Enforcement, Managing State Cases, information will be provided,’’ was should make a thorough, good faith Paternity, Establishment and added in response to comments. effort to communicate with the State Collections) programmed. Finally, we A second new performance area before initiating case closure continue to focus interstate meetings, involves case closure criteria. As procedures. training sessions and end-user support discussed previously under § 303.7 and 3. Comment: In the preamble to the activities on efforts to improve data § 303.11, there are time-measured NPRM, OCSE specifically requested quality and accuracy of transaction requirements for notification of the feedback from States regarding other content. other State when closing a case. communication techniques for interstate 6. Comment: The same commenter Measurable performance criteria are case processing that would work as well asked that the Quick Locate CSENet established where we impose time as or better than the Child Support transaction not be limited to the frames. Accordingly, we add Enforcement Network (CSENet) to foster noncustodial parent.

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Response: The parameter of Quick 9. Comment: One commenter 12. Comment: One commenter stated Locate was broadened after PRWORA to expressed that she had hoped the that the proposed rule violates the HHS include noncustodial parents and intergovernmental NPRM would have consultation policy, since OCSE did not custodial parents, and the existing taken a stronger position on requiring follow the requirements for Tribal Quick Locate transaction is used for States to adopt processes to accept consultation mandated by its own both noncustodial parent and custodial electronic documents and signatures, Department according to Executive parent location. OCSE will conduct noting that her State has made Order 13175 Consultation and outreach in this area to determine if the extraordinary progress in the area of Coordination with Indian Tribal single transaction is meeting States’ electronic documentation, which has Governments, HHS Tribal Consultation needs. resulted in greater efficiency. The Policy. The commenter believes the 7. Comment: One commenter commenter believes that some States proposed rule may have enormous suggested that OCSE develop a secure will never adopt electronic processing Tribal implications, and that now there network that would allow States to send unless required to by OCSE. can be no meaningful dialogue between electronic documents to another State Response: OCSE appreciates the Tribal governments and OCSE because via the internet, similar to the way comment and commends the innovation the proposed rule has already been documents are filed electronically with of the commenter’s State. As discussed published. Finally, the commenter the courts. The commenter said that this later in this section, while OCSE asked for clarification as to whether the would allow States to accept referrals encourages all States to adopt electronic proposed intergovernmental regulation electronically and save on postage and capabilities, OCSE has not mandated applies to all Tribal child support worker time. Alternatively, the this because of the varying capabilities enforcement programs or only to Tribal commenter suggested States obtain among IV–D agencies. IV–D programs established under 45 email encryption software and be able to 10. Comment: One commenter was CFR part 309. certify that their emails are encrypted, concerned that the changes in Response: This rule places no thus allowing States to communicate terminology in the proposed regulation, requirements on Tribal programs, IV–D case processing information by email such as using ‘‘intergovernmental’’ or otherwise. The only Federal child correspondence and document instead of ‘‘interstate’’ and adding the support regulations that apply to Tribes exchange. terms Tribal and international, will are 45 CFR part 309, Tribal Child Response: OCSE does encourage require numerous changes to forms and Support Enforcement (IV–D) Program, and 45 CFR part 310, Computerized email encryption and secure networks, procedural manuals used by the States. Tribal IV–D Systems and Office including Internet-based solutions to Response: OCSE is sympathetic to the Automation. 45 CFR parts 309 and 310 facilitate electronic communications commenter’s concern that some changes apply only to Tribal IV–D programs. and to protect personally identifiable to State forms and procedures may be One of the major reasons for revising information. OCSE is considering necessary following publication of this the intergovernmental rule was to providing the capability for States to rule. However, OCSE notes that current recognize and account for the increasing electronically transmit documents to mandatory intergovernmental forms diversity of partners involved in case other States using the Federal Parent already use many of these terms. OCSE processing, including Tribal and Locator Service (FPLS). As also believes that these terms accurately international agencies. However, while enhancements are made to FPLS state specific requirements in the new these rules address State case processing systems, OCSE will continue to partner intergovernmental rule and believes requirements in this larger context, the with States for input and pilot activities. States will, as a result of these changes, rules themselves only apply to State IV– 8. Comment: One commenter noted be able to process intergovernmental D agencies. that while he knows of nothing better cases more efficiently. OCSE will allow For example, if a Tribal IV–D program than CSENet for communications, the adequate time for States to make needed is the initiating agency and a State is a Interstate Data Exchange Consortium changes to their internal manuals and responding agency in an (IDEC), a group of States whose common forms by extending the effective date of intergovernmental context, the objective is to pool resources to provide the final rule from the usual 60 days to intergovernmental rules for responding cost-effective solutions for interstate and 6 months after publication. States under § 303.7(d) apply to the intrastate child support issues, has also 11. Comment: In regard to the State, while the rules for initiating been very useful for processing background section addressing ‘‘Tribal States under § 303.7(c) do not apply to transactions such as Automated, High- IV–D and International Child Support the Tribal IV–D program. Volume Administrative Enforcement in Enforcement’’ in the preamble of the 13. Comment: One commenter asked Interstate Cases (AEI). IDEC is also proposed rule, one commenter asked for for clarification as to which parts of the effective for processing locate requests clarification that, in the context of proposed rules apply to a State IV–D because it includes Social Security discussion about the ‘‘States’’ ratifying program’s interactions with a Tribe and numbers, addresses, employment the Hague Convention for the which ones apply to a State IV–D history, and demographic information. International Recovery of Child Support program’s interactions with a Tribal IV– According to the commenter, however, and Other Forms of Family D program. IDEC is limited by the number of States Maintenance, the term State refers to Response: Under the Federal statute that subscribe. countries and that individual U.S. States and regulations, there is no mandate Response: OCSE agrees that consortia will not sign the convention. that States provide services to non-IV– such as IDEC can be very useful, Response: In the context of the Hague D Tribes. However, as described below, especially in processing requests for Convention, the U.S. Government and if a State decides to cooperate with a functions such as limited service other foreign countries sign the treaty. non-IV–D Tribe to provide child support requests, which cannot be processed The term ‘‘State’’ in the context of the services, then the intergovernmental using most statewide automated treaty does not refer to individual U.S. rules do apply to the State. Also, systems. However, since there are States. In the preamble to the final rule, applicants who apply directly to a State competing State consortia, OCSE cannot we used the term ‘‘foreign country’’ program must be served by the State, promote one group over another. instead of ‘‘State’’ for clarity. regardless of where they live.

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Part 301—State Plan Approval and term is inclusive of whatever actions an name of the income withholding form is Grant Procedures agency may take to process a case. The ‘‘Income Withholding for Support.’’ In revised definition for initiating agency the final rule, the definition of Form has Section 301.1—General Definitions now reads: been updated to reflect the correct title. While several commenters agreed ‘‘Initiating agency means a State or Tribal 6. Comment: One commenter asked with one or all of the proposed IV–D agency or an agency in a country, as for clarification for the definition of definitions in the General definitions defined in this rule, in which an individual ‘‘State’’ with regard to the new section of § 301.1, most of those who has applied for or is receiving services.’’ definitions for Intergovernmental IV–D commented expressed a variety of In addition, this revised definition case and Interstate IV–D case. The questions and concerns regarding clarifies that State IV–D agencies must commenter stated that Section 101(19) specific definitions and terms. fulfill their responsibilities as initiating of UIFSA 1996 defines ‘‘State’’ to 1. Comments: In regard to the agencies under § 303.7(c) of the rules, include States and territories, Indian definition of Country, one commenter particularly paragraphs (c)(1) through Tribes, and foreign jurisdictions that asked for confirmation that the term (3), even if no referral has been made to have ‘‘enacted a law or established does not include countries with which a responding agency. procedures for issuance and no Federal or State-level reciprocal 3. Comment: The intergovernmental enforcement of support orders which agreement exists; and that services to NPRM states that an Initiating agency, are substantially similar to the these countries are not mandated. The as defined, could include a State IV–D procedures under [UIFSA], the Uniform commenter asked to what extent the agency, a Tribal IV–D agency, or a Reciprocal Enforcement of Support Act intergovernmental rule applies to those country as defined by this rule. (URESA) or the Revised Uniform situations in which a State and a foreign Responding agency is defined as ‘‘the Reciprocal Enforcement of Support Act country not included in the definition of agency that is providing services in (RURESA).’’ The commenter suggested Country in the regulation are response to a referral from an initiating OCSE address whether the term ‘‘State’’ cooperating to handle a shared case on agency in an intergovernmental IV–D in the definition of Interstate IV–D case the basis of comity as specified in case.’’ In regard to both definitions, one retains the broad definition as defined UIFSA, or some other informal commenter asked why all Tribal by UIFSA or refers more narrowly to arrangement. agencies were not referenced. In one of the United States or its territories Response: The definition of Country addition, the commenter asked whether only. does not include foreign countries with a State could have a reciprocal case with Response: For the purposes of the IV– which no Federal or State-level a Tribe that does not have a IV–D D program, State is defined in § 301.1 as reciprocal agreement exists; and IV–D program. ‘‘the several States, the District of services to these foreign countries are Response: This rule applies only to Columbia, the Commonwealth of Puerto not federally mandated. However, if a State IV–D programs, and State IV–D Rico, the Virgin Islands, Guam and State opts to cooperate with such a programs are only required to provide American Samoa,’’ and does not include foreign country, as we understand is services to other State IV–D programs, Tribes or foreign jurisdictions. fairly routine, then the case becomes an Tribal IV–D programs, and countries Therefore, the definition of State in intergovernmental IV–D case and this with Federal or State-level agreements, § 301.1 of this rule, and not the UIFSA rule applies. not to all Tribes. However, a State may definition, applies to the use of the term 2. Comment: One commenter stated choose to open a reciprocal case with a in the definition of Intergovernmental that proposed § 301.1 includes a referral Tribe that does not operate a IV–D IV–D case and Interstate IV–D case in requirement within the definition of an program, so long as the State complies this rule. Initiating agency; however, the term with this rule. 7. Comment: One commenter believes Initiating agency also is used in the 4. Comment: A commenter asked if all that the proposed definition for regulation to refer to an agency that Tribes are bound by FFCCSOA. Intergovernmental IV–D case leaves out takes unilateral action, such as direct Response: Yes, all Tribes are bound cases in which the child has income withholding. The commenter by FFCCSOA, 22 U.S.C. § 1738B. As emancipated but the custodial and suggests that if the intent is to limit the explained in OCSE–AT–02–03: noncustodial parents live in different initiating agency definition to those ‘‘FFCCSOA requires courts of all United jurisdictions, and those cases in which agencies that refer a case to the States territories, states and tribes to a State is attempting to collect State debt responding agency, then another term accord full faith and credit to child from an obligor in another State. In and definition should be developed for support orders issued by another state these state-debt cases, the commenter those agencies that take unilateral or tribe that properly exercised said the State often does not know the action. jurisdiction over the parties and the location of the custodial parent or the Response: OCSE did not intend to subject matter.’’ According to the Action child. limit the definition of Initiating agency Transmittal, ‘‘FFCCSOA defines ‘‘state’’ Response: We agree that there are to only refer to agencies that have sent to include ‘‘Indian Country’’ as this term cases in which the IV–D agency is only a case to a responding agency. The term is defined in 18 U.S.C. section § 1151. attempting to collect arrearages owed to is intended to include agencies that This means that whenever the term is the State, and therefore we have added make case referrals as well as take used in [FFCCSOA], it includes tribe as the following additional sentence to the unilateral actions, such as direct income well.’’ definition for Intergovernmental IV–D withholding. 5. Comment: One commenter pointed case: ‘‘An intergovernmental IV–D case In order to define the term more out that in the definition for Form, the also may include cases in which a State accurately, OCSE changed the definition income withholding form is improperly agency is seeking only to collect support of Initiating agency in this final rule to referred to by its former title, ‘‘Order/ arrearages, whether owed to the family emphasize the relationship of the Notice to Withhold Income for Child or assigned to the State.’’ Since this applicant or recipient of services to the Support,’’ rather than its new title, scenario exists in interstate cases as agency, rather than focusing on the ‘‘Income Withholding for Support.’’ well, we have added a similar sentence referral from the agency to a responding Response: The commenter is correct. to the definition for Interstate IV–D agency. By changing the definition, the Since publication of AT–07–07, the case. For the final text of the definitions

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of Intergovernmental IV–D case and D case is defined as a case where the those cases either ‘‘sent to another State’’ Interstate IV–D case, see the next noncustodial parent lives in a different or ‘‘received from another State.’’ comment. jurisdiction from the child(ren), while 11. Comment: OCSE welcomed 8. Comment: One commenter asked an Interstate IV–D case is defined as a comments on whether the proposed what the differences are between an case where the noncustodial parent definition of One-state interstate IV–D Intergovernmental IV–D case and an lives and/or works in a different State case is helpful, and if so, appropriate Interstate IV–D case. than the child(ren) and the custodial and sufficient. While we received one Response: OCSE intended that the parent. The commenter asked why the comment in support of the proposed only distinction between an former definition omits mentioning the definition of One-state interstate IV–D intergovernmental IV–D case and an custodial parent. case, we received two comments in interstate IV–D case was the type of Response: As stated above, OCSE opposition to the definition, and jurisdictions involved: An interstate intended the only difference between approximately a half-dozen comments case involves States, while an intergovernmental and interstate cases asking for clarification. intergovernmental IV–D case could to be that of the types of jurisdictions The commenters in opposition believe involve any combination of referrals involved in a case. The status or any the term is not useful, especially in the between States, Tribes or countries (as other features of the custodial and broader context of interstate case defined in the regulations). OCSE noncustodial parents or children, other processing and as included in the acknowledges that the NPRM than the jurisdictions where they may proposed definition of the term definitions suggested another live or work, does not impact whether Interstate IV–D case. One commenter distinction between the terms: That an the case falls under the interstate or explained that the word interstate is intergovernmental IV–D case required a intergovernmental definition. commonly understood to mean referral to a responding agency, while 10. Comment: One commenter was ‘‘between’’ or ‘‘among’’ States, so that an interstate case did not require a concerned that the definition of combining ‘‘interstate’’ and ‘‘one-state’’ in referral to another State. In response to Interstate IV–D case is too far-reaching. the same term is fundamentally this comment, OCSE revised the The commenter asked OCSE to problematic. The commenter felt that definitions to clarify that both terms consider, for example, the scenario in the definition for Interstate IV–D case include a referral requirement and that which a custodial parent living in should be limited to those cases where the only distinction is the kinds of Minnesota applies for IV–D services in there has been a referral from one State jurisdictions involved in the case. To do North Dakota because the noncustodial IV–D program to another and that the this, we changed the first sentence of parent is living and working in North one-state concept should not be the definition of Intergovernmental IV– Dakota and the support order was included in the regulation. Another D case for consistency and clarity to issued in North Dakota. Under the commenter disagreed with the use of the more clearly follow the wording used in proposed definition, this would be term ‘‘long-arm’’ in the proposed the first sentence of the definition of considered an interstate IV–D case definition, while another pointed out Interstate IV–D case. merely because the parties live in that the definition could be read to Regarding the definition for Interstate different States. However, this case apply to any case with a parent outside IV–D case, we revised the second half of would have no interstate implications— the State’s borders, not just in another the first sentence to clarify that the term e.g., enforcement would occur in North State. refers only to cases that have been sent Dakota according to North Dakota law, Response: While the concept and use by a State to a responding State. North Dakota would have continuing of the term One-state interstate IV–D The revised definitions for exclusive jurisdiction for purposes of case has grown over the last twenty Intergovernmental IV–D case and review and adjustment, and the State years, OCSE notes that inclusion of the Interstate IV–D case, which include would not treat this case as an interstate definition in this rule may have these changes as well as the change case for purposes of OCSE–157 generated confusion. As a result, we from the previous comment, read as reporting. The commenter is concerned have removed the definition of One- follows: that applying the definition of Interstate state interstate IV–D case from the IV–D case to such a case could have regulation, and added the definition for ‘‘Intergovernmental IV–D case means a IV– unforeseen and unintended One-state remedies. In addition, as D case in which the noncustodial parent lives noted above, we revised the definition and/or works in a different jurisdiction than consequences. the custodial parent and child(ren) that has Response: As noted above, the of Interstate IV–D case so that it no been referred by an initiating agency to a definition for Interstate IV–D case has longer includes the concept of one-state responding agency for services. An been revised in the final rule to pertain interstate. Proposed § 303.7(c)(3) also intergovernmental IV–D case may include only to cases that have been referred for was modified to use the term One-state any combination of referrals between States, services from one State to another State. remedies. See discussion of the Tribes, and countries. An intergovernmental According to the revised definition, comments on proposed § 303.7(c)(3) IV–D case also may include cases in which Interstate IV–D case does not include a below. In the final rule, One-state a State agency is seeking only to collect case that is being processed by an remedies means ‘‘the exercise of a support arrearages, whether owed to the initiating agency using one-state actions State’s jurisdiction over a non-resident family or assigned to the State.’’ ‘‘Interstate IV–D case means a IV–D case in nor does it include a case that involves parent or direct establishment, which the noncustodial parent lives and/or an applicant from one State applying enforcement, or other action by a State works in a different State than the custodial directly for services in another State, as against a non-resident parent in parent and child(ren) that has been referred described in the commenter’s scenario. accordance with the long-arm provision by an initiating State to a responding State The revised definition for Interstate of UIFSA or other State law.’’ for services. An interstate IV–D case also may IV–D case now aligns with the 12. Comment: Several of the include cases in which a State is seeking only instructions for reporting interstate comments on the proposed term One- to collect support arrearages, whether owed cases on Form OCSE–157, ‘‘Child state interstate case asked for to the family or assigned to the State.’’ Support Enforcement Annual Data clarification in regard to reporting on 9. Comment: One commenter Report.’’ The instructions for Form the Form OCSE–157, ‘‘Child Support observed that an Intergovernmental IV– OCSE–157 describe interstate cases as Enforcement Annual Data Report.’’ The

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commenters asked whether such cases changes to § 302.36, one commenter of forms, since at least some of the forms should be reported as interstate cases or stated that his State’s automated system may be originals. local cases on Form OCSE–157. One is not equipped to add Tribal cases and Response: In response to comments, commenter asked if OCSE would be does not have Tribal FIPS codes, etc. OCSE notes that the required number of creating a new reporting category for The commenter wondered if this would copies of forms and/or supporting these kinds of cases. be a problem for other States as well. documents will depend not on the Response: OCSE will not create a new Response: OCSE has given States initiating agency but on the needs of the case type for reporting requirements several years notice about the responding agency receiving the forms. associated with a State’s use of One- requirement to start reporting Tribal and While OCSE’s intent was to shift the state remedies. In reporting on Form international cases. Form OCSE–157, burden of making copies onto the OCSE–157, States should only consider ‘‘Child Support Enforcement Annual responding agency, we acknowledge the reporting instructions included on Data Report,’’ as revised on September 6, UIFSA’s requirements and have decided the form. 2005 by AT–05–09, requires States to to change the rule to reduce confusion. 13. Comment: One commenter asked report intergovernmental cases shared We also agree with the request to clarify if one-state interstate cases should be with Tribal IV–D programs (and with terminology and not use the word treated as local cases or interstate cases other countries) by October 30, 2009. In ‘‘copies.’’ In response, we have changed in terms of case processing addition, DCL–08–35 reminded States to § 303.7(a)(4) to read: ‘‘When using a requirements. collect case data on Tribal and paper version, this requirement is met Response: In general, cases that international cases for Fiscal Year 2009, by providing the number of complete involve one-state remedies should be in addition to collecting several other sets of required documents needed by treated as local cases. Only when a State new categories of data. FIPS codes for the responding agency, if one is not makes a referral for services to another use with Tribal and International cases sufficient under the responding agency’s jurisdiction, turning the case into an are described in DCL–07–02 and DCL– law.’’ interstate or intergovernmental case, 08–04. must the State follow the Section 303.7(a)(5)—Use of Electronic intergovernmental case processing rules Part 303—Standards for Program Transmission under § 303.7. Operations OCSE reminds States that the first 1. Comment: With respect to section Section 303.7—Provision of Services in § 303.7(a)(5), which requires State IV–D three requirements for initiating State Intergovernmental IV–D Cases agencies under § 303.7(c) apply to States agencies to transmit requests for that may ultimately use a one-state Section 303.7(a)—General information and provide requested approach on a case. These requirements Responsibilities information electronically to the greatest describe the pre-referral steps an extent possible, one commenter Section 303.7(a)(4)—Mandatory Use of indicated that there are many ways to initiating State takes to decide how and Federally-Approved Forms whether to determine a controlling electronically transmit requests and order and whether or not the State will 1. Comment: One commenter provide information and expressed ‘‘ employ a one-state strategy or refer the indicated that some countries provide concern that use of the phrase, in case. Once the State decides to process the forms they require in A accordance with instructions issued by ’’ the case using one-state remedies, the Caseworker’s Guide to Processing the office is redundant and can be rest of the responsibilities under this International Cases. The commenter confusing. Response: Issuance of instructions is section do not apply, and the State went on to ask if States should use the discretionary for the Federal would process the case under regular forms in A Caseworker’s Guide to government; however, we agree that the case processing rules. Processing International Cases. language is not necessary. We have 14. Comment: One commenter was Response: We believe it is appropriate removed the language from the concerned that the proposed definition for a State to use forms provided by a ‘‘ regulation. of Tribunal, a court, administrative country in a chapter of A Caseworker’s 2. Comment: One commenter agency, or quasi-judicial entity Guide to Processing Cases with Foreign indicated that the commenter’s State authorized under State law to establish, Reciprocating Countries. As a result, we cannot accept a new case without a enforce, or modify support orders or to have revised § 303.7(a)(4) to include this paper copy of the forms. Another ’’ determine parentage, did not allow authority. commenter asked that OCSE consider States the option to choose the entity to 2. Comment: Several commenters stating in this rule more explicitly, and serve as their Tribunal, as provided appreciated the change under proposed any future proposed rules where under Section 103 of UIFSA 1996 and § 303.7(a)(4) to require agencies to send electronic transactions and/or case 2001. only one copy of each federally- records are referenced, that automated Response: OCSE believes that the approved form in a case to the other transactions may or may not be phrase ‘‘authorized under State law’’ in jurisdiction. However, commenters accompanied by paper documents and the definition of Tribunal affords the noted that this change potentially that the lack of paper documentation for States the same flexibility to choose the conflicts with UIFSA (1996) and (2001). an automated transaction is an expected entity to serve as their Tribunal as Section 304 of UIFSA (1996) requires and allowable occurrence. provided under UIFSA. Therefore, we agencies to send three copies of the Response: OCSE recognizes that all have not changed the definition in the petition. Section 602(a)(2) of UIFSA State systems do not function at the final rule. (2001) requires agencies to send two same level of automation, which is why Part 302—State Plan Requirements copies of the order to be registered, we reiterate that electronic submission including a certified one. is encouraged, but not mandatory. Section 302.36—Provision of Services in Another commenter also suggested Whether or not the lack of paper Intergovernmental IV–D Cases clarifying our terminology by referring documentation for an automated 1. Comment: While OCSE received a to the forms as a ‘‘complete set of transaction is allowable depends on couple of comments in support of the required forms’’ rather than as ‘‘copies’’ whether or not the receiving State can

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accept electronic transmissions. Some requirement that States provide the while the initiating State handles all States are not as advanced in this area same legal representation to an other enforcement activity? as other States; however, cases should initiating State that would be available Response: Yes, in response to this be worked to the greatest extent possible to the responding State’s IV–D agency in comment, the final rule includes a list based upon the electronic information intrastate litigation. of limited services in § 303.7(a)(8) that received. Response: We do not agree that we are mandatory. In addition, language was added to allow a State to provide Section 303.7(a)(6)—Providing Order should specifically address legal representation, because States handle other types of limited services, if and Payment Record Information Upon requested by an initiating agency. Request contested issues differently and it would be inappropriate to create a (Please see the revised requirement 1. Comment: OCSE asked for mandate in such circumstances. below.) It would be inappropriate to comments on the proposed 30-day time 2. Comment: One commenter include an open-ended mandate and we frame within which a State IV–D agency indicated that the requirement for State believe that the listed services are those must provide order and payment IV–D agencies to respond to requests for that can most often be provided by State information as requested by a State IV– the specified limited services in IV–D agencies upon request. In D agency for a DCO and reconciliation § 303.7(a)(8) will cause a major impact addition, an initiating agency may not of arrearages. Several commenters on automated systems modifications. direct a responding State IV–D agency to supported increasing the timeframe to The commenter also stated that the take specific actions in an 60 days; however, there was an equal requirement will require ‘‘pseudo’’ cases intergovernmental IV–D case; that amount of support expressed for that are only on State systems for a determination is up to the responding keeping the time frame at 30 days with specific service or limited assistance to State IV–D agency. 4. Comment: One commenter the option to notify the initiating State a requesting agency, and these cases recommended that the definition of if there is a delay. would not be counted as cases in any limited services in proposed section Response: Thirty working days is the statistics or management reporting. equivalent of six weeks, which, in most 303.7(a)(8) be expanded to include Response: With the evolution of the cases, should be a sufficient amount of review and adjustment, because there IV–D program and authority for States to time to provide any order and payment are some instances in which the take action across State lines, the record information requested by a State appropriate jurisdiction for adjustment provision of limited services is fairly IV–D agency. However, we have added is not the enforcing State, and some common. States currently perform an option in section § 303.7(a)(6) to States are reluctant to perform the limited services; e.g., quick locate and notify the State IV–D agency when the necessary review and adjustment action service of process in intergovernmental information will be provided if there is without taking over the enforcement as child support cases. While the a delay. a two-State interstate case. performance of limited services upon Response: Most State child support Section 303.7(a)(7)—Providing New request is required, a modification to a automated systems do not have the Information on a Case statewide IV–D system is not mandated. capability of providing a single service 1. Comment: One commenter OCSE recognizes that some statewide or doing just one function. A State can requested that OCSE provide IV–D systems have difficulty accepting provide the locate, financial, and asset clarification on the definition of ‘‘new and processing limited service requests. information without opening a full case information.’’ Some States do utilize pseudo cases, on the system, but very few have the Response: We encourage initiating while others process these requests capability of completing the entire States to send new information that is outside of the statewide automated review and adjustment function without needed and necessary for the systems using outside consortia (e.g., establishing a full case on its automated responding State to establish or manage IDEC, the Michigan Financial Institute system. Limited services are activities the interstate case, including data Data Match Alliance). While it is true that an initiating agency requests a State necessary to process or take action on that these activities would not be IV–D agency to perform to assist the the case. If it is information that a State counted as cases on any statistics or initiating agency in establishing, would find valuable in managing an management reporting, the provision of adjusting, or enforcing a child support intrastate case, then it is probably limited services is addressed in UIFSA, order. We are concerned about adding information that the responding State is a common State practice, and is this provision in the final rule without also would find helpful. If the reciprocal. having provided States the opportunity noncustodial parent already has been 3. Comment: One commenter asked if to comment on its inclusion in advance. identified and has a verified Social ‘‘limited services’’ only refers to the ones In addition, the provision in Security Number (SSN), then it is not listed in § 303.7(a)(8), and if so, should § 303.7(a)(8) gives States the option to necessary to send that information § 303.7(a)(8) be changed to read: honor requests for other limited services because it is not new information. ‘‘Cooperate with requests for limited that are not listed. Under that provision, Similarly, a responding State should services (quick locate, service of if a State is willing and able to honor a send new information about a case that process, assistance with discovery, request for a review and adjustment, it would assist the initiating State in teleconferenced hearings, administrative may do so. Therefore, we do not agree responding to customer service reviews, and high volume automated that it is appropriate to add a request for inquiries. administrative enforcement) in review and adjustment of an order to the interstate cases under section 466(a)(14) list of required limited services. Section 303.7(a)(8)—Provision of of the Act.’’ The commenter also asked, 5. Comment: One commenter Limited Services Upon Request if ‘‘limited services’’ includes more than suggested that § 303.7(a)(8) include 1. Comment: In regard to 45 CFR those listed in § 303.7(a)(8), can an requests for court orders and payment 303.7(a)(8), which requires State IV–D initiating State ask another State to take records as a limited service. agencies to cooperate in the provision of only specific actions, such as initiate Response: Section 303.7(a)(6) requires certain limited services, one commenter contempt of court proceedings, income States to provide a copy of the payment suggested that OCSE include the withholding orders, or license sanction, record and a support order, thus we

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added requests for copies of orders and mandate how States develop their case on requirements to open and close cases payment records to the list of limited processing workflows with respect to when the initiating agency does not services to § 303.7(a)(8). their systems. OCSE, for example, does provide complete information. One In response to all of the above not require that a statewide system be commenter asked for clarification comments, § 303.7(a)(8) now reads as able to ‘‘flag’’ a case pending review by regarding whether the regulation follows: A State IV–D agency must State staff or that documents such as required States to open cases based on ‘‘Cooperate with requests for the certified copies of orders be in hard the CSENet transaction alone, especially following limited services: quick locate, copy. States determine these issues. in the absence of complete case service of process, assistance with 2. Comment: One commenter information or paper documents. discovery, assistance with genetic requested clarification that OCSE is not Another commenter was concerned that testing, teleconferenced hearings, mandating that responding jurisdictions agencies would send only CSENet administrative reviews, high-volume accept electronically transmitted cases transactions without following up with automated administrative enforcement from initiating jurisdictions in lieu of required documents such as certified in interstate cases under section mailing cases to the State Central copies of court orders. 466(a)(14) of the Act, and copies of Registry. The commenter referenced the Response: In general, while the court orders and payment records. Electronic Signatures in Global and CSENet application is often used to Requests for other limited services may National Commerce Act (ESIGN) (http:// request services on intergovernmental be honored at the State’s option.’’ frwebgate.access.gpo.gov/cgi-bin/ cases, some of the forms, such as the 6. Comment: A commenter also getdoc.cgi?dbname=106_cong_public_ General Testimony Form, must be sent suggested that State IV–D agencies have laws&docid=f:publ229.106), saying the in a paper format. When sending a agreements with their courts to provide law gives electronic signatures the same request for services through CSENet, the a copy of the court order to other States legal effect as written signatures. initiating State must indicate whether at no cost. However, the commenter indicated that attachments in a paper format are to Response: While we encourage States the law only sets a baseline standard for follow. Upon receipt of a CSENet to work with their courts to provide what is required in an electronic transaction, OCSE guidance has always copies of orders at no cost, we do not signature. The commenter was been that if a State can proceed without believe it is appropriate to remove concerned that many jurisdictions do the paper documents, it should move States’ discretion to recover costs. not have the technical ability to accept forward. If the State determines that electronic signatures and would be critical information is missing, it will Section 303.7(b)—Central Registry unable to process electronic notify the initiating agency that Section 303.7(b)(1)—Establishment of transmissions if mandated. documents are missing and forward the State Central Registry Response: As we indicated above in case for any action that can be taken the discussion of the general pending necessary action by the 1. Comment: In regard to the responsibility for States to transmit and initiating agency. requirement under § 303.7(b)(1) for State provide information electronically to In order to clarify that it is the IV–D agencies to establish a central the greatest extent possible under initiating State’s responsibility to registry responsible for receiving, § 303.7(a)(5), electronic transmissions, provide information and documentation transmitting, and responding to including electronic signatures, are in the format required by the responding inquiries on intergovernmental IV–D encouraged, but not mandated. The agency, we have changed the initiating cases, one commenter asked if case initiating agency must provide the State responsibility under § 303.7(c)(5). information should go directly into the responding agency with the information This responsibility now reads: the statewide automated system rather than that it needs in the format that is initiating State IV–D agency must: through the State Central Registry. The acceptable to the responding agency. ‘‘provide the responding agency commenter also asked for specific Nevertheless, OCSE reiterates that sufficient, accurate information to act on guidance on how case information electronic transmissions will be an the case by submitting with each case should be processed on statewide increasingly important tool for doing any necessary documentation and systems, for example, if the system business and encourages jurisdictions to intergovernmental forms required by the needed to be able to ‘‘flag’’ a case adopt new technologies. (See PIQ–09– responding agency’’ (emphasis added). pending review by State staff or if the 02, http://www.acf.hhs.gov/programs/ This change addresses the commenters’ system could require a certified copy of cse/pol/PIQ/2009/piq-09-02.htm) concern that initiating agencies would an order. not follow-up with documentation in Section 303.7(b)(2)—Initial Required Response: According to OCSE paper format, in the instances where the Activities Upon Receipt of a Case statewide systems requirements, all responding State requires that format. State Central Registry functions must be 1. Comment: Section 303.7(b)(2) OCSE encourages States to work with integrated into the statewide system. requires State Central Registries to each other to ensure the transfer of case Therefore, when an initiating agency complete several tasks within 10 information is efficient and meets sends an intergovernmental case to a working days of receipt of an mutual needs. Further, we encourage responding State, the data will transmit intergovernmental case, including States to work with OCSE on continuing to both the responding State’s statewide reviewing documentation for to develop CSENet capabilities to meet system and the State Central Registry, completeness, forwarding the case for those needs with even greater although the State must have action either to the State Parent Locator effectiveness. procedures so that it is the State Central Service or another agency for Registry that initially processes the new processing, acknowledging receipt of Section 303.7(b)(3)—Forwarding the case, as required by § 303.7(b)(1). OCSE the case or requesting missing Case for Action does not mandate how States should documentation, and informing the 1. Comment: Thirteen commenters integrate State Central Registry initiating agency where the case was responded to OCSE’s specific request for functions with their statewide system forwarded. input on the pros and cons of the functions, so States will have different In regard to § 303.7(b)(2), several current central registry requirement ‘‘to approaches. In addition, OCSE does not commenters requested more guidance forward the case for any action that can

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be taken pending necessary action by days under case closure criterion response from the initiating agency, the initiating agency,’’ in proposed § 303.11(b)(12), which allows for case OCSE strongly encourages the § 303.7(b)(3). closure if the initiating agency fails ‘‘to responding State to follow-up with the Eight commenters supported the take an action which is essential for the initiating agency rather than current rule, saying that forwarding the next step in providing services.’’ automatically proceeding with case case is more efficient for the central Response: As stated above, a State closure. registry and for case processing, Central Registry is required to complete In addition, according to case closure ultimately resulting in support reaching the activities described in § 303.7(b)(2), rules stated in § 303.11(c), in order for children faster. Commenters said that (e.g., ensure documentation has been a responding State to close a case for the local offices often are better able to reviewed, forward the case for action to failure of an initiating agency to take judge if the case can be processed even either the State Parent Locator Service action pursuant to § 303.11(b)(12), the with partial information, preventing or the appropriate agency) within 10 State must notify the initiating agency workable cases from being put on hold working days of receipt of an in writing 60 calendar days before only for technical reasons. This is intergovernmental IV–D case. As part of closing the case. particularly significant if a case has this process, under § 303.7(b)(2)(i), the 4. Comment: One commenter also been referred for two distinct activities. central registry determines, on a case- would like to be able to reject a case By forwarding the case, caseworkers can by-case basis, whether it is in receipt of where there is no recently verified proceed with one activity even as they complete documentation in the required address or there does not appear to be await necessary information to move format in order to proceed with the case. a relationship between the obligor and forward with the other activity. One Because each case and the information the responding State. commenter noted how being able to sent with each case by the initiating Response: Sending a verified address pass along cases to local offices as soon agency is different, we believe it would is not a pre-requisite to forwarding a as they are entered onto the automated be inappropriate to establish a checklist case for action to another jurisdiction. system reduces the burden on the or a minimum standard of required As stated previously, a State is required central registry, which is not equipped information without which central to start the activities described under to manage this process, since its registries could reject or return cases. § 303.7(b)(2) (e.g., ensure documentation resources are focused on meeting the OCSE does not want States to has been reviewed, forward the case for Federal time frames associated with approach intergovernmental case action to either the State Parent Locator otherwise reviewing and acknowledging processing with the notion that Service or the appropriate agency) as incoming cases. incoming cases can be rejected or soon as its central registry is in receipt Five commenters objected to the returned. The intent of this rule is to of an intergovernmental IV–D case. If requirement, saying that if the initiating surmount barriers to intergovernmental the relationship between the obligor and agency never provides the missing or case processing with the ultimate goal of the State is not evident, States should incomplete information, forwarding the providing support to children as soon as request additional information from the case would be a waste of time and possible. However, if the central registry initiating State to clarify the link. resources. One commenter suggested documents the failure by the initiating 5. Comment: One commenter asked that the rule be revised to leave the agency to take an action essential for the for clarification of the responding decision of forwarding cases pending next step in providing services, the State State’s responsibility to continue to receipt of complete information from would have grounds to close the case perform locate activities as it would for the initiating agency to the discretion of under § 303.11(b)(12), as long as the an in-state case (three years if there is the States, which could base the required notice of potential closure a verified SSN) even if the initiating decision on the size of their central under § 303.11(c) is provided to the agency cannot provide a recently registries. initiating agency. verified address. The commenter noted Response: We agree with the majority 3. Comment: In a related comment, a that States that have strict requirements of the comments in support of keeping commenter requested clarification on for current locate information on the the requirement in § 303.7(b)(3), for the time frame for case closure for the noncustodial parent before they begin central registries to forward the case for failure of the initiating agency to act in work on the case may close the case too any action that can be taken pending response to requests for more quickly. The result is that the initiating necessary action by the initiating agency information under § 303.11(b)(12), agency has to make a second referral by if the documentation received with a noting that the time frame policy on this the time the requested information is case is incomplete and cannot be case closure criterion varies widely available, wasting time and resources. remedied by the central registry without among States. Response: As noted above, sending a the assistance of the initiating agency. Response: While there is no verified address is not a prerequisite to As a result, this requirement will remain designated timeframe for how long a forwarding a case for action to another the same. responding State IV–D agency must wait jurisdiction. In general, the initiating 2. Comment: Several commenters for information from an initiating agency, not the responding State, asked for clarification on the minimum agency before starting case closure decides whether to open or close an amount of information that would be actions under § 303.11(b)(12), we intergovernmental case. A responding required for a central registry to open an encourage States and agencies to work State may not apply case closure criteria incoming case, perhaps provided as a together so as not to initiate case closure under § 303.11(b)(1) through (11), or any checklist of required documents or data proceedings prematurely. other criteria, to close elements. In addition, one of these Under § 303.7(c)(6), when an intergovernmental cases unilaterally. In commenters also requested that the initiating State is in receipt of a request order for a responding State to close an corresponding authority be authorized for case information from a responding intergovernmental case without to reject cases not meeting a standard agency, the initiating State has 30 permission from the initiating agency, threshold of information or calendar days to provide the the responding State must document documentation. One commenter information or to give notice as to when lack of cooperation by the initiating suggested that the central registry be it will provide the information. If those agency, as required under allowed to ‘‘return’’ a case within 60 30 calendar days elapse with no § 303.11(b)(12), and provide a 60-

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calendar-day notice to the initiating be limited to instances where direct Response: OCSE agrees that when agency, as required by § 303.11(c). contact between the initiating agency ascertaining in which State(s) a Case closure rules at § 303.11(b)(4) and the responding State IV–D agency is determination of controlling order may establish time frames for closing a case ineffective or impossible. In regard to be made, an initiating agency is not if the noncustodial parent’s location is the time frame, OCSE does not have limited to those tribunals that issued unknown. The time frames are three enough evidence to suggest that five one of the support orders. UIFSA 2001 years when there is sufficient working days is insufficient for this clarifies that a tribunal must have information to initiate an automated requirement; therefore, the time frame is personal jurisdiction over both the locate effort or one year when there is unchanged. obligor and individual obligee when insufficient information to perform determining which of the multiple Section 303.7(c)—Initiating State IV–D automated location services. These time orders is the controlling order. Section Agency Responsibilities frames are applicable in the 302.7(c)(2) requires an analysis of what intergovernmental context. Even in the Section 303.7(c)(1)—Identifying jurisdiction or jurisdictions have or may absence of a recently verified address, a Whether There are Multiple Orders in a obtain personal jurisdiction over both responding agency can perform location Case individuals and the selection of the services. For example, a State can forum if there is an option to proceed perform automated location services 1. Comment: Section 303.7(c)(1) in more than one State. with minimal data, such as a date of requires initiating State agencies to birth and name or a Social Security ‘‘determine whether or not there is a Section 303.7(c)(2)—Determination of number and name. Please see the support order or orders in effect in a Appropriate State To Make DCO additional discussion of case closure case using the Federal and State Case 1. Comment: Under § 303.7(c)(2), an requirements later in this section. Registries, State records, information initiating State agency must: ‘‘determine 6. Comment: In proposed provided by the recipient of services, in which State a determination of § 303.7(b)(3), if the documentation and other relevant information available controlling order and reconciliation of received with a case is inadequate and to the State.’’ arrearages may be made where multiple cannot be remedied by the central One commenter asked if initiating orders exist.’’ One commenter said that registry without the assistance of the States, in fulfilling their responsibility a determination of controlling order is initiating agency, the central registry for determining whether there is a only necessary when there are multiple must forward the case for any action support order or orders in effect in a orders that also are ‘‘valid’’ orders. The that can be taken pending necessary case, would be required to use their commenter explained that since the action by the initiating agency. One statewide automated systems. effective date of FFCCSOA on October commenter recommended substituting Response: There is no explicit 20, 1994, there are fewer and fewer ‘‘ ’’ ‘‘ ’’ the word incomplete for inadequate requirement for States to use their cases with legitimate multiple orders. when describing the problematic statewide automated systems to Rather, additional orders issued since documentation because, by definition, determine whether there is a support FFCCSOA are void. The commenter inadequate documentation is order or orders in effect for a case. States asked OCSE to clarify this point and to insufficient for its intended purpose. are required to use Federal and State remind States to make sure orders are Response: We agree with the case registries, State records, ‘‘valid’’ before pursuing a determination commenter and substituted information provided by recipients, and of controlling order. ‘‘incomplete’’ for ‘‘inadequate’’ in the other available information to determine regulatory language at § 303.7(b)(3) and, Response: Section 303.7(c)(1) requires whether there is a support order or correspondingly, in § 303.7(d)(2)(iii), initiating State IV–D agencies to identify orders in effect. which uses the same word. existing support orders. Section 2. Comment: One commenter stated 303.7(c)(1) does not require initiating Section 303.7(b)(4)—Responding to that the determination of controlling State IV–D agencies to decide on their Case Status Inquiries order may be made by any forum that validity under FFCCSOA. In cases 1. Comment: The provision under has personal jurisdiction over the involving multiple orders, the initiating § 303.7(b)(4) requires the central registry necessary individual parties and does State IV–D agency must determine to ‘‘respond to inquiries from initiating not have to be a tribunal that has issued which State should determine the agencies within five working days of a support order. The commenter went controlling order. Once the State makes receipt of the request for a case status on to say that UIFSA section 207(b)(3) this determination, the State must ‘‘ask review.’’ One commenter expressed contemplates that this may be a State the appropriate intrastate tribunal or agreement with the time frame, while that has not issued an order as it refer the case to the appropriate another commenter felt that 10 working requires that a tribunal issue its own responding State IV–D agency, for a days would be more appropriate. Two replacement order when all parties have determination of the controlling order commenters suggested that this left all of the States that have issued and a reconciliation of arrearages’’ as requirement be moved to § 303.7(d), as orders as part of the determination of required in § 303.7(c)(4)(i). The tribunal a responding State responsibility. controlling order process. According to within the State or in the responding Response: This requirement has been the commenter, § 303.7(c)(2) provides State IV–D agency will address the issue in effect since interstate regulations the flexibility needed by the initiating of validity at that point. were implemented at § 303.7 in 1988. agency to select the State to determine 2. Comment: One commenter stated As we indicated in 1988, the the controlling order and reconcile the that § 303.7(c)(2) indicates that the requirement for central registries to arrears when multiple orders exist, proper tribunal to make a determination respond to inquiries from other States is including a State that has not issued a of controlling order is the tribunal that intended for situations in which an support order. The commenter asked is able to obtain personal jurisdiction initiating agency loses track of a case or that OCSE revise the commentary to not over both the obligor and obligee; is unable to determine whether any restrict the initiating State’s selection of however, the rule does not address what action is being taken on a case. Inquiries the DCO State to only a State where that the procedure should be if no tribunal to the central registry should, therefore, State’s tribunal issued a support order. is able to obtain personal jurisdiction

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over both parties, which will often be responding States for establishment 5. Comment: Proposed § 303.7(c)(4) the case in intergovernmental cases. when an adjustment is appropriate, required the initiating State agency to Response: The commenter is correct particularly in regard to establishing ask the appropriate intrastate tribunal that a tribunal requires personal cash medical support. for a DCO and reconciliation of jurisdiction over both parties to make a Response: OCSE agrees States should arrearages or determine the request for DCO. If neither the issuing nor initiating be careful to ask for establishment of an such a determination will be made State has personal jurisdiction over both order only if there is no order in through the appropriate responding parties because the initiating tribunal existence and should otherwise ask for agency. One commenter asked that did not issue one of the multiple orders an adjustment of the order. For example, OCSE clarify when the initiating State and neither the custodial parent, if a State has an order that does not must make a DCO and when the noncustodial parent, nor child remain include cash medical support, and, initiating State must request the in a State where one of the multiple later, an initiating State wants to add responding agency to make a DCO. orders was issued, then personal cash medical support to that first State’s Response: If the initiating State has jurisdiction may always be obtained by order, the initiating State should seek an personal jurisdiction over both parties, referring the case to the State in which adjustment of the order. it is the initiating State’s election the opposing party resides. Section 207 3. Comment: One commenter asked whether it should proceed with a DCO of UIFSA provides the proper for agencies that decide to enforce an or request a responding State with procedures to follow to obtain a DCO in order through direct income personal jurisdiction to make a DCO. this situation. withholding in another State to be The conditions under which a State may Section 303.7(c)(3)—Determine if Use of required to notify the jurisdiction with make a DCO are set out in section 207 One-State Remedies Is Appropriate and the order that they are taking this action of UIFSA. Section 303.7(c)(4)—Actions Required and also specify the arrears balance 6. Comment: Several commenters Within 20 Calendar Days of Completing being enforced. asked for clarification about the 20- Requirements in Paragraphs (c)(1)–(3) Response: A State may not use direct calendar-days time frame, and indicated 1. Comment: Section 303.7(c)(3) income withholding to collect payments confusion over the complexity of requires the initiating State agency to: and have them forwarded directly to the proposed § 303.7(c)(4). ‘‘Determine the appropriateness of using State Disbursement Unit rather than Response: In response to the its one-state interstate remedies to sending payments to the designation numerous requests for clarity in regard establish paternity and establish, specified in the order. As mentioned in to this section, OCSE made a number of modify, and enforce a support order, the preamble, this is prohibited by PIQ– changes to simplify and refine the including medical support and income 01–01. Therefore, OCSE does not language. First, we moved the clause withholding.’’ One commenter suggested believe further notification requirements regarding the State determination that replacing the term ‘‘one-state interstate’’ or statements of arrears balances are the noncustodial parent is in another with the term ‘‘intrastate’’ because the necessary. jurisdiction from § 303.7(c)(4) to commenter felt this would be consistent 4. Comment: One commenter § 303.7(c)(3). It is logical for the State to with terminology in § 303.7(c)(4)(i) and expressed concern that reading identify that the noncustodial parent is (ii), which discusses, in part, a State § 303.7(c)(3) and § 303.7(c)(4)(ii) in another jurisdiction before the State taking ‘‘intrastate’’ action for getting a together, which discuss the State’s decides whether to use one-state determination of controlling order or decision to use one-state remedies and remedies under § 303.7(c)(3), rather than referring a case. the State’s decision to take intrastate afterwards, as previously constructed in Response: As indicated in the action on a case, respectively, may be the NPRM. discussion above regarding the interpreted to mean that States must Section 303.7(c)(3) now reads: definition of the term ‘‘one-state take direct action in cases where a ‘‘Determine whether the noncustodial interstate,’’ we replaced the definition of noncustodial parent lives or works on parent is in another jurisdiction and that type of case with a definition of the reservation of a Tribal IV–D program whether it is appropriate to use its one- ‘‘one-state remedies.’’ ‘‘One-state before referring the case to the state remedies, as defined in § 301.1 of remedies’’ are defined as the exercise of appropriate Tribal IV–D program. this chapter, to establish paternity and a State’s jurisdiction over a non-resident Response: The decision as to whether establish, modify, and enforce a support parent or direct establishment, a State uses one-state remedies or refers order, including medical support and enforcement, or other action by a State a case to another State IV–D agency is income withholding.’’ against a non-resident parent in entirely up to the initiating State Also, in § 303.7(c)(4), we clarified the accordance with the long-arm provision agency. There is no Federal mandate two triggers for the start of the 20- of UIFSA or other State law. In that States use any one approach first. calendar-days time frame. The first § 303.7(c)(3), we have removed the word Because the language under proposed trigger of the time frame is the ‘‘interstate’’ so that the regulation now § 303.7(c)(4)(ii) may have been completion of the actions required in reads: ‘‘Determine whether the interpreted to mean that States were paragraphs (c)(1) through (c)(3), which noncustodial parent is in another obligated to use one-state remedies first, are, respectively, determining existing jurisdiction and whether it is we have changed and simplified this support orders, determining in which appropriate to use its one-state remedies paragraph. The final language requires State a DCO and reconciliation of to establish paternity and establish, the initiating State IV–D agency to refer arrearages may be made in a case with modify, and enforce a support order, an intergovernmental case, within the multiple orders, and determining the including medical support and income 20-calendar-days time frame, to the location of the noncustodial parent and withholding.’’ appropriate State Central Registry, whether or not to use one-state 2. Comment: One commenter agreed Tribal IV–D program, or Central remedies. The second trigger of the 20- that one-state interstate actions be up to Authority of a country for action, if the calendar-days time frame is the receipt the initiating State. However, the initiating agency has determined that of any necessary information needed to commenter asked OCSE to clarify in the use of one-state remedies are not process the case. One example of rule that States should not send cases to appropriate. necessary information is copies of

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orders in a case where multiple orders OCSE agrees with the majority of the should be used to notify the responding exist. commenters who stated that the 20- agency quarterly of the interest amount. In addition, we simplified paragraphs calendar-days time frame to refer a case Response: OCSE will also determine (c)(4)(i) and (ii). Under paragraph to another State is adequate. the feasibility of adding a specific (c)(4)(i), we removed ‘‘If the agency has 8. Comment: One commenter transaction to CSENet to periodically determined there are multiple orders in requested that OCSE clarify how the 20- advise States of the interest charged on effect under paragraph (c)(1) of this calendar-days time frame in a case. This type of proactive section * * *, ’’ because the change § 303.7(c)(4) fits with the 30-working- information-sharing lends itself well to specified above requires that this days time frame in § 303.7(a)(6) to the batch processing supported by determination is completed before a provide any order and payment record CSENet. Periodic reporting could be State takes the actions under paragraph information requested by a State IV–D timed with the initiating State’s interest- (4). Similarly, under paragraph (c)(4)(ii), agency for a DCO and reconciliation of charging frequency. we removed the clause, ‘‘unless the case arrearages. 3. Comment: Seven commenters requires intrastate action in accordance Response: The 30-working-days time expressed that notifying the responding with paragraphs (c)(3) or (4)(i) of this frame for a State IV–D agency to provide agency at least quarterly of the interest section * * *, ’’ because it is redundant, any order and payment record charges owed on overdue support is too given the previous changes. Finally, in information in § 303.7(a)(6) is a general frequent and would place a burden on paragraph (c)(4)(i) we added the phrase responsibility; thus, it could apply to States. Several commenters ‘‘State IV–D’’ to ‘‘responding agency.’’ both initiating and responding State IV– recommended changing the time frame Since ‘‘responding agency’’ can include D agencies. The order and payment to annually, and one commenter States, Tribes and countries, we wanted information requested in § 303.7(a)(6) proposed that the annual date be to be clear that, with respect to DCOs, may very well be a part of the necessary uniform. only States are involved. The full text of information that the initiating State Response: We agree that requiring the § 303.7(c)(4) now reads: requires once it has determined that a initiating IV–D State agency to notify noncustodial parent is in another the responding agency quarterly of ‘‘(4) Within 20 calendar days of completing jurisdiction in § 303.7(c)(3). Therefore, interest owed on overdue support may the actions required in paragraphs (1) the 20-calendar-days time frame in cause a burden on State IV–D agencies. through (3) and, if appropriate, receipt of any We believe that providing interest necessary information needed to process the § 303.7(c)(4) could be triggered after case: receipt of order and payment record charges annually, and upon request in (i) Ask the appropriate intrastate tribunal, information another State must provide an individual case, in those instances in or refer the case to the appropriate to the initiating State IV–D agency which the information may be needed responding State IV–D agency, for a under § 303.7(a)(6). more frequently than annually, will still determination of the controlling order and a 9. Comment: One commenter asked if address States’ concerns with case reconciliation of arrearages, if such a 45 CFR 303.7(c)(4)(i) requires a Tribal processing difficulties that are caused determination is necessary; and IV–D program to complete a DCO and by the wide range of State policies on (ii) Refer any intergovernmental IV–D case reconciliation of arrearages when the interest. We have changed the language to the appropriate State Central Registry, Tribal IV–D program is the ‘‘appropriate in the regulation to ‘‘annually and upon Tribal IV–D program, or Central Authority of request in an individual case.’’ With a country for action, if one-state remedies are intrastate tribunal,’’ or whether a Tribal not appropriate;’’ IV–D program would not be the respect to the suggestion for a uniform appropriate intrastate tribunal in such a date for the interest information to be ‘‘ ’’ The use of and between the two situation. reported annually, we can identify no paragraphs is intentional because States Response: This rule does not apply to compelling reason to do so and leave it should proceed to enforce an existing Tribes or Tribal IV–D programs. up to the States to decide. support order, pending a DCO. 4. Comment: OCSE requested Enforcement of support obligations Section 303.7(c)(7)—Notice of Interest comments on whether and how should not stop while tribunals make Charges accounting records should be updated DCOs. To do otherwise would deprive 1. Comment: With regard to when the controlling order was not children of the support they need on an § 303.7(c)(7), which requires the issued by the initiating State. Several on-going basis. initiating State IV–D agency to notify commenters indicated that if the 7. Comment: OCSE invited comments the responding agency of interest initiating agency is requesting regarding reasonable time requirements charges, several commenters pointed enforcement of a third State’s order, it for translation if needed. The majority of out that programming for QUICK is a should be the initiating State’s the commenters expressed agreement better use of their limited systems responsibility to provide a calculation of with the 20-calendar-days time frame, programming resources and provides the interest based on the issuing State’s because § 303.7(c)(4) is qualified with better and timelier information on law. the receipt of any necessary information interest for interstate cases. Response: We agree that in situations needed to process the case. One Response: While QUICK does provide where the initiating State is requesting commenter requested that the time an interest amount on the financial enforcement of a third State’s order, the frame be extended to 90 days so that the summary screen, it is an individual initiating State should provide the initiating State can locate a translation query by case and does not specify amount of interest owed based on the resource and enter into a necessary interest charged for a specified period. issuing State’s law. contract for the translation. OCSE will evaluate whether this 5. Comment: One commenter Response: OCSE has not built in time enhancement can be made to the indicated that the initiating agencies for translation within the specified 20 application so case-specific queries can should report accumulated interest calendar days because we believe that, be made to obtain information about owed by obligors to responding until the necessary translation is interest charged during a specified agencies, but in an automated fashion. completed, the initiating agency will not period of time. The commenter further stated that have all ‘‘necessary information needed 2. Comment: Another commenter otherwise, the quarterly reporting would to process the case’’ under paragraph (4). asked what type of CSENet transaction require manual updates to the

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responding State’s IV–D automated a responding State to submit past-due an order from another State. Proposed system. support using the Federal § 303.7(c)(8) would have required a Response: While we agree that administrative offset, passport denial, State to submit all past-due support electronic communication is more MSFIDM, and/or Federal insurance owed in IV–D cases that meets the efficient, it is not mandated. match remedies. For example, because certification requirements under 6. Comment: One commenter asked if the administrative offset remedy is § 303.72 for Federal tax refund offset, the responding agency can refuse to optional for States, the responding State and such past-due support, as the State collect interest for the initiating State or may choose to certify a case where the determines to be appropriate, for other close its case if the initiating State fails initiating State does not. This would Federal enforcement techniques, such as to provide the quarterly interest allow a collection from an administrative offset under 31 CFR calculation as required. administrative offset to be received and 285.1, and passport denial under section Response: A responding agency distributed to the family where 452(k) of the Act. cannot refuse to collect interest for the otherwise it would not have been, or Response: This requirement applies to initiating State if the interest is a part of similarly, if a responding State requires all interstate cases in which the the child support order that the full payment for a passport denial initiating agency is submitting a case for responding State is enforcing. Section release where the initiating State does Federal tax refund offset, including 453(p) of the Act defines the term not. cases in which the initiating State is ‘‘support order’’ as: ‘‘A judgment, decree, This flexibility provides a greater submitting arrearages due under an or order, whether temporary, final, or opportunity for a collection, so we have order from another State. The subject to modification, issued by a removed the requirement from this rule requirement in section § 303.72(d)(1), to court or an administrative agency of that the initiating State IV–D agency notify any other State involved in competent jurisdiction, for the support submit past-due support for other enforcing the order when past-due and maintenance of a child, including a Federal enforcement techniques, such as support is submitted and when any child who has attained the age of administrative offset, under 31 CFR offset is received, applies to these cases majority under the law of the issuing 285.1, and passport denial under section as well. State, or of the parent with whom the 452(k) of the Act. However, the 4. Comment: One commenter child is living, which provides for requirement for the initiating State IV– expressed concern that there is a monetary support, health care, D agency to submit for Federal tax probability that some States will adopt arrearages, or reimbursement, and refund offset remains because that is the the option under the Deficit Reduction which may include related costs and State with the assignment of support Act of 2005 (DRA) under which fees, interest and penalties, income rights or request for IV–D services. collections through Federal tax refund withholding, attorneys’ fees, and other Federal insurance match and offset are distributed first to satisfy relief.’’ MSFIDM are also Federal enforcement current support, while other States will Without the interest calculation, the techniques that fall into the category of continue to follow pre-DRA tax offset responding State may be unable to cases that we prefer to have submitted distribution under which collections are collect any interest earned. However, by the initiating State IV–D agency, but applied to satisfy only past-due and not the responding State may not close its also may be submitted by the current support. The commenter case due to the initiating State’s failure responding State IV–D agency if deemed indicated that this will confuse amounts to provide the interest calculation as appropriate. applied to current support and past-due required. The responding State must 2. Comment: Several commenters amounts between States that opt for continue to enforce the initiating State’s expressed support for the requirement different approaches. case, collecting current support and in § 303.7(c)(8) that the initiating State Response: We disagree with the arrearages. submit arrearages for Federal tax refund commenter. In interstate cases, the offset. One commenter asked, if there initiating State IV–D agency is Section 303.7(c)(8)—Submitting Past- are arrearages in multiple States, which responsible for submitting past-due due Support for Federal Enforcement State is allowed to submit for Federal support owed in a IV–D case that meets Remedies tax refund offset and how are the States the certification requirements under 1. Comment: One commenter asked supposed to know about another State’s § 303.72 for Federal tax refund offset. that OCSE consider adding language submittal. The initiating State is similarly that would allow the responding State Response: Section 303.72(d)(1) responsible for distribution. (See AT– to submit cases for passport denial or specifies that: ‘‘the State referring past- 07–05, Q & A 34, citing former other Federal enforcement techniques at due support for offset must, in interstate paragraph § 303.7(c)(7)(iv) and 45 CFR the initiating State’s request. Another situations, notify any other State 303.7(c)(11)). Distribution and commenter asked if it would be possible involved in enforcing the support order disbursement will be made in to add MSFIDM as one of the Federal when it submits an interstate case for accordance with the initiating State’s enforcement techniques that the offset and when it receives the offset rules. In interstate cases, § 303.72(d)(1) initiating State IV–D agency will use amount from the Secretary of the U.S. requires the submitting State to notify when submitting past-due support as Treasury.’’ Since all Federal remedies, any other State involved in enforcing required in § 303.7(c)(8). including administrative offset of other the support order when it receives the Response: OCSE proposed that the Federal payments, are initiated based on offset amount from the Secretary of the initiating State IV–D agency submit all the Federal income tax refund offset file U.S. Treasury. past-due support owed in IV–D cases for submitted by each State, any State 5. Comment: One commenter asked administrative offset and passport submitting past-due support for federal- that we clarify that when the initiating denial because those Federal-level level remedies should notify the other jurisdiction is not a State within the remedies are triggered by States’ data on State in an interstate situation. United States, the responding the Federal income tax refund offset file. 3. Comment: One commenter asked jurisdiction should submit these cases However, we have been convinced that that OCSE specify that § 303.7(c)(8) is under § 303.7(c)(8). it may be in the best interest of the child applicable even when the initiating Response: There is currently no and family, in certain circumstances, for State is submitting arrearages due under statutory authority for Tribal IV–D

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programs to directly submit past-due the answer to question #33 states, ‘‘from retained from the previously existing support for Federal tax refund offset. an interstate perspective, the responding regulation under initiating State However, past-due support owed to State is responsible for pursuing all responsibilities. The only change is individuals receiving services from appropriate enforcement activities adding a reference to section 466(a)(10) Tribal IV–D programs may be submitted (except for Federal Income Tax Refund of the Act, as the timing and for Federal tax refund offset by a State Offset). Placing responsibility for requirements for review and adjustment IV–D agency if the individual files an reporting delinquencies to consumer have changed over the years. If the application for services from the State reporting agencies upon the responding initiating State has the legal authority to and the Tribal IV–D agency has a State follows the general rule in adjust the order, 45 CFR 303.8(f)(1) cooperative agreement with the State. interstate enforcement, as opposed to requires it to: ‘‘conduct the review and See PIQT–07–02. Under current law at the limited exception. In addition, adjust the order pursuant to this section 464(a)(1) and (2) of the Act, only having only one State responsible for section.’’ Otherwise, a review request past-due support owed in cases with an such reporting eliminates the potential must be sent to a State that has legal assignment of support rights or confusion in interstate cases associated authority to adjust the support order. application for IV–D services under with double reporting.’’ AT–98–30 also This may be either the State with CEJ to § 302.33(a)(1)(i) may be submitted for points out that since the responding modify its controlling order or, where Federal tax refund offset; therefore, State will generally be the State of everyone has left the State that issued without an application for services from residence for the obligor, it is in the best the controlling order, the non-requesting the State, past-due support owed in a position to efficiently handle any party’s State. case from another country cannot be contest that may occur as a result of submitted. credit bureau reporting. OCSE agrees Proposed § 303.7(c)(11) Renumbered as 6. Comment: Proposed § 303.7(c)(8) that this is a service best provided by (c)(10)—Distribution and Disbursement and (9) require the initiating State IV– the responding State IV–D agency, so 1. Comment: One commenter stated D agency to submit cases with qualified proposed § 303.7(c)(9), has been that the requirement in proposed past-due support for Federal tax refund renumbered as § 303.7(d)(6)(iii) and § 303.7(c)(11) for the initiating State to offset and other Federal enforcement moved to the responding State distribute and disburse support remedies and to report overdue support responsibilities. Section 303.7(d)(6)(iii) collections received should be to Consumer Reporting Agencies. One assigns the responsibility of: ‘‘Reporting strengthened to prohibit direct commenter asked if proposed overdue support to Consumer Reporting withholding by a State for arrearages § 303.7(c)(8) and (9) are any different Agencies, in accordance with section assigned to that State when the obligee than the current rules or if the 466(a)(7) of the Act and § 302.70(a)(7) of is receiving services in another State or paragraphs just clarify the initiating this chapter’’ to responding State IV–D when support is due to the family under State responsibilities. agencies. the ‘‘families first’’ distribution Response: As we indicated in the 2. Comment: One commenter provisions of PRWORA. Another preamble to the NPRM, proposed suggested that both the initiating and commenter gave the following § 303.7(c)(8), specifically addresses the responding State IV–D agency should be scenarios: responsibility of the initiating State IV– able to report overdue support to CRAs. D agency to submit past-due support for Response: We disagree with this Scenario 1 Federal tax refund offset, administrative comment because, as indicated in the The custodial party is receiving offset, and passport denial. The preamble to the NPRM, it is necessary services in one State [the first State], the reference to administrative offset and to specify which State must submit the obligor lives in a second State, and passport denial is new, while the overdue debt to CRAs to avoid both assigned arrearages are owed to a third responsibility for Federal tax refund States submitting the same arrearage in State for Temporary Assistance for offset was clarified. However, the a single case. Having both the initiating Needy Families (TANF) paid to the requirement for the initiating State to and responding State IV–D agency family. The second State will only submit for any other Federal remedies, report overdue support to CRAs could accept a reciprocal case from the first other than Federal tax refund offset, has result in the misconception that an State, and will tell the third State to been removed in the final regulation. obligor’s child support debt is greater send its case to the first State to collect than it actually is. There are three major the third State’s arrearages because the Proposed § 303.7(c)(9), Renumbered as CRAs, Experian, Equifax, and first State (the initiating State) is (d)(6)(iii)—Submitting Arrearages to TransUnion, and one State reporting responsible for distribution. Consumer Reporting Agencies (CRAs) arrearages is adequate and appropriate. 1. Comment: Some commenters Scenario 2 expressed agreement with the Proposed § 303.7(c)(10) Renumbered as The commenter stated that there are requirement in proposed § 303.7(c)(9) (c)(9)—Request for Review of Support also situations in which the custodial for initiating State IV–D agencies to Order parent is not receiving services from any report overdue support to CRAs. Other 1. Comment: One commenter asked State IV–D agency, and a responding commenters suggested that reporting that OCSE clarify that the requirement State will not accept another State’s case overdue support to CRAs should be the in proposed § 303.7(c)(10), to send a for collection of assigned arrearages responding State IV–D agency’s request for review of a support order to only, indicating that the responding responsibility because the responding another State within 20 calendar days of State must collect both current support State is already providing due process determining that review is appropriate and arrearages, not just arrearages. and enforcement services, and and receipt of the information necessary Response: Arrearage-only IV–D cases challenges to these enforcement actions to conduct the review, means that the have long been a part of the child occur in the obligor’s home State. request should be sent to a State having support program. Instructions to the Response: We agree with the continuing exclusive jurisdiction (CEJ) Federal annual statistical reporting form commenters that suggest the responding to modify an order. OCSE–157 in AT–05–09 recognize and State IV–D agency should report Response: This requirement, define an arrears-only case as: ‘‘A IV–D overdue support to CRAs. In AT–98–30, renumbered as § 303.7(c)(9), has been case in which the only reason the case

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is open is to collect child or medical interest in assigned arrearages, or order itself. In this situation, the support arrearages owed to the state or between States with differing responding State might close the to the family.’’ Therefore, we believe it distribution policies, should begin to intergovernmental IV–D case, and then would be a significant change in this resolve themselves. open a non-IV–D case to continue final regulation, without an opportunity collections, based on the support order, Proposed § 303.7(c)(12), Renumbered as for further discussion and comment, to (c)(11)—Notice of Case Closure if it is under income withholding. prohibit direct withholding by a State However, information about the case for arrearages assigned to that State 1. Comment: One commenter closure from the initiating agency, such when the obligee is receiving services in indicated that while the change in as that the custodial parent had died, another State or when support is due to proposed § 303.7(c)(12), now paragraph would allow the responding State to the family under the ‘‘families first’’ (c)(11), which requires the initiating appropriately close out the order. distribution provisions of PRWORA. State IV–D agency to notify the Response: OCSE agrees that it may be However, if a custodial parent is responding agency within 10 working important for a responding State to receiving IV–D services in another State, days of case closure that the initiating know the reason why an initiating State we would encourage States to work State IV–D agency has closed its case closes its case. Therefore, we are adding together to ensure that families receive pursuant to § 303.11, addresses the issue this requirement to the initiating State’s adequate services, including current of overlapping enforcement efforts in a responsibilities under § 303.7(c)(11) in support and arrears owed to them. two-state interstate case, it does not the final rule. The revised rule reads as With respect to the first scenario, a address the problem of some States follows: responding State IV–D agency may not operating under UIFSA 1996 and others refuse to accept an interstate case from under UIFSA 2001. For example, an ‘‘Notify the responding agency within 10 order is entered in State A, which has working days of case closure that the a State with an arrears-only IV–D case initiating State IV–D agency has closed its and tell that State to send its case to an open IV–D case. The custodial parent case pursuant to § 303.11 of this part, and the collect the assigned arrearages to a State moves to State B and the noncustodial basis for case closure;’’ in which the custodial parent is parent remains in State A. State B currently receiving IV–D services. A begins direct enforcement of State A’s Proposed § 303.7(c)(13), Renumbered as responding State must accept and order and the employer begins remitting (c)(12)—Instruct Responding Agency To process an intergovernmental request payments to State B, which disburses Close its Case for services regardless of the existence payments to the custodial parent. State of a separate interstate case from a A continues with enforcement 1. Comment: One commenter different State. As indicated in the provisions and becomes aware that State expressed agreement with the theory of definition section of this rule, an B has been receiving payments directly, the requirement in proposed paragraph intergovernmental IV–D case and an generally when aggressive enforcement (c)(13), now (c)(12), under which the interstate IV–D case may include cases remedies are being taken against the initiating State IV–D agency must in which a State/Agency is seeking only noncustodial parent. instruct the responding agency to close to collect support arrearages, whether Response: State B would not be its interstate case and to stop any owed to the family or assigned to the authorized under UIFSA 1996 or 2001 withholding order or notice the State. to take the action described. Although responding agency has sent to an In the second scenario, we do not not all States have received waivers to employer before the initiating State agree with the commenter that the adopt UIFSA (2001), section 319(b) transmits a withholding order or notice responding State may not accept an offers a mechanism for State B to ask to the same or another employer unless intergovernmental request for collection State A for redirection of payments if the two States reach an alternative of only arrearages assigned to a State. If the custodial parent, noncustodial agreement on how to proceed. However, the custodial parent is not receiving IV– parent, and child have all left the State. the commenter felt that the reality of the D services from any State, the 2. Comment: One commenter situation is different. The commenter responding State that receives a request supported the change in proposed provided the following scenarios: from a State to collect assigned § 303.7(c)(12), now paragraph (c)(11), • A case has recently been sent to arrearages may not refuse to process that because, with notice that the initiating another State and that State does not yet case. States with assigned arrearages State had closed its case, the responding have the case initiated. The initiating from a former assistance case may not agency could close its case without State receives information regarding a be providing services to the custodial having a basis for closure other than new employer. It sometimes takes the parent if the custodial parent refuses notice that the initiating agency closed responding State months to initiate the continued IV–D services in response to its case. However, the commenter case and collections would be lost the notice under § 302.33(a)(4) when the recommended that the initiating agency during this time, not benefiting the family stopped receiving assistance. provide the responding State with the child, obligee, or obligor. In these These comments address the complex specific reason for which the initiating situations, we instruct our caseworkers issue of States with an interest in agency closed its case. The commenter to issue the income withholding order, assigned arrearages, different State noted that this information can be but inform the responding State and policy with respect to distribution, more relevant to the responding State if the agree to terminate the income than one IV–D case existing with respect responding State has obtained and is withholding order when the responding to the same parties, and parents’ choice enforcing its own State’s order. State is ready to issue its income about whether or not to receive IV–D The commenter notes the example of withholding order. services. In the DRA of 2005, Congress a responding State that is enforcing its • The interstate case may have been adopted family distribution options to own State’s order using income open for some time and both States encourage States to pay more support withholding, at the request of an receive the new employer information. collections to families. As States expand initiating State. If the initiating agency If the responding State fails to issue the their distribution policies, some of the closes its case without explanation, the income withholding order in a timely inherent tensions involved in allocating responding State might be compelled to fashion, our caseworkers may again collections among States with an continue enforcement based on the issue the income withholding order but

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inform the other State and agree to requirement in proposed § 303.7(c)(13), Response: The initiating agency is terminate the income withholding order which has been renumbered as (c)(12), responsible for the distribution and when the responding State is ready to provides the steps the initiating State disbursement of child support issue its withholding notice. Especially should take after notifying the collections in intergovernmental cases, if the obligor is a ‘‘job hopper,’’ timely responding agency that the initiating in accordance with § 303.7(c)(13). States issuance of income withholding orders agency has closed its case. Therefore, must communicate with one another to is critical. we do not believe this change is ensure that payment records are Response: The central registry in the necessary. consistent and accurate. responding State is required to open an 4. Comment: One commenter Proposed § 303.7(c)(14), Renumbered as interstate case within 10 working days indicated support for proposed (c)(13)—Accept Collections if of receipt of the case in accordance with § 303.7(c)(14), now (c)(13), which 45 CFR 303.7(b)(2). Therefore, it is not Responding State was not Notified Initiating State had Closed its Case requires the initiating State IV–D agency acceptable for States to take months to to accept, distribute and disburse open a case or initiate income 1. Comment: Several commenters payments from a responding agency withholding. However, we believe that expressed agreement with the provision when the initiating State IV–D agency the provision in § 303.7(c)(12) that in proposed § 303.7(c)(14), now (c)(13), fails to notify the responding agency allows States to reach an alternative that the initiating State IV–D agency that it has closed its case. However, the agreement could address these must make a diligent effort to locate the commenter suggested removing the situations. The language allows both obligee, including use of the Federal phrase ‘‘make a diligent effort to locate scenarios to exist under this rule if both Parent Locator Service and the State the obligee, including use of the Federal States agree to the approach. Parent Locator Service, and accept, Parent Locator Service and the State 2. Comment: One commenter distribute and disburse any payment Parent Locator Service,’’ which lists expressed disagreement with the received from a responding agency if the specific resources that operationally provision in proposed § 303.7(c)(13), initiating agency has closed its case cannot be used if the initiating State IV– renumbered as (c)(12), under which the pursuant to § 303.11 and has not D agency has already closed its case. initiating State IV–D agency must notified the responding agency to close Response: We believe it is appropriate instruct the responding agency to close its corresponding case. However, one to include this language. The initiating its interstate case and to stop any commenter read the provision to imply State IV–D agency’s use of the Federal withholding order or notice the that closing a IV–D case somehow stops Parent Locator Service and the State responding agency has sent to an the child support obligation. Parent Locator Service is appropriate employer before the initiating State Response: Closing a IV–D case does and necessary because it is for a IV–D transmits a withholding order or notice not impact or eradicate a support order purpose, as is distributing and or obligation; it merely means that the to the same or another employer unless disbursing the collections. the two States reach an alternative IV–D agency is no longer working the agreement on how to proceed. The case. Closing the IV–D case has no Section 303.7(d)—Responding State IV– commenter recommended that States be impact on any existing order in the case. D Agency Responsibilities 2. Comment: One commenter encouraged to communicate more Section 303.7(d)(1)—Accept Referred recommended that OCSE amend effectively and not interrupt the flow of Cases money to the family. proposed § 303.7(c)(14), now (c)(13), to Response: Again, we believe that the mandate that if no IV–D agency is 1. Comment: One commenter commenter’s recommendation can be providing IV–D services, support must expressed a belief that the requirement achieved through the language in be redirected to the State Disbursement in § 303.7(d)(1), that responding State paragraph (c)(12) that allows States to Unit (SDU) of the State that issued the IV–D agencies accept and process an agree to an alternative agreement. order, and that the issuing State’s SDU intergovernmental request for services, 3. Comment: One commenter must accept and distribute payments regardless of whether the initiating indicated that proposed case closure received under such orders. agency elected not to use remedies that criterion at § 303.11(b)(13) states that: Response: Whether or not there is a may be available under the law of that ‘‘The initiating agency has notified the IV–D case, support payments must be jurisdiction, runs counter to the general responding State that the initiating State directed to the person or entity specified notion that States should fully use their has closed its case under [proposed] in the support order. This is a matter of remedies in the first instance without § 303.7(c)(12),’’ and suggested that State and not Federal law. However, involving another State. The commenter § 303.11(b)(13) also refer to proposed under section 454B and 466(b)(5) of the requested that OCSE consider clarifying § 303.7(c)(13), which required that the Act, support payments in IV–D cases that the initiating State must exhaust all initiating State IV–D agency instruct the and non-IV–D income withholding in-State remedies that it determines may responding agency to close its interstate cases must be sent to the SDU. be effective before referral to the case and to stop any withholding order Therefore, in these situations, States responding State. Then, once the matter or notice the responding agency has sent need to ensure that the support order is referred, the responding State must to an employer before the initiating specifies that payments be sent to the accept and process the referral. State transmits a withholding order or SDU. Response: We disagree with the notice to the same or another employer 3. Comment: One commenter commenter. In AT–98–30, the answer to unless the two States reach an indicated that, if the location of the question #1 states that: ‘‘a responding alternative agreement on how to custodial parent is unknown and the State may not refuse to accept a two- proceed. initiating State does not have the state request for order establishment Response: The aforementioned controlling order, the initiating State because it believes that the initiating requirement in proposed § 303.7(c)(12), should be prohibited from sending the State could exercise long-arm which has been renumbered as (c)(11), money directly back to the obligor jurisdiction.’’ As indicated in the corresponds directly with the case instead of returning it to the responding preamble to the NPRM, OCSE closure criteria found in proposed agency so the correct pay records can be recognizes the benefits of obtaining or § 303.11(b)(13) as mentioned above. The preserved. retaining control of a case where the

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responding party resides outside of in § 303.7(d)(3) for the responding noncustodial parent in a different State borders. Indeed, we encourage agency to, within 10 working days of jurisdiction within the State, the one-state solutions; however, the locating the noncustodial parent in a responding State IV–D agency must initiating State agency is free to weigh different State, forward/transmit forms forward/transmit the forms and the legal and factual circumstances of a and documentation to the central documentation to the appropriate case and select whether it is appropriate registry in the State where the jurisdiction and notify the initiating to exercise long-arm jurisdiction or not. noncustodial parent is located and agency and central registry of its action. Nothing in this rule infringes upon a notify the initiating agency and central We received several comments, the State’s decision-making authority to registry where the case has been sent. majority of which suggested that only select a one-state or two-state approach The majority of the commenters the initiating agency be notified. in interstate cases. The choice remains preferred that the forms and Response: In response to the within the purview of the initiating documentation be returned to the commenters above, we believe the State IV–D agency. initiating agency. responding State’s central registry must Response: In response to the majority be informed if a case is sent to another Section 303.7(d)(2)(iii)—Process Case to of the commenters, we will keep the jurisdiction in the responding State. In Extent Possible Pending Receipt of requirement in § 303.7(c)(6) of the addition, to avoid ambiguity, we Additional Information previously existing rule, which requires replaced the term ‘‘jurisdiction’’ with 1. Comment: Some commenters the responding State IV–D agency to ‘‘political subdivision.’’ As such, agreed with the requirement in return the forms and documentation, § 303.7(d)(4) has been clarified to read § 303.7(d)(2)(iii) that the responding including the new location, to the as follows: State should process the case to the initiating agency, unless directed to do ‘‘(4) Within 10 working days of locating the greatest extent possible, even if all otherwise by the initiating agency. We noncustodial parent in a different political necessary documentation has not been agree that forwarding the case directly subdivision within the State, forward/ received, while a few commenters to the State in which the noncustodial transmit the forms and documentation to the suggested that the case be returned to parent has been located reduces the appropriate political subdivision and notify the initiating agency. the initiating agency and the responding initiating agency’s control of the case State’s own central registry of its action;’’ Response: OCSE continues to believe and choice of whether it will use a one- that this provision remains useful and state or two-state remedy in the State 2. Comment: One commenter asked if serves to advance the effectiveness of where the noncustodial parent has been the 10 working days referenced in case processing. A major focus of the located. Paragraph (d)(3) now reads as § 303.7(d)(4) is in addition to the 10 National Child Support Enforcement follows: working days under paragraph Strategic Plan is to ensure that more § 303.7(b)(2), in which the central ‘‘(3) Within 10 working days of locating the children and families can rely on child registry in the responding State agency noncustodial parent in a different State, the must process the request. support payments. Our goal is responding agency must return the forms and children’s financial security. documentation, including the new location, Response: Yes, the 10 working days 2. Comment: One comment indicated to the initiating agency, or, if directed by the under § 303.7(d)(4) within which the that a time frame should be established initiating agency, forward/transmit the forms responding State agency must forward/ in § 303.7(d)(2)(iii) for the initiating and documentation to the central registry in transmit the forms and documentation agency to provide the documentation the State where the noncustodial parent has to the appropriate political subdivision needed to process a case when a been located, and notify the responding within the State, is in addition to the 10 responding State IV–D agency is prothe State’s own central registry where the case working days in which the central has been sent.’’ case to the fullest extent possible registry must process the request under pending necessary action by the 2. Comment: We requested comments § 303.7(b)(2). initiating agency. as to whether there is a need to notify 3. Comment: One commenter Response: Under § 303.7(c)(6) the both the initiating agency and the questioned whether Tribal IV–D initiating State must provide the central registry, as required under programs should be included in the responding agency with an updated § 303.7(d)(3), and if not, where the definition of ‘‘appropriate tribunal’’ and intergovernmental form and any notice of the State’s action should be ‘‘appropriate jurisdiction’’ and expected necessary additional documentation directed; the majority of the commenters to comply with this directive and time within 30 calendar days of receipt of the felt that the notice should only go to the frame in § 303.7(d)(4). request for information, or notify the initiating agency. Response: As indicated previously in responding agency when the Response: We believe the language this preamble, while the information will be provided. was confusing. It is important for a intergovernmental child support rule 3. Comment: One commenter responding agency to notify the recognizes that States will receive recommended substituting the word initiating agency and the responding requests to work cases from Tribal IV– ‘‘incomplete’’ for ‘‘inadequate’’ in State’s own central registry (rather than D agencies as well as other countries, it § 303.7(d)(2)(iii), when describing the initiating State’s central registry) applies to State IV–D programs only. missing documentation, because by where the case has been sent. We This rule does not apply to Tribes. By definition, inadequate documentation is changed the language in the regulation use of the phrase ‘‘a different insufficient for its intended purpose. in paragraph § 303.7(d)(3) to include jurisdiction within the State,’’ proposed Response: We agree with the this clarification, as indicated above. section 303.7(d)(4) referred to county- commenter and revised the regulatory operated IV–D programs, in which a Section 303.7(d)(4)—Locating the language at § 303.7(b)(3) and noncustodial parent is located in Noncustodial Parent in a Different § 303.7(d)(2)(iii) to reflect this change. another county and the case is then Political Subdivision Within the forwarded from the receiving Section 303.7(d)(3)—Noncustodial Responding State responding local IV–D agency to that Parent is Found in a Different State 1. Comment: The provision in other county. It does not include Tribal 1. Comment: We received a number of proposed § 303.7(d)(4) stated that within or foreign jurisdictions. As noted earlier, comments on the proposed requirement 10 working days of locating the to avoid ambiguity, in the final rule we

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replaced the term ‘‘jurisdiction’’ with to obtain a judgment for genetic testing The rules for review and adjustment ‘‘political subdivision.’’ costs should paternity be established. of child support orders under It is possible, although unlikely, that Section 303.7(d)(6)(i) now reads as § 303.8(b)(2) require that a State have a responding State IV–D agency may follows: ‘‘Establishing paternity in procedures which permit either party to locate a noncustodial parent on Tribal accordance with § 303.5 of this part and, contest certain automatic adjustments, land or in another country. However, in if the agency elects, attempting to obtain including a COLA increase, within 30 such instances, the responding agency a judgment for costs should paternity be days after the date of the notice of the should return the case to the initiating established.’’ adjustment. If a party to the order State IV–D agency. If a noncustodial contested the adjustment in response to Proposed § 303.7(d)(6)(iv), Renumbered parent is located in a foreign country, the initial notice of the adjustment and as § 303.7(d)(6)(v)—Collecting, we believe it is more appropriate for the a hearing before a tribunal in the Monitoring, and Forwarding Support initiating State to prepare and send the responding State is scheduled as a Payments case to another country, in accordance result, the requirement under with guidance in the appropriate 1. Comment: One commenter § 303.7(d)(7) would apply, and the caseworker’s guide. indicated that § 303.7(d)(6)(v) will responding State would be required to Section 303.7(d)(5)—Time Frame for require changes to the Automated provide timely notice to the initiating Filing a DCO Request Clearinghouse formats as currently agency. outlined by Federal banking guidelines. 2. Comment: Another commenter 1. Comment: OCSE asked for Section 303.7(d)(6)(v) requires that the suggested that the requirement for a comments on the time frame in responding State IV–D agency collect responding State to provide timely proposed § 303.7(d)(5)(i), which and monitor any support payments from notice to the initiating State be placed requires a responding State IV–D agency the noncustodial parent; forward in § 303.7(a), under general to file the DCO request with the payments to the location specified by responsibilities. The commenter appropriate tribunal in its State within the initiating agency; include sufficient suggested that making this a general 10 working days of receipt of the request information to identify the case, responsibility is appropriate since such or location of the noncustodial parent, indicate the date of collection as defined hearings could take place in the whichever occurs later. The majority of under § 302.51(a) of this chapter, and initiating State, as well as in the the commenters felt that the 10-day time include the responding State’s case responding State. frame was too short for the following identifier and locator code, as defined in Response: OCSE agrees that a hearing reasons: Caseload sizes, tribunal accordance with instructions issued by that might result in the establishment or involvement, and the fact that the IV– OCSE. adjustment of an order that is associated D agency has no control over court Response: The ‘‘sufficient with an interstate case could take place scheduling. Most suggested that the information’’ referenced in the in the initiating or responding State, or time frame be extended to 30 calendar paragraph is identical to the information even in a third State, depending on days. Response: We agree with the required in National Automated which State has been determined as commenters that 10 working days might Clearinghouse Association’s interstate having the controlling order. The be an inadequate amount of time to Electronic Data Interchange transaction, requirement under § 303.7(d)(7) was prepare and file documents necessary to and States are currently required to designed to address the problem of request a DCO. We have changed the transmit and receive information in this responding agencies establishing or time frame in § 303.7(d)(5)(i) to within format. adjusting orders without providing both parents the opportunity to participate in 30 calendar days of receipt of the Section 303.7(d)(7)—Notice of Hearings request for a DCO or location of the the process. That remains its purpose. noncustodial parent, whichever occurs 1. Comment: Section 303.7(d)(7) In regard to the inverse scenario, later. requires responding agencies to provide when an initiating State is establishing timely notice to the initiating agency in or adjusting an order and an obligor is Section 303.7(d)(6)(i)—Seeking a advance of any hearing before a tribunal in a responding State, we do not believe Judgment for Genetic Testing Costs that might result in establishment or there is a similar problem, i.e., that the 1. Comment: One commenter adjustment of an order. One commenter obligor will not be notified. A State, in disagreed with retaining existing asked if the section would apply in the this case an initiating State, that holds language in § 303.7(d)(6)(i), which instance of an administrative review a hearing for establishment or provides that a responding IV–D agency and adjustment, if no one requests a adjustment of an order must ensure due must attempt to obtain a judgment for hearing to dispute the findings. The process and provide notice to the costs if paternity is established, and commenter also asked how the section obligated parent. Therefore, the suggested that the language be revised to applies to States that automatically requirement under § 303.7(d)(7) is allow the responding IV–D agency the issue cost-of-living adjustment (COLA) appropriately listed as a responding option to attempt to recover its costs increases. State responsibility rather than a general without it being a mandate. Response: The requirement under responsibility of both responding and Response: We agree with the § 303.7(d)(7) for the responding State to initiating States. commenter. Now that the responding, provide timely notice to the initiating 3. Comment: Section 303.7(d)(7) rather than initiating State is agency in advance of a hearing applies requires responding States to provide responsible for the cost of genetic only if there is a hearing scheduled. If ‘‘timely notice’’ of review and testing in intergovernmental IV–D cases, a responding State does not schedule adjustment hearings to initiating States. we agree that the responding State hearings as part of its administrative Two commenters requested clarification should be able to determine if it will or review and adjustment process or its as to whether this requirement had a will not recover the costs of genetic automatic COLA increase process, the time frame. One commenter asked for a testing. Therefore, we have changed the requirement for the responding agency definition of the term ‘‘timely.’’ Another language in this paragraph to clarify that to provide notice of hearings under commenter suggested that the notice be responding States may elect to attempt § 303.7(d)(7) does not apply. sent to the initiating State at the same

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time it is provided to the parties to the important to note that, with the and current practices regarding the child support order. exception of Federal tax refund offset handling of multiple cases vary so Response: In § 303.7(d)(7), the term collections (unless the initiating State broadly across States, and because the ‘‘timely’’ in the phrase ‘‘provide timely has opted to pay the offset collections to Federal statute only addresses notice’’ means sufficiently in advance so families first), any collection must first distribution within a case, other than as to allow the initiating agency to be applied to satisfy current support in with respect to income withholding, we provide information for the hearing and accordance with § 302.51(a) before it is believe this issue may better be the opportunity to participate and to applied to satisfy arrearage. addressed in the context of meetings on ensure that the custodial parent has also It is also important to note that the intergovernmental cooperation, rather received notice and has the opportunity rules on income withholding address than in this rule. to participate. We defer to State the issue of allocating payments across procedures to define adequate notice of multiple cases and apply in interstate as Proposed § 303.7(d)(9), Renumbered as hearings, as we generally defer to States well as intrastate cases. Section § 303.7(d)(8)—Notice of Fees and Costs to follow their own due process 303.100(a)(5) states that: ‘‘If there is Deducted requirements. more than one notice for withholding 1. Comment: One commenter objected against a single noncustodial parent, the to the requirement, under proposed Proposed § 303.7(d)(8)—Allocation of State must allocate amounts available § 303.7(d)(9), for the responding State to Collections for withholding giving priority to identify fees or costs deducted from 1. Comment: OCSE received nearly a current support up to the limits support payments when forwarding dozen comments on proposed imposed under section 303(b) of the payments to the initiating agency, citing § 303.7(d)(8) requiring responding States Consumer Credit Protection Act (15 the impact on statewide automated to allocate collections proportionately U.S.C. 1673(b)). The State must systems. In a similar statement, another between arrearages assigned to the establish procedures for allocation of commenter voiced concern about the responding State in a separate case and support among families, but in no case impact this requirement would have on to arrearages owed in an interstate case, shall the allocation result in a the statewide systems considering the either to an obligee in the initiating withholding for one of the support commenter’s State does not currently State or the initiating State itself. obligations not being implemented.’’ charge any fees on interstate cases. All but one of the commenters on this 2. Comment: In regard to this same Response: This requirement should provision appeared to be in opposition. proposed § 303.7(d)(8), several not have an impact on statewide Many were confused by the provision commenters discussed the second automated systems because it is not a and preamble language and asked for interstate ‘‘allocation’’ scenario new requirement. This requirement has clarification. A number of commenters described in the preamble of the been in effect since the 1988 publication objected to the practice that payments proposed rule, involving an initiating of the former interstate regulations and collected on a specific order could be State sending only one case to a since the issuance of system allocated to other orders. The responding State but then allocating certification requirements under commenters questioned the legality of collections from that one case across PRWORA. Statewide automated systems such an action, as well as the adverse multiple cases with the same obligor in must be able to record the receipt of impact it would have on maintaining the initiating State. As stated in the payments on fees, including interest or correct arrearages and payment records preamble, this scenario is as follows: ‘‘A late payment penalties, in the and therefore ensuring proper responding State makes a collection in automated case record, whether or not enforcement in the responding State an interstate Case A, credits the the State practices cost recovery or (e.g., incorrect payment records could payment to the case, and forwards the imposes fees. result in States erroneously reporting money to the initiating State for 2. Comment: One commenter asked the obligor for tax offset, passport distribution and disbursement. The how the responding State would notify denial, or credit bureau reporting). initiating State receives the collection the initiating State of deducted fees and Other commenters felt that this for Case A but applies it, in part, to costs under proposed § 303.7(d)(9). provision conflicted with or confused support due by the same obligor to Response: Section 303.7(d)(8) of the distribution requirements, and at least several families in Cases B and C. The final rule [proposed § 303.7(d)(9)] one was concerned about how the initiating State may not advise the requires that the responding State provision would impact its statewide responding State how the payment was identify any fees or costs deducted from automated system. allocated and distributed.’’ support payments when forwarding the Response: The proposed requirement Several commenters acknowledged payments to the initiating State, but was designed to address a narrow the problems created for the responding does not mandate any one approach or interstate circumstance where a State when payments collected by the method for doing this. OCSE leaves it to responding State retains a collection to responding State and sent to the States to develop their own best satisfy its own assigned arrearages initiating State on a specific order are practices for how responding States under the same support order on its allocated by the initiating State to other share this information in own case before sending collections to orders. At least one commenter intergovernmental cases. an initiating State. In consideration of supported OCSE’s suggestion for an 3. Comment: The same commenter the commenters’ strong opposition, initiating State to send all cases to a also asked whether the responding State OCSE has eliminated proposed responding State, while one commenter, could deduct fees before sending § 303.7(d)(8). The issue of how from a State with a county-based child current support under proposed responding States should allocate support system, strongly objected to this § 303.7(d)(9). collections between assigned arrearages practice. Response: No, in accordance with on its own case and support owed in an Response: We reiterate that States § 302.33(d)(3), the IV–D agency ‘‘shall interstate case may better be addressed should refer all cases involving an not treat any amount collected from the in the context of meetings on obligor to a responding State. However, individual as a recovery of costs * * * intergovernmental cooperation, rather there is no consensus on this issue. except amounts which exceed the than in regulation. However, it is Because statewide automated systems current support owed by the individual

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under the obligation.’’ In other words, a withholding orders to employers for a that requests that the responding State responding State may not deduct costs case that is already being enforced by stop its income withholding order and before sending current support. the State that has the controlling order. close its case is motivated to enforce its Response: OCSE disagrees that the own case. We believe, in these Proposed § 303.7(d)(10), Renumbered as requirement to close the responding circumstances, that the initiating State § 303.7(d)(9)—Case Closure in Direct State IV–D case would not apply when will issue a direct income withholding Income Withholding Cases the responding State holds the order in an appropriate time frame. 1. Comment: We received a half dozen controlling order underlying the 4. Comment: One commenter asked comments on the responding State interstate case. The location of the for clarification that the requirement to requirement, under proposed controlling order has no bearing on the stop income withholding and close an § 303.7(d)(10), to stop an income application of this rule, since the intergovernmental case under proposed withholding order and close the support order is not affected by the § 303.7(d)(10) applies in cases when the intergovernmental IV–D case within 10 opening or closing of any IV–D case responding agency is only taking an days of receipt of a request for case associated with it. Therefore, while a income withholding action and is not closure from an initiating agency, under responding State may hold the also involved in a pending contempt proposed § 303.7(c)(13) [final rule controlling order, the responding State proceeding for avoiding employment. § 303.7(c)(12)], unless the States reach may still receive, work, and must, when The commenter is concerned about the an alternative agreement. instructed, close an intergovernmental effect this rule may have on the Two commenters remarked on the 10- IV–D case sent from an initiating agency responding agencies’ use of contempt day time frame. One suggested using based on that same order. proceedings as an enforcement tool in ‘‘working’’ days to make the time frame For example, a responding State could interstate cases, since an initiating State consistent with other similar time be using income withholding to collect may elect to close the interstate case frames in the rule. Another said the time assigned past-due support owed to the before the responding agency is able to frame was too short, particularly for responding State in an arrears-only case complete the contempt process. States that implement income and to collect on a case sent by an Response: The responding State withholding through a judicial process initiating State providing services to the requirement to stop income withholding as opposed to administratively. custodial parent based on his or her and close an interstate IV–D case under Response: OCSE agrees that, for application for IV–D services under § 303.7(d)(9) of the final rule applies in clarity and consistency, the time frame § 302.33. In this instance, § 303.7(d)(9) any interstate IV–D case, unless the in the final rule § 303.7(d)(9) [proposed of the final rule allows the initiating States involved reach an alternative § 303.7(d)(10)] should be changed to State to instruct the responding State to agreement. While an initiating State ‘‘working’’ days. While this change does close its interstate case so that the may ask a responding State to close its clarify the time frame, OCSE does not initiating State can use direct interstate case before the responding agree that a longer time frame is withholding to collect support under State can complete contempt necessary to accommodate States with the same order for the custodial parent. proceedings in the case, the States may judicial income withholding processes. By closing the interstate IV–D case, the reach an alternative agreement that Income withholding procedures are responding State does not have to close allows the contempt proceeding to designed to be an efficient enforcement its separate IV–D arrears-only case, but ensue. tool and are required by statute and could continue to collect on that case. 5. Comment: One commenter asked regulation to be applied and terminated Coordination between States which are for confirmation that, while case closure quickly without the need for court both enforcing the same order, albeit for criteria listed under § 303.11(b), which involvement. As stated in section different purposes, is essential. In fact, uses permissive language, give States 466(b)(2) of the Act, and reiterated in 45 § 303.7(d)(9) allows States to reach an the option to close cases, the CFR 303.100(a)(4), income ‘‘withholding alternative agreement if that will better requirement for responding States to must occur without the need for any serve the States in processing their close interstate IV–D cases at the request amendment to the support order cases. In response to the commenter’s of the initiating State under proposed involved or any other action by the statement that the initiating State § 303.7(d)(10) [final rule § 303.7(d)(9)] is court or entity that issued [the order] should not issue direct withholding a mandate. ***.’’ Further, the ‘‘Expedited orders to employers for a case that is Response: The commenter’s Procedures’’ section of section 466(c)(1) already being enforced by the State with understanding is correct. The case of the Act requires States to enact laws the controlling order, Section 466(b)(9) closure rules under § 303.11(b) give under which State agencies have the of the Act and UIFSA authorize direct States the option to close cases if certain authority to take certain actions, income withholding. As stated in the conditions are met, but does not require including income withholding, ‘‘without preamble of the proposed rule: ‘‘the States to close these cases. In contrast, the necessity of obtaining an order from election to close an interstate case § 303.7(d)(9) requires the responding any other judicial or administrative involving two States belongs exclusively State to stop the income withholding tribunal.’’ to the initiating agency.’’ The majority of order and close its corresponding case 2. Comment: One commenter States encouraged OCSE to take the within 10 working days of receipt of emphasized that the requirement to stop approach in this rule under § 303.7(d)(9) such instructions from the initiating income withholding and close an rather than have duplicate income State. Because this requirement is intergovernmental case under proposed withholding orders in place against the mandatory, OCSE purposely placed it in § 303.7(d)(10) would not apply in same wages. the intergovernmental regulation rather instances where the responding State 3. Comment: Another commenter than under the case closure rule. held the controlling order because the requested that the regulation establish a In the final rule § 303.7(d)(9), OCSE responding State must determine when time frame for the initiating State to has replaced the words ‘‘a request’’ with its own order is paid in full and the case issue the new income withholding order the word ‘‘instructions,’’ so that should be closed. In addition, the under proposed § 303.7(d)(10). § 303.7(d)(9) now reads, in part: ‘‘Within commenter believed that the initiating Response: OCSE does not agree a time 10 working days of receipt of State should not be issuing direct frame is required. An initiating State instructions for case closure from an

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initiating State agency under paragraph OCSE appreciates concerns that this services against, the foreign (c)(12) of this section * * *.’’ OCSE change may burden some larger States. reciprocating country or foreign obligee replaced the word ‘‘request’’ to avoid However, because the costs of genetic (but costs may, at State option, be any confusion that the requirement is testing are low and States receive assessed against the obligor).’’ Therefore, optional when, in fact, it is mandatory. Federal reimbursement on two-thirds of as required by Federal law, States may In addition, using the word program costs, and also may choose to not collect fees from foreign obligees or ‘‘instructions’’ is consistent with the recover costs, this should not be an FRCs, which are countries with which language in the corresponding initiating undue burden on States. OCSE does not the United States has a reciprocal State responsibilities section, under anticipate that this change will cause agreement under section 459A of the final rule paragraph (c)(12), which uses initiating States to choose a two-State Act. solution for establishing paternity over the word ‘‘instruct.’’ We also inserted the Section 303.11—Case Closure Criteria term ‘‘State’’ to clarify that the possible long-arm solutions. instructions for case closure under 2. Comment: Two commenters 1. Comment: One commenter paragraph (c)(12) come from an objected to the mandate in proposed requested an additional case closure initiating State agency. § 303.7(e)(1) that a responding agency criterion under § 303.11(b) that permits must seek a judgment for the costs of responding States to close interstate Section 303.7(e)—Payment and paternity testing. These commenters cases in instances when initiating States Recovery of Costs in Intergovernmental argued that the responsibility for have made requests that cannot be IV–D Cases responding agencies to recover costs for completed. The commenter offered two Section 303.7(e)(1)—Payment and genetic testing by obtaining a judgment examples. In one example, the initiating Recovery of Costs should be optional. Commenters made State has asked the responding State to the same argument concerning establish paternity in the case of a man 1. Comment: Approximately eight § 303.7(d)(6)(i), which required and a woman; however, the woman was commenters submitted their reactions to responding States to provide any previously married to another man proposed § 303.7(e)(1), which necessary services as it would in an whom the court had found to be the reorganized and revised requirements intrastate case, including ‘‘attempting to father during the divorce proceedings. for the payment and recovery of costs in obtain a judgment for costs should In a second example, the initiating State former § 303.7(d). This section requires paternity be established.’’ One of these has erroneously sent an interstate case responding IV–D agencies to pay the commenters pointed out that section for establishment when the case is really costs of processing intergovernmental 466(a)(5)(B)(ii)(I) of the Act states that a modification case. cases, including the costs of genetic while the State agency must pay for Response: In general, if a case is sent testing. In the former rule, the initiating genetic testing, the State may ‘‘elect’’ to to a responding State in error or the State had been responsible for these recoup those costs and thus is not responding State cannot take the action costs. Five commenters supported required to do so. The commenters requested, we believe that the shifting the responsibility to pay for the suggested revising § 303.7(e)(1) by responding State should be able to costs of genetic testing from the substituting the term ‘‘may’’ for ‘‘must.’’ resolve the issue by communicating initiating State to the responding State. Response: OCSE agrees that directly with the initiating agency and One of these commenters said she responding States should not be asking the agency to revise the request believed the change would make required to seek a judgment for the costs or rescind the referral entirely. With intergovernmental case processing more of genetic testing from the alleged father respect to the second example, rather efficient and effective. once his paternity is established, since than closing this case, we believe it is responding States are now responsible more appropriate for States to A few commenters, however, were for absorbing these costs under the new communicate with each other to secure concerned about the impact the shift in section 303.7(e)(1). Therefore, we have the necessary documentation to proceed responsibility for the costs of genetic changed the language in this paragraph to modify the support order, if the testing would have on statewide to read, in part: ‘‘…If paternity is responding State has the jurisdiction to automated systems. One of these established, the responding agency, at do so. commenters requested that OCSE its election, may seek a judgment for the If the initiating agency is not recognize the time and cost associated costs of testing from the alleged father responsive to requests for more or with implementing this change on who denied paternity.’’ This change also accurate information, the responding statewide systems. At least one of these conforms to the change made in State has grounds to close the case commenters objected to the change proposed § 303.7(d)(6)(i), which under the case closure criterion in entirely, citing an undue burden on clarified that responding States may § 303.11(b)(12): ‘‘the IV–D agency larger States and a disincentive for elect to obtain a judgment for genetic documents failure by the initiating initiating States to opt for long-arm testing costs should paternity be agency to take an action which is solutions in establishing paternity. established. essential for the next step in providing Response: OCSE agrees with the services.’’ Before closing the case, majority of the commenters that Section 303.7(e)(2)—Recovery of Costs however, the responding State must requiring responding States to pay 1. Comment: In regard to the follow the procedure described under genetic testing costs, in addition to other prohibition under proposed § 303.7(e)(2) § 303.11(c) that requires the responding costs in processing intergovernmental from recovering costs from an FRC or State to notify the initiating agency in cases, is responsive to State concerns from a foreign obligee, one commenter writing 60 calendar days prior to closure and in the long run simplifies interstate questioned why international cases of the case of its intent to close the case. case processing. As stated earlier under were treated differently from interstate 2. Comment: One commenter took the general comments section, States cases in this context. issue with the statement in the preamble will have time to make needed Response: Section 454(32)(A) of the of the proposed rule that: ‘‘[i]n adjustments to their statewide systems Act requires that States ‘‘provide that no intergovernmental cases, a responding in order to implement changes applications will be required from, and State IV–D agency may apply any of the associated with this part of the rule. no costs will be assessed for * * * criteria for case closure set out in

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current regulations at 45 CFR 303.11. responding State closing State’s intent to close the case. The case Existing paragraphs (b)(1) through intergovernmental cases when must be kept open if the * * * initiating (b)(11) pertain to all IV–D cases.’’ The permitted by the initiating agency, in State supplies information in response commenter said that responding States this instance, due to the closure of the to the notice which could lead to the have previously only been allowed to initiating State’s case. establishment of paternity or a support close cases with the permission of the In consideration of this comment, the order or enforcement of an order * * *.’’ initiating State and could not second of the new case closure criteria We realize conforming changes to unilaterally close cases under criteria in addresses the situation where an § 303.11(c) are necessary to indicate that § 303.11(b)(1) through (11). In fact, the initiating agency desires to keep its case responsibility for a responding State to commenter points out, case closure open, but no longer needs the provide case closure notice under criterion under § 303.11(b)(12) was responding State’s intergovernmental § 303.11(b)(12) to an initiating agency, created (as noted in the final rule on services. Section 303.11(b)(14) allows which could be a country or Tribe as case closure, OCSE–AT–99–04) to the responding State to close its case well as another State, and that the address the problem that responding when: ‘‘the initiating agency has notified responding State must keep the case States had been required to keep cases the responding State that its open if that initiating agency supplies open if the initiating State did not grant intergovernmental services are no longer useable information in response to the permission to close the case, even when needed.’’ notice. Therefore, in § 303.11(c), we conditions existed that fit other case The third new case closure rule have substituted the word closure criteria, such as the responding applicable to responding States is the ‘‘intergovernmental’’ for ‘‘interstate’’ and State was not able to locate the requirement under § 303.7(d)(9) for a ‘‘initiating agency’’ for ‘‘initiating State.’’ noncustodial parent or had located him responding State to stop an income The revised § 303.11(c) now reads: ‘‘In or her in another State. withholding order and close an cases meeting the criteria in paragraphs In summary, the commenter asked for intergovernmental case within 10 (b)(1) through (6) and (10) through (12) clarification as to whether a responding working days of receipt of instructions of this section, the State must notify the State may close a case based on criteria from an initiating agency to do so. recipient of services, or in an set out in current regulations at 45 CFR Unlike the criteria under case closure intergovernmental case meeting the 303.11(b)(1) through (b)(11), or must the § 303.11(b)(12) through (14), this criteria for closure under (b)(12), the responding State use § 303.11(b)(12) to interstate case closure rule is initiating agency, in writing 60 calendar document lack of cooperation by the mandatory. days prior to closure of the case of the initiating State in order to close the In consideration of this comment, State’s intent to close the case. The case case. OCSE has made a change to must be kept open if the recipient of Response: The commenter is correct. § 303.7(d)(10) in the final rule [proposed services or the initiating agency A State may not unilaterally close § 303.7(d)(11)]. The proposed rule supplies information in response to the intergovernmental cases under case required a responding State to notify an notice * * * .’’ closure criteria in § 303.11(b)(1) through initiating agency when a case was 2. Comment: One commenter said that (11) without the permission of the closed pursuant to § 303.11, implying responding States are consistently initiating agency. In general, the incorrectly that a responding State closing interstate cases without the initiating agency decides whether to could close an intergovernmental case direction of the initiating State, or under open or close an intergovernmental under any of the case closure criteria case closure § 303.11(b)(12), without case. In order for a responding State to under this part. The final rule clarifies following proper procedures. In order to close an intergovernmental case, the exact criteria under which a provide clear instruction to responding without permission from the initiating responding State may close a case and State caseworkers as to their role in case agency, the responding State must use would, therefore, be required to notify closure, the commenter asked that OCSE § 303.11(b)(12) and document lack of the initiating agency. The final re-publish the following statement from cooperation by the initiating agency. regulation under § 303.7(d)(10) now the preamble of the proposed rule: This case closure criterion, which reads: ‘‘Again, we note that the election to enables a responding State to close a ‘‘Notify the initiating agency when a case close an interstate case involving two case when it documents failure by the is closed pursuant to § 303.11(b)(12) through States belongs exclusively to the initiating agency to take an action (14) and § 303.7(d)(9).’’ initiating agency.’’ essential for providing services, was Response: OCSE agrees that the devised so that responding States would Section 303.11(b)(12)—Lack of decision to close an intergovernmental have grounds to close cases on which Cooperation by Initiating Agency case should only be made by the they could not proceed, provided they 1. Comment: One commenter was in initiating agency, with the noted give 60 calendar days notice to the support of the case closure criterion exception, under § 303.11(b)(12), of initiating agency, as required under under proposed § 303.7(b)(12), which cases for which the State IV–D agency § 303.11(c). allows responding States to close cases documents failure by the initiating This new rule provides three new based on lack of cooperation by the agency to take an action essential to the case closure criteria that also apply to initiating agency. However, the responding State’s ability to provide responding States, in addition to commenter asked OCSE to establish a services. If a responding State does § 303.11(b)(12). The first of these new time frame for when the responding move to close a case as allowed under criteria is § 303.11(b)(13), which allows States should implement closing cases § 303.11(b)(12), it must provide 60- the responding State to close a case under this criterion. calendar-days written notice to the when the initiating agency provides Response: A time frame is currently initiating agency, as required under notification that it has closed its case established under § 303.11(c) of the § 303.11(c). under proposed § 303.7(c)(12) [(c)(11) in regulations: ‘‘the [responding] State the final rule]. This new criterion * * * in an interstate case, meeting the Section 303.11(b)(13)—Closing a Case formalizes and provides a 10-working- criteria under (b)(12), [must notify] the Already Closed by Initiating State days time frame under § 303.7(c)(11) for initiating State, in writing 60 calendar 1. Comment: Proposed § 303.11(b)(13) the well-established practice of a days prior to closure of the case of the allows the responding State to close its

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interstate case provided the initiating (c)(1) and (2), and (f)(1) and (g) for issued or registered, of the controlling State notified the responding State that consistency with changes made in order determination and any reconciled it had closed its case pursuant to response to comments to proposed arrearages within 30 calendar days of proposed § 303.7(c)(12) [final rule, § 303.7. receipt of the determination from the § 303.7(c)(11)]. (Final rule, § 303.7(c)(11) tribunal.’’ IV. Impact Analysis requires the initiating State to notify the This provision should not increase responding agency of case closure Paperwork Reduction Act of 1995 the information collection burden on within 10 working days of closing a case There is a new requirement imposed the State(s) because a Child Support under § 303.11 and the basis for this by this rule. Proposed § 303.7(d)(5) adds Enforcement Network (CSENet) case closure.) a notice requirement where the transaction for transmitting information One commenter requested initiating agency has requested a about the determination of the clarification that upon receipt of controlling order determination. In this controlling order to other States already notification that an initiating State had case, the responding agency must: ‘‘(i) exists. CSENet already has a transaction: closed its case pursuant to § 303.11, the File the controlling order determination ENF Provide—GSCOE–enforcement— responding State would have authority, request with the appropriate tribunal in Provision of information, new under § 303.11(b)(13), to close its case its State within 30 calendar days of controlling order. It is sent by the without having another basis, such as a receipt of the request or location of the responding State—the transaction is court order. noncustodial parent, whichever occurs used to reply to an enforcement request Response: Yes, a responding State later.’’ notifying the initiating jurisdiction that would have the authority to close its IV– For this new regulatory requirement a new controlling support order is in D case upon receipt of notification that statewide Child Support Enforcement effect. The amount of the reconciled an initiating State had closed its case systems are already required to have the arrearages can also be transmitted via pursuant to § 303.11. functionality to generate the documents CSENet in an information data block. necessary to establish an order of There were no public comments Section 308.2—Required Program regarding this impact analysis following Compliance Criteria support. This new regulatory requirement is considered a minor the publication of the Notice of 1. Comment: One commenter change or enhancement to a statewide Proposed Rulemaking in the Federal suggested that OCSE make conforming IV–D system. Register on December 8, 2008 (73 FR changes to § 308.2 if any changes are Under paragraph (d)(5)(ii) of the 74408). The estimated burden has not made to § 303.7 based on comments section, the responding agency must: changed in the final rule. made. ‘‘Notify the initiating State agency, the The total estimated burden for the Response: In the final rule, we made Controlling Order State and any State change described above is: conforming changes to §§ 308.2(b)(1), where a support order in the case was Annual Burden Estimates

Total burden Instrument Number of respondents 54 Average burden hours per response hours

Systems modification ...... One time system enhancement...... 60 labor hours per State to modify 3,240 hours. statewide IV–D system.

It should be noted that the they are consistent with the priorities If a covered agency must prepare a requirements of the Paperwork and principles set forth in the Executive budgetary impact statement, section 205 Reduction Act of 1995 [44 U.S.C. Order. This final rule provides solutions further requires that it select the most 3507(d)], regarding reporting and to problems in securing child support cost-effective and least burdensome recordkeeping, apply to the federally- and paternity determinations for alternative that achieves the objectives mandated intergovernmental forms children in situations where the parents of the rules and is consistent with the referenced in the regulations, (OMB No. and children live apart and in different statutory requirements. In addition, 0970–0085). The Office of Management jurisdictions and the Department has section 203 requires a plan for and Budget has reauthorized the use of determined that they are consistent with informing and advising any small these forms until January 31, 2011. the priorities and principles of the governments that may be significantly Regulatory Flexibility Analysis Executive Order. There are minimal or uniquely impacted by the proposed costs associated with these proposed rule. The Secretary certifies that, under 5 rules. U.S.C. 605(b), as enacted by the The Department has determined that Regulatory Flexibility Act (Pub. L. 96– Unfunded Mandates Reform Act of 1995 this rule is not an economically 354), this final rule will not result in a significant rule and will not result in the significant impact on a substantial Section 202 of the Unfunded expenditure by State, local, and Tribal number of small entities. The primary Mandates Reform Act of 1995 requires governments, in the aggregate, or by the impact is on State governments. State that a covered agency prepare a private sector, of more than $100 governments are not considered small budgetary impact statement before million in any one year. Accordingly, entities under the Regulatory Flexibility promulgating a rule that includes a we have not prepared a budgetary Act. Federal mandate that may result in the impact statement, specifically addressed expenditure by State, local, and Tribal the regulatory alternatives considered, Regulatory Impact Analysis governments, in the aggregate, or by the or prepared a plan for informing and Executive Order 12866 requires that private sector, of $100 million or more advising any significantly or uniquely regulations be reviewed to ensure that in any one year. impacted small government.

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Congressional Review Dated: April 7, 2010. Intergovernmental IV–D case means a This final rule is not a major rule as Carmen R. Nazario, IV–D case in which the noncustodial defined in 5 U.S.C. chapter 8. Assistant Secretary for Children and Families. parent lives and/or works in a different Approved: June 17, 2010. jurisdiction than the custodial parent Assessment of Federal Regulations and Kathleen Sebelius, and child(ren) that has been referred by Policies on Families Secretary of Health and Human Services. an initiating agency to a responding Section 654 of the Treasury and agency for services. An ■ For the reasons discussed above, title General Government Appropriations intergovernmental IV–D case may 45 CFR chapter III is amended as Act of 1999 requires Federal agencies to include any combination of referrals follows: determine whether a policy or between States, Tribes, and countries. regulation may negatively affect family PART 301—STATE PLAN APPROVAL An intergovernmental IV–D case also well-being. If the agency’s AND GRANT PROCEDURES may include cases in which a State determination is affirmative, then the agency is seeking only to collect support agency must prepare an impact ■ 1. The authority citation for part 301 arrearages, whether owed to the family assessment addressing seven criteria is revised to read as follows: or assigned to the State. specified in the law. The required Authority: 42 U.S.C. 651 through 658, Interstate IV–D case means a IV–D review of the regulations and policies to 659a, 660, 664, 666, 667, 1301, and 1302. case in which the noncustodial parent determine their effect on family well- ■ 2. Amend § 301.1 by republishing the lives and/or works in a different State being has been completed, and this rule introductory text and adding the than the custodial parent and child(ren) will have a positive impact on family following definitions alphabetically: that has been referred by an initiating well-being as defined in the legislation State to a responding State for services. by helping to ensure that parents § 301.1 General definitions. An interstate IV–D case also may support their children, even when they When used in this chapter, unless the include cases in which a State is seeking reside in separate jurisdictions, and will context otherwise indicates: only to collect support arrearages, strengthen personal responsibility and * * * * * whether owed to the family or assigned increase disposable family income. Central authority means the agency to the State. designated by a government to facilitate Executive Order 13132 * * * * * support enforcement with a foreign One-state remedies means the Executive Order 13132 prohibits an reciprocating country (FRC) pursuant to exercise of a State’s jurisdiction over a agency from publishing any rule that section 459A of the Act. non-resident parent or direct has federalism implications if the rule * * * * * establishment, enforcement, or other either imposes substantial direct Controlling order State means the action by a State against a non-resident compliance costs on State and local State in which the only order was parent in accordance with the long-arm governments or is not required by issued or, where multiple orders exist, provision of UIFSA or other State law. statute, or the rule preempts State law, the State in which the order determined * * * * * unless the agency meets the by a tribunal to control prospective Responding agency means the agency consultation and funding requirements current support pursuant to the UIFSA that is providing services in response to of section 6 of the Executive Order. This was issued. a referral from an initiating agency in an final rule does not have federalism Country means a foreign country (or a intergovernmental IV–D case. impact as defined in the Executive political subdivision thereof) declared * * * * * Order. to be an FRC under section 459A of the Tribunal means a court, Act and any foreign country (or political List of Subjects administrative agency, or quasi-judicial subdivision thereof) with which the entity authorized under State law to 45 CFR Part 301 State has entered into a reciprocal establish, enforce, or modify support arrangement for the establishment and Child support, Grant programs/social orders or to determine parentage. enforcement of support obligations to programs, Reporting and recordkeeping Uniform Interstate Family Support the extent consistent with Federal law requirements. Act (UIFSA) means the model act pursuant to section 459A(d) of the Act. 45 CFR Part 302 promulgated by the National Conference * * * * * of Commissioners on Uniform State Child support, Grant programs/social Form means a federally-approved Laws (NCCUSL) and mandated by programs, Reporting and recordkeeping document used for the establishment section 466(f) of the Act to be in effect requirements. and enforcement of support obligations in all States. 45 CFR Part 303 whether compiled or transmitted in written or electronic format, including PART 302—STATE PLAN Child support, Grant programs/social but not limited to the Income REQUIREMENTS programs, Reporting and recordkeeping Withholding for Support form, and the requirements. National Medical Support Notice. In ■ 3. The authority citation for part 302 45 CFR Part 305 interstate IV–D cases, such forms is revised to read as follows: Child support, Grant programs/social include those used for child support Authority: 42 U.S.C. 651 through 658, programs, Accounting. enforcement proceedings under the 659a, 660, 664, 666, 667, 1302, 1396a(a)(25), UIFSA. Form also includes any 1396b(d)(2), 1396b(o), 1396b(p), and 1396(k). 45 CFR Part 308 federally-mandated IV–D reporting ■ 4. Revise § 302.36 to read as follows: Auditing, Child support, Grant form, where appropriate. programs/social programs, Reporting Initiating agency means a State or § 302.36 Provision of services in intergovernmental IV–D cases. and recordkeeping requirements. Tribal IV–D agency or an agency in a (Catalog of Federal Domestic Assistance country, as defined in this rule, in (a) The State plan shall provide that, Programs No. 93.563, Child Support which an individual has applied for or in accordance with § 303.7 of this Enforcement Program.) is receiving services. chapter, the State will extend the full

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range of services available under its IV– electronically to the greatest extent (2) Determine in which State a D plan to: possible; determination of the controlling order (1) Any other State; (6) Within 30 working days of and reconciliation of arrearages may be (2) Any Tribal IV–D program receiving a request, provide any order made where multiple orders exist; operating under § 309.65(a) of this and payment record information (3) Determine whether the chapter; and requested by a State IV–D agency for a noncustodial parent is in another (3) Any country as defined in § 301.1 controlling order determination and jurisdiction and whether it is of this chapter. reconciliation of arrearages, or notify the appropriate to use its one-state remedies (b) The State plan shall provide that State IV–D agency when the information to establish paternity and establish, the State will establish a central registry will be provided; modify, and enforce a support order, for intergovernmental IV–D cases in (7) Notify the other agency within 10 including medical support and income accordance with the requirements set working days of receipt of new withholding; forth in § 303.7(b) of this chapter. information on an intergovernmental (4) Within 20 calendar days of case; and completing the actions required in PART 303—STANDARDS FOR (8) Cooperate with requests for the paragraphs (1) through (3) and, if PROGRAM OPERATIONS following limited services: Quick locate, appropriate, receipt of any necessary service of process, assistance with information needed to process the case: ■ 5. The authority citation for part 303 discovery, assistance with genetic (i) Ask the appropriate intrastate is revised to read as follows: testing, teleconferenced hearings, tribunal, or refer the case to the administrative reviews, high-volume Authority: 42 U.S.C. 651 through 658, appropriate responding State IV–D 659a, 660, 663, 664, 666, 667, 1302, automated administrative enforcement agency, for a determination of the 1396a(a)(25), 1396b(d)(2), 1396b(o), 1396b(p) in interstate cases under section controlling order and a reconciliation of and 1396(k). 466(a)(14) of the Act, and copies of arrearages if such a determination is court orders and payment records. ■ 6. Revise § 303.7 to read as follows: necessary; and Requests for other limited services may (ii) Refer any intergovernmental IV–D § 303.7 Provision of services in be honored at the State’s option. case to the appropriate State Central intergovernmental IV–D cases. (b) Central registry. Registry, Tribal IV–D program, or (a) General responsibilities. A State (1) The State IV–D agency must Central Authority of a country for IV–D agency must: establish a central registry responsible action, if one-state remedies are not (1) Establish and use procedures for for receiving, transmitting, and appropriate; managing its intergovernmental IV–D responding to inquiries on all incoming (5) Provide the responding agency caseload that ensure provision of intergovernmental IV–D cases. sufficient, accurate information to act on (2) Within 10 working days of receipt necessary services as required by this the case by submitting with each case of an intergovernmental IV–D case, the section and include maintenance of any necessary documentation and central registry must: necessary records in accordance with intergovernmental forms required by the (i) Ensure that the documentation § 303.2 of this part; responding agency; submitted with the case has been (6) Within 30 calendar days of receipt (2) Periodically review program reviewed to determine completeness; performance on intergovernmental IV–D (ii) Forward the case for necessary of the request for information, provide cases to evaluate the effectiveness of the action either to the central State Parent the responding agency with an updated procedures established under this Locator Service for location services or intergovernmental form and any section; to the appropriate agency for processing; necessary additional documentation, or (3) Ensure that the organizational (iii) Acknowledge receipt of the case notify the responding agency when the structure and staff of the IV–D agency and request any missing documentation; information will be provided; are adequate to provide for the and (7) Notify the responding agency at administration or supervision of the (iv) Inform the initiating agency least annually, and upon request in an following functions specified in where the case was sent for action. individual case, of interest charges, if § 303.20(c) of this part for its (3) If the documentation received with any, owed on overdue support under an intergovernmental IV–D caseload: a case is incomplete and cannot be initiating State order being enforced in Intake; establishment of paternity and remedied by the central registry without the responding jurisdiction; the legal obligation to support; location; the assistance of the initiating agency, (8) Submit all past-due support owed financial assessment; establishment of the central registry must forward the in IV–D cases that meet the certification the amount of child support; collection; case for any action that can be taken requirements under § 303.72 of this part monitoring; enforcement; review and pending necessary action by the for Federal tax refund offset, adjustment; and investigation; initiating agency. (9) Send a request for review of a (4) Use federally-approved forms in (4) The central registry must respond child support order to another State intergovernmental IV–D cases, unless a to inquiries from initiating agencies within 20 calendar days of determining country has provided alternative forms within 5 working days of receipt of the that a request for review of the order as part of its chapter in A Caseworker’s request for a case status review. should be sent to the other State and of Guide to Processing Cases with Foreign (c) Initiating State IV–D agency receipt of information from the Reciprocating Countries. When using a responsibilities. The initiating State IV– requestor necessary to conduct the paper version, this requirement is met D agency must: review in accordance with section by providing the number of complete (1) Determine whether or not there is 466(a)(10) of the Act and § 303.8 of this sets of required documents needed by a support order or orders in effect in a part; the responding agency, if one is not case using the Federal and State Case (10) Distribute and disburse any sufficient under the responding agency’s Registries, State records, information support collections received in law; provided by the recipient of services, accordance with this section and (5) Transmit requests for information and other relevant information available §§ 302.32, 302.51, and 302.52 of this and provide requested information to the State; chapter, sections 454(5), 454B, 457, and

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1912 of the Act, and instructions issued central registry where the case has been (vi) Reviewing and adjusting child by the Office; sent. support orders upon request in (11) Notify the responding agency (4) Within 10 working days of locating accordance with § 303.8 of this part; within 10 working days of case closure the noncustodial parent in a different (7) Provide timely notice to the that the initiating State IV–D agency has political subdivision within the State, initiating agency in advance of any closed its case pursuant to § 303.11 of forward/transmit the forms and hearing before a tribunal that may result this part, and the basis for case closure; documentation to the appropriate in establishment or adjustment of an (12) Instruct the responding agency to political subdivision and notify the order; close its interstate case and to stop any initiating agency and the responding (8) Identify any fees or costs deducted withholding order or notice the State’s own central registry of its action; from support payments when responding agency has sent to an (5) If the request is for a determination forwarding payments to the initiating employer before the initiating State of controlling order: agency in accordance with paragraph transmits a withholding order or notice, (i) File the controlling order (d)(6)(v) of this section; with respect to the same case, to the determination request with the (9) Within 10 working days of receipt same or another employer unless the appropriate tribunal in its State within of instructions for case closure from an two States reach an alternative 30 calendar days of receipt of the initiating State agency under paragraph agreement on how to proceed; and request or location of the noncustodial (c)(12) of this section, stop the (13) If the initiating agency has closed parent, whichever occurs later; and responding State’s income withholding its case pursuant to § 303.11 and has not (ii) Notify the initiating State agency, order or notice and close the notified the responding agency to close the Controlling Order State and any intergovernmental IV–D case, unless the its corresponding case, make a diligent State where a support order in the case two States reach an alternative effort to locate the obligee, including was issued or registered, of the agreement on how to proceed; and use of the Federal Parent Locator controlling order determination and any (10) Notify the initiating agency when Service and the State Parent Locator reconciled arrearages within 30 calendar a case is closed pursuant to Service, and accept, distribute and days of receipt of the determination §§ 303.11(b)(12) through (14) and disburse any payment received from a from the tribunal; 303.7(d)(9) of this part. responding agency. (6) Provide any necessary services as (e) Payment and recovery of costs in (d) Responding State IV–D agency it would in an intrastate IV–D case intergovernmental IV–D cases. (1) The responding IV–D agency must responsibilities. Upon receipt of a including: pay the costs it incurs in processing request for services from an initiating (i) Establishing paternity in intergovernmental IV–D cases, agency, the responding State IV–D accordance with § 303.5 of this part and, including the costs of genetic testing. If agency must: if the agency elects, attempting to obtain (1) Accept and process an paternity is established, the responding a judgment for costs should paternity be intergovernmental request for services, agency, at its election, may seek a established; regardless of whether the initiating judgment for the costs of testing from (ii) Establishing a child support agency elected not to use remedies that the alleged father who denied paternity. obligation in accordance with § 302.56 may be available under the law of that (2) Each State IV–D agency may of this chapter and §§ 303.4, 303.31 and jurisdiction; recover its costs of providing services in (2) Within 75 calendar days of receipt 303.101 of this part; intergovernmental non-IV–A cases in of an intergovernmental form and (iii) Reporting overdue support to accordance with § 302.33(d) of this documentation from its central registry: Consumer Reporting Agencies, in chapter, except that a IV–D agency may (i) Provide location services in accordance with section 466(a)(7) of the not recover costs from an FRC or from accordance with § 303.3 of this part if Act and § 302.70(a)(7) of this chapter; a foreign obligee in that FRC, when the request is for location services or the (iv) Processing and enforcing orders providing services under sections form or documentation does not include referred by an initiating agency, whether 454(32) and 459A of the Act. pursuant to UIFSA or other legal adequate location information on the ■ 7. Amend § 303.11 by revising processes, using appropriate remedies noncustodial parent; paragraph (b)(12), adding new applied in its own cases in accordance (ii) If unable to proceed with the case paragraphs (b)(13) and (b)(14), and with §§ 303.6, 303.31, 303.32, 303.100 because of inadequate documentation, revising paragraph (c) to read as follows: notify the initiating agency of the through 303.102, and 303.104 of this necessary additions or corrections to the part, and submit the case for such other § 303.11 Case closure criteria. form or documentation; Federal enforcement techniques as the * * * * * (iii) If the documentation received State determines to be appropriate, such (b)* * * with a case is incomplete and cannot be as administrative offset under 31 CFR (12) The IV–D agency documents remedied without the assistance of the 285.1 and passport denial under section failure by the initiating agency to take initiating agency, process the case to the 452(k) of the Act; an action which is essential for the next extent possible pending necessary (v) Collecting and monitoring any step in providing services; action by the initiating agency; support payments from the (13) The initiating agency has notified (3) Within 10 working days of locating noncustodial parent and forwarding the responding State that the initiating the noncustodial parent in a different payments to the location specified by State has closed its case under State, the responding agency must the initiating agency. The IV–D agency § 303.7(c)(11); and return the forms and documentation, must include sufficient information to (14) The initiating agency has notified including the new location, to the identify the case, indicate the date of the responding State that its initiating agency, or, if directed by the collection as defined under § 302.51(a) intergovernmental services are no longer initiating agency, forward/transmit the of this chapter, and include the needed. forms and documentation to the central responding State’s case identifier and (c) In cases meeting the criteria in registry in the State where the locator code, as defined in accordance paragraphs (b)(1) through (6) and (10) noncustodial parent has been located with instructions issued by this Office; through (12) of this section, the State and notify the responding State’s own and must notify the recipient of services, or

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in an intergovernmental case meeting through (5) and (7) and (10)’’ in its place reconciliation of arrearages, or notify the the criteria for closure under (b)(12), the wherever it occurs in paragraphs (b)(1), State IV–D agency when the information initiating agency, in writing 60 calendar (c)(1) and (2), and (f)(1); and will be provided pursuant to days prior to closure of the case of the ■ c. Revising paragraph (g) to read as § 303.7(a)(6) of this chapter. follows: State’s intent to close the case. The case (2) Responding intergovernmental must be kept open if the recipient of cases: services or the initiating agency § 308.2 Required program compliance criteria. supplies information in response to the (i) Within 10 working days of receipt notice which could lead to the * * * * * of an intergovernmental IV–D case, the establishment of paternity or a support (g) Intergovernmental services. A central registry reviewing submitted order or enforcement of an order, or, in State must have and use procedures documentation for completeness, the instance of paragraph (b)(10) of this required under this paragraph in at least forwarding the case to the State Parent section, if contact is reestablished with 75 percent of the cases reviewed. For all Locator Service (SPLS) for location the recipient of services. If the case is intergovernmental cases requiring services or to the appropriate agency for closed, the former recipient of services services during the review period, processing, acknowledging receipt of may request at a later date that the case determine the last required action and the case, and requesting any missing be reopened if there is a change in determine whether the action was taken documentation from the initiating during the appropriate time frame: circumstances which could lead to the agency, and informing the initiating establishment of paternity or a support (1) Initiating intergovernmental cases: (i) Except when a State has agency where the case was sent for order or enforcement of an order by determined that use of one-state action, pursuant to § 303.7(b)(2) of this completing a new application for IV–D remedies is appropriate in accordance chapter; services and paying any applicable with § 303.7(c)(3) of this Chapter, within (ii) The central registry responding to application fee. 20 calendar days of completing the inquiries from initiating agencies within * * * * * actions required in § 303.7(c)(1) through 5 working days of a receipt of request PART 305—PROGRAM (3) of the Chapter, and, if appropriate, for case status review pursuant to PERFORMANCE MEASURES, receipt of any necessary information § 303.7(b)(4) of this chapter; STANDARDS, FINANCIAL needed to process the case, ask the (iii) Within 10 working days of appropriate intrastate tribunal or refer INCENTIVES, AND PENALTIES locating the noncustodial parent in a the case to the responding State agency, different jurisdiction within the State or ■ for a determination of the controlling 8. The authority citation for part 305 in a different State, forwarding/ order and a reconciliation of arrearages is revised to read: transmitting the forms and if such a determination is necessary, Authority: 42 U.S.C. 609(a)(8), 652(a)(4) documentation in accordance with and (g), 658 and 1302. and refer any intergovernmental IV–D case to the appropriate State Central Federal requirements pursuant to § 305.63 [Amended] Registry, Tribal IV–D program, or § 303.7(d)(3) and (4) of this chapter; ■ 9. Amend § 305.63 by: Central Authority of a country for (iv) Within two business days of ■ a. Removing ‘‘interstate’’ and adding action, if one-state remedies are not receipt of collections, forwarding any ‘‘intergovernmental’’ in its place appropriate; support payments to the initiating wherever it occurs in paragraphs (c)(2) (ii) If additional information is jurisdiction pursuant to section through (5) and paragraphs (d)(1) requested, providing the responding 454B(c)(1) of the Act; through (4); agency with an updated form and any (v) Within 10 working days of receipt ■ b. Removing ‘‘§ 303.7(a), (b) and (c)(1) necessary additional documentation, or of new information notifying the through (6) and (8) through (10)’’ and notify the responding agency when the initiating jurisdiction of that new adding ‘‘§ 303.7(a), (b), (c), (d)(1) through information will be provided, within 30 information pursuant to § 303.7(a)(7) of (5) and (7) through (10), and (e)’’ in its calendar days of the request pursuant to this chapter; place wherever it occurs in paragraphs § 303.7(c)(6) of this chapter; (c)(2) through (5); and (iii) Within 20 calendar days after (vi) Within 30 working days of ■ c. Removing ‘‘§ 303.7(a), (b) and (c)(4) determining that a request for review of receiving a request, providing any order through (6), (c)(8) and (9)’’ and adding the order should be sent to another State and payment record information ‘‘§ 303.7(a)(4) through (8), (b), (c), (d)(2) IV–D agency and of receipt of requested by an initiating agency for a through (5) and (7) and (10)’’ in its place information necessary to conduct the controlling order determination and wherever it occurs in paragraphs (d)(1) review, sending a request for review and reconciliation of arrearages, or notify the through (4). adjustment pursuant to § 303.7(c)(9) of State IV–D agency when the information this chapter; will be provided pursuant to PART 308—ANNUAL STATE SELF– (iv) Within 10 working days of closing § 303.7(a)(6) of this chapter; ASSESSMENT REVIEW AND REPORT its case pursuant to § 303.11 of this (vii) Within 10 working days of chapter, notifying the responding ■ receipt of instructions for case closure 10. The authority citation for part 308 agency pursuant to § 303.7(c)(11) of this continues to read as follows: from an initiating agency under chapter; § 303.7(c)(12) of this chapter, stopping Authority: 42 U.S.C. 654(15)(A) and 1302. (v) Within 10 working days of receipt the responding State’s income ■ of new information on a case, notifying 11. Amend § 308.2 by: withholding order or notice and closing ■ a. Removing ‘‘interstate’’ and adding the responding State pursuant to the responding State’s case, pursuant to ‘‘intergovernmental’’ in its place § 303.7(a)(7) of this chapter; § 303.7(d)(9) of this chapter, unless the wherever it occurs in paragraphs (b)(1), (vi) Within 30 working days of two States reach an alternative (c)(1) and (2), and (f)(1); receiving a request, providing any order ■ b. Removing ‘‘§ 303.7(a), (b) and (c)(4) and payment record information agreement on how to proceed. through (6), (c)(8) and (9)’’ and adding requested by a responding agency for a [FR Doc. 2010–15215 Filed 7–1–10; 8:45 am] ‘‘§ 303.7(a)(4) through (8), (b), (c), (d)(2) controlling order determination and BILLING CODE 4184–01–P

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Part III

Department of Labor Occupational Safety and Health Administration

29 CFR Parts 1910, 1915, 1917, et al. Standards Improvement Project—Phase III; Proposed Rule

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DEPARTMENT OF LABOR attach them to the appropriate these referenced materials in Docket No. document. OSHA–2006–0049 at http:// Occupational Safety and Health Regular mail, express delivery, hand www.regulations.osha.gov. The Administration (courier) delivery, and messenger documents also are available at the service. Submit comments and any OSHA Docket Office (see ADDRESSES 29 CFR Parts 1910, 1915, 1917, 1918, additional material (e.g., studies, journal section of this notice). For further 1919, 1926, and 1928 articles) to the OSHA Docket Office, information about accessing exhibits Docket No. OSHA–2006–0049 or RIN referenced in this Federal Register [Docket No. OSHA–2006–0049] No. 1218–AC19, Technical Data Center, notice, see the ‘‘Public Participation’’ Room N–2625, OSHA, U.S. Department heading in the SUPPLEMENTARY RIN 1218–AC19 of Labor, 200 Constitution Ave., NW., INFORMATION section of this notice. Standards Improvement Project— Washington, DC 20210; telephone: (202) FOR FURTHER INFORMATION CONTACT: For Phase III 693–2350. (OSHA’s TTY number is general information and press inquiries, (877) 889–5627.) Note that security- contact Ms. Jennifer Ashley, Office of AGENCY: Occupational Safety and Health related procedures may result in Communications, Room N–3647, OSHA, Administration (OSHA), Labor. significant delays in receiving U.S. Department of Labor, 200 ACTION: Proposed rule; request for comments and other written materials Constitution Avenue, NW., Washington, comments. by regular mail. Please contact the DC 20210; telephone (202) 693–1999. OSHA Docket Office for information For technical inquiries, contact Mr. SUMMARY: The Occupational Safety and about security procedures concerning Ryan Tremain, Health Scientist, Health Administration (OSHA) is delivery of materials by express Directorate of Standards and Guidance, continuing its efforts to remove or revise delivery, hand delivery, and messenger N–3718, OSHA, U.S. Department of outdated, duplicative, unnecessary, and service. The hours of operation for the Labor, 200 Constitution Avenue, NW., inconsistent requirements in its safety OSHA Docket Office are 8:15 a.m. to Washington, DC 20210; telephone (202) and health standards. This effort builds 4:45 p.m., e.t. 693–2056 or fax (202) 693–1678. on the success of Standards Instructions. All submissions must include the Agency name and the OSHA SUPPLEMENTARY INFORMATION: Improvement Project (SIP)—Phase I Copies of this Federal Register notice. published on June 18, 1998, and SIP— docket number (i.e., OSHA Docket No. OSHA–2006–0049). Comments and Electronic copies are available at Phase II published on January 5, 2005. http://www.regulations.gov. This The Agency believes that the proposed other material, including any personal information, are placed in the public Federal Register notice, as well as news revisions will reduce compliance costs, releases and other relevant information, eliminate paperwork burdens, and docket without revision, and will be available online at http:// also are available at OSHA’s Web site at clarify requirements without http://www.osha.gov. In addition, the diminishing worker protections. www.regulations.gov. Therefore, the Agency cautions commenters about docket material is available for DATES: Submit comments and hearing submitting statements they do not want inspection at the OSHA Docket Office, requests on or before September 30, U.S. Department of Labor, 200 2010. All submissions must bear a made available to the public, or submitting comments that contain Constitution Avenue, NW., Room N– postmark or provide other evidence of 2625, Washington, DC 20210; telephone the submission date. personal information (either about themselves or others) such as Social 202–693–2350 (TTY number: 877–889– ADDRESSES: Submit comments, Security numbers, birth dates, and 5627). identified by Docket No. OSHA–2006– medical data. Table of Contents 0049, by any of the following methods: OSHA requests comments on all Electronic. Submit comments issues related to this proposed rule. It I. Background electronically to http:// II. Legal Considerations also welcomes comments on its findings III. Summary and Explanation of the www.regulations.gov, which is the that this proposed rule would have no Federal eRulemaking Portal. Follow the Proposed Rule negative economic, paperwork, or other IV. Preliminary Economic Analysis and instructions online for submitting regulatory impacts on the regulated Regulatory Flexibility Act Certification comments. community. V. Regulatory Flexibility Analysis Facsimile. OSHA allows facsimile Docket. The electronic docket for this VI. OMB Review Under the Paperwork transmission of comments and hearing proposed rule, established at http:// Reduction Act of 1995 requests that are 10 pages or fewer in www.regulations.gov, lists most of the VII. Federalism length (including attachments). Send documents in the docket. However, VIII. State Plans these documents to the OSHA Docket some information (e.g., copyrighted IX. Unfunded Mandates Reform Act of 1995 X. Review by the Advisory Committee for Office at (202) 693–1648; OSHA does material) is not publicly available to not require hard copies of these Construction Safety and Health read or download through this Web site. XI. Public Participation documents. Instead of transmitting All submissions, including copyrighted XII. List of Subjects facsimile copies of attachments that material, are available for inspection XIII. Authority and Signature supplement these documents (e.g., and copying at the OSHA Docket Office. XIV. Proposed Amendments to Standards studies, journal articles), commenters Contact the OSHA Docket Office for I. Background must submit these attachments, in hard assistance in locating docket copy, to the OSHA Docket Office, submissions. OSHA wants to improve its standards Technical Data Center, Room N–2625, by removing or revising confusing, OSHA, U.S. Department of Labor, 200 References and Exhibits outdated, duplicative, or inconsistent Constitution Ave., NW., Washington, In this Federal Register notice, OSHA requirements. Improving OSHA DC 20210. These attachments must references a number of supporting standards will help employers better clearly identify the sender’s name, date, materials. References to these materials understand their obligations, which will subject, and docket number (i.e., are specified as ‘‘ID,’’ followed by the lead to increased compliance, ensure OSHA–2006–0049) so the Agency can number of the document. OSHA posts greater safety and health for workers,

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and reduce compliance costs. In Temporary Labor Camps standard; and additional requirements for inclusion in addition, this action will allow eliminating unnecessary cross the proposal. Commenters submitted employers to comply with many references in the textile industry 134 comments to the docket; OSHA standards using newer and more flexible standards. OSHA made these discusses these comments below, along means than specified in the existing improvements without reducing worker with the proposed changes. standards. OSHA’s effort to improve safety and health protection. II. Legal Considerations standards began in the 1970s, not long In 2002, OSHA published a proposed after it issued the first set of standards. rule for phase II of the Standards The purpose of the Occupational In 1973, OSHA issued proposals to Improvement Project (SIP–II) (67 FR Safety and Health Act of 1970 (OSH Act; clarify and update rules that it adopted 66494, October 31, 2002). In that notice, 29 U.S.C. 651 et al.) is ‘‘to assure so far originally on May 29, 1971 (36 FR OSHA proposed to revise a number of as possible every working man and 10466). In 1978, OSHA published a provisions in health and safety woman in the Nation safe and healthful rulemaking titled, ‘‘Selected General and standards that commenters identified working conditions and to preserve our Special (Cooperage and Laundry during SIP–I, or that the Agency human resources * * *.’’ (29 U.S.C. Machinery, and Bakery Equipment) identified as standards in need of 651(b).) To achieve this goal, Congress Industry Safety and Health Standards: improvement. authorized the Secretary of Labor to Revocation’’ (43 FR 49726, October 24, In the final rule on SIP–II, published promulgate and enforce occupational 1978). Commonly known as the on January 5, 2005 (70 FR 1111), the safety and health standards, authorizing ‘‘Standards Deletion Project,’’ this Agency revised a number of health summary adoption of existing national comprehensive final rule revoked standards to reduce regulatory burden, consensus and established Federal hundreds of unnecessary and facilitate compliance, and eliminate standards within two years of the duplicative requirements in the general unnecessary paperwork without effective date of the OSH Act (29 U.S.C. industry standards at 29 CFR 1910. reducing health protections. The 655(a)); authorizing promulgation of Another rulemaking in 1984 titled, improvements made by SIP–II standards pursuant to notice and ‘‘Revocation of Advisory and Repetitive addressed issues such as worker comment (29 U.S.C. 655(b)); and Standards’’ (49 FR 5318, February 10, notification of the use of chemicals in requiring employers to comply with 1984) resulted in the removal of many the workplace, frequency of exposure OSHA standards (29 U.S.C. 654(b)). repetitive and unenforceable monitoring, and medical surveillance. An occupational safety or health requirements. These rulemaking actions As stated in the 2006 Advance Notice standard is a standard ‘‘which requires primarily removed standards that were: of Proposed Rulemaking (ANPRM) for conditions, or the adoption or use of one (1) Not relevant to worker safety (i.e., the SIP–III project (71 FR 76623, or more practices, means, methods, the standards addressed public-safety December 21, 2006), OSHA identified a operations, or processes, reasonably issues); (2) duplicative of other number of standards as potential necessary or appropriate to provide safe standards found elsewhere in the candidates for improvement in SIP–III or healthful employment and places of general industry standards; (3) based on the Agency’s review of its employment.’’ (29 U.S.C. 652(8).) A considered ‘‘nuisance’’ standards (i.e., standards, suggestions and comments standard is reasonably necessary or one having no merit or worker safety or from the public, and recommendations appropriate within the meaning of health benefits); or (4) legally from the Office of Management and Section 652(8) if it substantially reduces unenforceable. Budget (OMB). The OMB based its or eliminates significant risk. In In 1996, in response to the recommendations on comments it addition, it must be technologically and Presidential Memorandum on received on Regulatory Reform of the economically feasible, cost effective, Improving Government Regulations, U.S. Manufacturing Sector (2005).1 and consistent with prior Agency OSHA began another series of Many commenters during the SIP–II action, or a justified departure. A rulemaking improvement actions. rulemaking process applauded the SIP standard must be supported by Patterned after the earlier rulemaking process and OSHA for its efforts to substantial evidence, and be better able actions, the new effort identified and streamline and improve its health to effectuate the OSH Act’s purposes then revised or removed, standards that standards by removing or revising than any national consensus standard it were confusing, outdated, duplicative, outdated, duplicative, or inconsistent supersedes. (See 58 FR 16612–16616, or inconsistent. This effort also included requirements (IDs 3–5, 3–10, 3–11, and March 30, 1993.) A standard is technologically feasible standards that could be rewritten in 3–13 to Docket S–778A). These if the protective measures it requires plain language. In the first action, titled, commenters encouraged the Agency to already exist, can be brought into ‘‘Miscellaneous Changes to General continue the SIP project, hence today’s existence with available technology, or Industry and Construction Standards’’ publication of a proposed SIP–III rule. (61 FR 37849, July 22, 1996), also In SIP–III, OSHA’s objective is to can be created with technology that can known as the ‘‘Standards Improvement modify individual provisions of reasonably be expected to be developed. Project’’ or ‘‘SIP–I,’’ OSHA focused on standards by removing or revising (See American Textile Mfrs. Institute v. revising standards that were out of date, requirements that are confusing, OSHA, 452 U.S. 490, 513 (1981) (ATMI); duplicative, or inconsistent. outdated, duplicative, or inconsistent American Iron and Steel Institute v. OSHA published the final rule on without reducing workers’ safety and OSHA, 939 F.2d 975, 980 (D.C. Cir. SIP–I on June 18, 1998 (63 FR 33450). health or imposing any additional 1991) (AISI).) A standard is economically feasible if Changes made in SIP–I included economic burden on employers. The industry can absorb or pass on the costs reducing the frequency of a medical- ANPRM for SIP–III invited comments of compliance without threatening its testing requirement and eliminating an on a number of such requirements long-term profitability or competitive unnecessary and obsolete medical test identified by OSHA, and also solicited structure. See ATMI, 452 U.S. at 530 n. required in both the Coke Oven and recommendations from commenters for Inorganic Arsenic standards; revising 55; AISI, 939 F.2d at 980. A standard is the emergency-response provisions of 1 To view the full Regulatory Reform report, cost effective if the protective measures the Vinyl Chloride standard; eliminating please visit: http://www.whitehouse.gov/omb/ it requires are the least costly of the the public-safety provisions of the inforeg/reports/manufacturing_initiative.pdf. available alternatives that achieve the

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same level of protection. ATMI, 452 U.S. National Fire Protection Association proposing to recognize the IFC as a at 514 n. 32; International Union, UAW (NFPA) 101, Life Safety Code, that compliance alternative, in addition to v. OSHA, 37 F.3d 665, 668 (D.C. Cir. OSHA references therein as a the NFPA 101 compliance alternative, 1994) (LOTO II). compliance alternative. Currently, thereby providing additional flexibility Section 6(b)(7) of the OSH Act § 1910.35 accepts employer compliance to employers. authorizes OSHA to include among a with the 2000 edition of NFPA 101 In the ANPRM, OSHA asked if the standard’s requirements labeling, instead of complying with egress provisions of the ICC codes offer monitoring, medical testing, and other corresponding requirements in protection equivalent to that required by information-gathering and transmittal §§ 1910.34, 1910.36, and 1910.37. The subpart E. Many commenters responded provisions. (29 U.S.C. 655(b)(7).) OSHA Agency analyzed the provisions of the affirmatively. For example, the Building standards also must be highly 2006 edition of NFPA 101 (ID 0137), Owners and Managers Association protective. (See 58 FR at 16614–16615; and preliminarily concluded that the International (BOMA), which represents LOTO II, 37 F.3d at 668–669.) Finally, corresponding provisions provide an thousands of owners and managers of whenever practical, standards shall ‘‘be equal or higher level of worker safety existing commercial properties in North expressed in terms of objective criteria than §§ 1910.34, 1910.36, and 1910.37. America, stated that it strongly supports and of the performance desired.’’ (29 Therefore, the Agency is proposing to this proposed additional compliance U.S.C. 655(b)(5).) update § 1910.35 by stating that option (ID 0121). Further, BOMA stated employers who demonstrate compliance that the IBC and IFC are ‘‘responsive to III. Summary and Explanation of the with the 2006 version of the Life Safety not only the health safety and welfare Proposed Rule Code will be deemed to be in needs of those who lease real estate, but OSHA is proposing a number of compliance with these requirements. for those who are employers in the actions amending its standards, Finally, OSHA is proposing to revise industry as well.’’ including revisions to its general § 1910.35 to add a second compliance The U.S. General Services industry, maritime, construction, and alternative that will allow employers Administration (GSA), Public Buildings agricultural standards. A detailed demonstrating compliance with the exit- Service, the landlord of the civilian discussion of each of the proposed route provisions of the International Federal government, with a total revisions follows, including a Code Council (ICC), 2006 International inventory of over 345 million square discussion of comments the Agency Fire Code (IFC), to be in compliance feet of workspace for a million Federal received in response to the ANPRM. with the corresponding requirements in workers, commented: Some of the revisions proposed affect §§ 1910.34, 1910.36, and 1910.37. Also, OSHA is proposing to revise the title of [T]he requirements for egress in the IBC more than one industry. For example, and IFC will satisfy the OSHA rules and the proposed revisions to the general § 1910.35, listed in the Table of clearly demonstrate that a building designed industry Slings standard also would Contents in § 1910.33, a definition in and constructed to the requirements of the affect shipyard employment and the § 1910.34, and two notes in § 1910.36, to IBC and IFC provides equivalent protection construction industry. When proposed correspond to the proposed new to the federal egress requirements. (ID 0130.) language to § 1910.35. revisions in a general industry standard A comment from the New York would affect additional industries, The proposed revision to add the IFC compliance alternative receives support Department of State (ID 0023) included OSHA will discuss the revisions fully in a detailed discussion of the IBC, IFC, the general industry section, and then from comments made in response to the 2006 ANPRM. In the ANPRM, OSHA and subpart E. This commenter reference the provisions affected in the concluded that the combined sections covering the other industries. explained the reasons for the recommended revision, and requested requirements of these two national A. Proposed Revisions in General information on the suitability of model codes provide an equivalent level Industry Standards (29 CFR Part 1910) allowing both the IFC, as well as ICC’s of protection to all occupants. Many of the subpart E provisions are 1. Subpart E International Building Code (IBC), to serve as an equivalent compliance general, performance-oriented OSHA is proposing several revisions option. The ANPRM recommendation requirements, and do not cover to subpart E. First, OSHA proposes to was in response to a petition by the ICC, conditions in every building. Employers revise the title of subpart E from ‘‘Means which submitted a comparison of the may use a compliance alternative as of Egress’’ to ‘‘Exit Routes and 2003 IBC and IFC provisions and the guidance on specific situations. OSHA Emergency Planning.’’ The Agency OSHA requirements. Subsequently, believes allowing employers two originally proposed to revise the title of OSHA analyzed the provisions of the compliance options—compliance with subpart E to ‘‘Exit Routes, Emergency newer (2006) editions of the IFC and either the NFPA 101 (2006) or the IFC Action Plans, and Fire Prevention IBC, and compared them with (2006)—will give employers additional Plans’’(61 FR 47712, September 10, requirements in §§ 1910.34, 1910.36, flexibility to use whichever compliance 1996) ; however, this title is missing and 1910.37 (ID 0138). In this analysis, option best serves their needs, while from the final standard because of a OSHA found that the IFC contains meeting the level of worker protection printing error (see 67 FR 67949, provisions for existing buildings and provided by OSHA’s subpart E rules. November 7, 2002). OSHA now exit-route maintenance, while the IBC OSHA notes that a number of proposes to revise the title to the more does not. These provisions are necessary commenters supporting the proposed concise ‘‘Exit Routes and Emergency to achieve equivalency with § 1910.37. revision stated that such a revision Planning.’’ As OSHA explained in the Therefore, OSHA determined that the would involve a potential cost savings preamble to the 2002 final rule, the IFC corresponded to the OSHA for them because it ‘‘can reduce design revised title is part of the Agency’s use requirements, and that the IBC did not. and construction delays. * * *’’ (See, of plain language that readily conveys This analysis concluded that the for example, ID 0117.) Other the contents of the subpart (67 FR 67949 corresponding provisions of the IFC commenters (IDs 0019, 0020) supported at 67950). provide an equivalent or higher level of the flexibility the revision would OSHA also is proposing to revise worker safety than §§ 1910.34, 1910.36, provide to employers by allowing them § 1910.35 to update the edition of the and 1910.37. Therefore, the Agency is to comply with either NFPA 101 or with

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the ICC Codes, explaining that health- type of occupancy. The Denver Fire OSHA does not believe that the care facilities participating in Medicare Department did not explain how the training certification records required by and Medicaid used NFPA 101, even in lack of such specificity would impact the four standards listed previously those jurisdictions that use the ICC worker safety; as noted earlier, OSHA provide a safety or health benefit codes. does not believe worker safety would be sufficient to justify the time and cost to The ANPRM also included a question compromised by including IFC 2006 as employers. OSHA believes that about whether other, alternative a compliance alternative. OSHA notes employers observe employees as they national building codes were available that both NFPA 101 and the ICC Codes work to ensure that work practices and that OSHA should consider. allow exit access widths narrower than personal-protective equipment are Commenters (IDs 0018, 0021, 0023, the 28-inch minimum specified in consistent with the training received. In 0119, 0121) responded that no other § 1910.36, but only in limited situations addition, OSHA generally conducts building codes are available for OSHA in which the occupancy type and enforcement of training requirements by to consider. One commenter (ID 0121) occupant load ensure an equal level of observation and worker interviews; noted, ‘‘Currently, 47 states and the safety. thus, the lack of a written record would District of Columbia use the IBC, and 42 OSHA believes that most of the not interfere with OSHA’s enforcement states and the District of Columbia use information received in response to the of training requirements. Therefore, the IFC.’’ GSA stated (ID 0130) that they ANPRM supports the proposal to allow OSHA believes that removing these have ‘‘adopted the technical the 2006 NFPA 101 or the 2006 IFC training-certification requirements requirements of the IBC and the IFC. provisions as independent compliance would not compromise worker safety or ***’’ alternatives to the corresponding health. For these reasons, the Agency is Opposition to the revision came from requirements in §§ 1910.34, 1910.36, proposing to remove the requirements to the NFPA (IDs 0022, 0134). However, and 1910.37. The Agency believes the prepare and maintain training- much of NFPA’s comment centered on proposed revisions will increase certification records from the above- whether the ICC codes provide a level compliance flexibility, and achieve referenced standards. of safety equivalent to NFPA 101, rather greater compatibility with many State In addition to the four training- than whether compliance with the ICC and local jurisdictions, while certification records proposed for codes would provide a level of safety maintaining worker protection. revocation, OSHA notes that 12 other equivalent to that required by OSHA in 2. Subpart I standards in the general industry, subpart E. As noted previously, OSHA a. Training Certification Records construction, and shipyard employment plans to retain and update existing require employers to prepare written § 1910.35. Thus, the comparison OSHA is proposing to remove records or documents to certify that they provided by NFPA (ID 0022) of the paragraph (f)(4) of the general industry complied with training requirements. provisions of NFPA 101 and the ICC Personal Protective Equipment (PPE) OSHA requests comment, including codes does not address the issue standard (§ 1910.132), paragraph (e)(4) rationale, on whether it should revoke regarding the ability of the ICC codes to of the shipyard employment PPE all or some of these 12 records. (See serve as an additional compliance standard (§ 1915.152), and paragraph section VI.C (‘‘Proposed Revisions to option to OSHA’s subpart E. (n)(4) of the general industry and Information-Collection Requirements’’) Another concern raised by the NFPA construction Cadmium standards comments (IDs 0022, 0134) was that the below in this notice for a detailed (§§ 1910.1027 and 1926.1127), which description of the paperwork-burden ICC developed the ICC Codes using require employers to prepare and consensus principles that differed from hours associated with these training- maintain a written record certifying certification requirements.) the consensus principles used to compliance with the training develop NFPA codes. Again, this b. Respiratory Protection requirements of these sections. OSHA is proposing seven revisions comment does not address the issue of Specifically, employers must currently related to the Respiratory Protection whether the ICC Codes provide a level verify that affected workers received of protection equal to that provided by standard in § 1910.134. The following training as required by the standards paragraphs discuss each of these subpart E, regardless of the method of through a written certification record development. While it is true that revisions. that includes, at a minimum, the (1) Updating DOT regulations OSHA, in conformance with section name(s) of the workers trained, the 6(b)(8) of the OSH Act, the National referenced in § 1910.134(i)(4)(i) date(s) of training, and the types of An industrial hygienist with the Technology Transfer and Advancement training the workers received. The Act of 1995 (NTTAA), and OMB Michigan OSHA On-Site Consultation Cadmium standards for general industry Program raised a question regarding the Circular A–119, must consider and construction are the only substance- consensus standards in developing its general OSHA requirements for specific standards that require written requalifying cylinders for self-contained mandatory standards, the Agency is not certification to document training. The restricted to the use of consensus breathing apparatus (SCBA) specified by Agency estimates that it takes over 1.8 § 1910.134(i)(4)(i). This provision of the standards. OSHA does not plan to million hours for employers to develop promulgate a government-unique Respiratory Protection standard and maintain the training-certification references the Department of standard instead of a consensus records mandated by the PPE standards standard, but to allow compliance Transportation (DOT) regulations in 49 in §§ 1910.132 and 1915.152, and over CFR parts 173 and 178 for retesting air alternatives that provide workers with a 3,000 hours for the training-certification level of safety that is at least equivalent cylinders such as those used with records required by the Cadmium SCBAs. In August 2002, the DOT to the level of safety provided by standards for general industry OSHA’s existing subpart E revised its standard, which resulted in (§ 1910.1027) and construction the reorganizing and renumbering its requirements. (§ 1926.1127).2 The Denver Fire Department (ID 0013) for these training-certification records. The ICRs also objected to the proposed revision 2 See 74 FR 61175, 74 FR 45883, 73 FR 74199, describe the procedures and data used to determine because the IBC and IFC do not specify and 73 FR 74197, respectively, for information on the hours required to develop and maintain the minimum exit access widths for every accessing the information-collection requests (ICRs) training-certification records.

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regulations for testing air cylinders. of the term ‘‘fits’’ as outdated, The AFL–CIO (ID 0024) stated that, New subpart C of 49 CFR part 180 now unnecessary, and offensive. OSHA since paragraph (k)(6) states that, since specifies the general DOT requirements agrees, and is proposing to remove it employers must provide a copy of for requalifying air cylinders; these from the questionnaire. OSHA believes Appendix D to workers, it would be requirements replicate the requirements this revision to the questionnaire would helpful to clarify that Appendix D is in former 49 CFR parts 173 and 178 for have no effect on administration of, or mandatory by including it among the requalifying air cylinders. OSHA, responses to, the questionnaire. list of mandatory appendices in therefore, is proposing to revise the paragraph (o)(1) as OSHA proposed, and language in § 1910.134(i)(4)(i) by (4) Appendix D to § 1910.134 that this action would clarify the referencing the new DOT standard for OSHA is proposing to clarify that mandatory requirement in (k)(6). The cylinder testing at 49 CFR part 180. Appendix D of the Respiratory AFL–CIO further stated that ‘‘any OSHA believes that the proposed Protection standard (§ 1910.134) is additional burden from this action, if revision will clarify the requirements of mandatory by removing paragraph (o)(2) there is any, will be more than offset by the Respiratory Protection standard by from the standard, and by revising the worker protection information accurately identifying the location of the paragraph (o)(1) of the standard to conveyed in Appendix D during appropriate DOT reference standard. By include Appendix D among the voluntary use situations.’’ expediting this process, the proposed designated mandatory appendices. As The American Society of Safety revision will ease the regulatory burden stated in the ANPRM, the proposed Engineers (ASSE; ID 0021) also stated on employers without reducing revision to paragraph (o)(1) would that employers already must provide the employee protection. reduce public confusion by clarifying information in Appendix D to workers, and that failure to do so may result in (2) Updating the NIOSH Respirator- the Agency’s purpose regarding Appendix D when it published the OSHA citations. ASSE supported Certification Requirement in revising the language to make Appendix § 1910.134(i)(9) Respiratory Protection standard on January 8, 1998, (63 FR 1152); namely, D mandatory because it ‘‘may foster Existing paragraph (i)(9) of OSHA’s that Appendix D is mandatory. compliance and actually reduce the Respiratory Protection standard Evidence of this purpose is provided in potential for citations by clarifying the (§ 1910.134) requires the employer to paragraph (c)(2)(i), the introductory text employer’s responsibilities.’’ use breathing-gas containers marked in to paragraph (k), and paragraph (k)(6) of The 3M Company (ID 0028) also accordance with the NIOSH respirator- the Respiratory Protection standard; supported revising paragraph (o)(2). 3M certification standard at 42 CFR part 84. these provisions mandate that stated that deleting paragraph (o)(2) In its presentation at the December 10, employers provide voluntary respirator would reduce confusion as to whether 2009, ACCSH meeting (see section X of users with the information contained in it is mandatory to provide Appendix D this preamble below), NIOSH stated that Appendix D. Additionally, the title of to workers when respiratory use is it has seen some confusion in the Appendix D states that it is mandatory. voluntary. 3M also stated that the regulated community as to how this In the ANPRM, OSHA posed the information in Appendix D is provision applies to after-market appropriate. following three questions about this cylinders. NIOSH recommended that The Associated General Contractors of proposed revision for public OSHA revise the provision to clarify America (AGCA; ID 0120) opposed consideration: that after-market cylinders not • deleting paragraph (o)(2) and revising manufactured under the quality- Have employers understood that the paragraph (o)(1). In its response, AGCA assurance program incorporated as part requirement to provide Appendix D urged, ‘‘OSHA to follow the complete of the NIOSH approval process for self- information to employees, who rulemaking process to gauge the impact contained breathing apparatus (SCBA) voluntarily use respirators, is a of this revision,’’ and that any revisions are not acceptable for use. Accordingly, mandatory requirement? should preserve employers’ flexibility in • OSHA is proposing to revise this Is the information contained in informing their employees of the provision to read: ‘‘The employer shall Appendix D appropriate for alerting various uses of different respirators. use only the respirator manufacturer’s employees to considerations related to OSHA reviewed the comments NIOSH-approved breathing gas voluntary respirator use? received on revising the language in • containers, marked and maintained in To what extent, if any, would paragraph (o)(1) of § 1910.134 to accordance with the Quality Assurance deleting paragraph (o)(2) and clarifying indicate that Appendix D as mandatory, provisions of the NIOSH approval for that Appendix D is mandatory, increase and on deleting paragraph (o)(2), which the SCBA as issued in accordance with burden on employers? describes Appendix D as non- the NIOSH respirator-certification The Building and Construction Trades mandatory. Based on the current record, standard at 42 CFR part 84.’’ OSHA Department of the AFL–CIO (BCTD; ID OSHA preliminarily concludes that the requests public comment on this 0118) stated that the basic information language in paragraph (o)(2) is NIOSH-recommended revision. in Appendix D is worthwhile, but confusing for employers since it construction workers find the language contradicts the requirement in (3) Appendix C to § 1910.134 in the appendix difficult to understand. paragraphs (c)(2) and (k) that employers In response to the ANPRM, OSHA They suggested that OSHA better must provide employees with the received a request from the Mexican explain ‘‘why respirators should not be information in Appendix D in voluntary Consulate in Omaha Nebraska. The shared with other workers.’’ The BCTD respirator-use situations. Accordingly, request was to revise question 2a in the also stated that deleting paragraph (o)(2) OSHA agrees with commenters who OSHA Medical Evaluation would not increase burden to employers stated that revising the language in Questionnaire, Appendix C, Part A, since the obligation to use Appendix D paragraph (o) of § 1910.134 would Section 2, of its Respiratory Protection already exists under paragraphs (k)(6) clarify the employer’s responsibilities standard (§ 1910.134) by deleting the and (c)(2), and that ‘‘deleting (o)(2) and reduce confusion about whether word ‘‘fits,’’ leaving only the word would definitely clarify an apparent information specified in Appendix D is ‘‘seizures’’ to describe the medical contradiction about the mandatory mandatory. Regarding the comment by condition. The request described the use requirements already in the standard.’’ AGCA, OSHA notes that the SIP–III

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proposal is a notice-and-comment paragraphs (h)(3)(ii) and (h)(3)(iii) of the The American Society of Safety rulemaking that provides the regulated Asbestos standard for shipyards. Also, Engineers (ID 0021) supported revising public with an appropriate opportunity the fit-testing requirements provided in the shipyard-employment respirator for determining the impact, if any, of the paragraph (f) of the Respiratory provisions to comply with the proposed revision on the public. In Protection standard either meet or requirements in the Asbestos standards addition, OSHA does not believe that exceed the provisions specified in (h)(4) for general industry and construction, the proposed revisions would have any of the shipyard Asbestos standard, and deleting the Asbestos standard’s impact on the employers’ flexibility in except that the frequency of fit-testing is specific fit-testing requirements while informing their employees of the different. The current shipyard- adopting the § 1910.134 requirements. various uses of respirators. Therefore, employment Asbestos standard at OSHA believes, after reviewing of the OSHA decided to propose revising the § 1915.1001(h)(4)(ii) requires employers comments received in response to the language in paragraph (o) of § 1910.134 to perform quantitative and qualitative ANPRM, that it is appropriate to to state that Appendix D is mandatory, fit testing ‘‘at the time of initial fitting propose to remove paragraphs (h)(3)(ii), and to delete the confusing and and at least every 6 months thereafter (h)(3)(iii), and paragraph (h)(4) from the inconsistent language in paragraph for each employee wearing a negative- shipyard-employment asbestos (o)(2). pressure respirator.’’ The Respiratory standard, and to add a reference to (5) Asbestos (§ 1915.1001) Protection standard at § 1910.134(f)(2) § 1910.134 in paragraph (h)(3)(i) of that The introductory paragraph to requires employers to fit test employees standard. It also is appropriate to OSHA’s Respiratory Protection standard using a tight-fitting respirator ‘‘prior to propose to delete the fit-testing (§ 1910.134) specifies that the standard initial use of the respirator, whenever a requirements of Appendix C of applies to general industry (29 CFR different facepiece * * * is used, and at § 1915.1001, and to replace Appendix C 1910), shipyards (29 CFR 1915), marine least annually thereafter.’’ with a reference to Appendix A of terminals (29 CFR 1917), longshoring By adding the reference to the § 1910.134 and the fit-testing (29 CFR 1918), and construction (29 § 1910.134 Respiratory Protection requirements of § 1910.134(f). The CFR 1926). Three of these parts, general standard to § 1915.1001(h)(3)(i) of the Agency believes these proposed industry, shipyards, and construction, shipyard Asbestos standard, OSHA revisions would not increase employers’ contain standards regulating employee would incorporate the fit-testing compliance burden, but instead would exposure to asbestos, with each of these requirements of § 1910.134(f), which reduce this burden by providing standards having a provision entitled, include the requirement to use the consistency between the shipyard- ‘‘Respirator program.’’ These paragraphs OSHA-accepted qualitative fit-testing employment Asbestos standard and the specify the requirements for an and quantitative fit-testing protocols requirements of the Asbestos standards employer’s respirator program with and procedures contained in Appendix for general industry and construction. respect to asbestos exposure. In the final A of § 1910.134. Accordingly, the-fit rulemaking for the Respiratory (6) 13 Carcinogens (4–Nitrobiphenyl, testing requirements specified in etc.) (§ 1910.1003) Protection standard, the Agency Appendix C of § 1915.1001 would be In the SIP–III ANPRM, OSHA updated these paragraphs in the redundant; therefore, OSHA is discussed correcting an inadvertent Asbestos standards for general industry considering deleting this Appendix C and construction so that the program omission from the respiratory-protection from § 1915.1001. requirements would be consistent with In the ANPRM, OSHA asked the requirements for four of the 13 carcinogen standards. Each of the 13 the provisions of the newly revised following questions regarding the original standards included respiratory- Respiratory Protection standard (see 63 § 1915.1001 respirator provisions: FR 1285 and 1298). However, the • Would revising § 1915.1001(h)(3)(i) protection requirements appropriate to Agency inadvertently omitted revising to be consistent with similar provisions the hazards associated with the the respirator-program requirements in the asbestos standard for general individual carcinogen. When OSHA combined these standards into a single specified in paragraph (h)(3)(i) of the industry and construction create standard (61 FR 9242, March 7, 1996), Asbestos standard for shipyards additional compliance requirements? (§ 1915.1001). OSHA is proposing to • Does this change maintain the same it treated the 13 carcinogens as correct this oversight by revising level of employee protection? Would particulates. However, four of the 13 paragraph (h)(3)(i) of the Asbestos making the recommended changes carcinogens are liquids and not particulates (i.e., methyl chloromethyl standard for shipyards to read the same increase the economic or paperwork ether, bis-chloromethyl ether, as paragraphs (g)(2)(i) of the Asbestos burden? standard for general industry • Besides altering the frequency of fit ethyleneimine, and beta-propiolactone). (§ 1910.1001) and (h)(2)(i) of the testing, how would making the In the 1996 regulatory action, the Asbestos standard for construction recommended change to delete Agency inadvertently omitted the full- ‘‘ facepiece, supplied-air respirators in the (§ 1926.1101), which state, [t]he paragraphs (h)(3)(ii) through (h)(4)(ii) continuous-flow or pressure-demand employer must implement a respiratory affect the requirements of the standard? protection program in accordance with OSHA received several comments in mode for employees involved in § 1910.134 (b) through (d) (except response to these questions. The 3M handling any of the four liquid ’’ (d)(1)(iii)), and (f) through (m). Company (ID 0028) addressed this issue carcinogenic chemicals. Instead, OSHA Similarly, the Agency is considering by stating: required half-mask particulate-filter removing paragraphs (h)(3)(ii), respirators for the 13 carcinogens, (h)(3)(iii), and (h)(4) from the shipyard [M]aking § 1915.1001(h)(3)(i) consistent which are inappropriate respirators for Asbestos standard, which address filter with similar provisions in other asbestos use with the four liquid carcinogens. changes, washing faces and facepieces standards will [not] create additional In the SIP–III ANPRM, OSHA compliance requirements. 3M believes it will to prevent skin irritation, and fit testing, result in less confusion among employers discussed the reasons for reinstating the respectively. OSHA believes this action who work with asbestos in many different original respirator-use requirement in is appropriate because the continuing- industries. * * * This change would paragraph (c)(4)(iv) of § 1910.1003 for use provisions specified in paragraph maintain the same level of protection as these four liquid carcinogens. OSHA § 1910.1001(g)(2)(ii) duplicate provided by the other asbestos standards. also asked the following four questions

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in the ANPRM regarding this revision In its comments, 3M also maintained pressure-demand or other positive- (71 FR 76627): that requiring supplied-air respirators pressure mode, or any supplied-air • What types of respirators are would result in the use of a more respirator that has a full facepiece and currently being used to protect protective class of respirator than the operated in a pressure-demand or other employees from exposure to these four § 1910.134 respirator-selection positive-pressure mode in combination chemicals? requirements. However, 3M also stated with an auxiliary self-contained • If OSHA reinstates the requirements that, by requiring full-facepiece, positive-pressure breathing apparatus. for full facepiece air-supplied supplied-air respirators, OSHA would Alternatively, OSHA could modify the respirators, does the respirator-use introduce additional hazards for proposed language to require respirator requirement conflict with OSHA’s employees caused by trailing air-supply selection pursuant to § 1910.134, which Respiratory Protection Standard (Sec. hoses. The commenter suggested a would require employers to evaluate the 1910.134)? specific hazard to determine and select • preference for half-facepiece respirators Would the reinstated respirator use with chemical cartridges for the four the appropriate NIOSH-approved requirement be more or less protective liquid carcinogens, which could meet respirator for use by employees exposed than the protection offered by OSHA’s the respirator-selection requirements in to these carcinogens. OSHA also Respiratory Protection Standard? requests comment on these alternative • § 1910.134 if the cartridges used to How would reinstating the absorb the liquid carcinogens’ vapors approaches, as well as any other respirator use requirement change the have an adequate service life. (Id.) regulatory approaches that would economic or paperwork burden? At the Advisory Committee on address the issue raised by NIOSH. The American Society of Safety Construction Safety and Health In this rulemaking, OSHA is Engineers (ID 0021) supported (ACCSH) meeting on December 12, proposing to reinstate the requirement reinstating the former respirator-use 2009, the National Institute for that employers provide full-facepiece, requirements in § 1910.1003(c)(4)(iv), Occupational Safety and Health supplied-air respirators to workers and did not know of any conflict this (NIOSH) representative provided exposed to methyl chloromethyl ether, section would have with the specific comment on the revisions bis-chloromethyl ether, ethyleneimine, requirements contained in § 1910.134. proposed to the respirator requirements and beta-propiolactone. OSHA notes The AFL–CIO (ID 0024) stated that the of the 13 Carcinogens (4-Nitrobiphenyl, that reinstatement of the requirement to inadvertent action OSHA took with etc.) standard. The full committee then use supplied-air respirators with the these four carcinogens resulted in recommended ‘‘that OSHA and NIOSH four liquid carcinogens will provide workers receiving substantially less work together to address * * * needed safety for employees working respiratory protection than previously technical issues relating to the with these chemicals. Deleting this required, and that OSHA should correct respiratory protection provisions in the requirement was an inadvertent this error immediately. The AFL–CIO proposed rule.’’ (ACCSH, Ex.12.2.) The omission that needs correction. Whether strongly recommended that OSHA issue specific NIOSH comment was: OSHA should allow the use of chemical a technical correction to § 1910.1003 cartridges with NIOSH-certified air- within 30 days to reinstate the original [T]he lack of either a NIOSH REL or an purifying half-mask respirators for these respiratory-protection requirements for OSHA PEL results in a NIOSH respirator recommendation of any self-contained four liquid carcinogens depends on these four carcinogens. The AFL–CIO breathing apparatus that has a full facepiece employers proving that the cartridges also recommended that ‘‘the remaining 9 and is operated in a pressure-demand or used to absorb the vapors emitted from chemicals require the same, more other positive-pressure mode, or any these chemicals would have an protective respirators that are applicable supplied-air respirator that has a full adequate service life. OSHA requests to the 4 substances.’’ AFL–CIO added, facepiece and is operated in a pressure- comment on, and data describing, the ‘‘With that approach, you would now demand or other positive-pressure mode in availability of such chemical cartridges have real and consistently applied combination with an auxiliary self-contained for use with these four carcinogens. worker protection measures that achieve positive-pressure breathing apparatus. desirable improvement in the Neither a supplied-air respirator with a full (7) 1,3-Butadiene (§ 1910.1051) ’’ facepiece operated in a continuous flow OSHA is proposing to remove standards. mode nor a supplied-air respirator with a full The 3M Company (ID 0028) stated facepiece operated in a pressure-demand paragraph (m)(3) from the 1,3-Butadiene that, since these four carcinogens are mode would provide the [NIOSH] standard (§ 1910.1051), which requires liquids with significant vapor pressure, recommended level and type of protection that employers keep fit-test records for the current requirements for using half unless used in combination with an auxiliary employees who use respirators to masks with dust, mist, and fume filters self-contained positive-pressure breathing reduce toxic exposures. In the ANPRM, are inappropriate, and conflict with the apparatus. (ACCSH Ex. 12.2; comments on OSHA raised the possibility of deleting § 1910.134 respirator-selection the proposed rule on Standards Improvement this recordkeeping provision from the requirements. Further, 3M believed that Project III by the National Personal Protective 1,3-Butadiene standard for general reinstating the requirement for a full- Technology Laboratory, NIOSH.) industry, relying instead on the fit- facepiece, supplied-air respirator would Based on the NIOSH comments, testing recordkeeping requirement in provide the appropriate minimum OSHA is considering revising the 13 § 1910.134. assigned protection factor (APF) Carcinogens standard to ensure that The American Society of Safety required for the four liquid carcinogens, employers provide respiratory Engineers (ID 0021) agreed with OSHA and would be consistent with the protection meeting the NIOSH that deleting the fit-testing records respirator-selection requirements of recommendation. Therefore, OSHA requirement in the 1,3-Butadiene § 1910.134. Therefore, the protection requests comment on whether it should standard was appropriate since the afforded to workers would be different include in the final SIP–III standard a requirement duplicates the for liquid-carcinogen vapors than that revision to the respirator provisions of recordkeeping requirement in for the particulate carcinogens (an APF the 13 Carcinogens standard that § 1910.134. The 3M Company (ID 0028) of 10 for particulates versus an APF of explicitly requires employers to use self- also supported deleting the 1,3- 1,000 for liquids using supplied-air contained breathing apparatus with a Butadiene fit-testing record respirators). full facepiece and operated in a requirement, noting that removing this

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requirement would not reduce (non-heated) air, rather than hot or in excess of the recommended safe protection because the requirement in warm air, to dry hands. On July 13, working load as prescribed on § 1910.134 is at least as protective as the 2007, OSHA issued a letter of permanently affixed identification 1,3-Butadiene requirement. interpretation to Dyson in which it markings. The proposed revisions also Based on its review of the comments recognized that some air-blower would expressly prohibit the use of received in response to the ANPRM, techniques provide the appropriate level slings that do not have such markings. OSHA believes that deleting the fit- of employee protection, and agreeing to Manufacturers produce slings with testing recordkeeping requirement in include this proposed revision in the markings that indicate the sling’s rated paragraph (m)(3) of the 1,3-Butadiene SIP–III rulemaking (ID 0144). In this capacity (i.e., safe working load), the Standard and relying instead on the fit- letter, OSHA also acknowledged that name or trademark of the manufacturer, testing recordkeeping requirements in current technology allows for the use of and other specifications (e.g., size, § 1910.134 would not reduce employee hand-drying products that do not material used in manufacturing the protection. Therefore, OSHA is involve hot air, and noted that, when it sling); this information prevents misuse proposing this revision in this published the Bloodborne Pathogens of slings, thereby increasing employee rulemaking. standard, adequate non-heated, high- safety. OSHA currently requires these velocity air blowers were not available. markings for three of the five types of 3. Subpart J OSHA also is proposing to apply this slings regulated by its standards (i.e., a. Definition of ‘‘Potable Water’’ revision to four Sanitation standards, alloy-steel-chain, metal-mesh, and (§ 1910.141(a)(2)) including the Sanitation standard for synthetic-web slings). general industry (§ 1910.141(d)(2)(iv)), Many slings are sufficiently large for OSHA is proposing to revise and manufacturers to emboss or stitch update the definition of the term marine terminals (§ 1917.127(a)(1)(iii)), longshoring (§ 1918.95(a)(1)(iii)), and identification markings onto the sling’s ‘‘potable water’’ in the Sanitation surface. Other slings have identification standards for general industry construction (1926.51(f)(3)(iv)). The general industry and construction markings on tags attached to the sling by (§ 1910.141(a)(2)) and construction other means, such as a separate wire or (§ 1926.51(a)(6)), and the Field Sanitation standards at §§ 1910.141(d)(2)(iv) and cable. However, such tags may detach Sanitation standard for agriculture from the sling during use, in which (§ 1928.110(b)). The proposed definition 1926.51(f)(3)(iv), respectively, use identical language as follows: case, the employer must remove the would bring consistency to OSHA sling from service until the tag is regulations. Individual hand towels or sections thereof, replaced. OSHA currently defines potable water of cloth or paper, warm air blowers or clean OSHA published the existing Slings as ‘‘water which meets the quality individual sections of continuous cloth standard (§ 1910.184) on June 27, 1975 standards prescribed in the U.S. Public toweling, convenient to the lavatories, shall (see 40 FR 27368), based on the then- be provided. [Emphasis added.] Health Service Drinking Water current 1971 consensus standard, ANSI Standards, published in 42 CFR part 72, While the definitions for Marine B30.9–1971, Slings. OSHA made or water which is approved for drinking Terminals at §§ 1917.127(a)(1)(iii) and § 1910.184 applicable to the purposes by the State or local authority Longshoring at 1918.95(a)(1)(iii) differ construction industry on February 9, having jurisdiction.’’ OSHA adopted the slightly from this definition, the term 1979 (44 FR 8577). After 1975, OSHA existing definition from a Public Health ‘‘warm air blowers’’ is used in both made no revisions to these standards Service Code that is no longer in definitions. OSHA notes that, whether except for minor corrections. The load- existence. the definitions include the term ‘‘hot’’ or capacity tables in these standards are OSHA proposes to define potable ‘‘warm,’’ the definitions do not include now obsolete, and no longer conform to water as ’’water that meets the standards high-velocity air blowers. In this the load-capacity tables of the updated for drinking purposes of the state or rulemaking, OSHA is proposing to ANSI B30.9 standard. For example, the local authority having jurisdiction, or remove the term ‘‘hot’’ or ‘‘warm’’ from current ANSI B30.9 standard includes water that meets the quality standards these definitions, which then would tables for slings made of alloy-steel prescribed by the U.S. Environmental permit employers to use high-velocity chain (grades 80 and 100) not included Protection Agency’s National Primary air blowers in the workplace. OSHA in the existing OSHA standards. Water Regulations (40 CFR part 141).’’ believes the proposal does not revise In 1996, the National Association of OSHA earlier proposed the same these definitions substantively in that Chain Manufactures (NACM) petitioned revision to the shipyard-employment employers still could use hot-/warm-air OSHA to adopt requirements of the standards (72 FR 72451–72520). drying machines, as well as air blowers recently updated ANSI B30.9 standard. or other air-drying machines that may NACM believed that the existing OSHA b. Washing Facilities (§ 1910.141(d)) become available. standard was not as safe as the updated OSHA is proposing to revise the ANSI standard. The NACM petition 4. Slings (§ 1910.184) Bloodborne Pathogens standard by recommended that, at a minimum, removing from the definition of OSHA is proposing to amend its OSHA remove Table N–1–184–1 in ‘‘handwashing facilities’’ at standards regulating slings at § 1910.184 § 1910.184, which lists outdated load- § 1910.1030(b) the term ‘‘hot’’ in the (general industry), §§ 1915.112, capacity requirements for alloy-steel- phrase ‘‘hot air drying machines.’’ The 1915.113, and 1915.118 (shipyard chain slings. definition currently reads as follows: employment), and § 1926.251 Therefore, OSHA is proposing to ‘‘Handwashing Facilities means a (construction) by removing outdated remove the existing load-capacity tables facility providing an adequate supply of tables that specify safe working loads, for slings from the following standards: running potable water, soap, and single and revising other provisions (e.g., § 1910.184 (general industry; tables N– use towels or hot air drying machines.’’ §§ 1910.184(e)(6) and 1915.112) that 184–1, and N–184–3 through N–184– OSHA is proposing this revision in reference the outdated tables. The 22); § 1915.118 (shipyard employment; response to an inquiry from Dyson B2B proposal would replace the outdated tables G–1 through G–5, G–7 through G– Inc. (Dyson; ID 0015.1), which describes tables with a requirement that would 8, and G–10), including references to a new air blower that uses high-velocity prohibit employers from loading slings these tables in § 1915.112 and

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§ 1915.113; and § 1926.251 OSHA never removed the corresponding • 1,3-Butadiene— (construction; tables H–1 and H–3 medical recordkeeping requirement § 1910.1051(m)(6)(i). through H–19). Also, OSHA is from the standard. Also, OSHA is In addition, OSHA is proposing as part proposing to add the requirement for proposing to correct a typographical of this rulemaking to remove paragraph identification markings on wire-, error in paragraph (b)(4) that refers to (b)(5)(ii) from § 1910.440 natural-, and synthetic-fiber rope slings § 1910.20 instead of § 1910.1020. (‘‘Recordkeeping requirements’’) of its in §§ 1910.184 and 1926.251, as well as 6. Subpart Z standards for Commercial Diving manila rope and manila rope slings, Operations; this provision requires wire rope and wire-rope slings, and OSHA is proposing to remove the employers to transfer diving medical chain and chain slings in § 1915.112. requirements to transfer records to the records to NIOSH in the event no The proposal would provide similar National Institute for Occupational successor employer is available. protection for shackles in § 1915.113 Safety and Health (NIOSH) for 15 These proposed revisions are in and § 1926.251. In addition, OSHA is substance-specific standards in subpart response to a comment from NIOSH (ID proposing that employers follow the Z, as well as from the standard 0135) recommending that OSHA safe working-load capacity information regulating access to employee exposure reexamine the need for this on the identification markings affixed to and medical records (§ 1910.1020). In requirement, and consider removing it slings by the sling manufacturer. addition, the following paragraphs from these standards because ‘‘the Further, if the sling is missing its describe miscellaneous proposed records unfortunately have not proved identification marking, OSHA is revisions to several other health suitable for research purposes.’’ NIOSH proposing, consistent with the latest standards. stated further (ID 0142) that ‘‘[g]iven that ASME/ANSI B30.9 standard, that these records have proven to have no employers remove these slings from a. Transfer of Exposure and Medical Records to NIOSH research utility, the costs associated service until they reaffix the with the processing and maintaining identification markings. OSHA is proposing to remove these records are not justified.’’ OSHA believes the proposed revisions provisions in its substance-specific In its comments, NIOSH noted that, in will eliminate duplicative, inconsistent, standards that require employers to addition to the 2,900 records for the 13 and outdated information, thus transfer exposure and medical records Carcinogens standards mentioned in minimizing confusion over the rated to NIOSH. Most of OSHA’s existing their January 2006 response to OSHA’s capacity of any type of sling used by substance-specific standards, as well as Information Collection Request for employers. Further, reliance on the the Access to Employee Exposure and OMB–1218–0085 (ID 0142), it information marked on the sling Medical Records standard (§ 1910.1020), catalogued another 170,000 records over simplifies compliance for employers by require employers to transfer to NIOSH a 30-year period, and used none of these eliminating the need to check tables or specified medical and exposure records records for research purposes. NIOSH other sources of information. Finally, when: An employer ceases to do further stated (ID 0135) that ‘‘boxes [of the proposed revisions will maintain or business and leaves no successor; the records] are currently in temporary increase employee safety by ensuring period for retaining the records expires; storage at a NIOSH facility awaiting that employers use slings with readily or an employee terminates employment resources to become available to process available, up-to-date load ratings. (including retirement or death). OSHA them. There is also another shipment of OSHA requests comment from the proposes to remove the record-transfer 2,300 boxes from a defunct public on the following questions requirement from the following manufacturing company in temporary regarding the use of slings in this standards: storage waiting NIOSH processing.’’ country: (1) Are all slings manufactured • Asbestos—§§ 1910.1001(m)(6)(ii), NIOSH also noted that contractors in accordance with the specifications 1915.1001(n)(8)(ii), and hired by companies that are ceasing prescribed by the ASME/ANSI B30.9 § 1926.1101(n)(8)(ii); business operations often are slings standard; (2) are all slings • 13 Carcinogens (4-Nitrobiphenyl, responsible for sending records to equipped with markings or tags; (3) etc.)—§ 1910.1003(g)(2)(i) and (ii); NIOSH. However, many of these what other information do • Vinyl Chloride—§ 1910.1017 (m)(3); contractors have no knowledge of what manufacturers mark on slings; and (4) • Inorganic Arsenic—§ 1910.1018 records to send, and may send do the markings and tags remain affixed (q)(4)(ii) and (iii); inappropriate documents. In this regard, to the sling, or are the markings and tags • Access to Employee Exposure and NIOSH stated: easily removed or damaged? Medical Records—§ 1910.1020(h)(3)(i), [I]n fact, some companies have used the 5. Subpart T (ii) and (h)(4); • Lead—§§ 1910.1025(n)(5)(ii) and opportunity to simply empty their files and OSHA is proposing to remove two send NIOSH everything. As a result, we often (iii) and 1926.62(n)(6)(ii) and (iii); receive extraneous information unrelated to unnecessary requirements from • Benzene—§ 1910.1028(k)(4)(ii); • the requirements of the standards (e.g., paragraphs (b)(3)(i) and (b)(5) of its Coke Oven Emissions— contract reports, drug test clearances, records Commercial Diving Operations standard § 1910.1029(m)(4)(ii) and (iii); for hazards that are not required to be at § 1910.440. Paragraph (b)(3)(i) • Bloodborne Pathogens— submitted to NIOSH, environmental/ requires employers to retain dive-team § 1910.1030(h)(4)(ii); pollution records, company operating member medical records for five years, • Cotton Dust—§ 1910.1043(k)(4)(ii) manuals). On some occasions, even when even though the standard contains no and (iii); valid medical records are sent, the records do requirement for diver medical • 1,2 Dibromo-3-Chloropropane— not identify the particular hazard(s) that the examinations. In this regard, a 1979 § 1910.1044(p)(4)(ii) and (iii); workers were exposed to. court decision (Taylor Diving and • Acrylonitrile—§ 1910.1045(q)(5)(ii) NIOSH stated that, once records are in Salvage v. U.S. Department of Labor and (iii); its possession, it must ‘‘expend (599 F.2d 622) (5th Cir., 1979)) resulted • Ethylene Oxide— increasingly scarce research resources in in the removal of the requirement § 1910.1047(k)(5)(ii); processing them in accordance with the (formerly located at § 1910.411) to • Methylenedianiline— NIOSH Records Schedule.’’ Lastly, provide medical examinations, and § 1910.1050(n)(7)(ii); NIOSH presented data on the cost it

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incurs with processing, shipping, and industrial-hygiene, or economic training in §§ 1910.132 and 1910.134. long-term storage, noting: research purposes. OSHA also is asking OSHA believes that these revisions will NIOSH has previously estimated the in- for examples of instances in which reduce confusion regarding the training house cost of processing to be about $1.35/ individuals or organizations previously requirements, thereby improving record for records received under the OSHA used the data. Additionally, the Agency employer compliance and worker carcinogen standards. It should be noted that requests comment on the availability of protection. these carcinogen records are the best this type of data from sources other than organized of any we receive. They require the NIOSH (such as attorneys who hold (2) Lead (§ 1910.1025) (Trigger Levels in least amount of processing effort and are medical and exposure records when the Lead Standards (§§ 1910.1025 and therefore the least costly. Other more poorly 1926.62)) organized records and those containing companies cease business operations). The Agency welcomes any ideas or extraneous materials that NIOSH has In the Lead standards for general suggestions on how the data could be processed using contractor staff have cost industry and construction, at §§ 1910.25 made more useful for these purposes. about $3.50–$4.00/record. In addition there and 1926.62, respectively, OSHA is are other minimal costs associated with preparing the paperwork for shipment to the b. Miscellaneous Revisions proposing to amend the trigger levels at FRC [Federal Records Center] as well as the (1) Substance-Specific PPE and which employers must initiate specific actual shipping costs. Finally, there are the Respirator Training Requirements actions to protect workers exposed to long-term FRC storage costs (currently $0.30/ lead because the airborne record/year). For the 170,000 records OSHA proposes to remove specific concentrations at which these actions currently at the FRC, that represents a total training requirements from several of its must occur vary slightly. In this regard, lifetime storage cost of more than $2,000,000. substance-specific standards because (ID 0135.) a number of provisions in the Lead standards regulating personal-protective standards trigger actions at airborne equipment (PPE) and respirators in 29 In conclusion, NIOSH stated, ‘‘Based on concentrations that are ‘‘above the AL,’’ CFR 1910, subpart I, already require the our experience over the last 30 years, and ‘‘at or above the PEL.’’ The training. Specifically, § 1910.132 NIOSH believes that the significant terminology in the Lead standards for requires employers to train employees costs associated with the records these airborne concentrations is on: when PPE (i.e., protective transfer requirements cannot be justified inconsistent and can be confusing. For equipment for the eyes, face, head, in light of the complete lack of scientific example, § 1910.1025(d)(6)(iii) currently hands, and feet) is necessary; what PPE utility of the records.’’ states that ‘‘[t]he employer shall is necessary; how to properly don, doff, Because the data generated by the continue monitoring at the required records-transfer requirements appears to adjust, and wear the PPE; the limitations of the PPE; and the proper care, frequency until at least two consecutive be of little or no value to NIOSH, OSHA measurements, taken at least 7 days is proposing to remove the record- maintenance, useful life, and disposal of apart, are below the PEL but at or above transfer requirements from its the PPE. Additionally, § 1910.134 the action level[.]’’ OSHA is proposing substance-specific health standards and requires employers to train employees to revise this provision to state that from paragraphs (h)(3) and (h)(4) of on why respirators are necessary; how ‘‘[t]he employer shall continue § 1910.1020 (Access to Employee improper fit, use, or maintenance can monitoring at the required frequency Exposure and Medical Records). compromise the effectiveness of until at least two consecutive However, before making a final respirators; the capabilities and measurements, taken at least 7 days determination on this proposal, the limitations of respirators; how to use apart, are below the PEL but at or above Agency is requesting workers, respirators effectively in emergency the action level[.]’’ Similar issues arise researchers, and other interested parties conditions; how to inspect, don, and to provide comment on the possible doff respirators; how to use and check with respect to the blood-lead levels usefulness of these records. For the seals of respirators; and how to that trigger medical-removal protection example, the Agency is interested in recognize medical signs and symptoms or return to work in the Lead standards. determining whether workers who that may limit or prevent the effective OSHA is proposing to revise these become ill after exposure to a hazardous use of respirators. terminologies in the Lead standards to substance would have a need to retrieve The standards regulating PPE and make these provisions internally their records to verify their exposure respirator training apply to every consistent and consistent with each after the employer responsible for operation in which an employer uses other. exposing them to the substance is no PPE and respirators. Therefore, the Tables 1 and 2 below describe the longer in business (and the records training requirements in substance- existing and proposed revisions in the cannot be obtained from a bankruptcy specific standards mandating training general industry and the construction trustee or legal receiver), or whether the on such equipment duplicate the industry standards (with the proposed data would be useful for medical, requirements for PPE and respirator revisions in bold font).

TABLE 1—§ 1910.1025 GENERAL INDUSTRY

Existing language Proposed language

§ 1910.1025(d)(6)(iii) If the initial monitoring reveals that employee exposure is above If the initial monitoring reveals that employee exposure is at or above the permissible exposure limit the employer shall repeat moni- the permissible exposure limit the employer shall repeat monitoring toring quarterly. The employer shall continue monitoring at the quarterly. The employer shall continue monitoring at the required fre- required frequency until at least two consecutive measurements, quency until at least two consecutive measurements, taken at least 7 taken at least 7 days apart, are below the PEL but at or above days apart, are below the PEL but at or above the action level at the action level at which time the employer shall repeat moni- which time the employer shall repeat monitoring for that employee at toring for that employee at the frequency specified in paragraph the frequency specified in paragraph (d)(6)(ii), except as otherwise (d)(6)(ii), except as otherwise provided in paragraph (d)(7) of this provided in paragraph (d)(7) of this section. section. § 1910.1025(j)(1)(i)

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TABLE 1—§ 1910.1025 GENERAL INDUSTRY—Continued

Existing language Proposed language

The employer shall institute a medical surveillance program for all The employer shall institute a medical surveillance program for all em- employees who are or may be exposed above the action level ployees who are or may be exposed at or above the action level for for more than 30 days per year. more than 30 days per year. § 1910.1025(j)(2)(ii) Follow-up blood sampling tests. Whenever the results of a blood Follow-up blood sampling tests. Whenever the results of a blood lead lead level test indicate that an employee’s blood lead level ex- level test indicate that an employee’s blood lead level is at or above ceeds the numerical criterion for medical removal under para- the numerical criterion for medical removal under paragraph graph (k)(1)(i)(A), of this section, the employer shall provide a (k)(1)(i)(A), of this section, the employer shall provide a second (fol- second (follow-up) blood sampling test within two weeks after low-up) blood sampling test within two weeks after the employer re- the employer receives the results of the first blood sampling test. ceives the results of the first blood sampling test. § 1910.1025(k)(1)(i)(B) The employer shall remove an employee from work having an ex- The employer shall remove an employee from work having an expo- posure to lead at or above the action level on each occasion sure to lead at or above the action level on each occasion that the that the average of the last three blood sampling tests con- average of the last three blood sampling tests conducted pursuant to ducted pursuant to this section (or the average of all blood sam- this section (or the average of all blood sampling tests conducted pling tests conducted over the previous six (6) months, which- over the previous six (6) months, whichever is longer) indicates that ever is longer) indicates that the employee’s blood lead level is the employee’s blood lead level is at or above 50 μg/100 g of whole at or above 50 μg/100 g of whole blood; provided, however, that blood; provided, however, that an employee need not be removed if an employee need not be removed if the last blood sampling the last blood sampling test indicates a blood lead level below 40 test indicates a blood lead level at or below 40 μg/100 g of μg/100 g of whole blood. whole blood. § 1910.1025(k)(1)(iii)(A)(1) For an employee removed due to a blood lead level at or above For an employee removed due to a blood lead level at or above 60 μg/ 60 μg/100 g, or due to an average blood lead level at or above 100 g, or due to an average blood lead level at or above 50 μg/100 50 μg/100 g, when two consecutive blood sampling tests indi- g, when two consecutive blood sampling tests indicate that the em- cate that the employee’s blood lead level is at or below 40 μg/ ployee’s blood lead level is below 40 ug/100 g of whole blood. 100 g of whole blood.

TABLE 2—§ 1926.62 LEAD

Existing language Proposed language

§ 1926.62(j)(2)(ii) Follow-up blood sampling tests. Whenever the results of a blood Follow-up blood sampling tests. Whenever the results of a blood lead lead level test indicate that an employee’s blood lead level ex- level test indicate that an employee’s blood lead level is at or above ceeds the numerical criterion for medical removal under para- the numerical criterion for medical removal under paragraph (k)(1)(i) graph (k)(1)(i) of this section, the employer shall provide a sec- of this section, the employer shall provide a second (follow-up) blood ond (follow-up) blood sampling test within two weeks after the sampling test within two weeks after the employer receives the re- employer receives the results of the first blood sampling test. sults of the first blood sampling test. § 1926.62(j)(2)(iv)(B) The employer shall notify each employee whose blood lead level The employer shall notify each employee whose blood lead level is at exceeds 40 μg/dl that the standard requires temporary medical or above 40 μg/dl that the standard requires temporary medical re- removal with Medical Removal Protection benefits when an em- moval with Medical Removal Protection benefits when an employee’s ployee’s blood lead level exceeds the numerical criterion for blood lead level exceeds the numerical criterion for medical removal medical removal under paragraph (k)(1)(i) of this section. under paragraph (k)(1)(i) of this section. § 1926.62(k)(1)(iii)(A)(1) For an employee removed due to a blood lead level at or above For an employee removed due to a blood lead level at or above 50 μg/ 50 μg/dl when two consecutive blood sampling tests indicate dl when two consecutive blood sampling tests indicate that the em- that the employee’s blood lead level is at or below 40 μg/dl. ployee’s blood lead level is below 40 μg/dl.

(3) Occupational Exposure to OSHA based the statement on Prudent 0141), who noted, ‘‘I have a strong Hazardous Chemicals in Laboratories Practices for Handling Hazardous concern for the blanket statement (§ 1910.1450) Chemicals in Laboratories, a committee concerning ingestion. I realize that it OSHA is proposing to revise a report by the National Research Council. may have been taken from Prudent statement in non-mandatory Appendix The statement addressed by this Practices; however, a strong word of A of the standard that regulates proposal appears in Section E of caution may need to be added.’’ The occupational exposure to hazardous Appendix A in § 1910.1450, entitled, commenter indicated the containers for chemicals in laboratories (the lab Basic Rules and General Procedures for some hazardous chemicals warn, ‘‘Do standard) at § 1910.1450. Specifically, Working with Chemicals. In paragraph not give anything by mouth. Contact OSHA is proposing to revise the 1(a), Accidents and spills, the existing medical advice immediately.’’ The statement on ingestion. OSHA included text recommends that, when an commenter recommended that OSHA the statement in Appendix A of the lab employee ingests a hazardous chemical, adopt the approach found in the Cornell standard when it published the standard ‘‘[e]ncourage the victim to drink large University Laboratory Safety Manual on January 31, 1990 [55 FR 3327–3335]. amounts of water.’’ and Chemical Hygiene Plan, where The purpose of the statement was to OSHA is proposing to revise this treatment depends on the type and provide guidance to employers recommendation in response to a amount of chemical involved. Based on developing a chemical-hygiene plan. commenter from Rexall Sundown (ID these considerations and the suggestion

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that drinking large amounts of water oversight, OSHA is proposing to add the 2. § 1917.127—Sanitation may do more harm than good, OSHA is word ‘‘external’’ to this example. OSHA proposes to revise and update revising the language to read, ‘‘This is 2. §§ 1915.112, 1915.113, and 1915.118 the sanitation provisions in paragraph the one route of entry for which (a)(1)(iii) of § 1917.127 by removing the OSHA proposes to revise and update treatment depends on the type and word ‘‘warm’’ from the phrase ‘‘warm air the slings provisions of § 1915.112 amount of chemical involved. Seek blowers.’’ See previous section A.3.b for (Ropes, chains and slings), paragraph (a) medical attention immediately.’’ OSHA a detailed discussion of this proposed of § 1915.113 (Shackles and hooks), and believes the language proposed would revision. enhance employee protection by § 1915.118 (Tables). See previous providing appropriate advice in section A.4 for a detailed discussion of D. Proposed Revisions to the Standards situations in which an employee may these proposed revisions. for Longshoring (29 CFR 1918) ingest a hazardous chemical. 3. § 1915.154—Respiratory Protection 1. § 1918.2—Definitions B. Proposed Revisions to the Standards The revisions OSHA is proposing to OSHA proposes to add a definition in for Shipyard Employment (29 CFR Part Appendix C of the Respiratory § 1918.2 for the term ‘‘ship’s stores.’’ See 1915) Protection standard at § 1910.134, previous section C.1 for a detailed described in previous section A.2.b(2), discussion of this proposed revision. 1. Appendix A of Subpart B also would affect shipyard employment 2. § 1918.95—Sanitation OSHA is proposing to amend through the Respiratory Protection Appendix A (‘‘Compliance Assistance standard at § 1915.154. OSHA proposes to revise and update Guidelines for Confined and Enclosed the sanitation provisions in paragraph 4. § 1915.1001—Asbestos Spaces and Other Dangerous (a)(1)(iii) of § 1918.95 by removing the Atmospheres’’) to subpart B of 29 CFR OSHA proposes to revise § 1915.1001, word ‘‘warm’’ from the phrase ‘‘warm air 1915 by revising the sentence in Asbestos, to require employers to blowers.’’ See previous section A.3.b for example number 1 under the section institute a respiratory-protection a detailed discussion of this proposed titled, ‘‘Section 1915.11(b) Definition of program in accordance with § 1910.134. revision. See previous section A.2.b(6) for a ‘Hot work,’ ’’ to read, ‘‘Abrasive blasting E. Proposed Revisions to the Standards detailed discussion of these proposed of the external hull for paint preparation for Gear Certification (29 CFR 1919) does not necessitate pumping and revisions. 1. §§ 1919.6, 1919.11, 1919.12, 1919.15, cleaning the tanks of a vessel.’’ The C. Proposed Revisions to the Standards and 1919.18 proposed revision adds the word for Marine Terminals (29 CFR Part ‘‘external’’ to the existing sentence to 1917) OSHA is proposing to update indicate that the information provided §§ 1919.6(a)(1), 1919.11(d), 1919.12(f), by the section applies only to work 1. §§ 1917.2—Definitions 1919.15(a), and 1919.18(b) to require performed on the outside of a ship. OSHA is proposing to add a definition employers to inspect a vessel’s cargo- OSHA believes the proposed revision for the term ‘‘ship’s stores’’ in § 1917.2. handling gear as recommended by will clarify the compliance obligation Currently, five provisions in Title 29 of International Labor Organization (ILO) under these conditions. the Code of Federal Regulations use the Convention 152. This revision would In 1994, OSHA published the final term ‘‘ship’s stores’’; however, OSHA require employers to test and rule regulating confined and enclosed provides no definition of the term in thoroughly examine gear before initial spaces and other dangerous this title. OSHA uses the term in the use; thoroughly examine it every 12 atmospheres in shipyard employment definition of ‘‘longshoring operation’’ in months thereafter; and retest and (59 FR 37816, July 25, 1994). In that §§ 1910.16(c)(1) and 1918.2; in the thoroughly examine the gear every five rulemaking, OSHA defined ‘‘hot work’’ definition of ‘‘vessel cargo handling years. The proposed revision is in 29 CFR 1915.11 as: gear’’ in § 1918.2; in the scope and consistent with the current ILO [A]ny activity involving riveting, welding, application section of 29 CFR 1917 at Convention 152. The existing standards, burning, and the use of powder-actuated § 1917.1(a); and in § 1917.50(j)(3) based on outdated ILO Convention 32, tools or similar fire-producing operations. (exceptions to the gear-certification require testing and examination every Grinding, drilling, abrasive blasting, or requirements). four years. OSHA believes these similar spark-producing operations are also After publishing the final rule for proposed revisions represent the usual considered hot work except when such marine terminals on June 30, 2000 (65 and customary practice of the maritime operations are isolated physically from any FR 40935), OSHA received a number of industry, and, therefore, will increase atmosphere containing more than 10 percent requests asking the Agency to define the employee protection while not adding of the lower explosive limit of a flammable term ‘‘ship’s stores’’ as used in to employers’ compliance burden. or combustible substance. § 1917.50(j)(3). In a directive published The proposed revisions would make OSHA’s purpose in developing on May 23, 2006 (CPL 02–00–139), the 29 CFR 1919 standards consistent Appendix A to subpart B was to assist OSHA defined the term to mean with the existing requirement of the employers in complying with the materials that are on board a vessel for Longshoring standard at § 1918.11(a). requirements of that subpart. The the upkeep, maintenance, safety, Section 1918.11(a) requires an employer section of Appendix A that OSHA is operation, or navigation of the vessel, or using a vessel’s cargo-handling gear to proposing to revise provides several for the safety or comfort of the vessel’s ensure that the vessel has a current and examples of situations that do not passengers or crew. The definition in valid cargo-gear register and certificates involve hot work, including the the directive is similar to the U.S. Coast that comply with the recommendations example of abrasive blasting on the hull Guard definition at 46 CFR 147. OSHA of ILO Convention 152 for testing and for paint preparation. However, in the believes that the definition used in the examination of cargo gear. Paragraph (b) final rule, OSHA did not explain that directive is appropriate, and, therefore, of § 1918.11 specifies that OSHA will this example only applies to work is proposing to revise the definitions consider vessels holding a valid performed on the external hull, not section of § 1917.2 to include this certificate of inspection from the U.S. inside the hull, of a ship. To correct this definition. Coast Guard (USCG), as well as public

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vessels, to meet the requirements of d. § 1926.62 exposure and medical records to paragraph (a) of § 1918.11. Paragraphs The following paragraphs describe NIOSH. See previous section A.6.a for a (c) and (d) of § 1918.11 specify the several revisions OSHA is proposing to detailed discussion of this proposed competencies that persons or the Lead standard for construction at revision. organizations making entries and § 1926.62. G. Proposed Revisions to the Agriculture issuing the certificates required by (1) OSHA is proposing to revise the Standards (29 CFR Part 1928) paragraph (a) of this section must have, trigger levels at which employers must both with regard to U.S. vessels not initiate specific actions to protect 1. Subpart I (General Environmental holding a valid USCG Certificate of workers exposed to lead. See previous Controls) Inspection, and vessels under foreign section A.6.b for a detailed discussion of OSHA proposes to revise registry. this proposed revision. § 1928.110(b) by updating the definition In 1997, when OSHA updated the (2) OSHA proposes to remove of the term ‘‘potable water.’’ See section Marine Terminals and Longshoring paragraphs (n)(6)(ii) and (iii) of A.3.a for a detailed discussion of this standards (62 FR 40141, July 25, 1997), § 1926.62, which require employers to proposed revision. comply with the requirements in it updated § 1918.11 requiring H. Miscellaneous Issues inspections of vessels’ cargo-handling § 1926.33 regarding the transfer records gear as recommended by ILO to NIOSH. See previous section A.6.a for OSHA asked in question #40 of the Convention No. 152, which replaced a detailed discussion of this proposed ANPRM whether any other standards ILO 32 (upon which OSHA’s current revision. needed revision consistent with the rule is based). Accordingly, this revision purpose of the SIP process (71 FR 2. Subpart H 76629). The American Society of Safety requires employers to test and OSHA proposes to revise and update Engineers (ASSE; ID 0021) responded thoroughly examine gear before initial the slings requirements at § 1926.251 that the OSHA Permissible Exposure use; thoroughly examine it every 12 (Rigging equipment for material Limits for air contaminants need months thereafter; and retest and handling). See previous section A.4 for revision. However, such an extensive thoroughly examine the gear every five a detailed discussion of this proposed rulemaking is beyond the limited scope years. The original standards, similar to revision. of the SIP process. existing requirements in 29 CFR 1919, The 3M Company (3M; ID 0028) 3. Subpart Z required retesting and thorough recommended that OSHA remove from examination every four years. OSHA is a. Asbestos (§ 1926.1101) § 1910.134(d)(3)(iv)(B) the reference to proposing to update the inspection and (1) OSHA is proposing to correct the filters certified under 30 CFR part 11, testing requirements in §§ 1919.6(a)(1), references in paragraphs (n)(7) and and instead require that air-purifying 1919.11(d), 1919.12(f), 1919.15(a), and (n)(8) of the Asbestos standard for respirators use filters certified for 1919.18(b) to be consistent with the construction to refer to § 1926.33 rather particulates by NIOSH under 42 CFR inspection and testing requirements in than § 1910.20, because § 1910.20 does part 84. The 3M Company also existing 29 CFR 1917 (Marine not exist. recommended that OSHA remove Terminals) and 1918 (Longshoring). (2) Section 1926.33 requires separate provisions regulating filter F. Proposed Revisions to the compliance with § 1910.1020, from selection from its substance-specific Construction Standards (29 CFR 1926) which OSHA is proposing to remove the standards, and replace these provisions requirement to transfer employee with a reference to 1. Subpart D exposure and medical records to § 1910.134(d)(3)(iv)(B). In response to a. § 1926.51(a)(6) NIOSH. See previous section A.6.a for a 3M’s first recommendation, OSHA may detailed discussion of this proposed consider such a revision when it OSHA proposes to revise § 1926.51, revision. receives sufficient evidence that Sanitation, by updating the definition of (3) OSHA proposes to remove the employers are no longer purchasing or the term ‘‘potable water.’’ See previous requirement in existing (n)(8)(ii) using dust-mist and dust-fume-mist section A.3.a for a detailed discussion of specifying that employers must transfer filters. Regarding 3M’s second this proposed revision. employee medical and exposure records recommendation, OSHA removed many to NIOSH. See previous section A.6.a for of these separate filter-selection b. § 1926.51(f)(3) a detailed discussion of this proposed provisions from its substance-specific standards in the recent final rulemaking OSHA proposes to revise and update revision. for assigned protection factors (APFs) the sanitation provisions in paragraph b. Cadmium (§ 1926.1127) (see 71 FR 50122). OSHA believes that (f)(3)(iv) of § 1926.51 by removing the (1) OSHA is proposing to revoke the to propose additional revisions to these word ‘‘warm’’ from the term ‘‘warm air training-certification record requirement provisions is inappropriate because, as ’’ blowers. See previous section A.3.b for at paragraph (n)(4) of § 1926.1127. See it explained in the final APF a detailed discussion of this proposed previous section A.2.a for a detailed rulemaking, ‘‘[T]he Agency decided to revision. discussion of this proposed revision. retain former respirator selection c. § 1926.60 (2) OSHA is proposing to correct the provisions in the existing substance- reference in paragraph (n)(6) of the specific standards that it found OSHA is proposing to revise Cadmium standard for construction to supplemented or supplanted the paragraph (o)(8) of the refer to § 1926.33, rather than paragraph proposed APFs and MUCs [maximum Methylenedianiline standard, which (h) of § 1926.33, because § 1926.33 has use concentrations] * * *. OSHA did so requires employers to comply with the no paragraph (h). because these provisions enhance the requirements in § 1926.33 regarding the (3) Section 1926.33 requires respirator protection afforded to transfer of records to NIOSH. See compliance with § 1910.1020, from employees.’’ (Id. at 50177.) previous section A.6.a for a detailed which OSHA is proposing to remove the 3M also addressed the 1,3-Butadiene discussion of this proposed revision. requirement to transfer employee standard’s provisions that limit the use

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of organic-vapor cartridges and canisters available information or data supporting improve employees’ safety and health? to specific levels of butadiene. The your comments. Please identify changes that could be § 1910.134 standard allows employers to In response to these questions, OSHA made to improve the training process. make service-life calculations in received a number of comments (IDs • Would making training developing replacement schedules for 0017, 0018, 0020, 0021, 0025, 0122, and requirements uniform among various vapor cartridges and canisters. 3M 0128) supporting the composites standards facilitate employers’ presented calculations in its ANPRM provisions in these NFPA standards. compliance with OSHA regulations? • comments that resulted in service-life However, none of the commenters To what extent, if any, do other durations ranging from 16.5 hours at a provided persuasive data or information agencies’ training requirements overlap 5 parts per million (ppm) butadiene regarding the protection afforded to with OSHA’s? concentration, to 4.75 hours at 50 ppm employees by the NFPA standards. OSHA received several comments in butadiene. 3M stated that permitting In addition to the comments, OSHA response to these four questions. With service-life calculations for butadiene received a document from the ACMA regard to retraining, the Building and exposure concentrations would allow entitled, ‘‘Fire Hazard Analysis of Construction Trades Department of the employers to use powered air-purifying Composite Resin Manufacturing Spray AFL–CIO (BCTD; ID 0118) said: respirators for some butadiene Application Areas’’ (ID 0139). This OSHA should specify the frequency of exposures, thereby eliminating the document describes a study that retraining. The retraining should not be problems that occur with trailing air identified issues regarding electrical based on subjective criteria such as ‘‘when hoses associated with the use of classification, sprinkler protection, needed’’ or ‘‘if worker shows lack of ventilation, and the use of flammable understanding.’’ Too often criteria like [these[ supplied-air respirators. OSHA are ignored or retraining is only implemented disagrees with this recommended liquids in clean-up operations. The after an accident. All safety and health revision because butadiene is a study, based on preliminary research, retraining should be required on an annual compound with a high vapor pressure was part of an ACMA-sponsored effort basis. to analyze the hazards in this industry, and, as a result, droplets captured in the The BCTD (ID 0118) also and to conduct testing to compare the filter may vaporize and penetrate recommended that OSHA require through the filter, and expose the level of safety provided by the OSHA standards and the NFPA standards. employers to prepare a written employee to excess levels of butadiene. certification record for all training The National Marine Manufacturers However, this document, like the comments described previously, does requirements, noting that some OSHA Association (NMMA) and the American standards require certification records Composites Manufacturers Association not provide the Agency with sufficient information to support proposing a and others do not. It further (ACMA) petitioned OSHA to revise its recommended that OSHA add a new standards at 29 CFR 1910, subpart H revision to the 29 CFR 1910, subpart H standards. Therefore, OSHA decided not training requirement to the construction (see §§ 1910.106 and 1910.107) by industry standards, one that would adopting the provisions of National Fire to include any specific revisions to §§ 1910.106 or 1910.107 of subpart H in mandate that all construction workers Protection Association (NFPA) 30, receive the 10-hour OSHA safety-and- Flammable and Combustible Liquids the SIP–III proposal. Rather, it will continue to seek additional information health course for construction. Code, and NFPA 33, Standard for Spray Additional training revisions Application using Flammable and and data for use in determining the need for revisions. Accordingly, OSHA again recommended by the BCTD are beyond Combustible Materials, which apply to the scope of the SIP–III rulemaking, but the manufacturing of styrene cross- seeks information that may help determine if NFPA 33 provides OSHA will consider them for further linked composites (i.e., glass-fiber action. (For a discussion of OSHA reinforced plastics). In response to the protection for employees equivalent to that provided in § 1910.107, and proposals regarding training- petition, OSHA sought comment certification-record requirements, see through the ANPRM for SIP–III. In the requests comments and supporting data on the previous questions. item 2.a (‘‘Training certification ANPRM, the Agency noted that it lacked In the ANPRM, OSHA expressed its records’’) under previous section A data from which to draw conclusions on position on the need for training, noting, (‘‘Subpart I’’). the relative level of protection provided ‘‘Training is an essential part of every The Associated General Contractors of by the NFPA and OSHA standards. employer’s safety and health program America (ID 0120) also addressed the OSHA requested data and information for protecting employees from injury frequency of training, noting, ‘‘[T]he on the level of employee protection and illness’’ (71 FR 76629). OSHA asked amount of training should match the provided by these standards using the for comment on four questions severity of the hazard and the following questions: prevalence of the hazard to particular • concerning training requirements, and Are the provisions in the 2003 noted that, in SIP–II, it revised the occupations.’’ Duke Energy (ID 0018) edition of NFPA 30 as protective or notification and timing requirements in agreed with standardizing the language more protective of employee’s safety several health standards to make them of the health standards, and suggested and health than the equivalent consistent with each other (67 FR that, rather than specifying detailed provisions in § 1910.106? Should OSHA 66493). OSHA explained that it made training requirements in its health revise § 1910.106 to be consistent with these revisions to reduce confusion and standards, OSHA should revise these these provisions? Please submit specific to facilitate compliance, without standards to allow employers to comply available information or data supporting diminishing employee protection. In the with performance-based requirements, your comments. ANPRM, OSHA asked the following such as the requirements in OSHA’s • Are the provisions in the 2003 questions: Hazard Communication standard at edition of NFPA 33 as protective or • How could the Agency modify the 1910.1200. more protective of employee’s safety training requirements in various OSHA Both the American Society of Safety and health than the equivalent safety and health standards to promote Engineers (ASSE; ID 0021) and Northrop provisions in § 1910.107? Should OSHA compliance with training requirements? Grumman Newport News (ID 0027) revise § 1910.107 to be consistent with • How should training content and argued against the ‘‘one-size-fits-all’’ these provisions? Please submit specific frequency of retraining be addressed to approach. Northrop Grumman stated:

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A toolbox meeting may be appropriate for the costs of this rule exceed $100 specific standard. For records associated some employers while formal classroom, million. OSHA provided OMB’s Office with other substances, the employer computer-based training, or on-the-job of Information and Regulatory Affairs must notify the Director of NIOSH in training may be effective for other employers. writing three months before disposing of We also note that different audiences within with this assessment of the costs, the same employer may learn best using benefits, and alternatives, as required by them. Under § 1910.1020(h)(4), an different methods or frequencies. For section 6(a)(3)(C) of E.O. 12866. employer who regularly disposes of instance, employees retain information better OSHA also determined that the employee records more than 30 years on tasks they perform frequently versus tasks proposal is not a major rule under the old must notify the Director of NIOSH, they perform infrequently. For an infrequent Congressional Review provisions of the at least three months prior to disposal, task, ‘‘just in time’’ training or a job briefing Small Business Regulatory Enforcement of the records planned for disposal in on the day of the job may be the best method Fairness Act of 1996 (5 U.S.C. 601 et the coming year. to ensure an employee understands how to seq.) requires OSHA to determine Deleting these requirements from perform the work safely versus ‘‘annual’’ OSHA standards provides several training that may have been conducted 11 whether the Agency’s regulatory actions months before the employee performs the will have a significant impact on a sources of savings to NIOSH. In a work. Furthermore, information technology, substantial number of small entities. comment to the rulemaking record (ID such as virtual reality and computer-based OSHA’s conclusion, based on the 135), NIOSH reported that it catalogued training, is opening up tremendous new analysis described in this section of the about 170,000 employee medical and opportunities to enhance training beyond the preamble, indicates that the proposed exposure records during the past 30 traditional means. rule will not have significant impacts on years. NIOSH noted that the records ASSE recommended that OSHA a substantial number of small entities. were of no use for research purposes, consider the ANSI Z490.1 consensus The proposal deletes and revises a and estimated that removing the duty to standard when addressing training number of provisions in existing OSHA collect the records would result in a requirements. OSHA believes that the standards. OSHA believes that the savings of $2 million for long-term Z490.1 standard is useful for employers proposal is technologically feasible storage of the catalogued records. In this in developing and providing a because it reduces or removes current regard, NIOSH stated that long-term framework for training programs, but requirements on employers. storage costs are currently $0.30/record/ that standard prescribes measures The Agency considered both year, which ‘‘represents a total lifetime beyond the scope of this rulemaking. regulatory and non-regulatory storage cost of more than $2,000,000.’’ In For example, the standard prescribes alternatives to the proposed revisions. addition, NIOSH periodically receives detailed criteria for developing and Non-regulatory alternatives are not an records from employers who are evaluating training programs, including appropriate remedy to effect these terminating business operations. These needs assessment, learning objectives, revisions because the proposed employers often fail to contact NIOSH course content, and a written training provisions reduce requirements or in advance regarding the program plan, as well as detailed provide flexibility to employers by appropriateness of the records they are records documenting the successful revising existing standards. As sending to NIOSH. NIOSH protocol completion of training. discussed in the previous Summary and requires it to keep records, even After reviewing the commenters’ Explanation section, the Agency inappropriate records, until it reviews submissions, OSHA is not convinced considered alternatives for amending the records; NIOSH keeps unreviewed currently that employees or employers several provisions. In most instances, records in temporary storage. Removal would benefit from any revisions to the the Agency chose to revise outdated of the records-transfer requirement, as frequency or content of the training provisions to improve clarity, as well as proposed, would relieve NIOSH of requirements contained in its existing consistency, with standards more receiving and temporarily storing these substance-specific standards. recently promulgated by the Agency. In records. The proposal also would save NIOSH Additionally, as part of a separate some instances, the proposal provides the resources it expends on processing rulemaking on the Global more flexibility in the way information received data on an on-going basis. Harmonization System (74 FR 50279, is communicated to employees or the NIOSH noted that the cost of processing September 30, 2009), OSHA is Agency. The purpose of the proposed records ranges from $1.35 to $4.00 per addressing the training provisions in provisions was to reduce burden on record, but the agency did not provide several of its substance-specific employers, or provide employers with comment on how many records it standards. Furthermore, as discussed compliance flexibility, while typically processes annually. In its earlier, OSHA is proposing revisions to maintaining the level of protection for analyses of the paperwork burden the training-certification requirements employees. associated with this records-transfer in several standards. B. Costs and Cost Savings requirement, OSHA estimated that IV. Preliminary Economic Analysis and employers expend 3,611 hours at a cost 1. Removing Requirements To Transfer Regulatory Flexibility Act Certification of $157,459 annually (see section VI Records to NIOSH below, ‘‘OMB Review Under the A. Overview The Agency is deleting provisions Paperwork Reduction Act of 1995’’). OSHA determined that the proposed from § 1910.1020(h)(3) and (h)(4) of its This savings also constitutes a benefit of standard is not an economically standard regulating access to employee the proposed rule. significant regulatory action under medical and exposure records that will Executive Order (E.O.) 12866. E.O. end employers’ responsibility to send 2. Removing Training-Certification and 12866 requires regulatory agencies to exposure and medical records to Other Requirements conduct an economic analysis of rules NIOSH. Under existing A second source of cost savings from that meet specific criteria. The most § 1910.1020(h)(3), if an employer ceases the proposed rule is removing the frequently used criterion under E.O. business operations without a successor, certification requirements for employee 12866 is that the rule will impose on the the employer must send employee training under the PPE and Cadmium economy an annual cost in excess of exposure and medical records to NIOSH standards. The Agency estimates that $100 million. Neither the benefits nor if required to do so by a substance- this action will save employers, across

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a wide range of industries, about 1.86 these provisions will not impose any revision will result in any cost savings million hours annually, with an new cost burden on affected employers. for employers. estimated value of about $42.9 million OSHA believes that having the SWL (see OSHA’s estimate of paperwork information marked on slings instead of C. Summary costs below in section VI). located in tables would provide OSHA preliminarily concludes that The proposal’s provisions on slings employers with readily available and the provisions of the proposal do not require employers to mark equipment up-to-date sling information, thereby impose any new costs on employers. (i.e., slings and shackles) with safe reducing employer cost. The Agency Since the proposal does not impose working loads (SWL) and other rigging seeks comment on any economic effects information. OSHA’s current standards that may result from replacing the tables costs of any significance on any require this information for three of the with marks. employer, the Agency concludes that five types of slings, and the Agency The proposal also relaxes the the proposed standard is economically believes that it is industry practice for frequency of rigging inspections feasible. The table below provides a manufacturers to permanently mark all required under 29 CFR 1919 from every summary of the cost savings OSHA slings with this information. Thus, the four years to every five years. The estimates will result from this proposed Agency preliminarily concludes that Agency seeks comment on whether this rulemaking.

Item Cost savings

NIOSH record storage (one-time savings) ...... $2.00 million. Removing requirements that employers transfer records to NIOSH (annual savings) ...... $0.16 million. Removing requirements for written certification of training (annual savings) ...... $42.90 million.

Total ...... $45.06 million.

V. Regulatory Flexibility Analysis B. Solicitation of Comments requirements for employers to transfer In accordance with the Regulatory OSHA prepared and submitted one employee exposure-monitoring and Flexibility Act, 5 U.S.C. 601 et seq. (as ICR for the SIP–III proposal to the OMB medical records to the National Institute amended), OSHA examined the for review in accordance with 44 U.S.C. for Occupational Safety and Health regulatory requirements of the proposal 3507(d). The Agency solicits comments (NIOSH) under the standard regulating to determine whether these proposed on the proposed new and modified access to employee exposure and requirements would have a significant collection-of-information requirements medical records at § 1910.1020, as well economic impact on a substantial and the estimated burden hours as an additional 18 standards in the number of small entities. Since no associated with these requirements, general, construction, and shipyard- employer of any size will have new including comments on the following employment industries. (See the earlier costs, the Agency preliminarily items: detailed discussion of this proposed • concludes that the proposed rule would Whether the proposed collection-of- revision under section IV.B.1.) In not have a significant economic impact information requirements are necessary addition, the Agency is proposing to on a substantial number of small for the proper performance of the remove, from four of its standards, entities. Agency’s functions, including whether training-certification records that the information is useful; VI. OMB Review Under the Paperwork • The accuracy of OSHA’s estimate of require employers to develop and Reduction Act of 1995 the burden (time and cost) of the maintain written records certifying that they complied with training A. Overview information-collection requirements, including the validity of the requirements. In addition to the four The Standards Improvement Project- methodology and assumptions used; training-certification records proposed Phase III (SIP–III) proposal would • The quality, utility, and clarity of for removal, OSHA is considering revoke existing collection-of- the information collected; and removing the training-certification information (paperwork) requirements • Ways to minimize the compliance requirements from 12 other general contained in 41 existing Information- burden on employers, for example, by industry, construction, and shipyard- Collection Requests (ICRs) currently using automated or other technological approved by the Office of Management employment standards. (See the techniques for collecting and detailed discussion of this proposed and Budget (OMB) under the Paperwork transmitting information. Reduction Act of 1995 (PRA–95), 44 revision located in previous section U.S.C. 3501 et seq., and OMB’s C. Proposed Revisions to Information- III.A.2.) regulations at 5 CFR part 1320. PRA–95 Collection Requirements 3. Changes in reporting burden and defines ‘‘collection of information’’ as As required by 5 CFR 1320.5(a)(1)(iv) responses resulting from removing ‘‘the obtaining, causing to be obtained, and 1320.8(d)(2), the following requirements to transfer records to soliciting, or requiring the disclosure to paragraphs provide information about NIOSH: The following table describes third parties or the public of facts or this ICR, including the reductions in the estimated changes in burden hours opinions by or for an agency regardless reporting burden associated with the and cost resulting from removing of form or format’’ (44 U.S.C. proposed revisions to information- provisions from OSHA standards 3502(3)(A)). Under PRA–95, a Federal collection requirements. (identified by the current OMB control agency cannot conduct or sponsor a 1. Title: Standards Improvement numbers) requiring employers to collection of information unless it is Project-Phase III (SIP–III) transfer employee exposure and medical approved by OMB, and displays a 2. Description of revisions to the ICRs: records to NIOSH. currently valid OMB control number. The proposal would remove the

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OMB Control Change Standard and Provision No. (burden hours) Change (cost)

Commercial Diving Operations—29 CFR 1910.440(b)(5)(ii) ...... 1218–0069 ¥301 ¥$5,764 Asbestos—29 CFR 1910.1001(m)(6)(ii) ...... 1218–0133 ¥1 ¥$20 Asbestos—29 CFR 1915.1001(n)(8)(ii) ...... 1218–0195 ¥1 ¥$22 Asbestos—29 CFR 1926.1101(n)(8)(ii) ...... 1218–0134 ¥4 ¥$101 13 Carcinogens (4–Nitrobiphenyl, etc.)—29 CFR 1910.1003(g)(2)(i) and (ii) ...... 1218–0085 ¥6 ¥$139 Vinyl Chloride—29 CFR 1910.1017 (m)(3) ...... 1218–0010 ¥1 ¥$20 Inorganic Arsenic—29 CFR 1910.1018 (q)(4)(ii) and (iii) ...... 1218–0104 ¥1 ¥$23 Access to Employee Exposure and Medical Records—29 CFR 1910.1020(h)(3)(i),(ii) and (h)(4) ...... 1218–0065 ¥2,939 ¥$145,216 Lead—29 CFR 1910.1025(n)(5)(ii) and (iii) ...... 1218–0092 ¥2 ¥$42 Lead—29 CFR 1926.62(n)(6)(ii) and (iii) ...... 1218–0189 ¥1 ¥$22 Cadmium—29 CFR 1910.27(n)(6) ...... 1218–0185 0 0 Cadmium—29 CFR 1926.1127(n)(6) ...... 1218–0186 0 0 Benzene—29 CFR 1910.1028(k)(4)(ii) ...... 1218–0129 ¥1 ¥$23 Coke Oven Emissions—29 CFR 1910.1029(m)(4)(ii) and (iii) ...... 1218–0128 ¥3 ¥$60 Bloodborne Pathogens—29 CFR 1910.1030(h)(4)(ii) ...... 1218–0180 0 0 Cotton Dust—29 CFR 1910.1043(k)(4)(ii) and (iii) ...... 1218–0061 ¥3 ¥$69 1,2 Dibromo-3-Chloropropane—29 CFR 1910.1044(p)(4)(ii) and (iii) ...... 1218–0101 0 0 Acrylonitrile—29 CFR 1910.1045(q)(5)(ii) and (iii) ...... 1218–0126 ¥3 ¥$74 Ethylene Oxide—29 CFR 1910.1047(k)(5)(ii) ...... 1218–0108 ¥3 ¥$55 Formaldehyde—29 CFR 1910.1048(o)(6)(ii) and (iii) ...... 1218–0145 ¥2 ¥$41 Methylenedianiline—29 CFR 1910.1050(n)(7)(ii) ...... 1218–0184 ¥1 ¥$18 Methylenedianiline—29 CFR 1926.60(n)(7)(ii) ...... 1218–0183 ¥1 ¥$21 1,3-Butadiene—29 CFR 1910.1051(m)(6)(i) ...... 1218–0170 ¥3 ¥$65 Methlyene Chloride—29 CFR 1910.1052(m)(5) ...... 1218–0179 ¥1 ¥$21 Occupational Exposure to Hazardous Chemicals in Laboratories—29 CFR 1910.1450(j)(2) .... 1218–0131 ¥333 ¥$5,644

Totals ...... ¥3,611 ¥$157,460

The following table describes the of the four OSHA standards that specify maintain written records certifying their estimated changes in burden hours and that employers must develop and compliance with training requirements. cost resulting from removing provisions

OMB Control Change Standard and Provision No. (burden hours) Change (cost)

Personal Protective Equipment—29 CFR 1910.132(f)(4) ...... 1218–0205 ¥1,855,180 ¥$42,743,347 Cadmium—29 CFR 1910.1027(n)(4) ...... 1218–0185 ¥1,226 ¥$26,371 Personal Protective Equipment (PPE)—29 CFR 1915.152(e)(4) ...... 1218–0215 ¥2,776 ¥$48,664 Cadmium—29 CFR 1926.1127(n)(4) ...... 1218–0186 ¥2,100 ¥$43,218

Totals ...... ¥1,861,282 ¥$42,861,600

The following table describes the provisions that OSHA is considering that employers must develop and estimated changes in burden hours and removing from 12 of its standards; these maintain written records certifying their cost to the training-certification training-certification provisions specify compliance with training requirements.

OMB Standard and Provision Control Change Change No. (burden hours) (cost)

Powered Platforms for Building Maintenance—29 CFR 1910.66(i)(1)(v) ...... 1218–0121 ¥469 ¥$11,247 Process Safety Management of Highly Hazardous Chemicals (PSM)—29 CFR 1910.119(g)(3) ...... 1218–0200 ¥30,767 ¥$627,954 Hazardous Waste Operations and Emergency Response (HAZWOPER)—29 CFR 1910.120(e)(6), (p)(7)(i), (q)(6)(ii)-(v) ...... 1218–0202 ¥3,352 ¥$113,231 Permit-Required Confined Spaces— § 1910.146(g)(4) ...... 1218–0203 ¥39,185 ¥$805,251 The Control of Hazardous Energy (Lockout/Tagout)—29 CFR 1910.147(c)(7)(iv) ...... 1218–0150 ¥180,768 ¥$3,947,973 Powered Industrial Trucks—29 CFR 1910.178(l)(1)-(3), (l)(6) ...... 1218–0242 ¥29,785 ¥$638,591 Logging Operations—29 CFR 1910.266(i)(10)(i)-(ii) ...... 1218–0198 ¥3,329 ¥$56,105 Telecommunications—29 CFR 1910.268(c) ...... 1218–0225 ¥1,087 ¥$38,958 Electrical Power Generation, Transmission, and Distribution—29 CFR 1910.269(a)(2)(vii) ...... 1218–0190 ¥4,554 ¥$65,851 Confined and Enclosed Spaces and Other Dangerous Atmospheres in Shipyard Employ- ment—29 CFR 1915.12(d)(5)(i) and (ii) ...... 1218–0011 ¥1,601 ¥$35,996 Fire Protection in Shipyard Employment—29 CFR 1915.508(f) ...... 1218–0248 ¥625 ¥$22,408 Training Requirements for Fall Protection—29 CFR 1926.503(b) ...... 1218–0197 ¥481,885 ¥$18,759,783

Totals ...... ¥777,407 ¥$25,123,348

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4. Number of respondents: to ‘‘Department of Labor (DOL)’’ to view VIII. State Plans 20,559,996. all of the DOL’s ICRs, including those When Federal OSHA promulgates a 5. Frequency of responses: On ICRs submitted for proposed new standard or a more stringent occasion. rulemakings. To make inquiries, or to amendment to an existing standard, the 6. Number of responses: 80,383,596. request other information, contact Ms. 27 States and U.S. Territories with their 7. Average time per response: Three Jamaa N. Hill, Directorate of Standards minutes for a secretary to develop and own OSHA-approved occupational and Guidance, OSHA, Room N–3609, safety and health plans (State-Plan maintain certification records to one U.S. Department of Labor, 200 hour for employers to send records to States) must amend their standards to Constitution Avenue, NW., Washington, reflect the new standard or amendment, NIOSH. DC 20210; telephone (202) 693–2222. 8. Estimated total burden hours or show OSHA why such action is (reduction): ¥2,642,300 hours. VII. Federalism unnecessary (e.g., because an existing State standard covering this area is 9. Estimated cost (capital—operation OSHA reviewed this proposed rule in and maintenance): OSHA estimates that already ‘‘at least as effective’’ as the new accordance with the Executive Order on Federal standard or amendment. (29 a capital-cost decrease of $2,929/year Federalism (Executive Order 13132, 64 will result from the proposed revisions CFR 1953.5(a).) The State standard must FR 43255, August 10, 1999), which be at least as effective as the final to the record-transfer provisions because requires that Federal agencies, to the employers would no longer have to mail Federal rule, must be applicable to both extent possible, refrain from limiting the private and public (State and local worker exposure and medical records to State policy options, consult with States NIOSH. government employees) sectors, and the prior to taking any actions that would State must complete the standard within D. Submitting Comments restrict State policy options, and take six months after the publication date of OSHA requests members of the public such actions only when clear the final Federal rule. When OSHA to comment on the paperwork constitutional authority exists and the promulgates a new standard or requirements in this proposal by problem is national in scope. Executive amendment that does not impose submitting their written comments to Order 13132 provides for preemption of additional or more stringent the Office of Information and Regulatory State law only with the expressed requirements than the existing standard, Affairs, Office of Management and consent of Congress. Agencies must State-Plan States are not required to Budget, Room 10235, New Executive limit any such preemption to the extent amend their standards, although OSHA Office Building, Washington, DC 20503; possible. may encourage them to do so. Attn: OSHA Desk Officer (RIN–1218– Under Section 18 of the Occupational OSHA determined that the State-Plan AC19). The Agency encourages Safety and Health Act of 1970 (OSH Act; States must adopt provisions commenters also to submit their U.S.C. 651 et seq.), Congress expressly comparable to the provisions in this comments on these paperwork provides that States may adopt, with proposed rule within six months after requirements to the rulemaking docket, Federal approval, a plan for the the effective date of the rule. OSHA along with their comments on other development and enforcement of believes that the provisions of this parts of the proposed rule. Commenters occupational safety and health proposed rule provide employers in may submit their comments by using standards; States that obtain Federal State-Plan States and Territories with the Federal eRulemaking portal at approval for such a plan are referred to new and critical information and http://www.regulations.gov. OSHA posts as ‘‘State-Plan States.’’ (29 U.S.C. 667.) methods necessary to protect their comments and submissions without Occupational safety and health employees from the hazards found in change; therefore, OSHA cautions standards developed by State-Plan and around workplaces. The 27 States commenters about submitting personal States must be at least as effective in and territories with OSHA-approved information such as Social Security providing safe and healthful State Plans are: Alaska, Arizona, numbers and date of birth. Information employment and places of employment California, Connecticut, Hawaii, Illinois, on using the http://regulations.gov Web as the Federal standards. Subject to Indiana, Iowa, Kentucky, Maryland, site to submit comments, and to access these requirements, State-Plan States are Michigan, Minnesota, Nevada, New the docket, is available at the Web site’s free to develop and enforce their own Mexico, New Jersey, New York, North ‘‘User Tips’’ link. For instructions on requirements for occupational safety Carolina, Oregon, Puerto Rico, South submitting comments to the rulemaking and health standards. Carolina, Tennessee, Utah, Vermont, docket, see the sections of this Federal While OSHA drafted this proposed Virginia, Virgin Islands, Washington, Register notice titled DATES and rule to protect employees in every State, and Wyoming. Connecticut, Illinois, ADDRESSES. Section 18(c)(2) of the OSH Act permits New Jersey, New York, and the Virgin State-Plan States and Territories to Islands have OSHA-approved State E. Docket and Inquiries develop and enforce their own Plans that apply to State and local To access the docket to read or standards, provided the requirements in government employees only. Until a download comments and other these standards are at least as safe and State-Plan State or Territory materials related to these paperwork healthful as the requirements specified promulgates its own comparable determinations, including the complete in this proposed rule. provisions based on the final rule Information Collection Request (ICR) In summary, this proposed rule developed from this proposed rule, (containing the Supporting Statement complies with Executive Order 13132. Federal OSHA will provide the State or describing the paperwork In States without OSHA-approved State Territory with interim enforcement determinations in detail), use the Plans, any standard developed from this assistance, as appropriate. procedures described under the section proposed rule would limit State policy of this notice titled ADDRESSES. Obtain options in the same manner as every IX. Unfunded Mandates Reform Act of an electronic copy of the complete ICR standard promulgated by OSHA. In 1995 by visiting the Web site at http:// States with OSHA-approved State Plans, OSHA reviewed this proposed rule in www.reginfo.gov/public/do/PRAMain, this rulemaking would not significantly accordance with the Unfunded scroll under ‘‘Currently Under Review’’ limit State policy options. Mandates Reform Act of 1995 (UMRA;

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2 U.S.C. 1501 et seq.) and Executive discussion in section A.2.b.(4)) and the 1970 and 29 CFR 1911.11, members of Order 12875 (56 FR 58093). As retention of medical records, ACCSH the public may request an informal discussed in section IV (‘‘Preliminary recommended that OSHA revise the public hearing by following the Economic Analysis and Regulatory language in § 1926.95(a) to include the instructions under the section of this Flexibility Act Certification’’) of this requirement in § 1910.132(d)(1) that Federal Register notice titled notice, the Agency determined that this employers must ‘‘select * * * the types ADDRESSES. Hearing requests must proposed rule will not impose of PPE that will protect the affected include the name and address of the additional costs on any private- or employee from the hazards identified in party requesting the hearing, and public-sector entity. Accordingly, this the hazard assessment.’’ submitted (e.g., postmarked, proposed rule requires no additional The ANPRM addressed revising the transmitted, sent) on or before expenditures by either public or private construction standards to include September 30, 2010. All submissions employers. hazard-assessment and-certification must bear a postmark or provide other As noted under section VIII (‘‘State requirements. However, OSHA decided evidence of the submission date. Plans’’) of this notice, the Agency’s that the personal-protective equipment standards do not apply to State and provisions of the construction standards XII. List of Subjects local governments except in States that needed substantially more revision than elect voluntarily to adopt a State Plan this rulemaking could provide. For 29 CFR Part 1910 approved by the Agency. Consequently, example, the PPE requirements in the this proposed rule does not meet the Abrasive blasting, Carcinogens, construction standards for eyes, face, Commercial diving, Egress, Hazard definition of a ‘‘Federal head, and extremities refer to consensus assessment, Hazardous substances, intergovernmental mandate’’ (see standards that are over 30 years old. Medical records, Occupational safety Section 421(5) of the UMRA (2 U.S.C. These revisions would be extensive and 658(5)). Therefore, for the purposes of complex, and would require a detailed and health, Personal protective the UMRA, the Agency certifies that this analysis of risk, costs, and benefits. equipment, Sanitation, Slings, Training, proposed rule does not mandate that Therefore, OSHA will defer these Training certification records, and State, local, or tribal governments adopt revisions, including any revisions Respiratory protection. new, unfunded regulatory obligations, requiring employers to select the ‘‘types or increase expenditures by the private 29 CFR Parts 1915, 1917, 1918, and of PPE that will protect the affected 1919 sector of more than $100 million in any employee from the hazards identified in year. the hazard assessment,’’ to a future Confined spaces, Dangerous X. Review by the Advisory Committee rulemaking. atmospheres, Gear certification, Hazard for Construction Safety and Health XI. Public Participation assessment, Hazardous substances, Hot The proposed provisions would work, Occupational safety and health, A. Submission of Comments and Access improve OSHA’s standards, including Personal protective equipment, construction standards, by clarifying, to the Docket Sanitation, Shackles, Slings. updating, or removing standards that are OSHA invites comments on the 29 CFR Part 1926 confusing, outdated, duplicative, or proposed revisions described, and the inconsistent with other OSHA specific issues raised, in this notice. Construction, Hazardous substances, requirements. OSHA does not expect These comments should include Medical records, Occupational safety these proposed revisions to reduce supporting information and data. OSHA and health, Potable water, Shackles, worker protection or increase employer will carefully review and evaluate these Slings. burden. comments, information, and data, as OSHA’s regulation governing the well as any other information in the 29 CFR Part 1928 Advisory Committee on Construction rulemaking record, to determine how to Safety and Health (ACCSH) at 29 CFR proceed. Agriculture, Sanitation, Potable water. 1912.3 requires OSHA to consult with When submitting comments, parties XIII. Authority and Signature the ACCSH whenever the Agency must follow the procedures specified in proposes a rulemaking that involves the the previous sections titled DATES and David Michaels, PhD MPH, Assistant occupational safety and health of ADDRESSES. The comments must Secretary of Labor for Occupational construction employees. Accordingly, in provide the name of the commenter and Safety and Health, U.S. Department of early November, 2009, OSHA docket number. The comments also Labor, 200 Constitution Avenue, NW., distributed to the ACCSH members for should identify clearly the provision of Washington, DC 20210, authorized the their review, before their regular the proposal each comment is preparation of this proposed rule. OSHA meeting, a copy of the proposed addressing, the position taken with is issuing this proposed rule pursuant to revisions that applied to construction, respect to the proposed provision or Sections 4, 6, and 8 of the Occupational as well as a brief summary and issue, and the basis for that position. Safety and Health Act of 1970 (29 U.S.C. explanation of these revisions. At the Comments, along with supporting data 653, 655, and 657), Section 41 of the regular meeting on December 10, 2009, and references, submitted on or before Longshore and Harbor Workers’ OSHA staff made a presentation to the the end of the specified comment period Compensation Act (33 U.S.C. 941), ACCSH members that summarized the will become part of the proceedings Section 3704 of the Contract Work material provided to them earlier, and record, and will be available for public Hours and Safety Standards Act (40 then responded to their questions. The inspection and copying at http:// U.S.C. 3701 et seq.), Secretary of Labor’s ACCSH subsequently recommended www.regulations.gov. Order No. 5–2007 (72 FR 31160), and 29 that OSHA publish the proposal. In addition to two general B. Requests for an Informal Public CFR part 1911. recommendations regarding respiratory- Hearing protection requirements for the 13 Under section 6(b)(3) of the Carcinogens standard (see previous Occupational Safety and Health Act of

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Signed at Washington, DC, on June 17, Subpart E—Means of Egress (b) * * * 2010. [Amended] (3) * * * David Michaels, 3. Revise the authority citation for Note to paragraph § 1910.36(b) of this Assistant Secretary of Labor for Occupational section: For assistance in determining the Safety and Health. subpart E to read as follows: number of exit routes necessary for your XIV. Proposed Amendments to Authority: Secs. 4, 6, 8, Occupational workplace, consult Chapter 7 (‘‘Means of Safety and Health Act of 1970 (29 U.S.C. 653, Egress’’) of NFPA 101–2009, Life Safety Code, Standards 655, 657); Secretary of Labor’s Order No. 12– or Chapter 10 (‘‘Means of Egress’’) of IFC– For the reasons discussed in the 71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 2009, International Fire Code. (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 preamble, the Occupational Safety and FR 111), 3–2000 (65 FR 50017), 5–2002 (67 * * * * * Health Administration proposes to FR 65008), or 5–2007 (72 FR 31160), as (f) * * * amend 29 CFR parts 1910, 1915, 1917, applicable; and 29 CFR part 1911. (2) * * * 1918, 1919, 1926, and 1928 as set forth Note to paragraph § 1910.36(f) of this below: 4. Revise the title of subpart E from ‘‘Means of Egress’’ to ‘‘Exit Routes and section: Information regarding the ‘‘Occupant ’’ ‘‘ PART 1910—OCCUPATIONAL SAFETY Emergency Planning.’’ load is located in Chapter 7 ( Means of 5. In § 1910.33, revise the title listed Egress’’) of NFPA 101–2009, Life Safety Code, AND HEALTH STANDARDS ‘‘ ’’ for § 1910.35 in the undesignated center and in Chapter 10 ( Means of Egress ) of IFC– 2009, International Fire Code. Subpart A—General [Amended] heading, from ‘‘Compliance with NFPA 101, Life Safety Code,’’ to ‘‘Compliance * * * * * 1. The authority citation for subpart A with Alternate Exit Route Codes.’’ continues to read as follows: 6. Revise the definition of the term Subpart I—Personal Protective Authority: Sections 4, 6, 8, Occupational ‘‘Occupant load’’ in paragraph (c) of Equipment [Amended] § 1910.34 to read as follows: Safety and Health Act of 1970 (29 U.S.C. 653, 9. The authority citation for subpart I 655, 657); Secretary of Labor’s Order continues to read as follows: Numbers 12–71 (36 FR 8754), 8–76 (41 FR § 1910.34 Coverage and definitions. 25059), 9–83 (48 FR 35736), 1–90 (55 FR * * * * * Authority: Secs. 4, 6, 8, Occupational 9033), 6–96 (62 FR 111), 3–2000 (65 FR (c) * * * Safety and Health Act of 1970 (29 U.S.C. 653, 50017), 5–2002 (67 FR 65008), and 5–2007 * * * * * 655, 657); Secretary of Labor’s Order No. 12– (72 FR 31159), as applicable. Occupant load means the total 71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 Sections 1910.7 and 1910.8 also issued (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 under 29 CFR part 1911. Section 1910.7(f) number of persons that may occupy a FR 111), 3–2000 (65 FR 50017), 5–2002 (67 also issued under 31 U.S.C. 9701, 29 U.S.C. workplace or portion of a workplace at FR 65008), or 5–2007 (72 FR 31160), as 9a, 5 U.S.C. 553; Public Law 106–113 (113 any one time. The occupant load of a applicable; and 29 CFR part 1911. workplace is calculated by dividing the Stat. 1501A–222); and OMB Circular A–25 10. Remove paragraph (f)(4) from (dated July 8, 1993) (58 FR 38142, July 15, gross floor area of the workplace or § 1910.132. 1993). portion of the workplace by the 11. In § 1910.134, revise paragraphs occupant load factor for that particular (i)(4)(i), (i)(9), and (o), and question 2a 2. Amend § 1910.6 as follows: type of workplace occupancy. in Part A, Section 2 (Mandatory) of a. Redesignate existing paragraphs Information regarding the ‘‘Occupant Appendix C, to read as follows: (q)(25) through (q)(33) as paragraphs load’’ is located in Chapter 7 (‘‘Means of (q)(26) through (q)(34). Egress’’) of NFPA 101–2009, Life Safety § 1910.134 Respiratory protection. b. Add new paragraph (q)(25) and Code, and in Chapter 10 (‘‘Means of * * * * * c. Add a new paragraph (x). Egress’’) of IFC–2009, International Fire (i) * * * Code. The additions read as follows: (4) * * * * * * * * (i) Cylinders are tested and § 1910.6 Incorporation by reference. 7. In § 1910.35, revise the heading of maintained as prescribed in the * * * * * the section and revise the introductory Shipping Container Specification (q) * * * text to read as follows: Regulations of the Department of Transportation (49 CFR part 180); (25) NFPA 101–2009, Life Safety § 1910.35 Compliance with alternate exit- Code, IBR approved for § 1910.35. route codes. * * * * * Copies of NFPA 101–2009 are available OSHA will deem an employer (9) The employer shall use only the for purchase from the: National Fire demonstrating compliance with the exit- respirator manufacturer’s NIOSH- Protection Association, 1 Batterymarch route provisions of Chapter 7 (‘‘Means of approved breathing gas containers, Park, Quincy, MA 02169–7471; Egress’’) of NFPA 101, Life Safety Code, marked and maintained in accordance telephone: 1–800–344–35557; e-mail: 2009 edition, or the exit-route with the Quality Assurance provisions [email protected]. provisions of Chapter 10 (‘‘Means of of the NIOSH approval for the SCBA as Egress’’) of the International Fire Code, issued in accordance with the NIOSH * * * * * respirator-certification standard at 42 (x) The following material is available 2009 edition, to be in compliance with the corresponding requirements in CFR part 84. for purchase from the: International * * * * * Code Council, Chicago District Office, §§ 1910.34, 1910.36, and 1910.37. * * * * * (o) Appendices. Compliance with 4051 W. Flossmoor Rd., Country Club Appendix A, Appendix B–1, Appendix Hills, IL 60478; telephone: 708–799– 8. In § 1910.36, revise the notes to paragraphs §§ 1910.36(b) and 1910.36(f) B–2, Appendix C, and Appendix D to 2300, x3–3801; facsimile: 001–708–799– this section are mandatory. 4981; e-mail: [email protected]. to read as follows: * * * * * (1) IFC–2009, International Fire Code, § 1910.36 Design and construction IBR approved for § 1910.35. requirements for exit routes. Appendix C to § 1910.134: * * * (2) [Reserved] * * * * * * * * * *

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Part A. Section 2. * * * b. Revise paragraphs (e)(6), (e)(8), (i) * * * * * * * * (f)(1), and (h)(1). * * * * * 1. * * * c. Remove and reserve paragraphs (5) [Removed and Reserved] 2. * * * (e)(5), (g)(6), and (i)(5). * * * * * a. Seizures: Yes/No d. Remove Tables N–184–1 and N– * * * * * 184–3 through N–184–22. Subpart T—Commercial Diving e. Redesignate Table N–184–2 as N– Operations [Amended] Subpart J—General Environmental 184–1. Controls [Amended] The addition and revisions read as 16. Revise the authority citation for follows: subpart T to read as follows: 12. The authority citation for subpart § 1910.184 Slings. Authority: Secs. 4, 6, 8, Occupational J continues to read as follows: Safety and Health Act of 1970 (29 U.S.C. 653, Authority: Secs. 4, 6, 8, Occupational * * * * * 655, 657); Section 107, Contract and Work Safety and Health Act of 1970 (29 U.S.C. 653, (c) * * * Hours Safety Standards Act (the Construction 655, 657); Secretary of Labor’s Order No. 12– (13) Employers must not load a sling Safety Act) (40 U.S.C. 333); Sec. 41, 71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 in excess of its recommended safe Longshore and Harbor Workers’ (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 working load as prescribed by the sling Compensation Act (33 U.S.C. 941); Secretary FR 111), 3–2000 (65 FR 50017), 5–2002 (67 manufacturer on the identification of Labor’s Order No. 8–76 (41 FR 25059), 9– FR 65008), or 5–2007 (72 FR 31160), as markings permanently affixed to the 83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 applicable; and 29 CFR part 1911. sling. (62 FR 111), 3–2000 (65 FR 50017), 5–2002 Sections 1910.141, 1910.142, 1910.145, (14) Employers must not use slings (67 FR 65008), or 5–2007 (72 FR 31160), as 1910.146, and 1910.147 also issued under 29 without affixed and legible applicable, and 29 CFR part 1911. CFR part 1911. identification markings. § 1910.440 [Amended] 13. Amend paragraph (a)(2) by * * * * * 17. Remove and reserve paragraphs revising the definition of ‘‘Potable (e) Alloy steel-chain slings— *** (b)(3)(i), (b)(4), and (b)(5) of § 1910.440. water’’ and revise paragraph (d)(2)(iv) of * * * * * § 1910.141 to read as follow: (5) [Removed and Reserved] Subpart Z—Toxic and Hazardous Substances [Amended] § 1910.141 Sanitation. (6) Safe operating temperatures. Employers must permanently remove an 18. Revise the authority citation for * * * * * alloy steel-chain slings from service if it (a) * * * subpart Z to read as follows: (2) * * * is heated above 1000 degrees F. When exposed to service temperatures in Authority: Sections 4, 6, and 8 of the * * * * * excess of 600 degrees F, employers must Occupational Safety and Health Act of 1970 Potable water means water that meets reduce the maximum working-load (29 U.S.C. 653, 655, and 657); Secretary of the standards for drinking purposes of Labor’s Order No. 12–71 (36 FR 8754), 8–76 limits permitted by the chain the State or local authority having (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 manufacturer in accordance with the jurisdiction, or water that meets the FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR chain or sling manufacturer’s quality standards prescribed by the U.S. 50017), 5–2002 (67 FR 65008), or 5–2007 (72 recommendations. Environmental Protection Agency’s FR 31160), as applicable, and 29 CFR part 1911. National Primary Drinking Water * * * * * Regulations (40 CFR part 141). (8) Effect of wear. If the chain size at All of subpart Z issued under section any point of the link is less than that 6(b) of the Occupational Safety and * * * * * stated in Table N–184–1, the employer (d) * * * Health Act, except those substances that (2) * * * must remove the chain from service. have exposure limits listed in Tables Z– (iv) Individual hand towels or * * * * * 1, Z–2, and Z–3 of 29 CFR 1910.1000. sections thereof, of cloth or paper, air (f) Wire-rope slings—(1) Sling use. The latter were issued under section blowers or clean individual sections of Employers must use only wire-rope 6(a) (29 U.S.C. 655(a)). continuous cloth toweling, convenient slings that have permanently affixed Section 1910.1000, Tables Z–1, Z–2, to the lavatories, shall be provided. and legible identification markings as and Z–3 also issued under 5 U.S.C. 553, * * * * * prescribed by the manufacturer, and Section 1910.1000 Tables Z–1, Z–2, and that indicate the recommended safe Z–3, but not under 29 CFR part 1911, Subpart N—Materials Handling and working load for the type(s) of hitch(es) except for the arsenic (organic Storage [Amended] used, the angle upon which it is based, compounds), benzene, cotton dust, and and the number of legs if more than one. chromium (VI) listings. 14. Revise the authority citation for * * * * * Section 1910.1001 also issued under subpart N to read as follows: (g) * * * Section 107 of the Contract Work Hours Authority: Secs. 4, 6, 8, Occupational * * * * * and Safety Standards Act (40 U.S.C. Safety and Health Act of 1970 (29 U.S.C. 653, (6) [Removed and Reserved] 3704) and 5 U.S.C. 553. 655, 657); Secretary of Labor’s Order No. 12– Section 1910.1002 also issued under 5 71 (36 FR 8754), 8–76 (41 FR 25059), 9–83 * * * * * U.S.C. 553, but not under 29 U.S.C. 655 (h) Natural and synthetic fiber-rope (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 or 29 CFR part 1911. FR 111), 3–2000 (65 FR 50017), 5–2002 (67 slings—(1) Sling use. Employers must Sections 1910.1018, 1910.1029, and FR 65008), or 5–2007 (72 FR 31160), as use natural and synthetic fiber-rope 1910.1200 also issued under 29 U.S.C. applicable; and 29 CFR part 1911. slings that have permanently affixed 653. Sections 1910.176, 1910.177, 1910.178, and legible identification markings Section 1910.1030 also issued under 1910.179, 1910.180, 1910.181, and 1910.184 stating the rated capacity for the type(s) Pub. L. 106–430, 114 Stat. 1901. also issued under 29 CFR part 1911. of hitch(es) used and the angle upon 19. Amend § 1910.1001 by removing 15. Amend § 1910.184 as follows: which it is based, type of fiber material, paragraph (m)(6)(ii), and redesignating a. Add new paragraphs (c)(13) and and the number of legs if more than one. paragraph (m)(6)(i) as (m)(6). (c)(14). * * * * * 20. Amend § 1910.1003 as follows:

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a. Revise paragraph (c)(4)(iv). quarterly. The employer shall continue level is below 40 ug/100 g of whole b. Remove paragraph (g)(2)(i), and monitoring at the required frequency blood; redesignate paragraphs (g)(2)(ii) and until at least two consecutive * * * * * (g)(2)(iii) as (g)(2)(i) and (g)(2)(ii). measurements, taken at least 7 days 25. Amend § 1910.1027 by removing The revision reads as follows: apart, are below the PEL but at or above paragraph (n)(4), redesignating § 1910.1003 13 Carcinogens (4- the action level, at which time the paragraphs (n)(5) and (n)(6) as nitrobiphenyl, etc.). employer shall repeat monitoring for paragraphs (n)(4) and (n)(5), and that employee at the frequency specified revising new paragraph (n)(4)(i) to read * * * * * in paragraph (d)(6)(ii), except as (c) * * * as follows: (4) * * * otherwise provided in paragraph (d)(7) § 1910.1027 Cadmium. (iv) Employers must provide each of this section. employee engaged in handling * * * * * * * * * * operations involving the carcinogens 4- (j) * * * (n) * * * Nitrobiphenyl, alpha-Naphthylamine, (1) * * * (4) * * * 3,3′-Dichlorobenzidine (and its salts), (i) The employer shall institute a (i) Except as otherwise provided for in beta-Naphthylamine, Benzidine, 4- medical surveillance program for all this section, access to all records Aminodiphenyl, 2- employees who are or may be exposed required to be maintained by paragraphs Acetylaminofluorene, 4- at or above the action level for more (n)(1) through (4) of this section shall be Dimethylaminoazo-benzene, and N- than 30 days per year. in accordance with the provisions of 29 Nitrosodimethylamine, addressed by * * * * * CFR 1910.1020. this section, with, and ensure that each (2) * * * * * * * * of these employees wears and uses, a (ii) Follow-up blood sampling tests. 26. Revise paragraph (k)(4) of NIOSH-certified air-purifying, half-mask § 1910.1028 to read as follows: respirator with particulate filters. Whenever the results of a blood lead Employers also must provide each level test indicate that an employee’s § 1910.1028 Benzene. blood lead level is at or above the employee engaged in handling * * * * * numerical criterion for medical removal operations involving the carcinogens (k) * * * methyl chloromethyl ether, bis- under paragraph (k)(1)(i)(A), of this section, the employer shall provide a (4) Transfer of records. The employer Chloromethyl ether, Ethyleneimine, and shall comply with the requirements beta-Propiolactone, addressed by this second (follow-up) blood sampling test within two weeks after the employer involving transfer of records as set forth section, with, and ensure that each of in 29 CFR 1910.1020(h). these employees wears and uses, a full- receives the results of the first blood * * * * * facepiece, supplied-air respirator sampling test. operated in the continuous-flow or * * * * * § 1910.1029 [Amended] (iv) Employee notification. Within pressure-demand mode. Employers may 27. Amend § 1910.1029 by removing five working days after the receipt of substitute a respirator affording paragraphs (m)(4)(ii) and (m)(4)(iii), and biological monitoring results, the employees higher levels of protection redesignating paragraph (m)(4)(iv) as employer shall notify in writing each than these respirators. (m)(4)(ii). * * * * * employee whose blood lead level is at or above 40 ug/100 g: * * * 28. Amend § 1910.1030 as follows: § 1910.1017 [Amended] a. Amend paragraph (b) by revising * * * * * the definition of ‘‘Handwashing 21. Remove paragraph (m)(3) from (k) * * * § 1910.1017. facilities’’; and (1) * * * b. Remove paragraph (h)(4)(ii) and § 1910.1018 [Amended] (i) * * * redesignate paragraph (h)(4)(i) as (h)(4). 22. Amend § 1910.1018 by removing (B) The employer shall remove an The revision reads as follows: paragraphs (q)(4)(ii) and (q)(4)(iii), and employee from work having an redesignating paragraph (q)(4)(iv) as exposure to lead at or above the action § 1910.1030 Bloodborne pathogens. (q)(4)(ii). level on each occasion that the average * * * * * of the last three blood sampling tests (b) * * * § 1910.1020 [Amended] conducted pursuant to this section (or * * * * * 23. Remove paragraphs (h)(3) and the average of all blood sampling tests Handwashing facilities means a (h)(4) from § 1910.1020. conducted over the previous six (6) facility providing an adequate supply of 24. Amend § 1910.1025 as follows: months, whichever is longer) indicates a. Revise paragraphs (d)(6)(iii), running potable water, soap, and single- that the employee’s blood lead level is use towels or air-drying machines. (j)(1)(i), (j)(2)(ii), (j)(2)(iv), (k)(1)(i)(B), at or above 50 ug/100 g of whole blood; * * * * * and (k)(1)(iii)(A)(1). provided, however, that an employee b. Remove paragraphs (n)(5)(ii) and need not be removed if the last blood § 1910.1043 [Amended] (n)(5)(iii), and redesignate paragraph sampling test indicates a blood lead 29. Amend § 1910.1043 by removing (n)(5)(iv) as (n)(5)(ii). level below 40 ug/100 g of whole blood. The revisions read as follows: paragraphs (k)(4)(ii) and (k)(4)(iii), and (ii) * * * redesignating paragraph (k)(4)(iv) as § 1910.1025 Lead. (A) * * * (k)(4)(ii). * * * * * (1) For an employee removed due to (d) * * * a blood lead level at or above 60 ug/100 § 1910.1044 [Amended] (iii) If the initial monitoring reveals g, or due to an average blood lead level 30. Amend § 1910.1044 by removing that employee exposure is at or above at or above 50 ug/100 g, when two paragraphs (p)(4)(ii) and (p)(4)(iii), and the permissible exposure limit, the consecutive blood sampling tests redesignating paragraph (p)(4)(iv) as employer shall repeat monitoring indicate that the employee’s blood lead (p)(4)(ii).

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§ 1910.1045 [Amended] Subpart B—Confined and Enclosed (3) When U-bolt wire rope clips are 31. Amend § 1910.1045 by removing Spaces and Other Dangerous used to form eyes, employers must use paragraphs (q)(5)(ii) and (q)(5)(iii), and Atmospheres in Shipyard Employment Table G–1 in § 1915.118 to determine redesignating paragraph (q)(5)(iv) as [Amended] the number and spacing of clips. (q)(5)(ii). Employers must apply the U-bolt so that 37. In Appendix A to subpart B, revise the ‘‘U’’ section is in contact with the § 1910.1047 [Amended] item number 1 under the heading dead end of the rope. 32. Amend § 1910.1047 by removing ‘‘Section 1915.11(b) Definition of ‘Hot work’,’’ to read as follows: * * * * * paragraph (k)(5)(ii), and redesignating (c) * * * paragraph (k)(5)(i) as (k)(5). Appendix A to Subpart B of Part 1915— (1) Employers must ensure that chain § 1910.1050 [Amended] Compliance Assistance Guidelines for and chain slings: 33. Amend § 1910.1050 by removing Confined and Enclosed Spaces and (i) Have permanently affixed and paragraph (n)(7)(ii), and redesignating Other Dangerous Atmospheres legible identification markings as prescribed by the manufacturer that paragraph (n)(7)(i) as paragraph (n)(7). * * * * * 34. Amend § 1910.1051 as follows: Section 1915.11(b) Definition of ‘‘Hot indicate the recommended safe working a. Remove and reserve paragraph work.’’ load for the type(s) of hitch(es) used, the (m)(3). angle upon which it is based, and the * * * * * number of legs if more than one; b. Revise paragraph (m)(6). 1. Abrasive blasting of the external The revisions read as follows: (ii) Not be loaded in excess of its hull for paint preparation does not recommended safe working load as § 1910.1051 1,3-Butadiene. necessitate pumping and cleaning the prescribed on the identification * * * * * tanks of a vessel. markings by the manufacturer; and (m) * * * * * * * * (iii) Not be used without affixed and (6) Transfer of records. The employer legible identification markings as Subpart G—Gear and Equipment for shall transfer medical and exposure required by paragraph (c)(1)(i) of this Rigging and Materials Handling records as set forth in 29 CFR section. 1910.1020(h). 38. Revise paragraphs (a), (b)(1), * * * * * * * * * * (b)(3), (c)(1), and (c)(3) of § 1915.112 to (3) Employers must note interlink 35. In Appendix A to § 1910.1450, read as follows: wear, not accompanied by stretch in revise item (a) under Section E, excess of 5 percent, and remove the § 1915.112 Ropes, chains, and slings. subsection 1, to read as follows: chain from service when maximum * * * * * allowable wear at any point of link, as § 1910.1450 Occupational exposure to (a) Manila rope and manila-rope hazardous chemicals in laboratories. indicated in Table G–2 in § 1915.118, slings. Employers must ensure that has been reached. * * * * * manila rope and manila-rope slings: (1) Have permanently affixed and * * * * * Appendix A to § 1910.1450—* * * legible identification markings as 39. In § 1915.113, revise paragraph (a) * * * * * prescribed by the manufacturer that to read as follows: E. Basic Rules and Procedures for indicate the recommended safe working § 1915.113 Shackles and hooks. Working with Chemicals load for the type(s) of hitch(es) used, the * * * * * angle upon which it is based, and the * * * * * (a) Shackles. Employers must ensure number of legs if more than one; that shackles: 1. General Rules (2) Not be loaded in excess of its (1) Have permanently affixed and recommended safe working load as legible identification markings as * * * * * prescribed on the identification (a) Accidents and spills—*** prescribed by the manufacturer that markings by the manufacturer; and indicate the recommended safe working Ingestion: This is one route of entry (3) Not be used without affixed and for which treatment depends on the load; legible identification markings as (2) Not be loaded in excess of its type and amount of chemical involved. required by paragraph (a)(1) of this Seek medical attention immediately. recommended safe working load as section. prescribed on the identification * * * * * (b) Wire rope and wire-rope slings. markings by the manufacturer; and (1) Employers must ensure that wire (3) Not be used without affixed and PART 1915—OCCUPATIONAL SAFETY rope and wire-rope slings: legible identification markings as AND HEALTH STANDARDS FOR (i) Have permanently affixed and required by paragraph (a)(1) of this SHIPYARD EMPLOYMENT legible identification markings as section. prescribed by the manufacturer that 36. Revise the authority citation for * * * * * part 1915 to read as follows: indicate the recommended safe working load for the type(s) of hitch(es) used, the § 1915.118 [Amended] Authority: Sec. 41, Longshore and Harbor angle upon which it is based, and the 40. In § 1915.118, remove Tables G–1, Workers’ Compensation Act (33 U.S.C. 941); number of legs if more than one; secs. 4, 6, and 8 of the Occupational Safety (ii) Not be loaded in excess of its G–2, G–3, G–4, G–5, G–7, G–8, and G– and Health Act of 1970 (29 U.S.C. 653, 655, recommended safe working load as 10, and redesignate Table G–6 as Table 657); Secretary of Labor’s Order No. 12–71 G–1, and Table G–9 as Table G–2. (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 prescribed on the identification FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR markings by the manufacturer; and Subpart I—Personal Protective 111), 3–2000 (65 FR 50017), 5–2002 (67 FR (iii) Not be used without affixed and Equipment (PPE) [Amended] 65008), or 5–2007 (72 FR 31160), as legible identification markings as applicable. required by paragraph (b)(1)(i) of this § 1915.152 [Amended] Sections 1915.120 and 1915.152 of 29 CFR section. 41. Remove paragraph (e)(4) from also issued under 29 CFR part 1911. * * * * * § 1915.152.

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Subpart Z—Toxic and Hazardous maintenance, safety, operation, or (iii) Individual hand towels, clean Substances [Amended] navigation of the vessel, or for the safety individual sections of continuous or comfort of the vessel’s passengers or toweling, or air blowers; and 42. Amend § 1915.1001 as follows: crew. * * * * * a. Revise paragraph (h)(3)(i). b. Remove paragraphs (h)(3)(ii), Subpart F—Terminal Facilities PART 1919—GEAR CERTIFICATION (h)(3)(iii), (h)(4), and (n)(8)(ii). [Amended] c. Redesignate paragraph (h)(3)(iv) as 49. Revise the authority citation for (h)(3)(ii), and paragraph (n)(8)(i) as 45. Revise paragraph (a)(1)(iii) of part 1919 to read as follows: (n)(8). § 1917.127 to read as follows: Authority: Section 41, Longshore and d. Revise Appendix C. Harbor Workers’ Compensation Act (33 § 1917.127 Sanitation. The revisions read as follows: U.S.C. 941); Sections 4, 6, and 8 of the * * * * * Occupational Safety and Health Act of 1970 § 1915.1001 Asbestos. (a) * * * (29 U.S.C. 653, 655, 657); Secretary of Labor’s Order No. 12–71 (36 FR 8754), 8–76 (41 FR * * * * * (1) * * * (h) * * * 25059), 9–83 (48 FR 35736), 1–90 (55 FR (iii) Individual hand towels, clean 9033), 6–96 (62 FR 111), 3–2000 (65 FR (3) * * * individual sections of continuous 50017), 5–2002 (67 FR 65008), or 5–2007 (72 (i) When respiratory protection is toweling, or air blowers; and FR 31160), as applicable; and 29 CFR part used, the employer shall institute a 1911. respiratory protection program in * * * * * accordance with 29 CFR 1910.134(b) Subpart B—Procedures Governing PART 1918—SAFETY AND HEALTH through (d) (except (d)(1)(iii)), and (f) Accreditation [Amended] REGULATIONS FOR LONGSHORING through (m) which covers each 50. Revise paragraph (a)(1) employee required by this section to use 46. Revise the authority citation for introductory text of § 1919.6 to read as a respirator. part 1918 to read as follows: follows: * * * * * Authority: Section 41, Longshore and § 1919.6 Criteria governing accreditation Appendix C to § 1915.1001—Qualitative Harbor Workers’ Compensation Act (33 to certificate vessels’ cargo gear. U.S.C. 941); Sections 4, 6, and 8 of the and Quantitative Fit Testing (a)(1) A person applying for Procedures. Mandatory Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); Secretary of Labor’s accreditation to issue registers and Employers must perform fit testing in Order No. 12–71 (36 FR 8754), 8–76 (41 FR pertinent certificates, to maintain accordance with the fit-testing 25059), 9–83 (48 FR 35736), 1–90 (55 FR registers and appropriate records, and to requirements of 29 CFR 1910.134(f) and 9033), 6–96 (62 FR 111), 3–2000 (65 FR conduct initial, annual and the qualitative and quantitative fit- 50017), 5–2002 (67 FR 65008), or 5–2007 (72 quinquennial surveys, shall not be testing protocols and procedures FR 31160), as applicable; and 29 CFR part accredited unless that person is engaged specified in Appendix A of 29 CFR 1911. in one or more of the following Section 1918.90 also issued under 5 U.S.C. 1910.134. 553. activities: * * * * * Section 1918.100 also issued under Sec. * * * * * 29, Hazardous Materials Transportation PART 1917—MARINE TERMINALS Uniform Safety Act of 1990 (49 U.S.C. 1801– Subpart C—Duties of Persons 1819), and 5 U.S.C. 553. Accredited to Certificate Vessels’ 43. Revise the authority citation for Cargo Gear [Amended] part 1917 to read as follows: Subpart A—General Provisions Authority: Sec. 41, Longshore and Harbor [Amended] 51. Revise paragraph (d) of § 1919.11 Workers’ Compensation Act (33 U.S.C. 941); to read as follows: secs. 4, 6, and 8 of the Occupational Safety 47. Amend § 1918.2, by adding the ‘‘ ’’ § 1919.11 Recordkeeping and related and Health Act of 1970 (29 U.S.C. 653, 655, definition for the term Ship’s stores in procedures concerning records in custody 657); Secretary of Labor’s Order No. 12–71 alphabetical order to read as follows: of accredited persons. (36 FR 8754), 8–76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR § 1918.2 Definitions. * * * * * 111), 3–2000 (65 FR 50017), 5–2002 (67 FR * * * * * (d) When annual or quinquennial tests, inspections, examinations, or heat 65008) or 5–2007 (72 FR 31160), as Ship’s stores means materials that are applicable; and 29 CFR part 1911. treatments are performed by an Section 1917.28 also issued under 5 U.S.C. aboard a vessel for the upkeep, accredited person, other than the person 553. maintenance, safety, operation, or who originally issued the vessel’s Section 1917.29 also issued under Sec. 29, navigation of the vessel, or for the safety register, such accredited person shall Hazardous Materials Transportation Uniform or comfort of the vessel’s passengers or furnish copies of any certificates issued Safety Act of 1990 (49 U.S.C. 1801–1819), crew. and 5 U.S.C. 553. and information as to register entries to * * * * * the person originally issuing the register. Subpart A—General Provisions Subpart I—General Working [Amended] Conditions [Amended] * * * * * 52. Revise paragraph (f) of § 1919.12 44. Amend § 1917.2 by adding a to read as follows: definition for the term ‘‘Ship’s stores’’ in 48. Revise paragraph (a)(1)(iii) of alphabetical order to read as follows: § 1918.95 to read as follows: § 1919.12 Recordkeeping and related § 1918.95 Sanitation. procedures concerning records in custody § 1917.2 Definitions. of the vessel. * * * * * * * * * * * * * * * Ship’s stores means materials that are (a) * * * (f) An accredited person shall instruct aboard a vessel for the upkeep, (1) * * * the vessel’s officers, or the vessel’s

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operator if the vessel is unmanned, that § 1926.51 Sanitation. medical removal under paragraph the vessel’s register and certificates shall * * * * * (k)(1)(i) of this section. be preserved for at least 5 years after the (a) * * * * * * * * date of the latest entry except in the case (6) Potable water means water that (k) * * * of nonrecurring test certificates meets the standards for drinking (l) * * * concerning gear which is kept in use for purposes of the State or local authority (iii) * * * a longer period, in which event the having jurisdiction, or water that meets (A) * * * pertinent certificates shall be retained so the quality standards prescribed by the (1) For an employee removed due to long as that gear is continued in use. U.S. Environmental Protection Agency’s a blood lead level at or above 50 ug/dl * * * * * National Primary Drinking Water when two consecutive blood sampling Regulations (40 CFR part 141). tests indicate that the employee’s blood Subpart D—Certification of Vessels’ * * * * * lead level is below 40 ug/dl; Cargo Gear [Amended] (f) * * * * * * * * 53. Revise paragraph (a) of § 1919.15 (3) * * * Subpart—H Materials Handling, to read as follows: (iv) Individual hand towels or Storage, Use, and Disposal [Amended] sections thereof, of cloth or paper, air § 1919.15 Periodic tests, examinations and blowers or clean individual sections of inspections. 59. Revise the authority citation for continuous cloth toweling, convenient subpart H to read as follows: * * * * * to the lavatories, shall be provided. (a) Derricks with their winches and Authority: Section 3704 of the Contract * * * * * accessory gear, including the Work Hours and Safety Standards Act (40 attachments, as a unit; and cranes and 57. Revise paragraph (o)(8) of U.S.C. 3701); Sections 4, 6, and 8 of the § 1926.60, to read as follows: Occupational Safety and Health Act of 1970 other hoisting machines with their (29 U.S.C. 653, 655, 657); and Secretary of accessory gear, as a unit, shall be tested § 1926.60 Methylenedianiline. Labor’s Order No. 12–71 (36 FR 8754), 8–76 and thoroughly examined every 5 years * * * * * (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 in the manner set forth in subpart E of (o) * * * FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR this part. (8) Transfer of records. The employer 50017), 5–2002 (67 FR 65008), or 5–2007 (72 * * * * * FR 31160), as applicable. Section 1926.250 shall comply with the requirements also issued under 29 CFR part 1911. 54. Revise paragraph (b) of § 1919.18 concerning transfer of records set forth to read as follows: in 29 CFR 1926.33. 60. Amend § 1926.251 as follows: a. Revise paragraphs (a)(2), (b)(4), * * * * * § 1919.18 Grace periods. (c)(1), (d)(1) and (f)(1). * * * * * 58. Amend § 1926.62 as follows: b. Add new paragraphs (c)(16) and (b) Quinquennial requirements— a. Revise paragraphs (j)(2)(ii), (d)(7). within six months after the date when (j)(2)(iv)(B), and (k)(1)(iii)(A)(1). The revisions and additions read as due; b. Remove paragraphs (l)(2)(iii), follows: * * * * * (n)(6)(ii), and (n)(6)(iii). c. Redesignate paragraphs (l)(2)(iv) § 1926.251 Rigging equipment for material PART 1926—SAFETY AND HEALTH through (l)(2)(viii) as (l)(2)(iii) through handling. REGULATIONS FOR CONSTRUCTION (l)(2)(vii). (a) * * *. d. Redesignate paragraph (n)(6)(iv) as (2) Employers must ensure that Subpart D—Occupational Health and (n)(6)(ii), and revise (n)(6)(ii). rigging equipment: Environmental Controls [Amended] The revisions read as follows: (i) Has permanently affixed and legible identification markings as 55. Revise the authority citation for § 1926.62 Lead. prescribed by the manufacturer that subpart D to read as follows: * * * * * indicate the recommended safe working Authority: Section 3704 of the Contract (j) * * * load; Work Hours and Safety Standards Act (40 (2) * * * (ii) Not be loaded in excess of its U.S.C. 3701); Sections 4, 6, and 8 of the (ii) Follow-up blood sampling tests. recommended safe working load as Occupational Safety and Health Act of 1970 (29 U.S.C. 653, 655, 657); and Secretary of Whenever the results of a blood lead prescribed on the identification Labor’s Order No. 12–71 (36 FR 8754), 8–76 level test indicate that an employee’s markings by the manufacturer; and (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 blood lead level is at or above the (iii) Not be used without affixed, FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR numerical criterion for medical removal legible identification markings, required 50017), 5–2002 (67 FR 65008), or 5–2007 (72 under paragraph (k)(1)(i) of this section, by paragraph (a)(2)(i) of this section. FR 31160), as applicable; and 29 CFR part 11. the employer shall provide a second * * * * * Sections 1926.58, 1926.59, 1926.60, (follow-up) blood sampling test within (b) * * * and 1926.65 also issued under 5 U.S.C. two weeks after the employer receives (4) Employers must not use alloy 553 and 29 CFR part 1911. the results of the first blood sampling steel-chain slings with loads in excess of Section 1926.62 of 29 CFR also issued test. the rated capacities (i.e., working load under section 1031 of the Housing and Community Development Act of 1992 (42 * * * * * limits) indicated on the sling by U.S.C. 4853). (iv) * * * permanently affixed and legible Section 1926.65 of 29 CFR also issued (B) The employer shall notify each identification markings prescribed by under section 126 of the Superfund employee whose blood lead level is at the manufacturer. Amendments and Reauthorization Act of or above 40 ug/dl that the standard * * * * * 1986, as amended (29 U.S.C. 655 note), and requires temporary medical removal (c) * * *. 5 U.S.C. 553. with Medical Removal Protection (1) Employers must not use improved 56. Revise paragraphs (a)(6) and benefits when an employee’s blood lead plow-steel wire rope and wire-rope (f)(3)(iv) of § 1926.51 to read as follows: level exceeds the numerical criterion for slings with loads in excess of the rated

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capacities (i.e., working load limits) Subpart Z—Toxic and Hazardous concerning transfer of records set forth indicated on the sling by permanently Substances [Amended] in 29 CFR part 1926.33. affixed and legible identification 61. Revise the authority citation for * * * * * markings prescribed by the subpart Z to read as follows: manufacturer. PART 1928—OCCUPATIONAL SAFETY Authority: Section 3704 of the Contract * * * * * AND HEALTH STANDARDS FOR Work Hours and Safety Standards Act (40 AGRICULTURE (16) Wire rope slings shall have U.S.C. 3701 et seq.); Sections 4, 6, and 8 of permanently affixed, legible the Occupational Safety and Health Act of 64. Revise the authority citation for identification markings stating size, 1970 (29 U.S.C. 653, 655, 657); and Secretary part 1928 to read as follows: of Labor’s Order No. 12–71 (36 FR 8754), 8– rated capacity for the type(s) of hitch(es) 76 (41 FR 25059), 9–83 (48 FR 35736), 1–90 Authority: Sections 4, 6, and 8 of the used and the angle upon which it is (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 Occupational Safety and Health Act of 1970 based, and the number of legs if more FR 50017), 5–2002 (67 FR 65008), or 5–2007 (29 U.S.C. 653, 655, 657); and Secretary of than one. (72 FR 31160), as applicable; and 29 CFR part Labor’s Order No. 12–71 (36 FR 8754), 8–76 * * * * * 1911. (41 FR 25059), 9–83 (48 FR 35736), 1–90 (55 FR 9033), 6–96 (62 FR 111), 3–2000 (65 FR Section 1926.1102 of 29 CFR not issued (d) * * * 50017), 5–2002 (67 FR 65008), or 5–2007 (72 under 29 U.S.C. 655 or 29 CFR part 1911; (1) Employers must not use natural- also issued under 5 U.S.C. 553. FR 31160), as applicable; and 29 CFR part 1911. and synthetic-fiber rope slings with 62. Revise paragraphs (n)(7)(ii) and loads in excess of the rated capacities Section 1928.21 also issued under section (iii) and (n)(8) of § 1926.1101 to read as 29, Hazardous Materials Transportation (i.e., working load limits) indicated on follows: the sling by permanently affixed and Uniform Safety Act of 1990 (Pub. L. 101–615, § 1926.1101 Asbestos. 104 Stat. 3244 (49 U.S.C. 1801–1819 and 5 legible identification markings U.S.C. 533)). prescribed by the manufacturer. * * * * * * * * * * (n) * * * Subpart I—General Environmental (7) * * * Controls [Amended] (7) Employers must use natural- and (ii) Availability of records. The synthetic-fiber rope slings that have employer must comply with the 65. Revise the definition of the term permanently affixed and legible requirements concerning availability of ‘‘potable water’’ in paragraph (b) of identification markings that state the records set forth in 29 CFR part 1926.33. § 1928.110 to read as follows: rated capacity for the type(s) of hitch(es) (8) Transfer of records. The employer used and the angle upon which it is must comply with the requirements § 1928.110 Field sanitation. based, type of fiber material, and the concerning transfer of records set forth * * * * * number of legs if more than one. in 29 CFR part 1926.33. (b) * * * * * * * * * * * * * Potable water means water that meets 63. Amend § 1926.1127 as follows: the standards for drinking purposes of (f) * * *. a. Remove and reserve paragraph the State or local authority having (1) Employers must not use shackles (n)(4). jurisdiction, or water that meets the with loads in excess of the rated b. Revise paragraph (n)(6). quality standards prescribed by the U.S. capacities (i.e., working load limits) The revisions read as follows: Environmental Protection Agency’s indicated on the shackle by § 1926.1127 Cadmium. National Primary Drinking Water permanently affixed and legible * * * * * Regulations (40 CFR part 141). identification markings prescribed by (n) * * * * * * * * the manufacturer. (6) Transfer of records. The employer [FR Doc. 2010–15156 Filed 7–1–10; 8:45 am] * * * * * must comply with the requirements BILLING CODE 4510–26–P

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Part IV

Department of Defense General Services Administration National Aeronautics and Space Administration 48 CFR Chapter 1 Federal Acquisition Regulations; Final Rules

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DEPARTMENT OF DEFENSE and National Aeronautics and Space DATES: For effective dates and comment Administration (NASA). dates, see separate documents, which GENERAL SERVICES follow. ADMINISTRATION ACTION: Summary presentation of rules. FOR FURTHER INFORMATION CONTACT: The NATIONAL AERONAUTICS AND SUMMARY: This document summarizes analyst whose name appears in the table SPACE ADMINISTRATION the Federal Acquisition Regulation below in relation to each FAR case. (FAR) rules agreed to by the Civilian Please cite FAC 2005–43 and the 48 CFR Chapter 1 Agency Acquisition Council and the specific FAR case numbers. For Defense Acquisition Regulations information pertaining to status or [Docket FAR 2010–0076, Sequence 5] Council (Councils) in this Federal publication schedules, contact the Acquisition Circular (FAC) 2005–43. A Federal Acquisition Regulation; Regulatory Secretariat at (202) 501– Federal Acquisition Circular 2005–43; companion document, the Small Entity 4755. Introduction Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is AGENCIES: Department of Defense (DoD), available via the Internet at http:// General Services Administration (GSA), www.regulations.gov.

LIST OF RULES IN FAC 2005–43

Item Subject FAR Case Analyst

I ...... Government Property ...... 2008–011 Parnell II ...... Registry of Disaster Response Contractors ...... 2008–035 Gary III ...... Recovery Act Subcontract Reporting Procedures (Interim) ...... 2010–008 Morgan IV ...... Clarification of Criteria for Sole Source Awards to Service-disabled Veteran-owned Small Business 2008–023 Cundiff Concerns. V ...... Trade Agreements Thresholds (Interim) ...... 2009–040 Davis

SUPPLEMENTARY INFORMATION: Homeland Security Appropriations Act, contain the original clause FAR 52.204– Summaries for each FAR rule follow. 2007, section 697, which requires the 11 (March 2009). Therefore, this interim For the actual revisions and/or establishment and maintenance of a rule does not require renegotiation of amendments made by these FAR cases, registry of disaster response contractors. existing Recovery Act contracts that refer to the specific item number and The Disaster Response Registry is include the clause dated March 2009. subject set forth in the documents located at http://www.ccr.gov. The Item IV—Clarification of Criteria for following these item summaries. Federal Emergency Management Agency Sole Source Awards to Service- (within the Department of Homeland FAC 2005–43 amends the FAR as Disabled Veteran-Owned Small Security) has a link to the registry for specified below: Business Concerns (FAR Case 2008– vendors on its Web site at http:// 023) Item I—Government Property (FAR www.fema.gov/business/ Case 2008–011) contractor.shtm. The Registry covers This final rule amends FAR This final rule amends the FAR to domestic disaster and emergency relief 19.1406(a) to clarify the criteria that revise FAR part 45 and its associated activities. need to be met in order to conduct a clauses. Changes are being made to FAR sole source service-disabled veteran- Item III—Recovery Act Subcontract parts 2, 4, 15, 32, 42, 45, and 52. These owned small business (SDVOSB) Reporting Procedures (FAR Case 2010– changes are to clarify and correct the concern acquisition. The FAR language 008) (Interim) previous FAR rule for part 45, is amended to be consistent with the Government Property, published under This interim rule amends the FAR to Veterans Benefit Act of 2003 (15 U.S.C. Federal Acquisition Circular 2005–17, revise the clause at FAR 52.204–11, 657f) and the Small Business FAR case 2004–025, May 15, 2007, (72 American Recovery and Reinvestment Administration’s regulation (13 CFR FR 27364). Minor changes are made to Act—Reporting Requirements. The 125.20) that implements the Act. This the proposed rule published August 6, revised clause will require first-tier final rule also amends FAR 19.1306(a) 2009 (74 FR 39262). subcontractors with Recovery Act to clarify the criteria that need to be met The rule specifically impacts funded awards of $25,000 or more, to in order to conduct a sole source for contracting officers, property report jobs information to the prime Historically Underutilized Business administrators, and contractors contractor for reporting into Zone (HUBZone) small business responsible for the management of FederalReporting.gov. It also will concern acquisitions. These Government property. The rule does not require the prime contractor to submit amendments to the FAR alleviate affect the method of managing its first report on or before the 10th day confusion for contracting officers on the Government property. The rule merely after the end of the calendar quarter in appropriate use of the criteria needed to clarifies and corrects the previous FAR which the prime contractor received the conduct sole source HUBZONE small rule. award, and quarterly thereafter. business and SDVOSB concern The revised clause will be used for all acquisitions. Item II—Registry of Disaster Response new solicitations and awards issued on Contractors (FAR Case 2008–035) Item V—Trade Agreements Thresholds or after the effective date of this interim (FAR Case 2009–040) (Interim) This final rule adopts, without rule. This clause is not required for any change, the interim rule implementing existing contracts, or task and delivery This interim rule adjusts the Public Law 109–295, the Department of orders issued under a contract, that thresholds for application of the World

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Trade Organization Government (Councils) have agreed on a final rule contractor material should not occur. Procurement Agreement and the free amending the Federal Acquisition One respondent questioned whether trade agreements as determined by the Regulation (FAR) to revise FAR part 45, equipment can be commingled by being United States Trade Representative, Government Property, and its associated located with similar equipment. according to a pre-determined formula clauses. Another respondent recommended under the agreements. DATES: Effective Date: August 2, 2010. revising FAR 52.245–1(f)(1)(viii)(B) to address commingling while in storage or Dated: June 25, 2010. FOR FURTHER INFORMATION CONTACT: in stockrooms. The Councils do not Edward Loeb, Ms.nbsp; Jeritta Parnell, Procurement agree. The practice of commingling only Analyst, at (202) 501–4082, for Director, Acquisition Policy Division. applies to material. Equipment, special clarification of content. For information tooling, and special test equipment can Federal Acquisition Circular pertaining to status or publication be co-located, but by their nature are not Federal Acquisition Circular (FAC) schedules, contact the Regulatory commingled. The Councils see no need 2005–43 is issued under the authority of Secretariat at (202) 501–4755. Please to limit the applicability of the Secretary of Defense, the cite FAC 2005–43, FAR Case 2008–011. commingling to a particular location(s). Administrator of General Services, and SUPPLEMENTARY INFORMATION: the Administrator for the National 4. Contractor Records A. Background Aeronautics and Space Administration. There is no revision to the proposed Unless otherwise specified, all DoD, GSA, and NASA published a rule based on this comment category. Federal Acquisition Regulation (FAR) proposed rule in the Federal Register at Two respondents submitted three and other directive material contained 74 FR 39262, August, 6, 2009. This rule comments on contractor records. Two in FAC 2005–43 is effective July 2, 2010, clarifies and corrects the previous FAR comments requested clarification on except for Items I, II, and IV which are rule for part 45, Government Property, retention periods in FAR 4.705–3(h). In effective August 2, 2010. published under FAC 2005–17, FAR addition, one commenter requested Dated: June 24, 2010. Case 2004–025, May 15, 2007 (72 FR clarification of the term ‘‘property Shay D. Assad, 27364). records’’ in FAR 4.705–3(h). Another Director, Defense Procurement and Sixteen respondents submitted 106 respondent recommended removal of Acquisition Policy. comments. The comments received language ‘‘consisting of equipment usage Dated: June 24, 2010. were grouped under 31 general topics. and status reports’’ from FAR 4.705–3(c). A discussion of the comments and the The Councils disagree. The beginning of Rodney P. Lantier, changes to the rule as a result of these the retention period is defined in FAR Acting Senior Procurement Executive, Office comments are provided below: 4.704(a). The definition of property of Acquisition Policy, U.S. General Services records is in the proposed rule at FAR Administration. 1. Access 45.101. The recommendation for Dated: June 23, 2010. There is no revision to the proposed removal of language from FAR 4.705– William P. McNally, rule based on this category of comment. 3(c) is outside the scope of this Assistant Administrator for Procurement, One respondent recommended revising particular case and will be considered National Aeronautics and Space FAR 52.245–1(g)(4) to provide in the formulation of a new case. Administration. Government access to contractor site [FR Doc. 2010–15913 Filed 7–1–10; 8:45 am] locations at reasonable times. The 5. Corrective Action BILLING CODE 6820–EP–P Councils did not agree. Similar language There is a revision to the proposed is already contained in the proposed rule at FAR 52.245–1(g)(3) based on this rule at FAR 52.245–1(g)(1). The comment category. DEPARTMENT OF DEFENSE proposed FAR language at 52.245– Two respondents recommended 1(g)(1) provides for Government access revising the action required for GENERAL SERVICES corrective action. One respondent ADMINISTRATION to all contractor site locations, prime and subcontractor (with prime recommended additional language to contractor consent). This language was distinguish between the lines of NATIONAL AERONAUTICS AND authority and responsibility as follows: SPACE ADMINISTRATION merely consolidated. The language consolidated and relocated subsections ‘‘ * * * the contractor shall immediately take all necessary corrective actions and 48 CFR Parts 2, 4, 15, 31, 32, 42, 45, 52.245–1(g)(1) and 52.245–1(g)(4) into one subsection. shall prepare a corrective action plan at and 52 the request of the Property 2. Closeout [FAC 2005–43; FAR Case 2008–011; Administrator.’’ The Councils partially Item I; Docket 2009–0029; Sequence 1] There is no revision to the proposed agree. The language at FAR 52.245– rule based on this comment category. 1(g)(3) is revised to add ‘‘* * * the RIN 9000–AL41 One respondent suggested adding a new contractor shall prepare a corrective Federal Acquisition Regulation; FAR paragraph after FAR 52.245–1(f)(x) action plan when requested by the Case 2008–011, Government Property entitled Disposition of contractor Property Administrator and take all inventory. The Councils noted the issue necessary corrective actions as specified AGENCIES: Department of Defense (DoD), raised by the commenter. The by the schedule within the corrective General Services Administration (GSA), recommendations are outside the scope action plan.’’ The second respondent and National Aeronautics and Space of this particular case. suggested that there needs to be a better Administration (NASA). audit protocol and due process in 3. Commingling ACTION: Final rule. property management practices. The There is no revision to the proposed Councils noted the issues raised by this SUMMARY: The Civilian Agency rule based on this comment category. respondent and the respondent’s Acquisition Council and the Defense Two respondents suggested that recommended revisions to FAR 52.245– Acquisition Regulations Council commingling Government and 1(g)(3). These revisions are outside the

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scope of this case and will be new definition as part of a future Councils noted the issue raised by the considered in the formulation of a new proposed rule. commenter. The recommendation is FAR case. One respondent recommended adding outside the scope for the proposed rule. a definition of ‘‘Prime Property The Councils will consider adding this 6. Definitions Administrator.’’ The Councils noted the proposal as part of a future proposed There are revisions to the proposed issue raised by the commenter. The rule. rule based on this comment category. recommendation is outside the scope for Twenty-two comments were received the proposed rule. The Councils will 9. Fair Value from five respondents regarding consider adding this proposal as part of There is no revision to the proposed definitions. One respondent a future proposed rule. rule based on this category of comment. recommended changing the definition One respondent agreed with the One respondent recommended of ‘‘cannibalize’’ to read as proposed rule in regard to the replacement of the term ‘‘acquisition ‘‘Cannibalization means the definitions of ‘‘Equipment,’’ ‘‘Material,’’ cost’’ in FAR 45.602–3(b) and in 52.245– unauthorized permanent removal of ‘‘Plant equipment,’’ ‘‘Government 1(d)(2)(i)(B) with the term ‘‘fair market parts from Equipment, Special Tooling property,’’ ‘‘Real property,’’ ‘‘Plant value’’. The Councils note the issue or Special Test Equipment in order to equipment,’’ and ‘‘Property records.’’ The raised by the commenter. The install them on other Government same respondent also agreed with the recommendation is outside of the scope equipment.’’ The Councils disagree. The proposed changes to the definition of of this case. The proposed revision will current definition is meant to convey ‘‘Plant clearance officer’’ in FAR 2.101. be considered in the formulation of a only the act of cannibalization itself, new case. notwithstanding whether or not the act 7. Disposal Schedules 10. Guidance is authorized, or whether the removal of There is a revision to the proposed parts is temporary or permanent. rule based on this comment category. There is no revision to the proposed One respondent recommended that One respondent submitted five rule based on this comment category. FAR part 45.101 include a Web site for comments on disposal schedules. In one One respondent recommended revising 41 CFR 102–71.20, thus providing easier comment, the respondent requested 42.302(a)(30)(iii) to add the following access to the term ‘‘Real Property.’’ The amending the language at FAR 52.245– language ‘‘and guidance at FAR Councils disagree. The Code of Federal 1(j)(1)(i)(B) to eliminate submission of 45.103(a)(4) with the maximum use of Regulations is already easily accessible inventory schedules for property that Government property already in the through most on-line search engines. requires demilitarization; is classified, contractor’s possession.’’ The Councils Moreover, in general, the Councils wish hazardous or dangerous; and for disagree. The intent of this paragraph is to avoid adding unnecessary hyperlinks precious metals. The respondent to address the use of the clause at FAR to the FAR due to their potentially recommended the use of a list in accord 52.245–9, Use and Charges. The use of transient nature. with the contractor’s plans or by Government property already in the One respondent recommended that approval of the property administrator possession of the contractor to its the last sentence of the definition of or contracting officer. The Councils maximum extent is adequately ‘‘Equipment’’ be expanded to include noted the issue raised by the addressed at FAR 45.103(a)(4) and is not special test equipment and special commenter. The recommendation is appropriately referenced in this tooling in the exclusions. The Councils outside of the scope of this case. The paragraph. agree. proposed revision will be considered in 11. Item Unique One respondent recommended the formulation of a new case. revision of the definition to read: The respondent, in two comments, There is a revision to the proposed ‘‘Cannibalize means to remove agreed with the proposed language in rule based on this comment category. worthwhile parts from property for FAR 52.245–1(j)(1)(i)(C) and 52.245– The proposed rule language in FAR probable use or installation on other 1(j)(3)(iv). 45.201, 52.245–1(f)(1)(iii)(A)(4) and property.’’ The Councils disagree. The The respondent recommended 52.245–1(f)(1)(vi)(B)(4) was deleted and Councils revised the definition to limit deletion of paragraph FAR 52.245– the current FAR language is retained. cannibalization of parts to Government 1(j)(3)(iv)(A). The Councils agree. The Three respondents with five property. The use of cannibalization is respondent recommended deletion of comments recommend changing the governed by its application (i.e., by the paragraph FAR 52.215–1(j)(3)(iv)(F). proposed rule to use the term ‘‘unique terms and conditions of the contract). The Councils do not agree. The language item identifier (UII)’’ in place of ‘‘item One respondent recommended is retained and moved to paragraph (A). unique.’’ One comment recommended a revision of the definition of Government This language allows the flexibility to general overall change to UII, two Furnished Property in both FAR 45.101 determine whether there may be further comments recommended revising and 52.245–1. The Councils partially use of the property. 52.245–1(f)(1)(iii)(A)(4) to use the term agree. The Councils revised the ‘‘unique item identifier (UII)’’ in place of language to include ‘‘Government- 8. Evaluation ‘‘item unique,’’ one comment suggested furnished property also includes There is no revision to the proposed that the term ‘‘item unique identifier’’ is contractor-acquired property if the rule based on this category of comment. a DoD term and that ‘‘asset identifier’’ is contractor-acquired property is a One respondent recommended revising a more widely recognized term, and one deliverable under a cost contract when FAR 45.202(a) to read: ‘‘(a) The comment suggested changing ‘‘Item accepted by the Government for contracting officer shall consider any unique’’ identifier to ‘‘Unique item’’ continued use under the contract’’. potentially unfair competitive advantage identifier as prescribed in Defense One respondent recommended a new that may result from the prospective Acquisition Regulation Supplement definition of ‘‘Property Loss.’’ The contractor possessing Government (DFARS) 252.211–7007. The Councils Councils noted the issue raised by the property. This shall be done by agree with the proposal to retain the commenter. The recommendation is adjusting the offers by applying, for current FAR language of ‘‘unique item’’ outside the scope for the proposed rule. evaluation purposes only, a rental identifier. The Councils did not agree The Councils will consider adding this equivalent evaluation factor.’’ The with the term ‘‘asset identifier.’’ The

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Councils believe that unique item (a) One respondent provided two management. The Councils disagree identifier is used across industry and is comments requesting consistency in the with the change to FAR 45.201(c)(4). reflected in industry practices and use of language throughout the FAR This recommendation is outside the standards. regarding loss (loss, theft, destruction, scope of this case. The Councils or damage). partially agree with the 12. Liability (b) One respondent provided eighteen recommendation of one respondent to There is no revision to the proposed comments recommending that ‘‘loss, change FAR 45.105(b) and partially rule based on this comment category. theft, destruction, or damage’’ be concur with another respondent to One respondent, with two comments, replaced with ‘‘lost’’ only. provide a schedule of completion; recommended revising the language (c) One respondent recommended that therefore, the language in FAR 45.105(b) associated with relief of stewardship ‘‘loss, theft, destruction, or damage’’ be is revised. The Councils disagree with responsibility to add the term liability replaced with ‘‘lost’’ only and that ‘‘all’’ the recommended request to delete the (see FAR 52.245–1(f)). One comment be removed at 52.245–1(f)(1)(x) from language ‘‘when approved by the recommended adding new language to ‘‘inventorying all property.’’ Property Administrator.’’ The Councils read: ‘‘(vii) Relief of Liability. The The Councils recommend no change believe it is in the best interest of the Contractor shall have a process to to the proposed rule. The Councils Government for such approvals by the enable the prompt disclosure and noted the recommendations for a new Government to be made on a contract by reporting of all instances of loss, theft, definition of ‘‘loss.’’ As a result, the contract basis. damage, and destruction of Government Councils recommend including the property, including Government definition of ‘‘loss’’ in a separate case. 17. Markings property in the possession of The Councils do not agree with the There is a revision to the proposed contractors.’’ The second comment deletion of ‘‘all’’ at 52.245–1(f)(1)(x). The rule based on this comment category. recommended moving 52.245– clause at FAR 52.245–1(b)(1) already One respondent recommended deleting 1(f)(vi)(A) and (B) to the new paragraph allows ‘‘the contractor to initiate and ‘‘Government-affixed’’ at FAR 52.245– (vii). The Councils noted the issues maintain the processes, systems, 1(j)(8)(ii). The Councils agree. raised by the commenter. The procedures, records, and methodologies recommendations are outside of the necessary for the effective control of 18. New Coverage scope of this case. These Government property consistent with There is no revision to the proposed recommendations will be considered in voluntary consensus standards and rule based on this category of comment. the formulation of a new case. industry leading practices and Three respondents submitted four comments for this category of 13. Location standards.’’ This requirement extends to the physical inventory required at FAR comments. One respondent There is no revision to the proposed 52.245–1(f)(1)(x). recommended new coverage in FAR rule based on this comment category. 45.103 to cover the contract award One respondent recommended revising 15. Management Plan process when considering competitive FAR 45.501 and the amended FAR There is a revision to the proposed advantage. The Councils disagree. The 45.502 to read as follows: ‘‘45.501 Prime rule based on this comment category. scope of the effort on the contract or contractor alternate locations. (a) The One respondent recommended revising type of contract (e.g., A&E, construction) property administrator assigned to the FAR 52.245–1(g)(1) to allow for multiple should not be the consideration for prime contract may request support contractor property plans. The Councils inclusion of the clauses at FAR 52.245– property administration from another agree. The language at FAR 52.245– 1 and 52.245–9. The sole consideration contract administration office, for 1(g)(1) is revised to allow for multiple for use of these clauses is whether purposes of evaluating prime contractor plans by revising ‘‘plan’’ to ‘‘plan(s).’’ Government property is to be provided. management of property located at the One respondent suggested making all 16. Management System prime contractor’s alternate locations. references to ‘‘property’’ consistent by (b) Prime contractor consent is not There is a revision to the proposed changing the term to ‘‘Government required for support delegations rule based on this comment category. property.’’ The Councils disagree. The involving prime contractor alternate Two respondents submitted four Councils believe that all references to locations. FAR section 45.502 comments on this category. One property in FAR part 45 inherently Subcontractor locations. (c) The prime respondent suggested that FAR mean Government property (see FAR property administrator shall accept the 45.201(c)(4) be replaced with the 45.000 Scope of part), and no further findings of the delegated support following: ‘‘A description of their clarification is needed. property administrator and advise the Property Management System and the One respondent submitted two prime contractor of the results of voluntary consensus standards or comments proposing new coverage. The property management reviews, industry leading practices and standards first comment recommended new including deficiencies found with the to be used in the management of coverage in FAR 45.103 to cover the subcontractor’s property management Government Property.’’ Another contract award process when system.’’ The Councils did not agree. comment recommended revising FAR considering competitive advantage. The The Government is not required to seek 45.105(b) to change ‘‘provide a schedule second comment requested a rewrite of prime contractor consent to conduct for their completion’’ to ‘‘request prompt FAR 45.603. The Council noted the property reviews at alternate locations correction of deficiencies and a issues raised by the commenter. The of the prime contractor. schedule for their completion.’’ Another recommendations are outside of the comment recommended revising FAR scope of this case. The proposed 14. Lost Property 52.245–1(f)(1)(iii)(B) to delete the revisions will be considered in the There is no revision to the proposed language ‘‘when approved by the formulation of a new case. rule based on this comment category. Property Administrator.’’ Another Twenty-one comments were received comment recommended revising FAR 19. Policy from two respondents regarding lost 45.105(b) to amend the proposed rule to There is no revision to the proposed property. provide more effective property rule based on this category of comment.

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Two respondents submitted four The Councils disagree with this had not been adequately addressed in comments for this comment category. suggestion; however, the revised the FAR. One respondent agrees with the language provides direction to the This policy does not exclude the revision. contracting officer as to how equipment otherwise allowable cost of depreciation Two respondents proposed coverage should be treated within the current under FAR 31.205–11. outside of the scope of this case. The guidelines. Councils noted the comments. The Four respondents suggest removal of 21. Rental proposed revisions are outside of the the language added in 15.404–4(a)(3). There is no revision to the proposed scope of this case. The proposed The Councils disagree with these rule based on this category of comment. revisions will be considered in the suggestions. One respondent submitted two formulation of a new case. One respondent believes there is no comments recommending amending One respondent recommended adding basis to eliminate profit on any FAR 45.301 and 45.303. One comment a new paragraph (e) in FAR 45.102 to allowable element of the contract cost, recommended amending FAR 45.301 by read: ‘‘Intangible property, e.g., especially property that is required in intellectual property, software, etc., are the performance of a Government inserting a comma after the word ‘‘ ’’ not subject to this requirements of this contract but not incorporated into the authorized in paragraph (b) and FAR part or the Government property end item deliverable or listed as a making two sentences out of paragraph ‘‘ clauses found at 52.245.’’ The Councils deliverable. The Councils disagree with (b) so that it reads as follows: (b) Rental disagree. The issue of whether this suggestion. The language is revised charges, to the extent authorized, do not Intellectual property is covered under to assure that it applies only to apply to Government property that is FAR contract property regulations is equipment as defined in FAR 45.101. left in place or installed on contractor- addressed in the scope of part in FAR The language has been revised and owned property for mobilization or 45.000 and in the definitions in FAR moved to 15.404–4(c)(3). The revision future Government production 45.101. does not change, expand or constrict purposes; (c) Rental charges shall apply existing contracting policy. Rather, the to property to be used for non- 20. Profit and Fee purpose of the revised language is to government commercial purposes.’’ The There is a revision to the proposed clarify policy, and ensure its awareness second comment recommended rule based on this comment category. within the acquisition community. amending FAR 45.303 to read ‘‘The The proposed language in FAR 15.404– Prior to the publication of FAR Case contracting officer may authorize a 4(a)(3) is relocated to FAR 15.404– 2004–025, June 2007, FAR 45.302–2(c) contractor to use the property on an 4(c)(3) and revised. Nine comments and FAR 45.302–3(c) contained independent research and development were received from eight respondents language intended to prevent (IR&D) program rent free, if— regarding profit and fee. contractors from acquiring facilities and (a) Such use will not conflict with the One respondent suggests removal of treating the facilities in the same primary use of the property or enable the proposed language in 15.404–4(a)(3) manner as a contract line item the contractor to retain property that and inclusion of new language in deliverable with associated profit or fee. could otherwise be released; 15.404–4(c)(3) that ‘‘instructs FAR Case 2004–025 deleted this (b) The contractor agrees not to claim contracting officers to exclude the costs language. The requirements of this rental value against any Government of contractor-acquired property from language were added to the proposed contract for the property; and rule in FAR 15.404–4 because the policy pre-negotiation cost objectives when (c) Estimated rental proceeds are still applies. calculating the Government’s pre- immaterial or rental cost to the negotiation profit or fee objective, While the application of this policy tended to be obfuscated by the term contractor would subsequently, in a unless the contractor acquired property substantial way, be charged back to the ’’ ‘‘facilities,’’ the underlying principle was is a deliverable under the contract. The Government as part of indirect cost.’’ Councils partially agree with this clear—that when the contractor buys recommendation and the language is equipment or acquires real property on The Councils note the issue raised by revised accordingly. a ‘‘pass through’’ basis, i.e., when not the commenter. The recommendations One respondent requests clarification part of a deliverable, it is the are outside of the scope of this case. The of the language added in 15.404–4. The Government—not the contractor—who proposed revisions will be considered Councils agree with this assumes the risk. Moreover, it is in the formulation of a new case. recommendation. generally held that upon contract award, 22. Responsibility vs. Liability One respondent suggests that contractors are required to furnish all requirement of the language added to property necessary to perform There is no revision to the proposed 15.404–4(a)(3) will be burdensome and Government contracts (FAR Part 45.102) rule based on this category of comment. require auditing to ensure zero profit; as well as all the necessary resources One respondent recommended moving instead of this method, the respondent needed for contract performance (FAR the coverage in FAR 52.245–1(f)(vii) to suggests that the contracting officer take 9.104–1(f), General standards). FAR 45.104 or moving this paragraph to the value of the contractor acquired Accordingly, it is not appropriate for FAR 52.245–1(h)(1) and being repeated property in consideration when the Government to include the cost of in 45.104, or replace the word negotiating profits. The Councils contractor acquired property ‘‘responsibility’’ with ‘‘liability.’’ The partially agree with this suggestion. The (equipment) when calculating the Councils note the issue raised by the Councils disagree with the assertion that Government’s pre-negotiation profit or commenter. The recommendations are the requirement is burdensome. The fee objective. Including such costs outside of the scope of this case. The language has been modified to clarify its would unduly compensate the proposed revisions will be considered use and limit its applicability to contractor for obtaining equipment it in the formulation of a new case. equipment as defined in FAR 45.101. should already have; and for risks it did 23. Sale One respondent suggests changing the not incur. This is a long held view; weighted guidelines to address the however, up until the publication of the One respondent agreed with the value of contractor acquired property. proposed rule FAR Case 2008–011, it proposed language in FAR 45.604–3.

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24. Scrap List Revised FAR 45.101 and 52.245–1 to Dated: June 25, 2010. clarify the definition of ‘‘Government- Edward Loeb, There is no revision to the proposed furnished property.’’ rule based on this category of comment. Director, Acquisition Policy Division. Revised FAR 45.105 and FAR 52.245– One respondent requested that the 1(g)(3) to clarify language necessary for Therefore, DoD, GSA, and NASA paragraph (FAR 45.606–1(b)) be revised contractors to take the necessary amend 48 CFR parts 2, 4, 15, 31, 32, 42, as follows: ‘‘For scrap from other than corrective action as specified by the 45, and 52 as set forth below: production or testing, the contractor schedule within the corrective action ■ may prepare scrap lists in lieu of 1. The authority citation for 48 CFR plan. inventory disposal schedules (provided parts 2, 4, 15, 31, 32, 42, 45, and 52 Revised FAR 52.245–1(j)(3)(iv)(A) to continues to read as follows: such lists are consistent with the delete the language as proposed in the property management plan or approvals Authority: 40 U.S.C. 121(c); 10 U.S.C. proposed rule and by moving and chapter 137; and 42 U.S.C. 2473(c). by the property administrator or retaining the language at FAR 52.245– contracting officer). The Councils note 1(j)(3)(iv)(F) as paragraph (A). the issue raised by the commenter. The PART 2—DEFINITIONS OF WORDS Revised FAR 45.201, FAR 52.245– AND TERMS recommendations are outside of the 1(f)(1)(iii)(A)(4) and FAR 52.245– scope of this case. The proposed 1(f)(1)(vi)(B)(4) to delete the proposed 2.101 [Amended] revisions will be considered in the rule language and retain the current ■ formulation of a new case. FAR language. 2. Amend section 2.101, in paragraph (b)(2), by removing from the definition 25. Screening Revised FAR 52.245–1(j)(8)(ii) by deleting the language ‘‘Government- ‘‘Plant clearance officer’’ the words One respondent agreed with the affixed.’’ ‘‘plants and Federal installations’’ and proposed language at FAR 45.602– Revised FAR 52.245–1(a) by removing adding ‘‘plants, Federal installations, 3(b)(3). language duplicating the definition of and Federal and non-Federal industrial operations,’’ in its place; and removing 26. Storage contractor’s managerial personnel. Revised FAR 15.404–4(a)(3) by from the definition ‘‘Special tooling’’ the One respondent agreed with the relocating the language to FAR words ‘‘test equipment, and’’ and adding proposed language at FAR 52.245– 15.404(c)(3) and clarifying that ‘‘tooling, and’’ in its place. 1(j)(7)(ii). contracting officers shall exclude the PART 4—ADMINISTRATIVE MATTERS 27. Supply Source cost of contractor-acquired property when calculating the Government’s pre- ■ One respondent agreed with the negotiation profit or fee objective. 3. Amend section 4.705–3 by adding proposed language at FAR 52.251–1. This is not a significant regulatory paragraph (h) to read as follows: 28. Title action and, therefore, was not subject to 4.705–3 Acquisition and supply records. review under Section 6(b) of Executive * * * * * There is no revision to the proposed Order 12866, Regulatory Planning and rule based on this category of comment. Review, dated September 30, 1993. This (h) Property records (see FAR 45.101 The respondent agrees, in two rule is not a major rule under 5 U.S.C. and 52.245–1): Retain 4 years. comments, with the proposed language 804. at FAR 52.245–1(e)(2)(ii) and (iii). PART 15—CONTRACTING BY The respondent also proposes revising B. Regulatory Flexibility Act NEGOTIATION FAR 45.402(a). The Councils note the The Department of Defense, the issue raised by the commenter. The General Services Administration, and ■ 4. Amend section 15.404–4 by adding recommendations are outside of the the National Aeronautics and Space a sentence after the first sentence of scope of this case. The proposed Administration certify that this final paragraph (c)(3) to read as follows: revisions will be considered in the rule will not have a significant 15.404–4 Profit. formulation of a new case. economic impact on a substantial * * * * * 29. Use number of small entities within the meaning of the Regulatory Flexibility (c) * * * One respondent agreed with the Act, 5 U.S.C. 601, et seq., because the proposed language at FAR 52.245–1(c). (3) * * * Before applying profit or fee rule does not impose any additional factors, the contracting officer shall 30. Administrative requirements on small businesses. The exclude from the pre-negotiation cost rule does not affect the method of objective amounts the purchase cost of One respondent agreed with the managing Government property. The proposed language at FAR 52.245–1. contractor-acquired property that is rule merely clarifies and corrects the categorized as equipment, as defined in 31. Wrong Case previous FAR rule. FAR 45.101, and where such equipment One respondent submitted one C. Paperwork Reduction Act is to be charged directly to the contract. *** comment opposing FAR 2009–005. The Paperwork Reduction Act does Summary of Proposed Rule Changes. apply; however, these changes to the * * * * * The Councils made the following FAR do not impose additional PART 31—CONTRACT COST changes to the proposed rule as a result information collection requirements to PRINCIPLES AND PROCEDURES of the public comments. the paperwork burden previously Revised FAR 45.101 and 52.245–1 to approved under OMB Control Number 31.205–19 [Amended] clarify the definition of ‘‘equipment’’ by 9000–0075. including special test equipment and ■ 5. Amend section 31.205– special tooling in the exclusions. List of Subjects in 48 CFR Parts 2, 4, 15, 19(e)(2)(iv)(C) by removing ‘‘52.245– Revised FAR 45.101 and 52.245–1 to 31, 32, 42, 45, and 52 1(h)(1)(ii)’’ and adding ‘‘52.245–1(a)’’ in clarify the definition of ‘‘cannibalize.’’ Government procurement. its place.

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PART 32—CONTRACT FINANCING needed for the performance of a revising paragraph (b)(1); and removing contract. Equipment is not intended for from paragraph (d) ‘‘damage, destruction 32.503–16 [Amended] sale, and does not ordinarily lose its or theft’’ and adding ‘‘theft, damage or ■ 6. Amend section 32.503–16 by identity or become a component part of destruction’’ in its place. removing from paragraph (a) ‘‘loss, theft, another article when put into use. The revised text reads as follows: ’’ Equipment does not include material, destruction, or damage to and adding 45.105 Contractors’ property management ‘‘lost, stolen, damaged, or destroyed’’ in real property, special test equipment or system compliance. its place. special tooling. Government-furnished property * * * * * 32.1010 [Amended] means property in the possession of, or (b) The property administrator shall notify the contractor in writing when ■ directly acquired by, the Government 7. Amend section 32.1010 by and subsequently furnished to the the contractor’s property management ‘‘ removing from paragraph (a) loss, theft, contractor for performance of a contract. system does not comply with destruction, or damage to property Government-furnished property contractual requirements, and shall affected by the clause’’ and adding ‘‘lost, includes, but is not limited to, spares request prompt correction of stolen, damaged, or destroyed property’’ and property furnished for repair, deficiencies and shall request from the in its place. maintenance, overhaul, or modification. contractor a corrective action plan, including a schedule for correction of PART 42—CONTRACT Government-furnished property also includes contractor-acquired property if the deficiencies and shall provide a ADMINISTRATION AND AUDIT schedule for their completion. * * * SERVICES the contractor-acquired property is a deliverable under a cost contract when (1) Revocation of the Government’s assumption of risk for loss, theft, ■ accepted by the Government for 8. Amend section 42.302 by revising damage or destruction; and/or paragraphs (a)(30)(iii) and (a)(30)(v) to continued use under the contract. * * * * * read as follows: Government property means all property owned or leased by the 45.201 [Amended] 42.302 Contract administration functions. Government. Government property (a) * * * includes both Government-furnished ■ 13. Amend section 45.201 by (30) * * * property and contractor-acquired removing from paragraph (d) ‘‘When use (iii) Evaluate the use of Government property. Government property includes of property on more than one contract property on a non-interference basis in material, equipment, special tooling, is anticipated, any’’ and adding ‘‘Any’’ in accordance with the clause at 52.245–9, special test equipment, and real its place. Use and Charges; property. Government property does not ■ 14. Amend section 45.402 by revising paragraph (a) to read as follows: * * * * * include intellectual property and (v) Modify contracts to reflect the software. 45.402 Title to contractor-acquired addition of Government-furnished * * * * * property. property and ensure appropriate Property records means the records (a) Title vests in the Government for consideration. created and maintained by the all property acquired or fabricated by * * * * * contractor in support of its stewardship the contractor in accordance with the responsibilities for the management of financing provisions or other specific PART 45—GOVERNMENT PROPERTY Government property. requirements for passage of title in the * * * * * contract. Under fixed-price type ■ 9. Amend section 45.101 by— Real property. See Federal contracts, in the absence of financing ■ a. Revising the definitions Management Regulation 102–71.20 (41 provisions or other specific ‘‘ ’’ ‘‘ ’’ Cannibalize , Equipment , CFR 102–71.20). requirements for passage of title in the ‘‘ ’’ Government-furnished property , and contract, the contractor retains title to ‘‘ ’’ * * * * * Government property ; all property acquired by the contractor ■ b. Removing from the definition ■ 10. Amend section 45.102 by revising for use on the contract, except for ‘‘Material’’ the words ‘‘and special test paragraph (d) to read as follows: property identified as a deliverable end equipment’’ and adding ‘‘special test 45.102 Policy. item. If a deliverable item is to be equipment or real property’’ in its place; retained by the contractor for use after ■ c. Removing the definition ‘‘Plant * * * * * inspection and acceptance by the equipment’’; (d) Exception. Property provided Government, it shall be made ■ d. Adding the definition ‘‘Property under contracts for repair, maintenance, accountable to the contract through a records’’; and overhaul, or modification is not subject ■ e. Revising the definition ‘‘Real to the requirements of paragraph (b) of contract modification listing the item as property.’’ this section. Government-furnished property. ■ The revised and added text reads as ■ 11. Amend section 45.104 by revising * * * * * follows: the introductory text of paragraph (a) to ■ 15. Revise section 45.502 to read as 45.101 Definitions. read as follows: follows: * * * * * 45.104 Responsibility and liability for 45.502 Subcontractor and alternate prime Cannibalize means to remove parts Government property. contractor locations. from Government property for use or for (a) Generally, contractors are not held (a) To ensure subcontractor installation on other Government liable for loss, theft, damage or compliance with Government property property. destruction of Government property administration requirements, and with * * * * * under the following types of contracts: prime contractor consent, the property Equipment means a tangible item that * * * * * administrator assigned to the prime is functionally complete for its intended ■ 12. Amend section 45.105 by revising contract may request support property purpose, durable, nonexpendable, and the first sentence of paragraph (b); administration from another contract

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administration office. If the prime ■ a. Removing from the clause heading ■ h. Add paragraphs (j)(3)(v) and contractor does not provide consent to ‘‘(JUL 2009)’’ and adding ‘‘(AUG 2010)’’ (j)(3)(vi); support property administration at in its place; ■ i. Remove from paragraph (j)(7)(ii) the subcontractor locations, the property ■ b. Removing from paragraph (d)(2)(ii) word ‘‘facility’’ and add the word ‘‘area’’ administrator shall refer the matter to ‘‘under any other clause of this in its place; the contracting officer for resolution. contract’’; ■ j. Revise second sentence of paragraph (b) The prime property administrator ■ c. Removing from paragraph (d)(3) ‘‘or (j)(8)(ii); and shall accept the findings of the special tooling’’; and ■ k. In Alternate I, revise the date of the delegated support property ■ d. Removing from paragraph (e) ‘‘is alternate, and the first sentence of administrator and advise the prime damaged, lost, stolen, or’’ and adding ‘‘is paragraph (h)(1). contractor of the results of property lost, stolen, damaged, or’’ in its place. The added and revised text reads as follows: management reviews, including 52.232–32 [Amended] deficiencies found with the 52.245–1 Government Property. ■ 20. Amend section 52.232–32 by— subcontractor’s property management * * * * * system. ■ a. Removing from the clause heading (c) Prime contractor consent is not ‘‘(JAN 2008)’’ and adding ‘‘(AUG 2010)’’ GOVERNMENT PROPERTY (AUG 2010) required for support delegations in its place; (a) * * * ■ b. Removing from paragraph (f)(2)(ii) involving prime contractor alternate * * * * * ‘‘under any other clause of this locations. Cannibalize means to remove parts from contract’’; Government property for use or for ■ 45.602–3 [Amended] c. Removing from paragraph (f)(3) ‘‘or installation on other Government property. special tooling’’; and ■ ■ * * * * * 16. Amend section 45.602–3 by d. Removing from paragraph (g) ‘‘is Equipment means a tangible item that is removing from paragraph (b)(3) ‘‘North damaged, lost, stolen, or’’ and adding ‘‘is functionally complete for its intended Capitol and H Streets’’ and adding ‘‘732 lost, stolen, damaged, or’’ in its place. purpose, durable, nonexpendable, and North Capitol Street’’ in its place. ■ 21. Amend section 52.245–1 by— needed for the performance of a contract. ■ 17. Revise section 45.604–3 to read as ■ a. Revising the date of the clause; Equipment is not intended for sale, and does follows: ■ b. In paragraph (a) by— not ordinarily lose its identity or become a ■ i. Revising the definitions component part of another article when put 45.604–3 Sale of surplus personal ‘‘Cannibalize’’ and ‘‘Equipment’’; into use. Equipment does not include material, real property, special test property. ■ ii. Adding two sentences to the end of Policy for the sale of surplus personal equipment or special tooling. the definition ‘‘Government-furnished Government-furnished property *** property is contained in the Federal property’’; Government-furnished property includes, but Management Regulation, at Part 102–38 ■ iii. Adding two sentences to the end is not limited to, spares and property (41 CFR Part 102–38). Agencies may of the definition ‘‘Government furnished for repair, maintenance, overhaul, specify implementing procedures. property’’; or modification. Government-furnished ■ iv. Removing from the definition property also includes contractor-acquired ■ 18. Amend section 45.606–1 by ‘‘Material’’ the word ‘‘end-item’’ and property if the contractor-acquired property revising paragraph (b) and adding adding the words ‘‘end item’’ in its is a deliverable under a cost contract when paragraph (c) to read as follows: place; and removing the words ‘‘and accepted by the Government for continued use under the contract. 45.606–1 Contractor with an approved special test equipment’’ and adding the Government property * * * Government scrap procedure. words ‘‘, special test equipment or real property includes material, equipment, * * * * * property’’ in its place; special tooling, special test equipment, and ■ ‘‘ (b) For scrap from other than v. Removing the definition Plant real property. Government property does not equipment’’; include intellectual property and software. production or testing, the contractor ■ may prepare scrap lists in lieu of vi. Adding, in alphabetical order, the * * * * * ‘‘ ’’ inventory disposal schedules (provided definition Property records ; and Property records means the records created ■ vii. Revising the definition ‘‘Real such lists are consistent with the and maintained by the contractor in support property’’; of its stewardship responsibilities for the approved scrap procedures). ■ c. Revising the first sentence of management of Government property. (c) Inventory disposal schedules shall paragraph (b)(2), and paragraphs (c), and * * * * * be submitted for all aircraft regardless of (e)(2)(ii); Real property. See Federal Management condition, flight safety critical aircraft ■ d. Removing from paragraphs Regulation 102–71.20 (41 CFR 102–71.20). parts, and scrap that— (e)(2)(iii) and (f)(1)(i) the word * * * * * (1) Requires demilitarization; ‘‘material’’ and adding the word (b) * * * (2) Is a classified item; ‘‘property’’ wherever it occurs (8 times); (2) The Contractor’s responsibility extends (3) Is generated from classified items; ■ e. Revising paragraph (f)(1)(v)(A), from the initial acquisition and receipt of (4) Contains hazardous materials or introductory text of paragraph (f)(1)(vi), property, through stewardship, custody, and hazardous wastes; paragraphs (f)(1)(vi)(A), (f)(1)(vi)(B)(4), use until formally relieved of responsibility (5) Contains precious metals that are (f)(1)(vi)(B)(10), (f)(1)(vii)(A), by authorized means, including delivery, consumption, expending, sale (as surplus economically beneficial to recover; or (f)(1)(viii)(B), (f)(1)(x), (g), introductory property), or other disposition, or via a (6) Is dangerous to the public health, text of paragraph (h)(1), paragraphs completed investigation, evaluation, and safety, or welfare. (h)(1)(ii) and (h)(1)(iii), the first sentence final determination for lost, stolen, damaged, of paragraph (h)(2), (h)(3), introductory or destroyed property. * * * PART 52—SOLICITATION PROVISIONS text of paragraph (i), and paragraph * * * * * AND CONTRACT CLAUSES (j)(1)(i)(B); (c) Use of Government property. (1) The ■ f. Add paragraph (j)(1)(i)(C); 52.232–16 [Amended] Contractor shall use Government property, ■ g. Revise paragraphs (j)(3)(iii)(E) and either furnished or acquired under this ■ 19. Amend section 52.232–16 by— (j)(3)(iv); contract, only for performing this contract,

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unless otherwise provided for in this contract the performance of the contract, including that the loss, theft, damage or destruction of or approved by the Contracting Officer. reasonable inventory adjustments of material Government property occurred while the (2) Modifications or alterations of as determined by the Property Administrator; Contractor had adequate property Government property are prohibited, unless or a Property Administrator granted relief of management practices or the loss, theft, they are— responsibility for loss, theft, damage or damage or destruction of Government (i) Reasonable and necessary due to the destruction of Government property; property did not result from the Contractor’s scope of work under this contract or its terms * * * * * failure to maintain adequate property and conditions; (viii) * * * management practices, the Contractor shall (ii) Required for normal maintenance; or (B) Unless otherwise authorized in this not be held liable. (iii) Otherwise authorized by the contract or by the Property Administrator the (2) The Contractor shall take all reasonable Contracting Officer. Contractor shall not commingle Government actions necessary to protect the Government (3) The Contractor shall not cannibalize material with material not owned by the property from further loss, theft, damage or Government property unless otherwise Government. destruction. * * * provided for in this contract or approved by (3) The Contractor shall do nothing to the Contracting Officer. * * * * * (x) Property closeout. The Contractor shall prejudice the Government’s rights to recover * * * * * promptly perform and report to the Property against third parties for any loss, theft, (e) * * * Administrator contract property closeout, to damage or destruction of Government (2) * * * include reporting, investigating and securing property. (ii) Title vests in the Government for all closure of all loss, theft, damage or * * * * * property acquired or fabricated by the destruction cases; physically inventorying all Contractor in accordance with the financing (i) Equitable adjustment. Equitable property upon termination or completion of adjustments under this clause shall be made provisions or other specific requirements for this contract; and disposing of items at the passage of title in the contract. Under fixed in accordance with the procedures of the time they are determined to be excess to Changes clause. However, the Government price type contracts, in the absence of contractual needs. financing provisions or other specific shall not be liable for breach of contract for requirements for passage of title in the * * * * * the following: contract, the Contractor retains title to all (g) Systems analysis. (1) The Government * * * * * shall have access to the Contractor’s premises property acquired by the Contractor for use (j) * * * on the contract, except for property identified and all Government property, at reasonable times, for the purposes of reviewing, (1) * * * as a deliverable end item. If a deliverable (i) * * * item is to be retained by the Contractor for inspecting and evaluating the Contractor’s property management plan(s), systems, (B) For scrap from other than production use after inspection and acceptance by the or testing the Contractor may prepare scrap Government, it shall be made accountable to procedures, records, and supporting lists in lieu of inventory disposal schedules the contract through a contract modification documentation that pertains to Government (provided such lists are consistent with the listing the item as Government-furnished property. This access includes all site approved scrap procedures). property. locations and, with the Contractor’s consent, all subcontractor premises. (C) Inventory disposal schedules shall be * * * * * (2) Records of Government property shall submitted for all aircraft regardless of (f) * * * be readily available to authorized condition, flight safety critical aircraft parts, (1) * * * Government personnel and shall be and scrap that— (v) * * * appropriately safeguarded. (1) Requires demilitarization; (A) The Contractor shall award (3) Should it be determined by the (2) Is a classified item; subcontracts that clearly identify assets to be Government that the Contractor’s (or (3) Is generated from classified items; provided and shall ensure appropriate flow subcontractor’s) property management (4) Contains hazardous materials or down of contract terms and conditions (e.g., practices are inadequate or not acceptable for hazardous wastes; extent of liability for loss, theft, damage or the effective management and control of (5) Contains precious metals that are destruction of Government property). Government property under this contract, or economically beneficial to recover; or * * * * * present an undue risk to the Government, the (6) Is dangerous to the public health, (vi) Reports. The Contractor shall have a Contractor shall prepare a corrective action safety, or welfare. process to create and provide reports of plan when requested by the Property discrepancies; loss, theft, damage or Administrator and take all necessary * * * * * destruction; physical inventory results; corrective actions as specified by the (3) * * * audits and self-assessments; corrective schedule within the corrective action plan. (iii) * * * actions; and other property related reports as (h) Contractor Liability for Government (E) Precious metals in raw or bulk form; directed by the Contracting Officer. Property. * * * * * (A) Loss, theft, damage or destruction. (1) Unless otherwise provided for in the (iv) The Contractor shall provide the Unless otherwise directed by the Property contract, the Contractor shall not be liable for information required by FAR 52.245– Administrator, the Contractor shall loss, theft, damage or destruction to the 1(f)(1)(iii) along with the following: investigate and promptly furnish a written Government property furnished or acquired (A) Any additional information that may narrative of all incidents of loss, theft, under this contract, except when any one of facilitate understanding of the property’s damage or destruction to the property the following applies— intended use. administrator as soon as the facts become * * * * * (B) For work-in-progress, the estimated known or when requested by the (ii) The loss, theft, damage or destruction percentage of completion. Government. is the result of willful misconduct or lack of (C) For precious metals, the type of metal (B) * * * and estimated weight. (4) Unique-item Identifier (if available). good faith on the part of the Contractor’s managerial personnel. (D) For hazardous material or property * * * * * (iii) The Contracting Officer has, in writing, contaminated with hazardous material, the (10) A statement that the Government will revoked the Government’s assumption of risk type of hazardous material. receive any reimbursement covering the loss, for loss, theft, damage or destruction, due to (E) For metals in mill product form, the theft, damage or destruction in the event the a determination under paragraph (g) of this form, shape, treatment, hardness, temper, Contractor was or will be reimbursed or clause that the Contractor’s property specification (commercial or Government) compensated. management practices are inadequate, and/or and dimensions (thickness, width and * * * * * present an undue risk to the Government, length). (vii) * * * and the Contractor failed to take timely (v) Property with the same description, (A) Consumed or expended, reasonably corrective action. If the Contractor can condition code, and reporting location may and properly, or otherwise accounted for, in establish by clear and convincing evidence be grouped in a single line item.

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(vi) Scrap should be reported by ‘‘lot’’ along apply to all property acquired under such period closed on December 14, 2009. No with metal content, estimated weight and authorization. comments were received in response to estimated value. [FR Doc. 2010–15918 Filed 7–1–10; 8:45 am] the interim rule. * * * * * BILLING CODE 6820–EP–P In the interim rule, the Councils (8) * * * amended the language at FAR 2.101 to (ii) * * * Unless otherwise directed by the add a definition of ‘‘Disaster Response Contracting Officer or by the Plant Clearance DEPARTMENT OF DEFENSE ’’ Officer, the Contractor shall remove and Registry, and at FAR 4.1104, 18.102, destroy any markings identifying the and 26.205 to require contracting GENERAL SERVICES officers to consult the registry at property as U.S. Government-owned property ADMINISTRATION prior to its disposal. http://www.ccr.gov. In addition, a requirement was added to FAR 10.001 * * * * * NATIONAL AERONAUTICS AND Alternate I (AUG 2010). * * * to require contracting officers to take SPACE ADMINISTRATION advantage of commercially available (h)(1) The Contractor assumes the risk of, and shall be responsible for, any loss, theft, market research methods to identify 48 CFR Parts 2, 4, 7, 10, 13, 18, 26, and capabilities to meet agency damage or destruction of Government 52 property upon its delivery to the Contractor requirements for disaster relief. as Government-furnished property. * * * [FAC 2005–43; FAR Case 2008–035; Item The Disaster Response Registry is * * * * * II; Docket 2009–0033, Sequence 1] located at www.ccr.gov. The Federal Emergency Management Agency (within ■ RIN 9000–AL30 22. Amend section 52.245–2 by the Department of Homeland Security) revising the date of the clause, and the Federal Acquisition Regulation; FAR has a link to the registry for vendors on first two sentences of paragraph (b) to Case 2008–035, Registry of Disaster its Web site http://www.fema.gov/ read as follows: Response Contractors business/contractor.shtm. The Registry 52.245–2 Government Property Installation covers disaster and emergency relief Operation Services. AGENCIES: Department of Defense (DoD), activities inside the United States and General Services Administration (GSA), * * * * * its outlying areas only. Major disaster and National Aeronautics and Space and emergency declarations are GOVERNMENT PROPERTY Administration (NASA). published in the Federal Register and INSTALLATION OPERATION SERVICES ACTION: Final rule. are available at http://www.fema.gov/ (AUG 2010) news/disasters.fema. SUMMARY: The Civilian Agency * * * * * This is a significant regulatory action (b) The Government bears no responsibility Acquisition Council and the Defense and, therefore, was subject to review for repair or replacement of any lost, stolen, Acquisition Regulations Council under Section 6(b) of Executive Order damaged or destroyed-Government property. (Councils) have adopted, as final 12866, Regulatory Planning and Review, If any or all of the Government property is without change, the interim rule dated September 30, 1993. This rule is lost, stolen, damaged or destroyed or amending the Federal Acquisition becomes no longer usable, the Contractor not a major rule under 5 U.S.C. 804. shall be responsible for replacement of the Regulation (FAR) to implement the property at Contractor expense. * * * Department of Homeland Security B. Regulatory Flexibility Act Appropriations Act, 2007, section 697, * * * * * The Department of Defense, the which requires the establishment and General Services Administration, and ■ maintenance of a registry of disaster 23. Amend section 52.245–9 by the National Aeronautics and Space response contractors. revising the date of the clause, and the Administration certify that this final introductory text of paragraph (a); and DATES: Effective Date: August 2, 2010. rule will not have a significant removing the definitions ‘‘Acquisition FOR FURTHER INFORMATION CONTACT: For economic impact on a substantial cost’’, ‘‘Government property’’, ‘‘Plant clarification of content, contact Millisa number of small entities within the equipment’’, and ‘‘Real property’’. Gary, Procurement Analyst, at (202) meaning of the Regulatory Flexibility The revised text reads as follows: 501–0699. For information pertaining to Act, 5 U.S.C. 601, et seq., because this status or publication schedules, contact 52.245–9 Use and Charges. rule does not revise or change existing the Regulatory Secretariat at (202) 501– regulations pertaining to small business * * * * * 4755. Please cite FAC 2005–43, FAR concerns seeking Government contracts. USE AND CHARGES (AUG 2010) case 2008–035. In addition, the Councils sought (a) Definitions. Definitions applicable to SUPPLEMENTARY INFORMATION: comments from small businesses on the affected FAR parts at the publication of this contract are provided in the clause at A. Background 52.245–1, Government Property. Additional the interim rule. No comments were definitions as used in this clause include: Public Law 109–295, the Department received. of Homeland Security Appropriations * * * * * C. Paperwork Reduction Act Act, 2007, section 697, requires the ■ 24. Amend section 52.251–1 by establishment and maintenance of a The Paperwork Reduction Act does revising the date of the clause, and the registry of contractors willing to perform not apply because the changes to the last sentence of the clause to read as debris removal, distribution of supplies, FAR do not impose information follows: reconstruction, and other disaster or collection requirements that require the 52.251–1 Government Supply Sources. emergency relief activities. In addition, approval of the Office of Management contracting officers are required to and Budget under 44 U.S.C. Chapter 35, * * * * * consult the registry during market et seq. GOVERNMENT SUPPLY SOURCES (AUG research and acquisition planning. List of Subjects in 48 CFR Parts 2, 4, 7, 2010) The interim rule was published in the 10, 13, 18, 26, and 52 * * * The provisions of the clause entitled Federal Register on October 14, 2009 ‘‘Government Property,’’ at 52.245–1, shall (74 FR 52847). The public comment Government procurement.

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Dated: June 25, 2010. clause dated March 2009 is already in on their use of Recovery Act funds. A Edward Loeb, the underlying task and delivery order correction was published May 14, 2009 Director, Acquisition Policy Division. contract. This change is not required (74 FR 22810). The FAR interim rule when modifying existing contracts that added a new subpart 4.15, and a new Interim Rule Adopted as Final Without contain the clause dated March 2009. clause, 52.204–11, requiring contracting Change Therefore, this interim rule does not officers to include the clause in Accordingly, the interim rule require renegotiation of existing solicitations and contracts funded in amending 48 CFR parts 2, 4, 7, 10, 13, Recovery Act contracts that include the whole or in part with Recovery Act 18, 26, and 52, which was published in clause dated March 2009. funds, except classified solicitations and the Federal Register at 74 FR 52847 on Comment Date: Interested parties contracts. October 14, 2009, is adopted as a final should submit written comments to the This new interim rule revises the rule without change. Regulatory Secretariat on or before clause and instructs contracting officers [FR Doc. 2010–15914 Filed 7–1–10; 8:45 am] August 31, 2010 to be considered in the to include the clause in all new BILLING CODE 6820–EP–P formulation of a final rule. solicitations and contracts issued on or ADDRESSES: Submit comments after the effective date of this interim identified by FAC 2005–43, FAR case rule. This revised clause is not required DEPARTMENT OF DEFENSE 2010–008, by any of the following for any existing contracts, or task and methods: delivery orders issued under a contract, GENERAL SERVICES • Regulations.gov: http:// that contain the original clause FAR ADMINISTRATION www.regulations.gov. Submit comments clause 52.204–11 dated March 2009. via the Federal eRulemaking portal by Therefore, no renegotiation is required. NATIONAL AERONAUTICS AND inputting ‘‘FAR Case 2010–008’’ under However, the revised clause will be SPACE ADMINISTRATION the heading ‘‘Enter Keyword or ID’’ and required for any new Recovery Act selecting ‘‘Search.’’ Select the link funded task or delivery orders if the 48 CFR Parts 4 and 52 ‘‘Submit a Comment’’ that corresponds underlying task or delivery order [FAC 2005–43; FAR Case 2010–008; Item with ‘‘FAR Case 2010–008.’’ Follow the contract does not contain FAR clause III; Docket 2010–0008, Sequence 1] instructions provided at the ‘‘Submit a 52.204–11, dated March 2009. Comment’’ screen. Please include your RIN 9000–AL63 The revised clause requires first-tier name, company name (if any), and ‘‘FAR subcontractors to report jobs Federal Acquisition Regulation; FAR Case 2010–008’’ on your attached information to the prime contractor for Case 2010–008, Recovery Act document. reporting into http:// • Fax: 202–501–4067. Subcontract Reporting Procedures • FederalReporting.gov. It also requires Mail: General Services prime contractors to submit their first AGENCIES: Department of Defense (DoD), Administration, Regulatory Secretariat quarterly report into http:// General Services Administration (GSA), (MVCB), 1800 F Street, NW., Room FederalReporting.gov on or before the and National Aeronautics and Space 4041, ATTN: Hada Flowers, 10th day following the end of the Administration (NASA). Washington, DC 20405. calendar quarter in which the prime ACTION: Interim rule with request for Instructions: Please submit comments contractor received its award and comments. only and cite FAC 2005–43, FAR case submit quarterly thereafter. The revised 2010–008, in all correspondence related clause also refers contractors and their SUMMARY: The Civilian Agency to this case. All comments received will first-tier subcontractors to a set of Acquisition Council and the Defense be posted without change to http:// Frequently Asked Questions (FAQs) Acquisition Regulations Council www.regulations.gov, including any available online. Contractors subject to (Councils) have agreed on an interim personal and/or business confidential 52.204–11 were initially notified of the rule amending the Federal Acquisition information provided. FAQs through a Federal Register notice Regulation (FAR) to revise the clause at FOR FURTHER INFORMATION CONTACT: Mr. (74 FR 48971), published on September FAR 52.204–11. This interim rule does Karlos Morgan, Procurement Analyst, at 25, 2009. not require renegotiation of existing (202) 501–2364 for clarification of Recovery Act contracts that include the This is a significant regulatory action content. Please cite FAC 2005–43, FAR and, therefore, was subject to review clause dated March 2009. This change case 2010–008. For information will require first-tier subcontractors under Section 6(b) of Executive Order pertaining to status or publication 12866, Regulatory Planning and Review, with Recovery Act funded awards of schedules, contact the Regulatory $25,000 or more, to report jobs dated September 30, 1993. This rule is Secretariat at (202) 501–4755. not a major rule under 5 U.S.C. 804. information to the prime contractor for SUPPLEMENTARY INFORMATION: reporting into http:// B. Regulatory Flexibility Act FederalReporting.gov. It also will A. Background This interim rule may have a require the prime contractor to submit On February 17, 2009, the President significant economic impact on a its first report on or before the 10th day signed Public Law 111–5, the American substantial number of small entities after the end of the calendar quarter in Recovery and Reinvestment Act of 2009 within the meaning of the Regulatory which the prime contractor received the (the ‘‘Recovery Act’’), including a Flexibility Act, 5 U.S.C. 601 et seq., award, and quarterly thereafter. number of provisions to be because it requires quarterly reporting DATES: Effective Date: July 2, 2010. implemented in Federal Government on subcontractor jobs under newly Applicability Date: The changes to the contracts. On March 31, 2009, the awarded Recovery Act funded contracts. original clause will be used for all new Councils published FAR Case 2009–009 solicitations and contracts issued on or in the Federal Register, (74 FR 14639) An Initial Regulatory Flexibility after the effective date of this interim as an interim rule amending the FAR to Analysis (IRFA) has been prepared. The rule. This change is not required for task implement section 1512 of the Recovery analysis is summarized as follows: and delivery orders where the original Act, which requires contractors to report 1. Reasons for the action.

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This action is being implemented to obtain data, we determined that the highest dollar The Regulatory Secretariat will be jobs information on first-tier subcontracts of range represents 21 percent of all Recovery submitting a copy of the IRFA to the $25,000 or more funded by the Recovery Act. awards with the middle and lowest ranges Chief Counsel for Advocacy of the Small 2. Objectives of, and legal basis for, the representing 25 percent and 22 percent, Business Administration. Interested rule. respectively. The remaining 32 percent is The FAR Council has authority to made up of awards of $25,000 or below. Of parties may obtain a copy from the promulgate regulations it believes are the 7,874 first-tier subcontractors it is Regulatory Secretariat. The Councils necessary. OMB has determined that estimated that 25 percent, or 1,969, will be invite comments from small business obtaining publicly reported jobs information small businesses. concerns and other interested parties on at the subcontractor level on new contracts Based on the above, including the the expected impact of this rule on is desirable. This interim rule also requires assumption that awards under $25,000 will small entities. that prime contractors begin to report in the have no subcontractors, the total number of The Councils will also consider calendar quarter in which the contract was small businesses, prime and subcontractors, comments from small entities awarded, even if no invoice has been to which this interim rule will apply is estimated at 3,595 and the total number of concerning the existing regulations in submitted. parts affected by this rule in accordance 3. Description and estimate of the number other than small businesses to which this of small entities to which the rule will apply. rule will apply is estimated at 8,245. with 5 U.S.C. 610. Interested parties The rule revises the clause requiring 4. Description of projected reporting, must submit such comments separately quarterly reporting of direct jobs for prime recordkeeping, and other compliance and should cite 5 U.S.C. 610 (FAC contractors and all first-tier subcontracts of requirements of the rule, including an 2005–43, FAR Case 2010–008) in $25,000 or more, funded by the Recovery estimate of the classes of small entities which correspondence. Act. The clause also requires the first will be subject to the requirement and the quarterly report to be submitted on or before type of professional skills necessary for C. Paperwork Reduction Act the 10th day following the end of the preparation of the report or record. The Paperwork Reduction Act (Pub. This interim rule applies to all Federal calendar quarter in which the prime L. 104–13) applies because the interim contractor was awarded the Recovery Act contractors regardless of size or business ownership. It is in addition to what was rule contains information collection funded contract. This revised clause will requirements. Accordingly, the only be required in new solicitations and previously required of all Federal contractors contracts issued on or after the effective date and first-tier subcontractors, requiring the Regulatory Secretariat forwarded an of the interim rule. The revised clause is not quarterly reporting of jobs information for all emergency information collection required for task and delivery orders where first-tier subcontracts of $25,000 or more. request for approval of a new Such reporting would probably be prepared the underlying task or delivery order contract information collection requirement to by a company contract administrator or already contains the original clause FAR the Office of Management and Budget contract manager or a company subcontract 52.204–11 dated March 2009. This clause is administrator. The information necessary to under 44 U.S.C. Chapter 35, et seq. OMB not required for any existing contracts, or calculate the jobs is primarily information approved the new information task and delivery orders issued under a that companies would maintain for their own collection requirement as OMB Control contract, that contain the original clause FAR business purposes. The reporting burden is No. 9000–0176, Quarterly Reporting for 52.204–11 (March 2009). Therefore, the quarterly. First-tier Subcontractors. Comments on interim rule does not require renegotiation of 5. Relevant Federal rules which may any existing awards that already contain the the interim rule as well as the duplicate, overlap, or conflict with the rule. information collection will be original clause. The original clause imposed FAR Case 2009–009, American Recovery a public reporting burden on prime considered in the revisions to both the and Reinvestment Act of 2009 (Recovery rule and the information collection. contractors and, in a more limited way, on Act)—Reporting Requirements, is related to their first-tier subcontractors. This interim this rule (see 74 FR 16469, published on Any award funded by the Recovery rule will increase the burden on both prime March 31, 2009). Act that was awarded prior to the contractors and first-tier subcontractors who 6. Description of any significant effective date of this interim rule receive new awards. However, because the alternatives to the rule which accomplish the contained the original clause at 52.204– Federal Government estimates it has already stated objectives of applicable statutes and 11, dated March 2009. Any award obligated the majority of the Recovery Act which minimize any significant economic funded by the Recovery Act that is funded contracts (80 percent), the impact is impact of the rule on small entities. awarded on or after the effective date of more limited. According to the Federal The interim rule does not require that first- Procurement Data System (FPDS), there are this interim rule will contain the revised tier subcontractors enter their jobs clause at 52.204–11. The revised clause currently 23,346 Recovery Act-funded information directly into http:// contract awards. If that number represents 80 FederalReporting.gov, which eliminates the imposes additional collection percent of all awards, then there are an burden associated with Central Contractor requirements not contained in the estimated 5,833 Recovery Act-funded actions Registration (CCR). CCR is required in order original clause at 52.204–11 dated left to be awarded. FPDS further shows that to use http://FederalReporting.gov. It also March 2009. The revised clause requires of the 23,346 awards already made, 41 eliminates the burdens associated with first-tier subcontractors with Recovery percent of them have been to small registering in http://FederalReporting.gov Act funded awards of $25,000 or more, businesses (this reflects the percentage of and other burdens associated with the use of awards, not dollars obligated which is to report jobs to the prime contractor for that system. The prime contractor will input reporting into http:// currently 29 percent). Therefore, of the 5,833 the first-tier subcontractor’s jobs information contracts remaining to be awarded, 2,392 will into http://www.FederalReporting.gov. FederalReporting.gov. It also requires be awarded to small business. However, the first-tier subcontractor will the prime contractor to submit its first The number of first-tier subcontractors have to calculate the number of jobs that are report on or before the 10th day after the estimated to participate in Recovery Act funded by the Recovery Act each calendar end of the calendar quarter in which the awards is estimated at 7,874. This is based quarter and report that information to the prime contractor received the award, on an assumption that there will be more prime contractor in sufficient time that the and quarterly thereafter. first-tier subcontractors for higher dollar prime contractor can submit the report. To Because the Federal Government awards. It is estimated that there will be three help alleviate some of the burden, a set of estimates it has already awarded the first-tier subcontractors for each award of Frequently Asked Questions is available at majority of the Recovery Act funded $550,000 or more; two first-tier http://www.whitehouse.gov/omb/ subcontractors for each award between recovery_faqs_contractors. One of these contracts (80 percent), the impact of this $100,000 and $449,999; and one first-tier FAQs provides a detailed example on how to collection is limited. According to the subcontractor for each award between calculate the jobs funded by the Recovery Federal Procurement Data System $25,000 and $100,000. By analyzing FPDS Act. (FPDS), there are currently 23,346

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Recovery Act-funded contract awards. If maintaining the data needed, and E. Determination To Issue an Interim that number represents 80 percent of all completing and reviewing the collection Rule awards, then there are an estimated of information. A determination has been made under 5,833 Recovery Act-funded actions left The annual reporting burden is the authority of the Secretary of Defense to be awarded. FPDS further shows that estimated as follows: (DoD), the Administrator of General of the 23,346 awards already made, 41 First-tier Subcontract Respondents: Services (GSA), and the Administrator percent of them have been to small 7,874. of the National Aeronautics and Space businesses (this reflects the percentage Responses per respondent: 4 (reflects Administration (NASA) that urgent and of awards, not dollars obligated which quarterly reports). compelling reasons exist to promulgate is currently 29 percent). Therefore, of Total annual responses: 31,496. this interim rule without prior the 5,833 contracts remaining to be Preparation hours per response: 1.0. opportunity for public comment. This awarded, an estimated 2,392 will be Total response burden hours: 31,496. action is necessary because most of the awarded to small business. Average hourly wages ($50.00 + 36.35 funds provided under the American The number of first-tier percent overhead): $68.00. Recovery and Reinvestment Act of 2009 subcontractors estimated to participate Estimated cost to the public: for obligation on Federal contracts, must in Recovery Act awards is estimated at $2,141,728. be obligated by September 2010. In 7,874. This is based on an assumption Prime Contract Respondents: 3,966. that there will be more first-tier order to obtain the additional Responses per respondent: 4 (reflects information on jobs prior to the subcontractors for higher dollar awards. quarterly reports). It is estimated that there will be three statutory requirement to obligate most Total annual responses: 15,864. first-tier subcontractors for each award Recovery funds on contracts by Preparation hours per response: .75. of $550,000 or more; two first-tier September 2010, the requirements must Total response burden hours: 11,898. subcontractors for each award between be implemented immediately. However, $100,000 and $449,999; and one first- Average hourly wages ($50.00 + 36.35 pursuant to 41 U.S.C 418b and FAR tier subcontractor for each award percent overhead): $68.00. 1.501–3(b), the Councils will consider between $25,000 and $100,000. By Estimated cost to the public: public comments received in response analyzing FPDS data, we determined $809,064. to this interim rule in the formation of the final rule. that the highest dollar range represents D. Request for Comments Regarding 21 percent of all Recovery awards with Paperwork Burden List of Subjects in 48 CFR Parts 4 and the middle and lowest ranges Submit comments, including 52 representing 25 percent and 22 percent, Government procurement. respectively. The remaining 32 percent suggestions for reducing this burden, is made up of awards of $25,000 or not later than August 31, 2010 to: FAR Dated: June 25, 2010. below. Of the 7,874 first-tier Desk Officer, OMB, Room 10102, NEOB, Edward Loeb, Washington, DC 20503, and a copy to subcontractors, it is estimated that 25 Director, Acquisition Policy Division. the General Services Administration, percent, or 1,969, will be small ■ Regulatory Secretariat (MVCB), 1800 F Therefore, DoD, GSA, and NASA businesses. amend 48 CFR parts 4 and 52 as set Based on the above, including the Street, NW., Room 4041, Washington, DC 20405. Please cite the applicable forth below: assumption that awards under $25,000 ■ 1. The authority citation for 48 CFR will have no subcontractors, the total OMB Control No.: 9000–0176 and FAR Case 2010–008, Recovery Act parts 4 and 52 continues to read as number of small businesses, prime and follows: subcontractors, to which this interim Subcontract Reporting Procedures, in all rule will apply is estimated at 3,595 and correspondence. Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c). the total number of other than small Public comments are particularly invited on: Whether this collection of businesses to which this rule will apply PART 4—ADMINISTRATIVE MATTERS is estimated at 8,245. information is necessary for the proper Though Section 1512 requires that the performance of functions of the FAR, ■ 2. Revise section 4.1502 to read as reports be completed by the prime and will have practical utility; whether follows: contractor for all data elements, for our estimate of the public burden of this practical purposes, the prime contractor collection of information is accurate, 4.1502 Contract clause. will have to obtain certain information and based on valid assumptions and Insert the clause at 52.204–11, from their first-tier subcontractors, methodology; ways to enhance the American Recovery and Reinvestment hence the need for the revised flow- quality, utility, and clarity of the Act—Reporting Requirements in all down requirements in paragraph (d)(10). information to be collected; and ways in solicitations and contracts funded in In addition to the burden of first-tier which we can minimize the burden of whole or in part with Recovery Act subcontractors having to collect and the collection of information on those funds, except classified solicitations and report jobs information to the prime who are to respond, through the use of contracts. This includes, but is not contractor, there is also the burden on appropriate technological collection limited to, Governmentwide Acquisition the prime contractor for preparing and techniques or other forms of information Contracts (GWACs), multi-agency monitoring subcontractors who will technology. contracts (MACs), Federal Supply have to collect and report this Requester may obtain a copy of the Schedule (FSS) contracts, or agency information to the prime. justification from the General Services indefinite-delivery/indefinite-quantity Administration, Regulatory Secretariat (ID/IQ) contracts that will be funded Annual Reporting Burden (MVCB), Room 4041, Washington, DC with Recovery Act funds. Contracting We estimate the total annual public 20405, telephone (202) 501–4755. Please officers shall include this clause in any cost burden for these elements to be cite the applicable OMB Control No.: existing contract or order that will be $2,950,792, including the time for 9000–0176 and FAR Case 2010–008, funded with Recovery Act funds. reviewing instructions, searching Recovery Act Subcontract Reporting Contracting officers may not use existing data sources, gathering and Procedures, in all correspondence. Recovery Act funds on existing

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contracts and orders if the clause at States and outlying areas. A job cannot be DEPARTMENT OF DEFENSE 52.204–11 is not incorporated. This reported as both created and retained. See an clause is not required for any existing example of how to calculate the number of GENERAL SERVICES contracts, or task and delivery orders jobs at http://www.whitehouse.gov/omb/ ADMINISTRATION issued under a contract, that contains recovery_faqs_contractors. the original clause FAR 52.204–11 * * * * * NATIONAL AERONAUTICS AND (March 2009). (10) For any first-tier subcontract funded in SPACE ADMINISTRATION whole or in part under the Recovery Act, that PART 52—SOLICITATION PROVISIONS is valued at $25,000 or more and not subject 48 CFR Part 19 AND CONTRACT CLAUSES to reporting under paragraph 9, the Contractor shall require the subcontractor to [FAC 2005–43; FAR Case 2008–023; Item ■ 3. Amend section 52.204–11 by— IV; Docket 2009–0017, Sequence 1] provide the information described in ■ a. Removing from the clause heading paragraphs (d)(1)(i), (ix), (x), (xi), and (xii) of ‘‘(MAR 2009)’’ and adding ‘‘(JUL RIN 9000–AL29 this section to the Contractor for the purposes ’’ 2010) in its place; of the quarterly report. The Contractor shall ■ b. Revising paragraphs (a) and (c); Federal Acquisition Regulation; FAR advise the subcontractor that the information ■ c. Revising paragraph (d)(7) Case 2008–023, Clarification of Criteria will be made available to the public as introductory text; for Sole Source Awards to Service- required by section 1512 of the Recovery Act. ■ d. Removing from paragraph (d)(7)(i) Disabled Veteran-Owned Small The Contractor shall provide detailed the word ‘‘contractor’s’’ and adding the Business Concerns information on these first-tier subcontracts as word ‘‘Contractor’s’’ in its place; follows: AGENCIES: Department of Defense (DoD), ■ e. Revising paragraphs (d)(7)(ii) and General Services Administration (GSA), (d)(10) introductory text; and * * * * * and National Aeronautics and Space ■ f. Adding paragraph (d)(10)(xii). (xii) A narrative description of the The added and revised text reads as employment impact of work funded by the Administration (NASA). follows: Recovery Act. This narrative should be ACTION: Final rule. cumulative for each calendar quarter and 52.204–11 American Recovery and address the impact on the subcontractor’s SUMMARY: The Civilian Agency Reinvestment Act—Reporting workforce. At a minimum, the subcontractor Acquisition Council and the Defense Requirements. shall provide— Acquisition Regulations Council * * * * * (A) A brief description of the types of jobs (Councils) are issuing a final rule to (a) Definitions. For definitions related to created and jobs retained in the United States amend the Federal Acquisition this clause (e.g., contract, first-tier and outlying areas (see definition in FAR Regulation (FAR) to clarify the criteria subcontract, total compensation etc.) see the 2.101). This description may rely on job that need to be met in order to conduct Frequently Asked Questions (FAQs) available titles, broader labor categories, or the a sole source Service-disabled Veteran- at http://www.whitehouse.gov/omb/ owned Small Business (SDVOSB) recovery_faqs_contractors. These FAQs are subcontractor’s existing practice for also linked under http:// describing jobs as long as the terms used are concern acquisition. www.FederalReporting.gov. widely understood and describe the general DATES: Effective Date: August 2, 2010 * * * * * nature of the work; and FOR FURTHER INFORMATION CONTACT: For (c) Reports from the Contractor for all work (B) An estimate of the number of jobs clarification of content, contact Rhonda funded, in whole or in part, by the Recovery created and jobs retained by the Cundiff, Procurement Analyst, at (202) Act, are due no later than the 10th day subcontractor in the United States and 501–0044. For information pertaining to following the end of each calendar quarter. outlying areas. A job cannot be reported as status or publication schedules, contact The Contractor shall review the Frequently both created and retained. See an example of the Regulatory Secretariat at (202) 501– Asked Questions (FAQs) for Federal how to calculate the number of jobs at http:// 4755. Please cite FAC 2005–43, FAR Contractors before each reporting cycle and www.whitehouse.gov/omb/ Case 2008–023. prior to submitting each quarterly report as recovery_faqs_contractors. the FAQs may be updated from time-to-time. SUPPLEMENTARY INFORMATION: The first report is due no later than the 10th * * * * * day after the end of the calendar quarter in A. Background 52.212–5 [Amended] which the Contractor received the award. The Councils published a proposed Thereafter, reports shall be submitted no later ■ 4. Amend section 52.212–5 by rule in the Federal Register at 74 FR than the 10th day after the end of each 23373 on May 19, 2009, to revise the calendar quarter. For information on when removing from the clause heading ‘‘(June the Contractor shall submit its final report, 2010)’’ and adding ‘‘(JUL 2010)’’ in its language in FAR 19.1406(a)(1) to clarify see http://www.whitehouse.gov/omb/ place; and removing from paragraph the criteria that need to be met in order recovery_faqs_contractors. (b)(4) ‘‘MAR 2009)’’ and adding ‘‘(JUL to conduct a sole source SDVOSB (d) * * * 2010)’’ in its place. concern acquisition. The final rule (7) A narrative description of the contains language that more closely [FR Doc. 2010–15908 Filed 7–1–10; 8:45 am] employment impact of work funded by the mirrors the Veterans Benefit Act of 2003 Recovery Act. This narrative should be BILLING CODE 6820–EP–P (15 U.S.C. 657f). The final rule revises cumulative for each calendar quarter and the language in FAR 19.1306(a)(1), address the impact on the Contractor’s and which deals with sole source awards to first-tier subcontractors’ workforce for all first-tier subcontracts valued at $25,000 or Historically Underutilized Business more. At a minimum, the Contractor shall Zone (HUBZone) small business provide— concerns based on 15 U.S.C. 657a(b), to * * * * * match the language in FAR (ii) An estimate of the number of jobs 19.1406(a)(1) to alleviate confusion on created and jobs retained by the prime the appropriate use of the criteria Contractor and all first-tier subcontracts needed to conduct a sole source valued at $25,000 or more, in the United SDVOSB concern acquisition.

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The public comment period for the source criteria mirror the language of C. Paperwork Reduction Act FAR proposed rule closed July 20, 2009. the 8(a) criteria. The Paperwork Reduction Act does Eight respondents submitted comments Response: The SDVOSB program and not apply because the changes to the to the proposed rule. A discussion of the the 8(a) Business Development Program FAR do not impose information comments and the changes made to the were established under two separate collection requirements that require the rule as a result of those comments is statutes with different sole-source award approval of the Office of Management provided below. Three respondents requirements. The statute for the and Budget under 44 U.S.C. chapter 35, concurred with the proposed changes to SDVOSB program does not require the et seq. clarify the criteria that needed to be met FAR language to be similar to the FAR List of Subjects in 48 CFR Part 19 in order to conduct a sole source language for the 8(a) Business SDVOSB concern acquisition. Development Program. Government procurement. 1. Comment: Increase knowledge of Dated: June 25, 2010. the marketplace and SDVOSB 5. Comment: Raise the prescribed $3 Edward Loeb, advocacy. One respondent expressed million threshold to $3.5 million. One concern that the contracting officer does respondent recommended that the Director, Acquisition Policy Division. not have sufficient knowledge of the dollar limit for the sole source awards ■ Therefore, DoD, GSA, and NASA marketplace to make a sole-source to a Service-disabled Veteran-owned amend 48 CFR part 19 as set forth determination without the advice of the small business be raised to $3.5 million below: U.S. Department of Veterans Affairs, the from the prescribed $3 million to be Small Business Administration (SBA), consistent with the dollar limits for non- PART 19—SMALL BUSINESS or other entities that advocate for the manufacturing 8(a) awards. PROGRAMS veteran community. The respondent Response: Threshold changes are ■ 1. The authority citation for 48 CFR further added that the regulatory based on statute. Federal Acquisition part 19 continues to read as follows: language needs to mandate that the Circular 2005–013, FAR Case 2004–033, Authority: 40 U.S.C. 121(c); 10 U.S.C. contracting officer exercise a higher published in the Federal Register at 71 chapter 137; and 42 U.S.C. 2473(c). level of advocacy for service-disabled FR 57363 on September 28, 2006, was ■ 2. Amend section 19.1306 by revising veteran-owned firms to ensure these based on a statutory requirement, the introductory text of paragraph (a), firms receive greater representation in raising thresholds in the FAR due to paragraph (a)(1), the introductory text of the procurement process. inflation. The escalation calculation for Response: The purpose of this paragraph (a)(2), and paragraph (a)(3) to the inflationary threshold for sole read as follows: regulatory change is to clarify the source awards to Service-disabled circumstances under which a Veteran-owned small businesses was 19.1306 HUBZone sole source awards. contracting officer may award a sole- not eligible for an inflationary increase (a) A contracting officer may award source contract to a small business (see http://acquisition.gov/far/ contracts to HUBZone small business concern owned and controlled by a facsframe.html). However, FAR Case concerns on a sole source basis (see service-disabled veteran. This case does 2008–024 is the case handling the next 19.501(c) and 6.302–5(b)(5)) before not address market research or round of inflationary increases, and considering small business set-asides advocacy; therefore the respondent’s when that case is published as a final (see subpart 19.5), provided— comments are considered outside the rule, the threshold may be raised; the (1) The contracting officer does not scope of this case. Councils note that the inflation have a reasonable expectation that offers 2. Comment: Correction to FAR calculation is different for SDVOSB than would be received from two or more 19.1306(a)(2). One respondent requested for 8(a) and HUBZone because these HUBZone small business concerns; an additional review be conducted statutes were enacted at different times. (2) The anticipated price of the regarding FAR 19.1306(a)(2), because contract, including options, will not This rule is a significant regulatory paragraph (c) does not exist. exceed— Response: The reference to paragraph action and, therefore, was subject to review under Section 6(b) of Executive * * * * * (c) is deleted. (3) The requirement is not currently 3. Comment: Revise the language in Order 12866, Regulatory Planning and Review, dated September 30, 1993. This being performed by an 8(a) participant FAR 19.1306(a) and 19.1406(a). Two under the provisions of subpart 19.8 or respondents recommended revising rule is not a major rule under 5 U.S.C. 804. has been accepted as a requirement by paragraph (a) of FAR 19.1406 Sole SBA under subpart 19.8. Source Awards to Service-disabled B. Regulatory Flexibility Act * * * * * Veterans-owned Small Business ■ 3. Amend section 19.1406 by revising concerns to match the language in The Department of Defense, the the introductory text of paragraph (a), paragraph (a) of FAR 19.1306 by adding General Services Administration, and paragraph (a)(1), and the introductory the language: ‘‘(a) A participating agency the National Aeronautics and Space text of paragraph (a)(2); redesignating contracting office may award contracts Administration certify that this final paragraphs (a)(3) and (a)(4) as to a service-disabled Veteran-owned rule will not have a significant paragraphs (a)(4) and (a)(5), small business concern on a sole source economic impact on a substantial respectively, and adding a new basis without considering small number of small entities within the paragraph (a)(3) to read as follows: business set-asides provided-’’. meaning of the Regulatory Flexibility Response: FAR 19.1406(a) has been Act, 5 U.S.C. 601, et seq., because this 19.1406 Sole source awards to service- revised to be consistent with FAR rule clarifies the intent of the existing disabled veteran-owned small business 19.1306(a). language and is not a change in policy. concerns. 4. Comment: Revise the SDVOSB The Councils did not receive any (a) A contracting officer may award language to mirror the 8(a) language. comments on the Regulatory Flexibility contracts to service-disabled veteran- One respondent recommended that the Act or a perceived burden on small owned small business concerns on a language in the FAR for SDVOSB sole business. sole source basis (see 19.501(d) and

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6.302–5(b)(6)), before considering small and National Aeronautics and Space • Mail: General Services business set-asides (see subpart 19.5) Administration (NASA). Administration, Regulatory Secretariat provided none of the exclusions of ACTION: Interim rule with request for (MVCB), 1800 F Street, NW., Room 19.1404 apply and— comments. 4041, ATTN: Hada Flowers, (1) The contracting officer does not Washington, DC 20405. have a reasonable expectation that offers SUMMARY: The Civilian Agency Instructions: Please submit comments would be received from two or more Acquisition Council and the Defense only and cite FAC 2005–43, FAR case service-disabled veteran-owned small Acquisition Regulations Council (the business concerns; Councils) are issuing an interim rule 2009–040, in all correspondence related (2) The anticipated award price of the amending the Federal Acquisition to this case. All comments received will contract, including options, will not Regulation (FAR) to incorporate be posted without change to http:// exceed— increased thresholds for application of www.regulations.gov, including any * * * * * the World Trade Organization personal and/or business confidential (3) The requirement is not currently Government Procurement Agreement information provided. being performed by an 8(a) participant and the Free Trade Agreements, as FOR FURTHER INFORMATION CONTACT: For under the provisions of subpart 19.8 or determined by the United States Trade clarification of content, contact Ms. has been accepted as a requirement by Representative. SBA under subpart 19.8; Cecelia L. Davis, Procurement Analyst, DATES: Effective Date: July 2, 2010. at (202) 219–0202. Please cite FAC * * * * * Comment Date: Interested parties 2005–43, FAR Case 2009–040. For [FR Doc. 2010–15902 Filed 7–1–10; 8:45 am] should submit written comments to the information pertaining to status or BILLING CODE 6820–EP–P Regulatory Secretariat on or before publication schedules, contact the August 31, 2010 to be considered in the Regulatory Secretariat at (202) 501– formulation of a final rule. DEPARTMENT OF DEFENSE 4755. ADDRESSES: Submit comments GENERAL SERVICES identified by FAC 2005–43, FAR Case SUPPLEMENTARY INFORMATION: ADMINISTRATION 2009–040, by any of the following A. Background methods: NATIONAL AERONAUTICS AND • Regulations.gov: http:// Every two years, the trade agreements SPACE ADMINISTRATION www.regulations.gov. thresholds are adjusted according to a Submit comments via the Federal pre-determined formula under the 48 CFR Parts 22, 25, and 52 eRulemaking portal by inputting ‘‘FAR agreements. On December 29, 2009 (74 [FAC 2005–43; FAR Case 2009–040; Item Case 2009–040’’ under the heading FR 68907), the United States Trade V; Docket 2010–0092, Sequence 1] ‘‘Enter Keyword or ID’’ and selecting Representative established new ‘‘Search’’. Select the link ‘‘Submit a RIN 9000–AL57 procurement thresholds. These Comment’’ that corresponds with ‘‘FAR thresholds became effective on January Case 2009–040’’. Follow the instructions Federal Acquisition Regulation; FAR 1, 2010. The United States Trade provided at the ‘‘Submit a Comment’’ Case 2009–040, Trade Agreements Representative has specified the screen. Please include your name, Thresholds following new thresholds: company name (if any), and ‘‘FAR Case AGENCIES: Department of Defense (DoD), 2009–040’’ on your attached document. General Services Administration (GSA), • Fax: 202–501–4067.

Construction Supply contract Service contract contract Trade agreement (equal to or (equal to or (equal to or exceeding) exceeding) exceeding)

WTO GPA ...... $203,000 $203,000 $7,804,000 FTAs: Australia FTA ...... 70,079 70,079 7,804,000 Bahrain FTA ...... 203,000 203,000 9,110,318 CAFTA–DR (Costa Rica, Dominican Republic, El Salvador, Guatemala, Hon- duras, and Nicaragua) ...... 70,079 70,079 7,804,000 Chile FTA ...... 70,079 70,079 7,804,000 Morocco FTA ...... 203,000 203,000 7,804,000 NAFTA: —Canada ...... 25,000 70,079 9,110,318 —Mexico ...... 70,079 70,079 9,110,318 Oman FTA ...... 203,000 203,000 9,110,318 Peru FTA ...... 203,000 203,000 7,804,000 Singapore FTA ...... 70,079 70,079 7,804,000 Israeli Trade Act ...... 50,000 ......

B. Executive Order 12866 dated September 30, 1993. This rule is C. Regulatory Flexibility Act not a major rule under 5 U.S.C. 804. This is a significant regulatory action The Councils do not expect this and, therefore, was subject to review interim rule to have a significant under Section 6(b) of Executive Order economic impact on a substantial 12866, Regulatory Planning and Review, number of small entities within the

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meaning of the Regulatory Flexibility line with inflation and maintain the Dated: June 25, 2010. Act, 5 U.S.C. 601, et seq., because the status quo. Edward Loeb, dollar threshold changes are designed to Director, Acquisition Policy Division. keep pace with inflation and thus E. Determination To Issue an Interim Rule ■ Therefore, DoD, GSA, and NASA maintain the status quo. Therefore, an amend 48 CFR parts 22, 25, and 52 as Initial Regulatory Flexibility Analysis A determination has been made under set forth below: has not been performed. The Councils the authority of the Secretary of Defense ■ 1. The authority citation for 48 CFR invite comments from small business (DOD), the Administrator of General parts 22, 25, and 52 continues to read concerns and other interested parties on Services (GSA), and the Administrator as follows: the expected impact of this rule on of the National Aeronautics and Space small entities. Authority: 40 U.S.C. 121(c); 10 U.S.C. Administration (NASA), that urgent and chapter 137; and 42 U.S.C. 2473(c). The Councils will also consider compelling reasons exist to promulgate comments from small entities this interim rule without prior PART 22—APPLICATION OF LABOR concerning the existing regulations in opportunity for public comment. This LAWS TO GOVERNMENT parts affected by this rule in accordance interim rule incorporates increased ACQUISITIONS with 5 U.S.C. 610. Interested parties dollar thresholds for application of the 22.1503 [Amended] must submit such comments separately World Trade Organization Government ■ 2. Amend section 22.1503 by and should cite 5 U.S.C. 610 (FAC Procurement Agreement and the Free removing from paragraph (b)(3) 2005–43, FAR Case 2009–040) in all Trade Agreements, as determined by the ‘‘$67,826’’ and adding ‘‘$70,079’’ in its correspondence. United States Trade Representative. place; and removing from paragraph D. Paperwork Reduction Act This action is necessary because the (b)(4) ‘‘$194,000’’ and adding ‘‘$203,000’’ new thresholds became effective on in its place. The Paperwork Reduction Act does January 1, 2010. However, pursuant to apply; however, these changes to the 41 U.S.C. 418b and FAR 1.501–3(b), the PART 25—FOREIGN ACQUISITION FAR do not impose additional Councils will consider public comments information collection requirements to received in response to this interim rule 25.202 [Amended] the paperwork burden previously in the formation of the final rule. Absent ■ 3. Amend section 25.202 by removing approved under OMB Control Numbers this regulatory change, this requirement from paragraph (c) ‘‘$7,443,000’’ and 9000–0130 (FAR 52.225–4), 9000–0025 would not be incorporated into the FAR adding ‘‘$7,804,000’’ in its place. (FAR 52.225–6) and 9000–0141 (FAR and implemented by the acquisition ■ 4. Amend section 25.402 by revising 52.225–9, 52.225–11, 52.225–21, and community. the table that follows paragraph (b) to 52.225–23). The interim rule affects the read as follows: prescriptions for use of the List of Subjects in 48 CFR Parts 22, 25, certifications. However, there is no and 52 25.402 General. impact on the estimated burden hours, * * * * * because the threshold changes are in Government procurement. (b) * * *

Supply contract Service contract Construction Trade agreement (equal to or (equal to or contract (equal to exceeding) exceeding) or exceeding)

WTO GPA ...... $203,000 $203,000 $7,804,000 FTAs: Australia FTA ...... 70,079 70,079 7,804,000 Bahrain FTA ...... 203,000 203,000 9,110,318 CAFTA–DR (Costa Rica, El Salvador, Dominican Republic, Guatemala, Hon- duras, and Nicaragua) ...... 70,079 70,079 7,804,000 Chile FTA ...... 70,079 70,079 7,804,000 Morocco FTA ...... 203,000 203,000 7,804,000 NAFTA: —Canada ...... 25,000 70,079 9,110,318 —Mexico ...... 70,079 70,079 9,110,318 Oman FTA ...... 203,000 203,000 9,110,318 Peru FTA ...... 203,000 203,000 7,804,000 Singapore FTA ...... 70,079 70,079 7,804,000 Israeli Trade Act ...... 50,000 ......

■ 4. Amend section 25.504–2 by 25.504–2 WTO GPA/Caribbean Basin revising Example 1. to read as follows: Trade Initiative/FTAs. Example 1.

Offer A ...... 304,000 U.S.-made end product (not domestic). Offer B ...... 303,000 U.S.-made end product (domestic), small business. Offer C ...... 300,000 Eligible product. Offer D ...... 295,000 Noneligible product (not U.S.-made).

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* * * * * CONTRACT TERMS AND DEPARTMENT OF DEFENSE CONDITIONS REQUIRED TO 25.603 [Amended] IMPLEMENT STATUTES OR GENERAL SERVICES ■ 5. Amend section 25.603 in paragraph EXECUTIVE ORDERS—COMMERCIAL ADMINISTRATION (c) by removing ‘‘$7,443,000’’ and ITEMS (JUL 2010) adding ‘‘$7,804,000’’ in its place. NATIONAL AERONAUTICS AND (b) * * * SPACE ADMINISTRATION 25.1101 [Amended] __(20) 52.222–19, Child Labor— Cooperation with Authorities and Remedies ■ 6. Amend section 25.1101 by— 48 CFR Chapter 1 ■ a. Removing from paragraph (Jul 2010) (E.O. 13126). (b)(1)(i)(A) ‘‘$194,000’’ and adding * * * * * [Docket FAR 2010–0077, Sequence 5] ‘‘$203,000’’ in its place; ■ 9. Amend section 52.213–4 by ■ b. Removing from paragraphs Federal Acquisition Regulation; revising the date of the clause and the (b)(1)(iii) and (b)(2)(iii) ‘‘$67,826’’, and Federal Acquisition Circular 2005–43; first sentence of paragraph (b)(1)(i) to adding ‘‘$70,079’’ in its place; Small Entity Compliance Guide ■ c. Removing from paragraphs (c)(1) read as follows: AGENCIES: Department of Defense (DoD), and (d) ‘‘$194,000’’, and adding 52.213–4 Terms and Conditions— General Services Administration (GSA), ‘‘$203,000’’ in its place. Simplified Acquisitions (Other Than and National Aeronautics and Space ■ Commercial Items). 7. Amend section 25.1102 by Administration (NASA). removing from paragraphs (a) * * * * * introductory text and (c) introductory ACTION: Small Entity Compliance Guide. text ‘‘$7,443,000’’ and adding TERMS AND CONDITIONS— SIMPLIFIED ACQUISITIONS (OTHER SUMMARY: This document is issued ‘‘$7,804,000’’ in its place; revising the under the joint authority of the first sentence in paragraph (c)(3); and THAN COMMERCIAL ITEMS) (JUL 2010) Secretary of Defense, the Administrator revising paragraph (d)(3) to read as of General Services and the follows: (b) * * * Administrator of the National (1) * * * 25.1102 Acquisition of construction. Aeronautics and Space Administration. (i) 52.222–19, Child Labor—Cooperation * * * * * This Small Entity Compliance Guide has with Authorities and Remedies (Jul 2010) been prepared in accordance with (c) * * * (E.O. 13126). * * * (3) For acquisitions valued at Section 212 of the Small Business $7,804,000 or more, but less than * * * * * Regulatory Enforcement Fairness Act of 1996. It consists of a summary of rules $9,110,318, use the clause with its ■ 10. Amend section 52.222–19 by appearing in Federal Acquisition Alternate I. * * * revising the date of the clause; removing Circular (FAC) 2005–43 which amend (d) * * * from paragraph (a)(3) ‘‘$67,826’’ and the FAR. An asterisk (*) next to a rule (3) For acquisitions valued at adding ‘‘$70,079’’ in its place; and indicates that a regulatory flexibility $7,804,000 or more, but less than removing from paragraph (a)(4) analysis has been prepared. Interested $9,110,318, use the clause with its ‘‘$194,000’’ and adding ‘‘$203,000’’ in its parties may obtain further information Alternate II. place. * * * * * regarding these rules by referring to FAC The revised text reads as follows: 2005–31, which precedes this PART 52—SOLICITATION PROVISIONS 52.222–19 Child Labor—Cooperation document. These documents are also AND CONTRACT CLAUSES with Authorities and Remedies. available via the Internet at http:// * * * * * www.regulations.gov. ■ 8. Amend section 52.212–5 by FOR FURTHER INFORMATION CONTACT: The revising the date of the clause and CHILD LABOR—COOPERATION WITH analyst whose name appears in the table paragraph (b)(20) to read as follows: AUTHORITIES AND REMEDIES (JUL below. Please cite FAC 2005–43 and the 2010) 52.212–5 Contract Terms and Conditions specific FAR case number. For Required to Implement Statutes or * * * * * information pertaining to status or Executive Orders—Commercial Items. [FR Doc. 2010–15901 Filed 7–1–10; 8:45 am] publication schedules, contact the FAR * * * * * BILLING CODE 6820–EP–P Secretariat at (202) 501–4755.

LIST OF RULES IN FAC 2005–43

Item Subject FAR Case Analyst

I ...... Government Property ...... 2008–011 Parnell II ...... Registry of Disaster Response Contractors ...... 2008–035 Gary III ...... Recovery Act Subcontract Reporting Procedures (Interim) * ...... 2010–008 Morgan IV ...... Clarification of Criteria for Sole Source Awards to Service-disabled Veteran-owned 2008–023 Cundiff Small Business Concerns. V ...... Trade Agreements Thresholds (Interim) ...... 2009–040 Davis

SUPPLEMENTARY INFORMATION: subject set forth in the documents Item I—Government Property (FAR Summaries for each FAR rule follow. following these item summaries. Case 2008–011) For the actual revisions and/or FAC 2005–43 amends the FAR as This final rule amends the FAR to amendments made by these FAR cases, specified below: revise FAR part 45 and its associated refer to the specific item number and clauses. Changes are being made to FAR

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parts 2, 4, 15, 32, 42, 45, and 52. These domestic disaster and emergency relief need to be met in order to conduct a changes are to clarify and correct the activities. sole source service-disabled veteran- previous FAR rule for part 45, owned small business (SDVOSB) Item III—Recovery Act Subcontract Government Property, published under Reporting Procedures (FAR Case 2010– concern acquisition. The FAR language Federal Acquisition Circular 2005–17, 008) (Interim) * is amended to be consistent with the FAR case 2004–025, May 15, 2007, (72 Veterans Benefit Act of 2003 (15 U.S.C. FR 27364). Minor changes are made to This interim rule amends the FAR to 657f) and the Small Business the proposed rule published August 6, revise the clause at FAR 52.204–11, Administration’s regulation (13 CFR 2009 (74 FR 39262). American Recovery and Reinvestment 125.20) that implements the Act. This The rule specifically impacts Act—Reporting Requirements. The final rule also amends FAR 19.1306(a) contracting officers, property revised clause will require first-tier to clarify the criteria that need to be met administrators, and contractors subcontractors with Recovery Act in order to conduct a sole source for responsible for the management of funded awards of $25,000 or more, to Historically Underutilized Business Government property. The rule does not report jobs information to the prime Zone (HUBZone) small business have a significant economic impact on contractor for reporting into concern acquisitions. These small entities because the rule does not FederalReporting.gov. It also will amendments to the FAR alleviate impose any additional requirements on require the prime contractor to submit confusion for contracting officers on the small businesses. The rule does not its first report on or before the 10th day appropriate use of the criteria needed to affect the method of managing after the end of the calendar quarter in conduct sole source HUBZONE small Government property. The rule merely which the prime contractor received the business and SDVOSB concern clarifies and corrects the previous FAR award, and quarterly thereafter. acquisitions. rule. The revised clause will be used for all new solicitations and awards issued on Item V—Trade Agreements Thresholds Item II—Registry of Disaster Response or after the effective date of this interim (FAR Case 2009–040) (Interim) Contractors (FAR Case 2008–035) rule. This clause is not required for any This final rule adopts, without existing contracts, or task and delivery This interim rule adjusts the change, the interim rule implementing orders issued under a contract, that thresholds for application of the World Public Law 109–295, the Department of contain the original clause FAR 52.204– Trade Organization Government Homeland Security Appropriations Act, 11 (March 2009). Therefore, this interim Procurement Agreement and the other 2007, section 697, which requires the rule does not require renegotiation of Free Trade Agreements as determined establishment and maintenance of a existing Recovery Act contracts that by the United States Trade registry of disaster response contractors. include the clause dated March 2009. Representative, according to a pre- The Disaster Response Registry is determined formula under the located at http://www.ccr.gov. The Item IV—Clarification of Criteria for agreements. Sole Source Awards to Service- Federal Emergency Management Agency Dated: June 25, 2010. (within the Department of Homeland Disabled Veteran-Owned Small Security) has a link to the registry for Business Concerns (FAR Case 2008– Edward Loeb, vendors on its Web site at http:// 023) Director, Acquisition Policy Division. www.fema.gov/business/ This final rule amends FAR [FR Doc. 2010–15906 Filed 7–1–10; 8:45 am] contractor.shtm. The Registry covers 19.1406(a) to clarify the criteria that BILLING CODE 6820–EP–P

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Reader Aids Federal Register Vol. 75, No. 127 Friday, July 2, 2010

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING JULY

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. 45 CFR Presidential Documents 3 CFR 301...... 38612 Executive orders and proclamations 741–6000 Administrative Orders: 302...... 38612 The United States Government Manual 741–6000 Memorandum of June 303...... 38612 28, 2010 ...... 38387 Other Services 305...... 38612 Electronic and on-line services (voice) 741–6020 7 CFR 308...... 38612 Privacy Act Compilation 741–6064 Proposed Rules: 48 CFR Public Laws Update Service (numbers, dates, etc.) 741–6043 1755...... 38042 TTY for the deaf-and-hard-of-hearing 741–6086 Ch. I...... 38674, 38691 10 CFR 2...... 38675, 38683 4 ...... 38675, 38683, 38684 ELECTRONIC RESEARCH 431...... 37975 7...... 38683 Proposed Rules: World Wide Web 10...... 38683 1023...... 38042 13...... 38683 Full text of the daily Federal Register, CFR and other publications 15...... 38675 is located at: http://www.gpoaccess.gov/nara/index.html 14 CFR 18...... 38683 Federal Register information and research tools, including Public 25...... 38391 19...... 38687 Inspection List, indexes, and links to GPO Access are located at: 39 ...... 37990, 37991, 37994, 22...... 38689 http://www.archives.gov/federallregister 37997, 38001, 38007, 38009, 25...... 38689 E-mail 38011, 38014, 38017, 38019, 26...... 38683 38394, 38397, 38404 31...... 38675 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 71...... 38406 32...... 38675 an open e-mail service that provides subscribers with a digital Proposed Rules: 42...... 38675 form of the Federal Register Table of Contents. The digital form 39 ...... 38052, 38056, 38058, 45...... 38675 of the Federal Register Table of Contents includes HTML and 38061, 38064, 38066 52 ...... 38675, 38683, 38684, PDF links to the full text of each document. 38689 29 CFR To join or leave, go to http://listserv.access.gpo.gov and select Proposed Rules: Online mailing list archives, FEDREGTOC-L, Join or leave the list Proposed Rules: 901...... 38042 (or change settings); then follow the instructions. 1910...... 38646 902...... 38042 PENS (Public Law Electronic Notification Service) is an e-mail 1915...... 38646 903...... 38042 service that notifies subscribers of recently enacted laws. 1917...... 38646 904...... 38042 1918...... 38646 906...... 38042 To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html 1926...... 38646 907...... 38042 and select Join or leave the list (or change settings); then follow 1928...... 38646 908...... 38042 the instructions. 909...... 38042 FEDREGTOC-L and PENS are mailing lists only. We cannot 31 CFR 911...... 38042 respond to specific inquiries. Ch. V...... 38212 914...... 38042 Reference questions. Send questions and comments about the 915...... 38042 33 CFR Federal Register system to: [email protected] 916...... 38042 100...... 38408 917...... 38042 The Federal Register staff cannot interpret specific documents or 117...... 38411, 38412 952...... 38042 regulations. 165 ...... 38019, 38021, 38412, Reminders. Effective January 1, 2009, the Reminders, including 38415 49 CFR Rules Going Into Effect and Comments Due Next Week, no longer 40...... 38422 appear in the Reader Aids section of the Federal Register. This 40 CFR 387...... 38423 information can be found online at http://www.regulations.gov. 52...... 38023 Proposed Rules: CFR Checklist. Effective January 1, 2009, the CFR Checklist no 180...... 38417 231...... 38432 longer appears in the Federal Register. This information can be Proposed Rules: found online at http://bookstore.gpo.gov/. 122...... 38068 50 CFR 123...... 38068 660...... 38030 FEDERAL REGISTER PAGES AND DATE, JULY 403...... 38068 679...... 38430 501...... 38068 Proposed Rules: 37975–38390...... 1 503...... 38068 16...... 38069 38391–38692...... 2 17...... 38441 42 CFR 216...... 38070 423...... 38026 679...... 38452, 38454

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Register but may be ordered the proposed constitution of enacted public laws. To in ‘‘slip law’’ (individual the United States Virgin subscribe, go to http:// LIST OF PUBLIC LAWS pamphlet) form from the Islands to correct provisions listserv.gsa.gov/archives/ Superintendent of Documents, inconsistent with the This is a continuing list of publaws-l.html U.S. Government Printing Constitution and Federal law. public bills from the current Office, Washington, DC 20402 (June 30, 2010; 124 Stat. session of Congress which Note: This service is strictly have become Federal laws. It (phone, 202–512–1808). The 1309) text will also be made Last List June 30, 2010 for E-mail notification of new may be used in conjunction laws. The text of laws is not with ‘‘P L U S’’ (Public Laws available on the Internet from available through this service. Update Service) on 202–741– GPO Access at http:// 6043. This list is also www.gpoaccess.gov/plaws/ Public Laws Electronic PENS cannot respond to available online at http:// index.html. Some laws may Notification Service specific inquiries sent to this www.archives.gov/federal- not yet be available. (PENS) address. register/laws.html. S.J. Res. 33/P.L. 111–194 The text of laws is not To provide for the PENS is a free electronic mail published in the Federal reconsideration and revision of notification service of newly

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