Vol. 76 Thursday, No. 203 October 20, 2011 Pages 65095–65356

Vol. 76 Thursday, No. 203 October 20, 2011

Pages 65095–65356

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 203

Thursday, October 20, 2011

Agriculture Department NOTICES See Animal and Plant Health Inspection Service Meetings: See Forest Service Defense Health Board, 65184–65185 NOTICES Privacy Act; Systems of Records, 65185–65186 Funding Opportunity: Requests for Comments: Agricultural Career and Employment Grants Program or How to Improve Procurement of Defense Items and ACE, 65158–65162 Defense Services in Support of Foreign Military Sales Programs, 65186–65187 Air Force Department Education Department NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Scientific Advisory Board; Cancellation, 65187 Submissions, and Approvals, 65187–65190 Animal and Plant Health Inspection Service Employee Benefits Security Administration NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals: Advisory Council on Employee Welfare and Pension Hawaiian and Territorial Quarantine Notices, 65164– Benefit Plans, 65211 65165 Importation of Christmas Cactus and Easter Cactus in Employment and Training Administration Growing Media From the Netherlands and Denmark, NOTICES 65163–65164 Affirmative Determinations Regarding Applications for Importation of Peppers From the Republic of Korea, Reconsideration: 65162–65163 Product Dynamics Ltd; Levittown, PA, 65212 Importation of Plants for Planting: Steiff North America, Lincoln, RI, 65211–65212 Risk-Based Sampling and Inspection Approach and Amended Certifications Regarding Eligibility to Apply for Propagative Monitoring and Release Program, 65165– Worker Adjustment Assistance: 65166 Caterpillar, Inc., Large Power Systems Division, et al., International Sanitary and Phytosanitary Standard-Setting Mossville, IL, 65212–65213 Activities, 65166–65171 Henkel Corp., Electronic Adhesives Division, et al., Billerica, MA, 65212 Centers for Medicare & Medicaid Services Amended Certifications Regarding Eligibility to Apply for NOTICES Worker and Alternative Trade Adjustment Assistance: Privacy Act; Systems of Records, 65196–65197 Flextronics International USA, Inc., et al., San Diego, CA, Statement of Organization, Functions, and Delegations of 65213 Authority, 65197–65199 Determinations Regarding Eligibility to Apply for Worker and Alternative Trade Adjustment Assistance, 65213– Coast Guard 65215 RULES Investigations of Certifications of Eligibility to Apply for Drawbridge Operations: Worker and Alternative Trade Adjustment Assistance, Bear Creek, Sparrows Point, MD, 65118–65120 65215–65216 Islais Creek, San Francisco, CA, 65120–65121 Negative Determinations Regarding Applications for NOTICES Reconsideration: Meetings: Baby Bliss, Inc., Middleville, MI, 65216 Commercial Fishing Safety Advisory Committee, 65205– Beacon Medical Services, LLC, Aurora, CO, 65216–65217 65206 Energy Department See Federal Energy Regulatory Commission Commerce Department NOTICES See Foreign-Trade Zones Board Meetings: See International Trade Administration Environmental Management Site-Specific Advisory See National Oceanic and Atmospheric Administration Board, Oak Ridge Reservation, 65190–65191 Corporation for National and Community Service Environmental Protection Agency NOTICES PROPOSED RULES Agency Information Collection Activities; Proposals, Oil and Natural Gas Sector: Submissions, and Approvals, 65184 New Source Performance Standards and National Emission Standards for Hazardous Air Pollutants Defense Department Reviews; Correction, 65138–65139 See Air Force Department Protection of Stratospheric Ozone: RULES 2012 Critical Use Exemption from the Phaseout of Methyl Mission Compatibility Evaluation Process, 65112–65118 Bromide, 65139–65153

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Executive Office of the President NOTICES See Presidential Documents Draft Guidance on Implementation; Availability: E2B(R3) Electronic Transmission of Individual Case Federal Aviation Administration Safety Reports, etc., 65199–65200 RULES Meetings: Amendment of Federal Airways; Alaska, 65106–65107 General and Plastic Surgery Devices Panel of Medical Special Conditions: Devices Advisory Committee; Postponement, 65200 Embraer S.A.; Model EMB 500; Single-Place Side Facing Request for Scientific Data and Information: Seat Dynamic Test Requirements, 65101–65103 Risk Assessment on Norovirus in Bivalve Molluscan Gulfstream Aerospace Corporation, Model GIV–X Shellfish, 65200–65203 Airplane; Aircraft Electronic System Security Protection from Unauthorized External Access, Foreign Claims Settlement Commission 65103–65105 NOTICES Gulfstream Aerospace Corporation, Model GIV–X Meetings; Sunshine Act, 65211 Airplane; Isolation or Aircraft Electronic System Foreign-Trade Zones Board Security Protection from Unauthorized Internal NOTICES Access, 65105–65106 PROPOSED RULES Applications for Reorganization/Expansion under Airworthiness Directives: Alternative Site Framework: Rolls–Royce plc Turbofan Engines, 65136–65138 Foreign-Trade Zone 272, Counties of Lehigh and NOTICES Northampton, PA, 65171–65172 Membership Availability; National Parks Overflights Forest Service Advisory Group Aviation Rulemaking Committee: Representative of Native American Tribes, 65319 RULES Community Forest and Open Space Conservation Program, Federal Communications Commission 65121–65133 NOTICES Health and Human Services Department Radio Broadcasting Services: See Centers for Medicare & Medicaid Services AM or FM Proposals To Change The Community of See Food and Drug Administration License, 65192 See National Institutes of Health Federal Deposit Insurance Corporation NOTICES Meetings: NOTICES Technical Advisory Panel on Medicare Trustee Reports, Agency Information Collection Activities; Proposals, 65195 Submissions, and Approvals, 65192–65193 Statements of Organization, Functions, and Delegations of Meetings: Authority: Advisory Committee on Community Banking, 65193 National Coordinator for Health Information Technology, Federal Election Commission 65196 NOTICES Homeland Security Department Meetings; Sunshine Act, 65193 See Coast Guard Federal Energy Regulatory Commission See U.S. Customs and Border Protection NOTICES Indian Affairs Bureau Combined Filings, 65191 NOTICES Staff Attendances: Approved Tribal – State Class III Gaming Compact, 65208– California Independent System Operator Corp. Meetings, 65209 65191–65192 Interior Department Federal Maritime Commission See Fish and Wildlife Service NOTICES See Indian Affairs Bureau Ocean Transportation Intermediary Licenses; Applicants, See Land Management Bureau 65193–65194 Ocean Transportation Intermediary Licenses; Rescissions of Internal Revenue Service Revocations, 65194 RULES Ocean Transportation Intermediary Licenses; Revocations, Guidance Regarding the Treatment of Stock of a Controlled 65194–65195 Corporation, 65110–65112 PROPOSED RULES Fish and Wildlife Service Tax Return Preparer Penalties Under Section 6695; NOTICES Correction, 65138 Permit Applications: NOTICES Endangered Species, 65207–65208 Agency Information Collection Activities; Proposals, Permits: Submissions, and Approvals, 65320–65321 Endangered Species; Marine Mammals, 65208 International Trade Administration Food and Drug Administration NOTICES RULES Administrative Reviews; Partial Preliminary Results, etc.: New Animal Drugs for Use in Animal Feeds: Fresh Garlic from the People’s Republic of China, 65172– Melengestrol; Monensin; Tylosin, 65109–65110 65178

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Antidumping Duty Administrative Reviews; Extension of NOTICES Preliminary Results: Agency Information Collection Activities; Proposals, Certain Frozen Warmwater Shrimp from the Socialist Submissions, and Approvals: Republic of Vietnam, 65178 Application to Shuck Surf Clams/Ocean Quahogs at Sea, Countervailing Duty Administrative Reviews; Extension of 65180 Time for Preliminary Results: Deep Seabed Mining Exploration Licenses, 65180–65181 Certain Welded Carbon Steel Standard Pipe from Turkey, Applications for Exempted Fishing Permits, 65181–65182 65179 Indirect Cost Rates for Damage Assessment, Remediation, Countervailing Duty Administrative Reviews; Extension of and Restoration Program for Fiscal Years 2009, 2010, Time Limit for the Final Results: 65182–65183 Certain Pasta from Italy, 65179 Meetings: National Climate Assessment and Development Advisory International Trade Commission Committee, 65183 NOTICES Terminations of Investigations: National Science Foundation Certain Products and Pharmaceutical Compositions NOTICES Containing Recombinant Human Erythropoetin, Meetings: 65210–65211 Advisory Committee for Social, Behavioral and Economic Sciences, 65219 Justice Department See Foreign Claims Settlement Commission Occupational Safety and Health Administration RULES James Zadroga 9–11 Health and Compensation Act of 2010; NOTICES Agency Information Collection Activities; Proposals, Correction, 65112 Submissions, and Approvals: Labor Department Inorganic Arsenic Standard, 65217–65218 See Employee Benefits Security Administration See Employment and Training Administration Presidential Documents See Occupational Safety and Health Administration PROCLAMATIONS Special Observances: Land Management Bureau Blind Americans Equality Day (Proc. 8739), 65099–65100 NOTICES National Character Counts Week (Proc. 8737), 65095– Environmental Impact Statements; Availability, etc.: 65096 Wright Area North Porcupine Coal Lease-by-Application, National Forest Products Week (Proc. 8738), 65097–65098 Wyoming, 65209 ADMINISTRATIVE ORDERS Meetings: Colombia; Continuation of National Emergency With Pinedale Anticline Working Group; Wyoming, 65209– Respect to Narcotics Traffickers (Notice of October 19, 65210 2011), 65353–65355

National Archives and Records Administration Railroad Retirement Board NOTICES NOTICES Meetings: Agency Information Collection Activities; Proposals, Advisory Committee on the Electronic Records Archives, Submissions, and Approvals, 65219–65220 65218–65219 Securities and Exchange Commission National Institutes of Health NOTICES NOTICES Agency Information Collection Activities; Proposals, Meetings: Submissions, and Approvals, 65220–65223 Center for Scientific Review, 65203–65204 Agency Information Collection Activities; Proposals, National Human Genome Research Institute, 65204– Submissions, and Approvals: 65205 Reports of Evidence of Material Violations, 65223–65224 National Institute Of Allergy And Infectious Diseases, Self-Regulatory Organizations; Proposed Rule Changes: 65204 Chicago Mercantile Exchange, Inc., 65224–65225 National Institute on Aging, 65203 Office of AIDS Research Advisory Council, 65205 EDGA Exchange, Inc., 65264–65272 EDGX Exchange, Inc., 65255–65263 National Oceanic and Atmospheric Administration Financial Industry Regulatory Authority, Inc., 65307– RULES 65310, 65313–65315 Endangered and Threatened Species: International Securities Exchange, LLC, 65247–65255 Designation of Critical Habitat for the Southern Distinct NASDAQ OMX PHLX LLC, 65225–65230 Population Segment of Eulachon, 65324–65352 NASDAQ Stock Market LLC, 65306–65307, 65311–65313 PROPOSED RULES New York Stock Exchange, LLC, 65288–65305 Fisheries of the Caribbean, Gulf of Mexico, and South NYSE Amex LLC, 65272–65288, 65310–65311 Atlantic: NYSE Arca, Inc., 65230–65247, 65305–65306 Comprehensive Annual Catch Limit Amendment for the South Atlantic, 65153–65155 Social Security Administration Fisheries Off West Coast States: RULES Highly Migratory Species Fisheries; Swordfish Retention Recovery of Delinquent Debts; Treasury Offset Program Limits, 65155–65157 Enhancements, 65107–65109

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NOTICES U.S. Customs and Border Protection Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals, 65315–65317 Agency Information Collection Activities; Proposals, Submissions, and Approvals: State Department Small Vessel Reporting System, 65206–65207 Cancellation of Customs Broker Licenses, 65207 NOTICES Agency Information Collection Activities; Proposals, Veterans Affairs Department Submissions, and Approvals, 65317 RULES Determination under the Foreign Assistance Act and the Sharing Information Between the Department of Veterans Department of State, Foreign Operations, and Related Affairs and the Department of Defense, 65133–65135 Programs Appropriations Acts, 65317–65318 NOTICES Meetings: Gulf War Veterans’ Illnesses Task Force Draft Report; Advisory Committee on Private International Law; Online Availability, 65321 Dispute Resolution Study Group, 65318–65319 Overseas Security Advisory Council, 65318 The 100,000 Strong Initiative Federal Advisory Separate Parts In This Issue Committee, 65318 Part II Surface Transportation Board Commerce Department, National Oceanic and Atmospheric NOTICES Administration, 65324–65352 Discontinuances of Service Exemptions: Norfolk Southern Railway Co., Forsyth County, NC, Part III 65319–65320 Presidential Documents, 65353–65355

Transportation Department Reader Aids See Federal Aviation Administration Consult the Reader Aids section at the end of this page for See Surface Transportation Board phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Treasury Department To subscribe to the Federal Register Table of Contents See Internal Revenue Service LISTSERV electronic mailing list, go to http:// NOTICES listserv.access.gpo.gov and select Online mailing list Appointment of Members of the Legal Division to the archives, FEDREGTOC-L, Join or leave the list (or change Performance Review Board, 65320 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

3 CFR Proclamations: 8737...... 65095 8738...... 65097 8739...... 65099 Administrative Orders: Notices: Notice of October 19, 2011 ...... 65355 14 CFR 23...... 65101 25 (2 documents) ...... 65103, 65105 71...... 65106 Proposed Rules: 39...... 65136 20 CFR 404...... 65107 408...... 65107 416...... 65107 422...... 65107 21 CFR 558...... 65109 26 CFR 1...... 65110 Proposed Rules: 1...... 65138 28 CFR 104...... 65112 32 CFR 211...... 65112 33 CFR 117 (2 documents) ...... 65118, 65120 36 CFR 230...... 65121 38 CFR 1...... 65133 40 CFR Proposed Rules: 60...... 65138 63...... 65138 82...... 65139 50 CFR 226...... 65324 Proposed Rules: 622...... 65153 660...... 65155

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Federal Register Presidential Documents Vol. 76, No. 203

Thursday, October 20, 2011

Title 3— Proclamation 8737 of October 14, 2011

The President National Character Counts Week, 2011

By the President of the United States of America

A Proclamation In times of adversity and triumph alike, the American people have been guided by the strength of our character. With resilience and compassion, we have provided for our neighbors, lifted their spirits, and embraced our shared humanity. During National Character Counts Week, we celebrate our country’s core values and commit to passing them on to the next generation. By setting a positive example for our children, we can inspire in them the virtues that define our Nation: personal integrity, bold ingenuity, and a drive to serve others. America’s role models—from parents and teachers to community leaders and coaches—play an integral role in shaping character. They foster patriotism, promote civic pride, and teach young people to live by the Golden Rule by treating others the way they want to be treated. Together, all Americans must cultivate moral fortitude, preach tolerance, and demonstrate the value of respect for those different from ourselves. Tragic events in our Nation remind us why it is imperative that we create a climate of acceptance and compassion in our schools and communities. Our country has mourned as we have heard heartbreaking stories of promising young men and women subjected to harassment and bullying, driving some out of school, and others to ultimately take their own lives. No family should have to endure such a loss, and no child should feel that alone. Let us honor their memories by striving to make our neighborhoods and schools safe and affirming places for every child to learn, grow, and dream. Our Nation’s character is engrained in our past, central to our present, and key to our future. All of us share a responsibility to preserve and uphold the values that have kept our country strong, prosperous, and free. This week, we resolve to stay true to the American spirit and live according to our highest ideals. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, by virtue of the authority vested in me by the Constitution and the laws of the United States, do hereby proclaim October 16 through October 22, 2011, as National Character Counts Week. I call upon public officials, educators, parents, students, and all Americans to observe this week with appropriate ceremonies, activities, and programs.

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IN WITNESS WHEREOF, I have hereunto set my hand this fourteenth day of October, in the year of our Lord two thousand eleven, and of the Independ- ence of the United States of America the two hundred and thirty-sixth.

[FR Doc. 2011–27314 Filed 10–19–11; 8:45 am] Billing code 3295–F2–P

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Proclamation 8738 of October 14, 2011

National Forest Products Week, 2011

By the President of the United States of America

A Proclamation America’s forests have long played an integral role in shaping and developing our Nation. They help us access clean water and air, drive discovery as natural laboratories, and make our communities more beautiful and vibrant places to live. From renewable energy and biofuels to green building materials, forests also provide a wide variety of products that make up an important part of our economy. During National Forest Products Week, we celebrate the value of our woodlands and recommit to careful stewardship and preservation of these national treasures. Through the America’s Great Outdoors Initiative, my Administration continues to advance a 21st century conservation agenda and ensure we use our precious natural resources sustainably. Meeting the test of environmental stewardship often means finding the best ideas at the grassroots level, and this initiative is guided by the insights of Americans from across our country. From hunters and fishers to tribal leaders and young people, we all have a stake in safeguarding the woodlands we cherish. As we build the foundation for a smarter, more community-driven environmental strategy, we embrace the uniquely American idea that each of us has an equal share in the land around us and an equal responsibility to protect it. This year, we also join the global community in commemorating the Inter- national Year of Forests. By bolstering our commitment to the responsible management and conservation of forests around the world, we sow the seeds of a greener future for our children and grandchildren. To recognize the importance of products from our forests, the Congress, by Public Law 86–753 (36 U.S.C. 123), as amended, has designated the week beginning on the third Sunday in October of each year as ‘‘National Forest Products Week’’ and has authorized and requested the President to issue a proclamation in observance of this week. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim October 16 through October 22, 2011, as National Forest Products Week. I call on the people of the United States to join me in recognizing the dedicated individuals who are responsible for the stewardship of our forests and for the preservation, management, and use of these precious natural resources for the benefit of the American people.

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[FR Doc. 2011–27319 Filed 10–19–11; 8:45 am] Billing code 3295–F2–P

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Proclamation 8739 of October 14, 2011

Blind Americans Equality Day, 2011

By the President of the United States of America

A Proclamation Generations of blind and visually impaired Americans have dedicated their passion and skills to enhancing our national life—leading as public servants, penning works of literature, lending their voice to music, and inspiring as champions of sport. On Blind Americans Equality Day, we celebrate the achievements of blind and visually impaired Americans and reaffirm our commitment to advancing their complete social and economic integration. My Administration is dedicated to ensuring Americans with disabilities have every opportunity to reach their full potential. Last year, I signed the Twenty-First Century Communications and Video Accessibility Act to set new standards that enable people living with disabilities to access broadband, digital, and mobile innovations. To help level the playing field for employment, we are working to improve the Federal Government’s compliance with Section 508 of the Rehabilitation Act. Making electronic and information technology 508 compliant will give applicants with disabilities a fair chance and allow employees with disabilities to use necessary tools while on the job. By taking these steps, my Administration reaffirms its pledge to openness by making sure that people with disabilities can better access all the information the Federal Government has placed online. This year also marks the 75th anniversary of the passage of the Randolph- Sheppard Act. For decades, the legislation has provided openings for blind Americans to work as vendors on Federal property, creating meaningful entrepreneurial opportunities and enabling them to contribute to our economy. These jobs have enriched the lives of those participating in the Ran- dolph-Sheppard program and enhanced public understanding of blindness for those who have interacted with the program’s vendors. Though we have made progress in the march to equality for the blind and those with low vision, there is still more work to be done. In addition to improving access to technology and employment opportunities, this Janu- ary, I signed the Pedestrian Safety Enhancement Act. This landmark legislation requires electric and hybrid car manufacturers to add sounds to alert all pedestrians to the presence of these unusually quiet vehicles. These provisions will help increase the safety and independence of blind and visually impaired Americans. By joint resolution approved on October 6, 1964 (Public Law 88–628, as amended), the Congress designated October 15 of each year as ‘‘White Cane Safety Day’’ to recognize the contributions of Americans who are blind or have low vision. Today, let us recommit to forging ahead with the work of perfecting our Union and ensuring we remain a Nation where all our people, including those living with disabilities, have every opportunity to achieve their dreams. NOW, THEREFORE, I, BARACK OBAMA, President of the United States of America, do hereby proclaim October 15, 2011, as Blind Americans Equal- ity Day. I call upon public officials, business and community leaders, educators, librarians, and Americans across the country to observe this day with appropriate ceremonies, activities, and programs.

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[FR Doc. 2011–27320 Filed 10–19–11; 8:45 am] Billing code 3295–F2–P

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Rules and Regulations Federal Register Vol. 76, No. 203

Thursday, October 20, 2011

This section of the FEDERAL REGISTER Building Ground Floor, Washington, DC Comments Invited contains regulatory documents having general 20590–0001. We invite interested people to take applicability and legal effect, most of which • are keyed to and codified in the Code of Hand Delivery of Courier: Take part in this rulemaking by sending Federal Regulations, which is published under comments to Docket Operations in written comments, data, or views. The 50 titles pursuant to 44 U.S.C. 1510. Room W12–140 of the West Building most helpful comments reference a Ground Floor at 1200 New Jersey specific portion of the special The Code of Federal Regulations is sold by Avenue, SE., Washington, DC, between conditions, explain the reason for any the Superintendent of Documents. Prices of 8 a.m., and 5 p.m., Monday through recommended change, and include new books are listed in the first FEDERAL supporting data. We ask that you send REGISTER issue of each week. Friday, except Federal holidays. • Fax: Fax comments to Docket us two copies of written comments. We will file in the docket all Operations at 202–493–2251. comments we receive, as well as a DEPARTMENT OF TRANSPORTATION Privacy: The FAA will post all report summarizing each substantive Federal Aviation Administration comments it receives, without change, public contact with FAA personnel to http://regulations.gov, including any concerning these special conditions. 14 CFR Part 23 personal information the commenter You can inspect the docket before and provides. Using the search function of after the comment closing date. If you [Docket No. FAA–2011–1131; Special the docket web site, anyone can find wish to review the docket in person, go Conditions No. 23–255–SC] and read the electronic form of all to the address in the ADDRESSES section Special Conditions: Embraer S.A.; comments received into any FAA of this preamble between 7:30 a.m. and Model EMB 500; Single-Place Side docket, including the name of the 4 p.m., Monday through Friday, except Facing Seat Dynamic Test individual sending the comment (or Federal holidays. Requirements signing the comment for an association, We will consider all comments we business, labor union, etc.). DOT’s receive on or before the closing date for AGENCY: Federal Aviation complete Privacy Act Statement can be comments. We will consider comments Administration (FAA), DOT. found in the Federal Register published filed late if it is possible to do so ACTION: Final special conditions; request on April 11, 2000 (65 FR 19477–19478), without incurring expense or delay. We for comments. as well as at http://DocketsInfo.dot.gov. may change these special conditions based on the comments we receive. SUMMARY: These special conditions are Docket: Background documents or issued for the installation of a single- comments received may be read at Background place side facing seat on Embraer S.A. http://www.regulations.gov at any time. On December 26, 2009, Embraer S.A. EMB 500 aircraft. Side-facing seats are Follow the online instructions for applied for a change to Type Certificate considered a novel design, and their accessing the docket or go to the Docket No. A59CE for installation of a side- installation in a part 23 airplane was not Operations in Room W12–140 of the facing belted passenger seat in the envisaged and is not adequately West Building Ground Floor at 1200 EMB–500 airplane. The implication of addressed in 14 CFR part 23. The FAA New Jersey Avenue, SE., Washington, the term belted is that the passenger seat has determined that the existing DC, between 9 a.m., and 5 p.m., Monday will be used during takeoff and landing regulations do not provide adequate or through Friday, except Federal holidays. and so must comply with the provisions appropriate safety standards for FOR FURTHER INFORMATION CONTACT: Mr. of 14 CFR 23.562 and 23.785 (in occupants of single-place side-facing Bob Stegeman, Federal Aviation addition to the certification basis as seats. In order to provide a level of Administration, Small Airplane established in type certificate A59CE) safety that is equivalent to that afforded Directorate, Aircraft Certification and any additional requirements that to occupants of forward and aft facing Service, 901 Locust, Room 301, Kansas the FAA determines are applicable. In seating, additional airworthiness City, MO 64106; telephone (816) 329– this case, the approval of a side facing standards, in the form of special 4140; facsimile (816) 329–4090. seat to these provisions is considered conditions, are necessary. new and novel and as such will require DATES: The effective date of these SUPPLEMENTARY INFORMATION: The FAA special conditions and specific methods special conditions is October 12, 2011. has determined that notice and of compliance to certificate. We must receive your comments by opportunity for prior public comment 14 CFR part 23 was amended August November 21, 2011. hereon are impracticable because these 8, 1988, by Amendment 23–36, to revise ADDRESSES: Send comments identified procedures would significantly delay the emergency landing conditions that by docket number [FAA–2011–1131] issuance of the approval design and must be considered in the design of the using any of the following methods: thus delivery of the affected aircraft. In airplane. Amendment 23–36 revised the • Federal eRegulations Portal: Go to addition, the substance of these special static load conditions in § 23.561, and http://www.regulations.gov and follow conditions has been subject to the added a new § 23.562 that required the online instructions for sending your public comment process in several prior dynamic testing for all seats approved comments electronically. instances with no substantive comments for occupancy during takeoff and • Mail: Send comments to Docket received. The FAA therefore finds that landing. The intent of Amendment 23– Operations, M–30, U.S. Department of good cause exists for making these 36 is to provide an improved level of Transportation (DOT), 1200 New Jersey special conditions effective upon safety for occupants on part 23 Avenue, SE., Room W12–140, West issuance. airplanes. Because most seating is

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forward-facing in part 23 airplanes, the Novel or Unusual Design Features imminent, the FAA has determined that pass/fail criteria developed in The Embraer S.A., model EMB 500 prior public notice and comment are Amendment 23–36 focused primarily on will incorporate the following novel or unnecessary and impracticable, and these seats. Since the regulations do not unusual design features: good cause exists for adopting these address side-facing seats, these criteria A side facing passenger seat intended special conditions upon issuance. The should be documented in Special for taxi/takeoff and landing FAA is requesting comments to allow Conditions. interested persons to submit views that The FAA decision to review Discussion may not have been submitted in compliance with these regulations stems The seat is to incorporate design response to the prior opportunities for from the fact that the current regulations features that reduce the potential for comment described above. do not provide adequate and injury in the event of an accident. In a List of Subjects in 14 CFR Part 23 appropriate standards for the type severe impact, the occupant will be certification of this type of seat. restrained by a 2-point seatbelt and bear Aircraft, Aviation safety, Signs and These requirements are substantially on an adjacent padded wall. In addition symbols. similar to other single place side facing to the design features intended to Citation seat installations approved for use on minimize occupant injury during an several different part 23 and part 25 accident sequence, the adjacent forward The authority citation for these aircraft. wall/bulkhead interior structure will special conditions is as follows: Type Certification Basis have padding, which will provide some Authority: 49 U.S.C. 106(g), 40113 and protection to the head of the occupant. 44701; 14 CFR 21.16 and 21.101; and 14 CFR Under the provisions of § 21.101, The Code of Federal Regulations 11.38 and 11.19. Embraer S.A. must show that the model states performance criteria for forward The Special Conditions EMB 500, as changed, continues to meet and aft facing seats and restraints in an the applicable provisions of the objective manner. However, none of Accordingly, pursuant to the regulations incorporated by reference in these criteria are adequate to address the authority delegated to me by the Type Certificate No. A59CE or the specific issues raised concerning side- Administrator, the following special applicable regulations in effect on the facing seats. Therefore, the FAA has conditions are issued as part of the type date of application for the change. The determined that, in addition to the certification basis for Embraer S.A., regulations incorporated by reference in requirements of part 21 and part 23, model 500 airplanes. the type certificate are commonly special conditions are needed to address Single-Place Side Facing Seat Dynamic referred to as the ‘‘original type the installation of this seat installation/ Test Requirements certification basis.’’ restraint. The following model is covered by Accordingly, these special conditions In addition to the provisions of 14 this special condition: are for the Embraer S.A. model EMB 500 CFR 23.562, the following will apply: The following minimum acceptable Embraer S.A. EMB 500 side facing seat location. Other conditions may be developed, as standards for dynamic seat certification For the model listed above, the needed, based on further FAA review of the single side-facing seat are as certification basis also includes all and discussions with the manufacturer follows: exemptions, if any; equivalent level of and civil aviation authorities. (a) Existing Criteria. As referenced by safety findings, if any; and special § 23.785(b), all injury protection criteria conditions not relevant to the special Applicability of §§ 23.562(c)(1) through (c)(7) apply to conditions adopted by this rulemaking As discussed above, these special the occupants of the side-facing seats. action. conditions are applicable to the Embraer Head injury criteria (HIC) assessments If the Administrator finds that the model 500. Should Embraer S.A. apply are only required for head contact with applicable airworthiness regulations at a later date for a change to the type the seat and/or adjacent structures. (i.e., 14 CFR part 23) do not contain certificate to include another model (b) Body-to-wall/furnishing contact. adequate or appropriate safety standards incorporating the same novel or unusual The seat must be installed aft of a for the side facing seat as installed on design feature, the special conditions structure such as an interior wall or this Embraer S.A. model 500 because of would apply to that model as well. furnishing that will contact the pelvis, a novel or unusual design feature, upper arm, chest, or head of an special conditions are prescribed under Conclusion occupant seated next to the structure. A the provisions of § 21.16. This action affects only certain novel conservative representation of the The FAA issues special conditions, as or unusual design features on one model structure and its stiffness must be defined in § 11.19, under § 11.38 and of airplanes. It is not a rule of general included in the tests. It is required that they become part of the type applicability and affects only the the contact surface of this structure certification basis in accordance applicant who applied to the FAA for must be covered with at least two inches with§ 21.101. approval of these features on the of energy absorbing protective padding Special conditions are initially airplane. (foam or equivalent), such as Ensolite. applicable to the model for which they The substance of these special (c) Thoracic Trauma. Testing with a are issued. Should the type certificate conditions has been subjected to the Side Impact Dummy (SID), as defined for that model be amended later to notice and comment period in several by 49 CFR Part 572, Subpart F, or its include any other model that prior instances and has been derived equivalent, must be performed in order incorporates the same novel or unusual without substantive change from those to establish Thoracic Trauma Index design feature, or should any other previously issued. It is unlikely that (TTI) injury criteria. TTI acquired with model already included on the same prior public comment would result in a the SID must be less than 85, as defined type certificate be modified to significant change from the substance in 49 CFR Part 572, Subpart F. SID TTI incorporate the same novel or unusual contained herein. Therefore, because a data must be processed as defined in design feature, the special conditions delay would significantly affect the Federal Motor Vehicle Safety Standard would apply to that model as well. certification of the airplane, which is (FMVSS) Part 571.214, section S11.5.

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Rational analysis, comparing an Issued in Kansas City, Missouri, on Ground Floor at 1200 New Jersey installation with another installation October 12, 2011. Avenue, SE., Washington, DC, between where TTI data were acquired and John Colomy, 8 a.m. and 5 p.m., Monday through found acceptable, may also be viable. Acting Manager, Small Airplane Directorate, Friday, except Federal holidays. Aircraft Certification Service. • (d) Pelvis. Pelvic lateral acceleration Fax: Fax comments to Docket [FR Doc. 2011–27119 Filed 10–19–11; 8:45 am] Operations at 202–493–2251. must not exceed 130g. Pelvic Privacy: The FAA will post all acceleration data must be processed as BILLING CODE 4910–13–P comments it receives, without change, defined in FMVSS Part 571.214, section to http://www.regulations.gov/, S11.5. DEPARTMENT OF TRANSPORTATION including any personal information the (e) Shoulder Strap Loads. Where commenter provides. Using the search upper torso straps (shoulder straps) are Federal Aviation Administration function of the docket Web site, anyone used for occupants, tension loads in can find and read the electronic form of individual straps must not exceed 1,750 14 CFR Part 25 all comments received into any FAA pounds. If dual straps are used for [Docket No. FAA–2011–1141; Special docket, including the name of the restraining the upper torso, the total Conditions No. 25–451–SC] individual sending the comment (or strap tension loads must not exceed signing the comment for an association, 2,000 pounds. Special Conditions: Gulfstream business, labor union, etc.). DOT’s Aerospace Corporation, Model GIV–X (f) Compression Loads. The complete Privacy Act Statement can be Airplane; Aircraft Electronic System compression load measured between the found in the Federal Register published Security Protection From Unauthorized on April 11, 2000 (65 FR 19477–19478), pelvis and the lumbar spine of the ATD External Access as well as at may not exceed 1,500 pounds. http://DocketsInfo.dot.gov/. AGENCY: Federal Aviation (g) Emergency Evacuation. The Docket: Background documents or Administration (FAA), DOT. airplane configuration must meet the comments received may be read at ACTION: emergency evacuation requirements of Final special conditions; request http://www.regulations.gov/ at any time. its certification basis with the seat for comments. Follow the online instructions for occupied. SUMMARY: These special conditions are accessing the docket or go to the Docket (h) Test Requirements in § 23.562 issued for the Gulfstream Aerospace Operations in Room W12–140 of the dynamic loads. The tests in § 23.562(a) Corporation Model GIV–X airplane. West Building Ground Floor at 1200 (b) and (c) must be conducted on the This airplane will have novel or New Jersey Avenue, SE., Washington, side-facing seat. Floor deformation is unusual design features associated with DC, between 9 a.m. and 5 p.m., Monday required except for a seat that is the architecture and connectivity through Friday, except federal holidays. cantilevered to the bulkhead. capabilities of the airplane’s computer FOR FURTHER INFORMATION CONTACT: systems and networks, which may allow Varun Khanna, FAA, Airplane and The following are the agreed to access by external computer systems Flight Crew Interface Branch, ANM– methods of compliance and testing and networks. Connectivity by external 111, Transport Airplane Directorate, requirements: systems and networks may result in Aircraft Certification Service, 1601 Lind General Test Guidelines security vulnerabilities to the airplane’s Avenue, SW., Renton, Washington systems. The applicable airworthiness 98057–3356; telephone 425–227–1298; (a) One longitudinal test with the SID regulations do not contain adequate or facsimile 425–227–1149. anthropomorphic test dummy (ATD) or appropriate safety standards for these SUPPLEMENTARY INFORMATION: The FAA its equivalent, undeformed floor, no design features. These special has determined that notice of, and yaw, and with all lateral structural conditions contain the additional safety opportunity for prior public comment supports (armrests/walls) must be standards that the Administrator on, these special conditions are accomplished. considers necessary to establish a level impracticable because these procedures of safety equivalent to that established would significantly delay issuance of —Pass/fail injury assessments: TTI and by the existing airworthiness standards. pelvic acceleration. the design approval and thus delivery of DATES: The effective date of these the affected aircraft. In addition, the (b) One longitudinal test with the special conditions is October 13, 2011. substance of these special conditions Hybrid II ATD, deformed floor, with 10 We must receive your comments by has been subject to the public comment degrees yaw, and with all lateral December 5, 2011. process in several prior instances with structural supports (armrests/walls) ADDRESSES: Send comments identified no substantive comments received. The must be accomplished. by docket number FAA–2011–1141 FAA therefore finds that good cause using any of the following methods: exists for making these special —Pass/fail injury assessments: HIC and • Federal eRegulations Portal: Go to conditions effective upon issuance. upper torso restraint load, and http://www.regulations.gov/ and follow Comments Invited restraint system retention. the online instructions for sending your (c) Vertical (15 G’s) test must to be comments electronically. We invite interested people to take conducted with modified Hybrid II • Mail: Send comments to Docket part in this rulemaking by sending ATDs with existing pass/fail criteria. Operations, M–30, U.S. Department of written comments, data, or views. The Transportation (DOT), 1200 New Jersey most helpful comments reference a (d) The ATD can be tethered for the Avenue, SE., Room W12–140, West specific portion of the special floor deformation test. Building Ground Floor, Washington, DC conditions, explain the reason for any (e) The seatbelt is not required to have 20590–0001. recommended change, and include a TSO Authorization but will need to • Hand Delivery or by Courier: Take supporting data. comply with the TSO–C22g Minimum comments to Docket Operations in We will consider all comments we Performance Standards (MPS). Room W12–140 of the West Building receive by the closing date for

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comments. We may change these special conditions, the GIV–X must comply Applicability conditions based on the comments we with the fuel vent and exhaust emission As discussed above, these special receive. requirements of 14 CFR part 34 and the conditions are applicable to the noise certification requirements of 14 Background Gulfstream Model GIV–X. Should CFR part 36. Gulfstream apply at a later date for a On April 21, 2011, Gulfstream The FAA issues special conditions, as Aerospace Corporation (hereafter supplemental type certificate to modify defined in 14 CFR 11.19, in accordance any other model included on the Type referred to as ‘‘Gulfstream’’) applied for with § 11.38, and they become part of a supplemental type certificate to install Certificate No. A12EA to incorporate the the type certification basis under same novel or unusual design features, a new interior design configuration in § 21.101. the Gulfstream Model GIV–X passenger these special conditions would apply to airplane. The Gulfstream Model GIV–X Novel or Unusual Design Features that model as well. is a two-engine jet transport airplane The GIV–X will incorporate the Conclusion with a maximum takeoff weight of following novel or unusual design This action affects only certain novel 47,600 pounds and an interior features: digital systems architecture or unusual design features on one model configuration for a maximum of 19 composed of several connected of airplane. It is not a rule of general passengers. networks. The proposed architecture applicability and affects only the Type Certification Basis and network configuration may be used applicant who applied to the FAA for for, or interfaced with, a diverse set of Under the provisions of Title 14, Code approval of these features on the functions, including: of Federal Regulations (14 CFR) 21.101, airplane. Gulfstream must show that the 1. Flight-safety related control, The substance of these special Gulfstream Model GIV–X airplane communication, and navigation systems conditions has been subjected to the (hereafter referred to as the ‘‘GIV–X’’), as (aircraft control domain); notice and comment period in several changed, continues to meet the 2. Airline business and administrative prior instances and has been derived applicable provisions of the regulations support (airline information domain); without substantive change from those incorporated by reference in Type 3. Passenger information and previously issued. It is unlikely that Certificate No. A12EA or the applicable entertainment systems (passenger prior public comment would result in a regulations in effect on the date of entertainment domain), and; significant change from the substance application for the change. The 4. The capability to allow access to or contained herein. Therefore, because a regulations incorporated by reference in by external sources. delay would significantly affect the certification of the airplane, which is the type certificate are commonly Discussion referred to as the ‘‘original type imminent, the FAA has determined that certification basis.’’ The regulations The GIV–X architecture and network prior public notice and comment are incorporated by reference in Type configuration may allow increased unnecessary and impracticable, and Certificate No. A12EA are as follows: connectivity to, and access by, external good cause exists for adopting these 14 CFR part 25, effective February 1, airplane sources, airline operations, and special conditions upon issuance. The 1965, including Amendments 25–1 maintenance systems to the aircraft FAA is requesting comments to allow through 25–56, except for the following control domain and airline information interested persons to submit views that sections which are limited to showing domain. The aircraft control domain may not have been submitted in compliance with the amendments and airline information domain perform response to the prior opportunities for indicated: Part 25 effective February 1, functions required for the safe operation comment described above. and maintenance of the airplane. 1965, §§ 25.109, 25.571, and 25.813; List of Subjects in 14 CFR Part 25 part 25 Amendment 25–22, § 25.571; Previously these domains had very and part 25 Amendment 25–15, limited connectivity with external Aircraft, Aviation safety, Reporting § 25.807(c)(2). In addition, the sources. The architecture and network and recordkeeping requirements. certification basis includes certain configuration may allow the The authority citation for these special conditions, exemptions, and exploitation of network security special conditions is as follows: equivalent safety findings that are not vulnerabilities resulting in intentional Authority: 49 U.S.C. 106(g), 40113, 44701, relevant to these special conditions. or unintentional destruction, disruption, 44702, 44704. If the Administrator finds that the degradation, or exploitation of data, The Special Conditions applicable airworthiness regulations systems, and networks critical to the (i.e., 14 CFR part 25) do not contain safety and maintenance of the airplane. Accordingly, pursuant to the adequate or appropriate safety standards The existing regulations and guidance authority delegated to me by the for the GIV–X because of a novel or material did not anticipate these types Administrator, the following special unusual design feature, special of airplane system architectures. conditions are issued as part of the type conditions are prescribed under the Furthermore, 14 CFR regulations and certification basis for Gulfstream Model provisions of § 21.16. current system safety assessment policy GIV–X airplanes. Special conditions are initially and techniques do not address potential 1. The applicant must ensure airplane applicable to the model for which they security vulnerabilities, which could be electronic system security protection are issued. Should the applicant apply exploited by unauthorized access to from access by unauthorized sources for a supplemental type certificate to airplane systems, data buses, and external to the airplane, including those modify any other model included on the servers. Therefore, these special possibly caused by maintenance same type certificate to incorporate the conditions are issued to ensure that the activity. same novel or unusual design feature, security (i.e., confidentiality, integrity, 2. The applicant must ensure that the special conditions would also apply and availability) of airplane systems is electronic system security threats are to the other model. not compromised by unauthorized identified and assessed, and that In addition to the applicable wired or wireless electronic effective electronic system security airworthiness regulations and special connections. protection strategies are implemented to

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protect the airplane from all adverse Avenue, SE., Room W12–140, West specific portion of the special impacts on safety, functionality, and Building Ground Floor, Washington, DC conditions, explain the reason for any continued airworthiness. 20590–0001. recommended change, and include 3. The applicant must establish • Hand Delivery or by Courier: Take supporting data. appropriate procedures to allow the comments to Docket Operations in We will consider all comments we operator to ensure that continued Room W12–140 of the West Building receive by the closing date for airworthiness of the aircraft is Ground Floor at 1200 New Jersey comments. We may change these special maintained, including all post Type Avenue, SE., Washington, DC, between conditions based on the comments we Certification modifications that may 8 a.m. and 5 p.m., Monday through receive. have an impact on the approved Friday, except federal holidays. Background electronic system security safeguards. • Fax: Fax comments to Docket Operations at 202–493–2251. On April 21, 2011, Gulfstream Ali Bahrami, Privacy: The FAA will post all Aerospace Corporation (hereafter Manager, Transport Airplane Directorate, comments it receives, without change, referred to as ‘‘Gulfstream’’) applied for Aircraft Certification Service. to http://www.regulations.gov/, a supplemental type certificate to install [FR Doc. 2011–27196 Filed 10–19–11; 8:45 am] including any personal information the a new interior design configuration in BILLING CODE 4910–13–P commenter provides. Using the search the Gulfstream Model GIV–X passenger function of the docket Web site, anyone airplane. The Gulfstream Model GIV–X can find and read the electronic form of is a two-engine jet transport airplane DEPARTMENT OF TRANSPORTATION all comments received into any FAA with a maximum takeoff weight of 47,600 pounds and an interior Federal Aviation Administration docket, including the name of the individual sending the comment (or configuration for a maximum of 19 passengers. 14 CFR Part 25 signing the comment for an association, business, labor union, etc.). DOT’s Type Certification Basis [Docket No. FAA–2011–1140; Special complete Privacy Act Statement can be Under the provisions of Title 14, Code Conditions No. 25–450–SC] found in the Federal Register published of Federal Regulations (14 CFR) 21.101, on April 11, 2000 (65 FR 19477–19478), Special Conditions: Gulfstream Gulfstream must show that the as well as at Aerospace Corporation, Model GIV–X Gulfstream Model GIV–X airplane http://DocketsInfo.dot.gov/. Airplane; Isolation or Aircraft (hereafter referred to as the ‘‘GIV–X’’), as Docket: Background documents or Electronic System Security Protection changed, continues to meet the comments received may be read at From Unauthorized Internal Access applicable provisions of the regulations http://www.regulations.gov/ at any time. incorporated by reference in Type AGENCY: Follow the online instructions for Federal Aviation Certificate No. A12EA or the applicable accessing the docket or go to the Docket Administration (FAA), DOT. regulations in effect on the date of Operations in Room W12–140 of the ACTION: Final special conditions; request application for the change. The West Building Ground Floor at 1200 for comments. regulations incorporated by reference in New Jersey Avenue, SE., Washington, the type certificate are commonly SUMMARY: These special conditions are DC, between 9 a.m. and 5 p.m., Monday referred to as the ‘‘original type issued for the Gulfstream Aerospace through Friday, except federal holidays. Corporation Model GIV–X airplane. certification basis.’’ The regulations FOR FURTHER INFORMATION CONTACT: incorporated by reference in Type This airplane will have novel or Varun Khanna, FAA, Airplane and unusual design features associated with Certificate No. A12EA are as follows: Flight Crew Interface Branch, ANM– 14 CFR part 25, effective February 1, connectivity of the passenger domain 111, Transport Airplane Directorate, 1965, including Amendments 25–1 computer systems to the airplane Aircraft Certification Service, 1601 Lind through 25–56, except for the following critical systems and data networks. The Avenue, SW., Renton, Washington sections which are limited to showing applicable airworthiness regulations do 98057–3356; telephone 425–227–1298; compliance with the amendments not contain adequate or appropriate facsimile 425–227–1149. indicated: Part 25 effective February 1, safety standards for these design SUPPLEMENTARY INFORMATION: The FAA 1965, §§ 25.109, 25.571, and 25.813; features. These special conditions has determined that notice of, and part 25 Amendment 25–22, § 25.571; contain the additional safety standards opportunity for prior public comment and part 25 Amendment 25–15, that the Administrator considers on, these special conditions are § 25.807(c)(2). In addition, the necessary to establish a level of safety impracticable because these procedures certification basis includes certain equivalent to that established by the would significantly delay issuance of special conditions, exemptions, and existing airworthiness standards. the design approval and thus delivery of equivalent safety findings that are not DATES: The effective date of these the affected aircraft. In addition, the relevant to these special conditions. special conditions is October 13, 2011. substance of these special conditions If the Administrator finds that the We must receive your comments by has been subject to the public comment applicable airworthiness regulations December 5, 2011. process in several prior instances with (i.e., 14 CFR part 25) do not contain ADDRESSES: Send comments identified no substantive comments received. The adequate or appropriate safety standards by docket number FAA–2011–1140 FAA therefore finds that good cause for the GIV–X because of a novel or using any of the following methods: exists for making these special unusual design feature, special • Federal eRegulations Portal: Go to conditions effective upon issuance. conditions are prescribed under the http://www.regulations.gov/ and follow provisions of § 21.16. the online instructions for sending your Comments Invited Special conditions are initially comments electronically. We invite interested people to take applicable to the model for which they • Mail: Send comments to Docket part in this rulemaking by sending are issued. Should the applicant apply Operations, M–30, U.S. Department of written comments, data, or views. The for a supplemental type certificate to Transportation (DOT), 1200 New Jersey most helpful comments reference a modify any other model included on the

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same type certificate to incorporate the compromised by unauthorized wired or and all adverse impacts upon, airplane same novel or unusual design feature, wireless electronic connections between equipment, systems, networks, or other the special conditions would also apply airplane systems and networks and the assets required for safe flight and to the other model. passenger entertainment domain. operations. In addition to the applicable 2. The applicant must establish Applicability airworthiness regulations and special appropriate procedures to allow the conditions, the GIV–X must comply As discussed above, these special operator to ensure that continued with the fuel vent and exhaust emission conditions are applicable to the airworthiness of the aircraft is requirements of 14 CFR part 34 and the Gulfstream Model GIV–X. Should maintained, including all post Type noise certification requirements of 14 Gulfstream apply at a later date for a Certification modifications that may CFR part 36. supplemental type certificate to modify have an impact on the approved The FAA issues special conditions, as any other model included on the Type electronic system security safeguards. defined in 14 CFR 11.19, in accordance Certificate No. A12EA to incorporate the same novel or unusual design features, Issued in Renton, Washington, on October with § 11.38, and they become part of 13, 2011. the type certification basis under these special conditions would apply to Ali Bahrami, § 21.101. that model as well. Manager, Transport Airplane Directorate, Novel or Unusual Design Features Conclusion Aircraft Certification Service. The GIV–X will incorporate the This action affects only certain novel [FR Doc. 2011–27198 Filed 10–19–11; 8:45 am] following novel or unusual design or unusual design features on one model BILLING CODE 4910–13–P features: Digital systems architecture of airplane. It is not a rule of general composed of several connected applicability and affects only the networks. The proposed architecture applicant who applied to the FAA for DEPARTMENT OF TRANSPORTATION approval of these features on the and network configuration may be used Federal Aviation Administration for, or interfaced with, a diverse set of airplane. The substance of these special functions, including: 14 CFR Part 71 1. Flight-safety related control, conditions has been subjected to the communication, and navigation systems notice and comment period in several [Docket No. FAA–2011–0010; Airspace (aircraft control domain); prior instances and has been derived Docket No. 11–AAL–1] 2. Airline business and administrative without substantive change from those support (airline information domain); previously issued. It is unlikely that Amendment of Federal Airways; 3. Passenger information and prior public comment would result in a Alaska significant change from the substance entertainment systems (passenger AGENCY: Federal Aviation entertainment domain); and contained herein. Therefore, because a Administration (FAA), DOT. 4. The capability to allow access to or delay would significantly affect the by external sources. certification of the airplane, which is ACTION: Final rule; technical imminent, the FAA has determined that amendment. Discussion prior public notice and comment are SUMMARY: This action removes two The GIV–X integrated network unnecessary and impracticable, and modified VHF Omnidirectional Range configuration may allow increased good cause exists for adopting these (VOR) Federal airways, V–320 and V– connectivity with external network special conditions upon issuance. The 440, from a final rule published in the sources and will have more FAA is requesting comments to allow Federal Register of April 28, 2011. That interconnected networks and systems, interested persons to submit views that rule amended 29 Air Traffic Service such as passenger entertainment and may not have been submitted in (ATS) routes in Alaska affected by the information services, than previous response to the prior opportunities for relocation of the Anchorage VOR Gulfstream airplane models. This may comment described above. navigation aid. The FAA is taking this allow the exploitation of network action as a result of these VOR Federal security vulnerabilities and increased List of Subjects in 14 CFR Part 25 airways not passing flight inspections to risks potentially resulting in unsafe Aircraft, Aviation safety, Reporting retain existing minimum enroute conditions for the airplane and its and recordkeeping requirements. altitude (MEA) requirements in the occupants. This potential exploitation of The authority citation for these vicinity of Anchorage, AK. security vulnerabilities may result in special conditions is as follows: intentional or unintentional destruction, DATES: Effective date 0901 UTC October Authority: 49 U.S.C. 106(g), 40113, 44701, 20, 2011. disruption, degradation, or exploitation 44702, 44704. of data and systems critical to the safety FOR FURTHER INFORMATION CONTACT: and maintenance of the airplane. The The Special Conditions Colby Abbott, Airspace, Regulations and existing regulations and guidance Accordingly, pursuant to the ATC Procedures Group, Office of material did not anticipate these types authority delegated to me by the Mission Support Services, Federal of system architectures. Furthermore, 14 Administrator, the following special Aviation Administration, 800 CFR regulations and current system conditions are issued as part of the type Independence Avenue, SW., safety assessment policy and techniques certification basis for Gulfstream Model Washington, DC 20591; telephone: (202) do not address potential security GIV–X airplanes. 267–8783. vulnerabilities which could be exploited 1. The applicant must ensure that the SUPPLEMENTARY INFORMATION: by unauthorized access to airplane design provides isolation from, or networks and servers. Therefore, these airplane electronic system security History special conditions are being issued to protection against, access by Federal Register Docket No. FAA– ensure that the security (i.e., unauthorized sources internal to the 2011–0010, Airspace Docket No. 11– confidentiality, integrity, and airplane. The design must prevent AAL–1 published on April 28, 2011 (76 availability) of airplane systems is not inadvertent and malicious changes to, FR 23687), amends all Federal Airways

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affected by the relocation of the Final Rule Technical Amendment Background Anchorage VOR navigation aid. The Accordingly, pursuant to the We are making final the rule for FAA subsequently delayed the effective authority delegated to me, the modified recovery of delinquent debts that we date from June 30, 2011, until further VOR Federal airways V–320 and V–440 proposed in a Notice of Proposed Rule notice (76 FR 35097; June 16, 2011). legal descriptions as published in the Making (NPRM) published in the The FAA has determined that V–320 Federal Register on April 28, 2011 (76 Federal Register on March 2, 2011 (76 and V–440 do not have satisfactory FR 23687), FR Doc. 2011–10240, page FR 11402). The preamble to the NPRM signal reception coverage capable of 23688, column 2, line 4, and column 3, discussed the changes from the current meeting the existing MEA requirements line 4, respectively, are removed. rules and our reasons for proposing in the vicinity of Anchorage, AK. those changes. To the extent that we are Amendments for these airways will be Issued in Washington, DC, on October 13, adopting the proposed rule as proposed at a future date under a 2011. published, we are not repeating that separate rulemaking. Accordingly, this Gary A. Norek, information here. Interested readers may action is taken to remove these two Acting Manager, Airspace, Regulations and refer to the preamble to the NPRM.1 Victor airways in Alaska. ATC Procedures Group. The remaining 27 ATS routes, as [FR Doc. 2011–27118 Filed 10–19–11; 8:45 am] Changes to Our Regulations amended, are unaffected by this action BILLING CODE 4910–13–P We are changing our regulations to and the effective date remains delayed conform to Treasury’s regulations. In until further notice per the final rule, addition to collecting non-tax debts delay of effective date published in the SOCIAL SECURITY ADMINISTRATION beyond the original 10-year statute of Federal Register on June 16, 2011 (76 limitations, we will collect delinquent FR 35097). 20 CFR Parts 404, 408, 416, and 422 VOR Federal airways are published in overpayments under titles II, VIII, and Paragraph 6010 of FAA Order 7400.9V, [Docket No. SSA–2010–0010] XVI by offset of various State payments, dated August 9, 2011, and effective RIN 0960–AH19 including State tax refunds. Debt September 15, 2011, which is Collection Improvement Act (DCIA) of incorporated by reference in 14 CFR Recovery of Delinquent Debts— 1996, Public Law 104–134, 110 Stat. 71.1. The VOR Federal airways listed in Treasury Offset Program 1321–358 et seq. (April 26, 1996); 31 this document will be subsequently Enhancements U.S.C. 3716; 31 CFR 285.6. published in the Order. Therefore, we are changing Title 20 AGENCY: Social Security Administration. The FAA has determined that this §§ 404.520, 404.521, 408.940, 408.941, regulation only involves an established ACTION: Final rule. 416.580, 416.581, and 422.310. Under body of technical regulations for which these sections, we notify the overpaid SUMMARY: We are amending our Tax person and refer overpayments to frequent and routine amendments are Refund Offset (TRO) and Administrative necessary to keep them operationally Treasury for tax refund and Offset regulations. We are conforming administrative offset. current. Therefore, this regulation (1) Is our regulations to those of the not a significant regulatory action under Department of the Treasury (Treasury) Public Comments on the NPRM Executive Order 12866; (2) is not a for the following reasons: Treasury ‘‘significant rule’’ under DOT In the NPRM, we provided the public removed the 10-year limitation to a 60-day comment period, which ended Regulatory Policies and Procedures (44 collect delinquent debts owed the FR 11034; February 26, 1979); and (3) on May 2, 2011. We received two public United States by reducing eligible comments from individuals. Since the does not warrant preparation of a Federal payments, and more States are Regulatory Evaluation as the anticipated comments were long, we have participating in reciprocal agreements summarized and paraphrased them. We impact is so minimal. Since this is a with Treasury to offset State payments, routine matter that will only affect air are responding to the significant issues including tax refunds to reduce or raised by the commenters that were traffic procedures and air navigation, it extinguish a federally owed debt. These is certified that this rule will not have within the scope of this rule. changes will allow us to collect Comment: One commenter wanted to a significant economic impact on a additional Federal debt. make sure that our regulations are substantial number of small entities DATES: These rules are effective written with understandable language. under the criteria of the Regulatory November 21, 2011. Response: We are committed to Flexibility Act. writing our documents clearly and The FAA’s authority to issue rules FOR FURTHER INFORMATION CONTACT: welcome feedback if the public does not regarding aviation safety is found in Jennifer C. Pendleton, Office of Payment believe that our documents are clear. Title 49 of the United States Code. and Recovery Policy, Social Security Administration, 6401 Security Comment: Another commenter agreed Subtitle I, section 106 describes the with our proposed rule and suggested authority of the FAA Administrator. Boulevard, Baltimore, MD 21235–6401, (410) 965–5652. For information on that individuals be given ample notice Subtitle VII, Aviation Programs, before monies are reclaimed and that describes in more detail the scope of the amendments to 20 CFR Part 408, please contact: Benjamin Franco, Office of individuals be thoroughly informed agency’s authority. before entering into a contract that This rulemaking is promulgated International Programs, Social Security Administration, 6401 Security might fall under this rule. under the authority described in subtitle Response: Before referring a person VII, part A, subpart I, section 40103. Boulevard, Baltimore, MD 21235–6401, (410) 965–7342. For information on for offset under these sections, we will Under that section, the FAA is charged give him or her at least 60 days prior with prescribing regulations to assign eligibility or filing for benefits, call our national toll-free number, 1–800–772– notice in accordance with §§ 404.521, the use of the airspace necessary to 408.941, 416.581, and 422.310. ensure the safety of aircraft and the 1213 or TTY 1–800–325–0778, or visit our Internet site, Social Security Online, efficient use of airspace. This regulation 1 The NPRM is available at http:// is within the scope of that authority as at http://www.socialsecurity.gov. www.regulations.gov/#!documentDetail;D=SSA- it modifies Federal airways in Alaska. SUPPLEMENTARY INFORMATION: 2010-0010-0001.

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Regulatory Procedures PART 404—FEDERAL OLD-AGE, Authority: Secs. 702(a)(5), 808, and 1147 SURVIVORS AND DISABILITY of the Social Security Act (42 U.S.C. Executive Order 12866 as INSURANCE (1950– ) 902(a)(5), 1008, and 1320b–17); 31 U.S.C. Supplemented by Executive Order 3716; 31 U.S.C. 3720A. 13563 Subpart F—[Amended] ■ 5. In § 408.940(b) revise the third We consulted with the Office of ■ 1. The authority citation for subpart F sentence to read as follows: Management and Budget (OMB) and of part 404 is revised to read as follows: § 408.940 When will we refer an SVB determined that this final rule meets the Authority: Secs. 204, 205(a), 702(a)(5), and overpayment to the Department of the criteria for a significant regulatory 1147 of the Social Security Act (42 U.S.C. Treasury for tax refund offset? action under Executive Order 12866 as 404, 405(a), 902(a)(5), and 1320b–17); 31 * * * * * supplemented by Executive Order U.S.C. 3716; 31 U.S.C. 3720A. (b) * * * We refer overpayments to 13563. Thus, OMB reviewed the final ■ 2. Amend § 404.520(b) in the second the Department of the Treasury for offset rule. sentence by removing the word against Federal tax refunds regardless of Regulatory Flexibility Act ‘‘individuals’’ and adding in its place the amount of time the debts have been the word ‘‘persons’’ and by revising the outstanding. We certify that this final rule will not third sentence to read as follows: ■ 6. In § 408.941 revise the introductory have a significant economic impact on text, and paragraphs (a) and (b) to read a substantial number of small entities § 404.520 Referral of overpayments to the Department of the Treasury for tax refund as follows: because it applies to individuals only. offset—General. Thus, a regulatory flexibility analysis is § 408.941 Will we notify you before we * * * * * refer an SVB overpayment for tax refund not required under the Regulatory (b) * * * We will refer overpayments offset? Flexibility Act, as amended. to the Department of the Treasury for Before we request that an Paperwork Reduction Act offset against Federal tax refunds overpayment be collected by reduction regardless of the length of time the debts of Federal and State income tax refunds, This rule does not create any new or have been outstanding. we will send a written notice of our affect any existing collections and does ■ 3. Amend § 404.521 by revising the action to the overpaid person. In our not require OMB approval under the section heading, introductory text, and notice of intent to collect an Paperwork Reduction Act. paragraphs (a) and (b), and in paragraph overpayment through tax refund offset, (e) by removing the word ‘‘individual’’ List of Subjects we will state: in two places and adding in its place (a) The amount of the overpayment; 20 CFR Part 404 ‘‘person’’. and § 404.521 Notice to overpaid persons. (b) That we will collect the Administrative practice and overpayment by requesting that the procedure, Blind, Disability benefits, Before we request the collection of an Department of the Treasury reduce any Income taxes, Old-Age, Survivors, and overpayment by reduction of Federal amounts payable to the overpaid person and State income tax refunds, we will Disability Insurance, Reporting and as refunds of Federal and State income send a written notice of intent to the recordkeeping requirements, Social taxes by an amount equal to the amount overpaid person. In our notice of intent Security. of the overpayment unless, within 60 to collect an overpayment through tax calendar days from the date of our 20 CFR Part 408 refund offset, we will state: notice, the overpaid person: (a) The amount of the overpayment; (1) Repays the overpayment in full; or Administrative practice and and procedure; Aged; Reporting and (b) That we will collect the (2) Provides evidence to us at the recordkeeping requirements; Social overpayment by requesting that the address given in our notice that the Security; Supplemental Security Income Department of the Treasury reduce any overpayment is not past due or legally (SSI); Veterans. amounts payable to the overpaid person enforceable; or as refunds of Federal and State income (3) Asks us to waive collection of the 20 CFR Part 416 taxes by an amount equal to the amount overpayment under section 204(b) of the Act. Administrative practice and of the overpayment unless, within 60 procedure, Reporting and recordkeeping calendar days from the date of our * * * * * notice, the overpaid person: requirements, Supplemental Security PART 416—SUPPLEMENTAL Income (SSI). (1) Repays the overpayment in full; or (2) Provides evidence to us at the SECURITY INCOME FOR THE AGED, 20 CFR Part 422 address given in our notice that the BLIND, AND DISABLED overpayment is not past due or legally Subpart E—[Amended] Administrative practice and enforceable; or procedure, Organization and functions (3) Asks us to waive collection of the ■ 7. The authority citation for subpart E (Government agencies), Reporting and overpayment under section 204(b) of the of part 416 is amended to read as recordkeeping requirements, Social Act. follows: Security. * * * * * Authority: Secs. 702(a)(5), 1147, 1601, Michael J. Astrue, PART 408—SPECIAL BENEFITS FOR 1602, 1611(c) and (e), and 1631(a)–(d) and (g) Commissioner of Social Security. CERTAIN WORLD WAR II VETERANS of the Social Security Act (42 U.S.C. 902(a)(5), 1320b–17, 1381, 1381a, 1382(c) For the reasons set out in the Subpart I—[Amended] and (e), and 1383(a)–(d) and (g)); 31 U.S.C. preamble, we are amending 20 CFR 3716; 31 U.S.C. 3720A. chapter III, parts 404, 408, 416, and 422 ■ 4. The authority citation for subpart I ■ 8. Amend § 416.580(b) by removing as set forth below: of part 408 is revised to read as follows: the word ‘‘individuals’’ in the second

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sentence and adding in its place § 422.310 Collection of overdue debts by FOR FURTHER INFORMATION CONTACT: John ‘‘persons’’ and by revising the last administrative offset. K. Harshman, Center for Veterinary sentence to read as follows: (a) Referral to the Department of the Medicine (HFV–170), Food and Drug Treasury for offset. (1) We recover Administration, 7500 Standish Pl., § 416.580 Referral of overpayments to the overdue debts by offsetting Federal and Rockville, MD 20855, 240–276–8197, e- Department of the Treasury for tax refund offset—General. State payments due the debtor through mail: [email protected]. the Treasury Offset Program (TOP). TOP * * * * * SUPPLEMENTARY INFORMATION: Ivy is a Government-wide delinquent debt Laboratories, Division of Ivy Animal (b) * * * We refer overpayments to matching and payment offset process Health, Inc., 8857 Bond St., Overland the Department of the Treasury for offset operated by the Department of the Park, KS 66214, filed a supplement to against Federal tax refunds regardless of Treasury, whereby debts owed to the ANADA 200–375 for use of the amount of time the debts have been Federal Government are collected by HEIFERMAX 500 (melengestrol acetate), outstanding. offsetting them against Federal and State RUMENSIN (monensin, USP), and ■ 9. Amend § 416.581 by revising the payments owed the debtor. Federal TYLAN (tylosin phosphate) single- section heading, the introductory text, payments owed the debtor include ingredient Type A medicated articles to and paragraphs (a) and (b), and in current ‘‘disposable pay,’’ defined in 5 make three-way, combination drug Type paragraph (e), by removing the word CFR 550.1103, owed by the Federal C medicated feeds for heifers fed in ‘‘individual’’ in two places and adding Government to a debtor who is an confinement for slaughter. The in its place ‘‘person’’. employee of the Federal Government. supplemental ANADA provides for use Deducting from such disposable pay to of increased dose levels of monensin. § 416.581 Notice to overpaid person. collect an overdue debt owed by the The supplemental application is employee is called ‘‘Federal salary We will make a request for collection approved as of September 1, 2011, and offset’’ in this subpart. by reduction of Federal and State the regulations in 21 CFR 558.342 are income tax refunds only after we * * * * * amended to reflect the approval. (b) Debts we refer. We refer for determine that a person owes an In accordance with the freedom of administrative offset all qualifying debts overpayment that is past due and information provisions of 21 CFR part that meet or exceed the threshold provide the overpaid person with 20 and 21 CFR 514.11(e)(2)(ii), a amounts used by the Department of the written notice. Our notice of intent to summary of safety and effectiveness Treasury for collection from State and collect an overpayment through tax data and information submitted to Federal payments, including Federal refund offset will state: support approval of this application salaries. (a) The amount of the overpayment; may be seen in the Division of Dockets and * * * * * Management (HFA–305), Food and Drug [FR Doc. 2011–27221 Filed 10–19–11; 8:45 am] Administration, 5630 Fishers Lane, rm. (b) That we will collect the BILLING CODE 4191–02–P overpayment by requesting that the 1061, Rockville, MD 20852, between 9 Department of the Treasury reduce any a.m. and 4 p.m., Monday through amounts payable to the overpaid person Friday. as refunds of Federal and State income DEPARTMENT OF HEALTH AND The Agency has determined under 21 taxes by an amount equal to the amount HUMAN SERVICES CFR 25.33 that this action is of a type of the overpayment unless, within 60 that does not individually or calendar days from the date of our Food and Drug Administration cumulatively have a significant effect on notice, the overpaid person: the human environment. Therefore, 21 CFR Part 558 neither an environmental assessment (1) Repays the overpayment in full; or nor an environmental impact statement (2) Provides evidence to us at the [Docket No. FDA–2011–N–0003] is required. address given in our notice that the This rule does not meet the definition overpayment is not past due or legally New Animal Drugs for Use in Animal of ‘‘rule’’ in 5 U.S.C. 804(3)(A) because enforceable; or Feeds; Melengestrol; Monensin; Tylosin it is a rule of ‘‘particular applicability.’’ (3) Asks us to waive collection of the Therefore, it is not subject to the overpayment under section 204(b) of the AGENCY: Food and Drug Administration, congressional review requirements in 5 Act. HHS. U.S.C. 801–808. * * * * * ACTION: Final rule. List of Subjects in 21 CFR Part 558 PART 422—ORGANIZATION AND SUMMARY: The Food and Drug Animal drugs, Animal feeds. PROCEDURES Administration (FDA) is amending the animal drug regulations to reflect Therefore, under the Federal Food, Subpart D—[Amended] approval of a supplemental abbreviated Drug, and Cosmetic Act and under new animal drug application (ANADA) authority delegated to the Commissioner ■ 10. The authority citation for subpart filed by Ivy Laboratories, Division of Ivy of Food and Drugs and redelegated to D of part 422 continues to read as Animal Health, Inc. The supplemental the Center for Veterinary Medicine, 21 follows: ANADA provides for use of increased CFR part 558 is amended as follows: Authority: Secs. 204(f), 205(a), 702(a)(5), dose levels of monensin in three-way, PART 558—NEW ANIMAL DRUGS FOR and 1631(b) of the Social Security Act (42 combination drug Type C medicated USE IN ANIMAL FEEDS U.S.C. 404(f), 405(a), 902(a)(5), and 1383(b)); feeds for heifers fed in confinement for 5 U.S.C. 5514; 31 U.S.C. 3711(e); 31 U.S.C. slaughter containing melengestrol ■ 1. The authority citation for 21 CFR 3716. acetate, monensin, and tylosin. part 558 continues to read as follows: ■ 11. In § 422.310 revise paragraphs DATES: This rule is effective October 20, (a)(1) and (b) to read as follows: 2011. Authority: 21 U.S.C. 360b, 371.

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§ 558.342 [Amended] each be engaged, immediately after the 355(a)(3)(B), in connection with the ■ 2. In § 558.342, in the table in distribution, in the active conduct of a application of section 355(b)(3). paragraph (e)(1), remove and reserve trade or business. Section 355(b)(2)(A) Pursuant to section 355(b)(3)(D) and paragraph (e)(1)(vii); and in paragraph provides that a corporation shall be section 7805, temporary regulations (TD (e)(1)(xi), in the ‘‘Sponsor’’ column, add treated as engaged in the active conduct 9435) under section 355(a)(3)(B) were ‘‘021641’’. of a trade or business if and only if it published in the Federal Register (73 is engaged in the active conduct of a FR 75946) on December 15, 2008. A Dated: October 14, 2011. trade or business. notice of proposed rulemaking (REG– Steven D. Vaughn, Section 355(b)(2)(B) requires that the 150670–07) cross-referencing the Director, Office of New Animal Drug trade or business have been actively temporary regulation was published in Evaluation, Center for Veterinary Medicine. conducted throughout the five-year the Federal Register on the same day [FR Doc. 2011–27139 Filed 10–19–11; 8:45 am] period ending on the date of the (73 FR 75979). The temporary BILLING CODE 4160–01–P distribution (pre-distribution period). regulations were intended to harmonize Section 355(b)(2)(C) provides that the the application of section 355(a)(3)(B) trade or business must not have been with section 355(b). Generally, the DEPARTMENT OF THE TREASURY acquired in a transaction in which gain temporary regulations: (1) Disregarded or loss was recognized in whole or in transfers of controlled stock between Internal Revenue Service part (taxable transaction) within the pre- members of the distributing distribution period. Section 355(b)(2)(D) corporation’s SAG (DSAG), (2) did not 26 CFR Part 1 provides that control of a corporation treat controlled stock as other property [TD 9548] that (at the time of acquisition of if controlled became a DSAG member, control) was conducting the trade or and (3) retained the exception of prior RIN 1545–BH49 business must not have been directly or regulation § 1.355–2(g) as contained in 26 CFR part 1, revised as of April 1, Guidance Regarding the Treatment of indirectly acquired by any distributee corporation or by distributing during the 2008, for acquisitions from affiliates Stock of a Controlled Corporation described in § 1.355–3(b)(4)(iii). Under Section 355(a)(3)(B) pre-distribution period in a taxable transaction. The preamble to the temporary AGENCY: Internal Revenue Service (IRS), Section 355(b)(3)(A) provides that for regulations requested comments Treasury. purposes of determining whether a regarding a variety of issues under section 355(a)(3)(B). One written ACTION: Final regulations and removal of corporation meets the requirements of temporary regulations. section 355(b)(2)(A), all members of comment responding to the request was such corporation’s separate affiliated received. No public hearing was SUMMARY: This document contains final group (SAG) shall be treated as one requested or held. regulations regarding the distribution of corporation. Section 355(b)(3)(B) Summary of Comment and Guidance stock of a controlled corporation provides that for purposes of section acquired in a transaction described in The comment generally agreed with 355(b)(3), the term SAG means, with the text of the temporary regulations. In section 355(a)(3)(B) of the Internal respect to any corporation, the affiliated Revenue Code (Code). This action is addition, the comment addressed, group that would be determined under among other things, the treatment of necessary in light of amendments to section 1504(a) if such corporation were section 355(b). These final regulations cash paid to acquire controlled stock in the common parent and section 1504(b) lieu of fractional shares, indirect will affect corporations and their did not apply. Section 355(b)(3)(C) shareholders. acquisitions and acquisitions of provides that if a corporation became a controlled stock by a predecessor to a DATES: Effective Date: These final SAG member as a result of one or more member of the DSAG, issuances of regulations are effective on October 20, taxable transactions, any trade or controlled stock, and redemptions of 2011. business conducted by such corporation controlled stock. After considering the Applicability Date: For dates of (at the time that such corporation comment, the IRS and Treasury applicability, see § 1.355–2(i). became such a member) shall be treated Department have decided not to expand FOR FURTHER INFORMATION CONTACT: for purposes of section 355(b)(2) as the scope of the final regulation to cover Russell P. Subin, (202) 622–7790 (not a acquired in a taxable transaction. additional situations at this time. These toll-free number). Section 355(a)(3)(B) provides that for final regulations adopt the substantive SUPPLEMENTARY INFORMATION: purposes of section 355 (other than rules of the temporary regulations section 355(a)(1)(D)) and so much of without change. Background section 356 as relates to section 355, The IRS and Treasury Department This document contains amendments stock of controlled acquired by continue to study the interrelationship to 26 CFR part 1 regarding section distributing by reason of any transaction between section 355(a)(3)(B) and section 355(a)(3)(B). (i) which occurs within five years of the 355(b). No inference regarding the Section 355(a) provides that, under distribution of such stock, and (ii) content of future section 355(b) certain circumstances, a corporation which is a taxable transaction, shall not guidance should be drawn from these may distribute stock and securities in a be treated as stock of controlled, but as final regulations. In addition, further corporation it controls to its other property. guidance may be issued under section shareholders and security holders Section 355(b)(3)(D) provides that the 355(a)(3)(B) in connection with future without causing either the distributing Secretary shall prescribe such section 355(b) guidance if it is necessary corporation (distributing) or its regulations as are necessary or to harmonize the two provisions. shareholders and security holders to appropriate to carry out the purposes of recognize income, gain, or loss. section 355(b)(3), including regulations Special Analyses Sections 355(a)(1)(C) and 355(b)(1) that provide for the proper application It has been determined that this generally require that distributing and of section 355(b)(2)(B), (C), and (D), and Treasury Decision is not a significant the controlled corporation (controlled) modify the application of section regulatory action as defined in

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Executive Order 12866, as ■ Par. 3. Section 1.355–1 is amended by all corporations affiliated with the supplemented by Executive Order revising paragraph (a) to read as follows: distributing corporation through stock 13563. Therefore, a regulatory ownership described in section § 1.355–1 Distribution of stock and 1504(a)(1)(B) (regardless of whether the assessment is not required. It is hereby securities of a controlled corporation. certified that these final regulations will corporations are includible corporations not have a significant economic impact (a) Effective/applicability date of under section 1504(b)). For purposes of on a substantial number of small certain sections. Except as otherwise paragraph (g)(1) of this section, any entities. This certification is based on provided, this section and §§ 1.355–2 reference to the DSAG is a reference to the fact that section 355(a)(3)(B) through 1.355–4 apply to transactions the distributing corporation if it is not occurring after February 6, 1989. For generally applies to parent-subsidiary the common parent of a separate transactions occurring on or before that groups of corporations, which tend to be affiliated group. date, see 26 CFR 1.355–1 through 1.355– larger businesses, and that these (4) Taxable transaction—(i) Generally. 4 (revised as of April 1, 1987). This regulations primarily grant relief from For purposes of this paragraph (g), a section and §§ 1.355–2 through 1.355–4, the application of section 355(a)(3)(B) in taxable transaction is a transaction in other than § 1.355–2(g) and (i), do not certain situations. Therefore, a which gain or loss was recognized in reflect the amendments to section 355 Regulatory Flexibility Analysis under whole or in part. made by the Revenue Act of 1987, the the Regulatory Flexibility Act (5 U.S.C. (ii) Dunn Trust and predecessor Technical and Miscellaneous Revenue chapter 6) is not required. Pursuant to issues. [Reserved]. Act of 1988, and the Tax Technical section 7805(f) of the Code, the (5) Examples. The following examples Corrections Act of 2007. For the proposed regulations were submitted to illustrate this paragraph (g). Assume applicability date of §§ 1.355–2(g), the Chief Counsel for Advocacy of the that C, D, P, and S are corporations, X 1.355–5, 1.355–6, and 1.355–7, see Small Business Administration for is an unrelated individual, each of the §§ 1.355–2(i), 1.355–5(e), 1.355–6(g), comment on their impact on small transactions is unrelated to any other and 1.355–7(k), respectively. business. transaction and, but for the issue of * * * * * whether C stock is treated as ‘‘other Drafting Information ■ Par. 4. Section 1.355–2 is amended by property’’ under section 355(a)(3)(B), The principal author of these revising paragraphs (g) and (i) to read as the distributions satisfy all of the regulations is Russell P. Subin of the follows: requirements of section 355. No Office of Associate Chief Counsel inference should be drawn from any of § 1.355–2 Limitations. (Corporate). However, other personnel these examples as to whether any from the IRS and Treasury Department * * * * * requirements of section 355 other than participated in their development. (g) Recently acquired controlled stock section 355(a)(3)(B), as specified, are under section 355(a)(3)(B)—(1) Other satisfied. Furthermore, the following List of Subjects in 26 CFR Part 1 property. Except as provided in definitions apply: Income taxes, Reporting and paragraph (g)(2) of this section, for (i) Purchase is an acquisition that is recordkeeping requirements. purposes of section 355(a)(1)(A), section a taxable transaction. 355(c), and so much of section 356 as (ii) Section 368(c) stock is stock Adoption of Amendments to the relates to section 355, stock of a constituting control within the meaning Regulations controlled corporation acquired by the of section 368(c). Accordingly, 26 CFR part 1 is DSAG in a taxable transaction (as (iii) Section 1504(a)(2) stock is stock amended as follows: defined in paragraph (g)(4) of this meeting the requirements of section section) within the five-year period 1504(a)(2). PART 1—INCOME TAXES ending on the date of the distribution Example 1. Hot stock. For more than five (pre-distribution period) shall not be ■ years, D has owned section 368(c) stock but Paragraph 1. The authority citation treated as stock of the controlled for part 1 is amended by adding an entry not section 1504(a)(2) stock of C. In year 6, corporation but shall be treated as D purchases additional C stock from X. in numerical order to read in part as ‘‘other property.’’ Transfers of However, D does not own section 1504(a)(2) follows: controlled corporation stock that is stock of C after the year 6 purchase. If D distributes all of its C stock within five years Authority: 26 U.S.C. 7805. * * * owned by the DSAG immediately before and immediately after the transfer are after the year 6 purchase, for purposes of Section 1.355–2(g) and (i) also issued section 355(a)(1)(A), section 355(c), and so under 26 U.S.C. 355(b)(3)(D). * * * disregarded and are not acquisitions for purposes of this paragraph (g)(1). much of section 356 as relates to section 355, ■ Par. 2. Section 1.355–0 is amended by (2) Exceptions. Paragraph (g)(1) of this the C stock purchased in year 6 would be treated as ‘‘other property.’’ See paragraph revising the entries under § 1.355–2(g) section does not apply to an acquisition (g)(1) of this section. and (i) to read as follows: of stock of the controlled corporation— Example 2. C becomes a DSAG member. § 1.355–0 Outline of sections. (i) If the controlled corporation is a For more than five years, D has owned DSAG member at any time after the section 368(c) stock but not section * * * * * acquisition (but prior to the 1504(a)(2) stock of C. In year 6, D purchases § 1.355–2 Limitations. distribution); or additional C stock from X such that D’s total * * * * * (ii) Described in § 1.355–3(b)(4)(iii). ownership of C is section 1504(a)(2) stock. If (g) Recently acquired controlled stock (3) DSAG. For purposes of this D distributes all of its C stock within five under section 355(a)(3)(B). paragraph (g), a DSAG is the distributing years after the year 6 purchase, the (1) Other property. corporation’s separate affiliated group distribution of the C stock purchased in year (2) Exceptions. (the affiliated group which would be 6 would not be treated as ‘‘other property’’ because C becomes a DSAG member. See (3) DSAG. determined under section 1504(a) if (4) Taxable transaction. paragraph (g)(2)(i) of this section. The result such corporation were the common would be the same if D did not own any C (5) Examples. parent and section 1504(b) did not stock prior to year 6 and D purchased all of * * * * * apply) that consists of the distributing the C stock in year 6. See paragraph (g)(2)(i) (i) Effective/applicability date. corporation as the common parent and of this section. Similarly, if D did not own

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any C stock prior to year 6, D purchased 20 DEPARTMENT OF JUSTICE the Attorney General, to provide percent of the C stock in year 6, and then compensation to any individual (or a acquired all of the remaining C stock in year 28 CFR Part 104 personal representative of a deceased 7, the C stock purchased in year 6 and the individual) who suffered physical harm [Docket No. CIV 151] C stock acquired in year 7 (even if purchased) or was killed as a result of the terrorist- would not be treated as ‘‘other property’’ RIN 1105–AB39 related aircraft crashes of September 11, because C becomes a DSAG member. See 2001, or the debris removal efforts that paragraph (g)(2)(i) of this section. James Zadroga 9/11 Health and took place in the immediate aftermath of Example 3. Intra-SAG transaction. For Compensation Act of 2010 more than five years, D has owned all of the those crashes. In view of the need to begin processing compensation claims stock of S. D and S, in the aggregate, have AGENCY: Department of Justice. owned section 368(c) stock but not section as soon as possible, it is impracticable ACTION: Final rule; correction. 1504(a)(2) stock of C. Therefore, D and S are for the Department to comply with the DSAG members, but C is not. In year 6, D SUMMARY: The Department of Justice is requirements of section 801 of the purchases S’s C stock. If D distributes all of correcting a final rule that appeared in Congressional Review Act, 5 U.S.C. 801, its C stock within five years after the year 6 the Federal Register of August 31, 2011 pertaining to delayed effective dates of purchase, the distribution of the C stock (76 FR 54112). That document issued major rules without unduly delaying the purchased in year 6 would not be treated as processing of claims. Section 808(2) of ‘‘other property.’’ D’s purchase of the C stock regulations implementing the amendments made by the James the Congressional Review Act, 5 U.S.C. from S is disregarded for purposes of 808(2), provides: ‘‘Notwithstanding paragraph (g)(1) of this section because that Zadroga 9/11 Health and Compensation Act of 2010 (Zadroga Act) with respect section 801—* * * (2) any rule which C stock was owned by the DSAG an agency for good cause finds (and immediately before and immediately after the to the September 11th Victim Compensation Fund of 2001. incorporates the finding and a brief purchase. See paragraph (g)(1) of this section. statement of reasons therefor in the rule Example 4. Affiliate exception. For more DATES: Effective October 3, 2011. than five years, P has owned 90 percent of issued) that notice and public procedure FOR FURTHER INFORMATION CONTACT: thereon are impracticable, unnecessary, the sole outstanding class of the stock of D Kenneth L. Zwick, Director, Office of and a portion of the stock of C, and X has or contrary to the public interest, shall owned the remaining 10 percent of the D Management Programs, Civil Division, take effect at such time as the Federal stock. Throughout this period, D has owned U.S. Department of Justice, Main agency promulgating the rule section 368(c) stock but not section Building, Room 3140, 950 Pennsylvania determines.’’ Were the Department not 1504(a)(2) stock of C. In year 6, D purchases Avenue, NW., Washington, DC 20530, to invoke the exception provided in P’s C stock. However, D does not own section telephone 855–885–1555 (TTY 855– section 808(2) of the Congressional 1504(a)(2) stock of C after the year 6 885–1558). Review Act, eligible claimants would purchase. If D distributes all of its C stock to SUPPLEMENTARY INFORMATION: In FR Doc. have to wait substantially longer to X in exchange for X’s D stock within five 2011–22160 appearing on page 54112 in begin filing their claims, thereby years after the year 6 purchase, the the Federal Register on Wednesday, impairing Congress’s goal of providing distribution of the C stock purchased in year August 31, 2011, the following compensation in as expeditious a 6 would not be treated as ‘‘other property’’ correction is made: manner as possible (as evidenced by the because the C stock was purchased from a member (P) of the affiliated group (as defined 1. On page 54119, in the third short statutory deadline for in § 1.355–3(b)(4)(iv)) of which D is a column, the paragraph following the implementation). Such a delay in member, and P did not purchase that C stock heading ‘‘Small Business Regulatory implementing the compensation process within the pre-distribution period. See Enforcement Fairness Act of 1996’’ is would be clearly contrary to the public paragraph (g)(2)(ii) of this section. revised to read as follows: interest. For the foregoing reasons, the * * * * * ‘‘The Office of Management and Special Master finds pursuant to section Budget has determined that this rule is 808(2) of the Congressional Review Act, (i) Effective/applicability date. 5 U.S.C. 808, that good cause exists to Paragraphs (g)(1) through (g)(5) of this a major rule as defined by section 251 of the Small Business Regulatory make this final rule effective October 3, section apply to distributions occurring 2011.’’ after October 20, 2011. For rules Enforcement Fairness Act of 1996 regarding distributions occurring on or (Congressional Review Act), 5 U.S.C. Dated: October 12, 2011. before October 20, 2011, see § 1.355– 804. This rule will not result in a major Sheila L. Birnbaum, 2T(i), as contained in 26 CFR part 1, increase in costs or prices, or significant Special Master. adverse effects on competition, revised as of April 1, 2011. [FR Doc. 2011–27121 Filed 10–19–11; 8:45 am] employment, investment, productivity, BILLING CODE 4410–12–P § 1.355–0T [Removed] innovation, or on the ability of United States-based companies to compete with ■ Par. 5. Section 1.355–0T is removed. foreign-based companies in domestic DEPARTMENT OF DEFENSE § 1.355–2T [Removed] and export markets. However, the compensation benefits awarded to Office of the Secretary ■ Par. 6. Section 1.355–2T is removed. eligible claimants will have an annual beneficial impact on the economy of Steven T. Miller, 32 CFR Part 211 $100,000,000 or more in certain years Deputy Commissioner for Services and until the amounts authorized and [Docket ID: DOD–2011–OS–0054; RIN 0790– Enforcement. appropriated for the Victims AI69] Approved: October 14, 2011. Compensation Fund are fully Emily S. McMahon, Mission Compatibility Evaluation distributed. Process Acting Assistant Secretary of the Treasury ‘‘Title II of the Zadroga Act reactivates (Tax Policy). the September 11th Victim AGENCY: Office of the Under Secretary of [FR Doc. 2011–27240 Filed 10–19–11; 8:45 am] Compensation Fund of 2001 and Defense for Acquisition, Technology, BILLING CODE 4830–01–P requires a Special Master, appointed by and Logistics, DoD.

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ACTION: Interim final rule. Register document. The general policy 44718, and whose application has been for comments and other submissions provided by the Secretary of SUMMARY: The Department of Defense from members of the public is to make Transportation to the DoD. The (DoD) is issuing this interim final rule these submissions available for public definition of ‘‘armed forces’’ refers to to implement section 358 of the Ike viewing on the Internet at http:// the definition at 10 U.S.C. 101(a)(4), Skelton National Defense Authorization www.regulations.gov as they are which includes the Army, Navy, Air Act for Fiscal Year 2011. That section received without change, including any Force, and Marine Corps, but excludes requires that the DoD issue procedures personal identifiers or contact the Coast Guard. The definition of addressing the impacts upon military information. ‘‘congressional defense committees’’ is operations of certain types of structures taken from section 3 of the Ike Skelton if they pose an unacceptable risk to the FOR FURTHER INFORMATION CONTACT: National Defense Authorization Act for national security of the United States. David Belote, (703) 697–7301, or Bill Fiscal Year 2011, which, in turn, adopts The structures addressed are those for Van Houten, (703) 571–9068, both can by reference the definition of the term which an application is required to be be contacted at DoDSitingClearing- filed with the Secretary of [email protected]. in 10 U.S.C. 101(a)(16). The definition Transportation. Section 358 also SUPPLEMENTARY INFORMATION: of ‘‘military readiness’’ is taken from the requires the designation of a lead Section 358 of the Ike Skelton definition of the term provided in organization to coordinate DoD review National Defense Authorization Act for section 358. The definition of of applications for projects filed with Fiscal Year 2011, Public Law 111–383, ‘‘mitigation’’ provides a general the Secretary of Transportation and became law on January 7, 2011. In that description of the term while leaving to received by the Department of Defense provision, Congress required, among individual actions more specific from the Secretary of Transportation. other things, that the DoD implement examples of what may constitute Section 358 also requires the new procedures relating to how the DoD mitigation. The definition of ‘‘proposed designation of certain officials by the reviews and comments on applications project’’ is the project as submitted to Secretary of Defense to perform filed with the Secretary of the Secretary of Transportation pursuant functions pursuant to the section and Transportation pursuant to 49 U.S.C. to 49 U.S.C. 44718. The definition of this implementing rule. Section 358 also 44718. Section 358 also specifies who ‘‘requester’’ refers to a developer of a requires the establishment of a within DoD may provide such renewable energy development or other comprehensive strategy for addressing comments to the Secretary of energy project or a state or local official military impacts of renewable energy Transportation, that DoD will engage in seeking an informal review of a project projects and other energy projects, with outreach activities with interested by the DoD prior to the project being the objective of ensuring that the robust parties, and that Congress must be submitted for formal review pursuant to development of renewable energy advised when the DoD objects to an 49 U.S.C. 44718. The definition of sources and the expansion of the application filed pursuant to 49 U.S.C. ‘‘section 358’’ refers to the authorizing commercial electrical grid may move 44718. provision, section 358 of the Ike Skelton forward in the United States, while Section 211.1 of this Interim Rule National Defense Authorization Act for minimizing or mitigating any adverse states the two primary purposes of the Fiscal Year 2011. The definition of impacts on military operations and rule which are to provide for DoD ‘‘unacceptable risk to the national readiness. That requirement, however, commenting on applications filed security of the United States’’ includes is not required at this time and is not pursuant to 49 U.S.C. 44718 and the two existing criteria found in 49 part of this rule. Other aspects of section requests for reviews of projects prior to U.S.C. 44718, namely the construction, 358 not required at this time, such as applications being filed pursuant to 49 alteration, establishment, or expansion, annual reports to Congress, are also not U.S.C. 44718. or the proposed construction, alteration, addressed in this rule. Nor does this Section 211.2 addresses the establishment, or expansion, of a rule deal with other clearance processes applicability of part 211. This part structure or sanitary landfill that not included in section 358, such as applies to all components of the DoD, endangers safety in air commerce or those applied by the Bureau of Land those applicants filing applications interferes with the efficient use and Management, Department of the pursuant to 49 U.S.C. 44718 when those preservation of the navigable airspace Interior. applications are conveyed by the and of airport traffic capacity at public- Secretary of Transportation to the DATES: This rule is effective upon use airports, but, for purposes of this Department of Defense, those requesting rule, only when related to the activities publication in the Federal Register. reviews of projects prior to applications of the DoD. The definition also includes Comments must be received by being filed under 49 U.S.C. 44718 an additional criterion consisting of December 19, 2011. (including State and local officials), and actions that will significantly impair or ADDRESSES: You may submit comments, those providing comments to DoD degrade the capability of the DoD to identified by docket number and or relating to its actions in reviewing conduct training, research, Regulatory Information Number (RIN) applications. It also applies, development, testing, and evaluation, and title, by any of the following geographically, to the United States. and operations or to maintain military methods: Section 211.3 provides definitions. readiness. The definition of ‘‘United • Federal Rulemaking Portal: http:// The definition of ‘‘adverse impact on States’’ is included to provide the www.regulations.gov. Follow the military operations and readiness’’ instructions for submitting comments. provides that a demonstrable geographical limitation of the part, • Mail: Federal Docket Management impairment or degradation of the ability clarifying that the part does not apply System Office, 4800 Mark Center Drive, of the armed forces to perform their outside of the United States. 2nd Floor, East Tower, Suite 02G09, warfighting missions constitutes an Section 211.4 provides the general Alexandria, VA 22350–3100. adverse impact. The definition of policy of the part, taken from section Instructions: All submissions received ‘‘applicant’’ refers to an entity filing a 358(a). It also limits the participation of must include the agency name and proper application with the Secretary of DoD in the Federal Aviation docket number or RIN for this Federal Transportation pursuant to 49 U.S.C. Administration’s process under 49

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U.S.C. 44718 to the process provided in track their progress, and offer procedures to mitigate the impact of this rule. comments. such an unreasonable risk to the benefit Section 211.5 specifies the officials of both the proponent and DoD. Executive Order 12866, Regulatory with authorities and responsibilities Planning and Review and Executive Public Law 96–511, Paperwork under the part pursuant to section 358. Order 13563, Improving Regulation and Reduction Act (44 U.S.C. Chapter 35) The Deputy Secretary of Defense is Regulatory Review designated as the senior officer who is Section 211.7 of this interim final rule authorized to provide a determination to It has been determined that this rule contains information collection the Secretary of Transportation that a is not a significant regulatory action. requirements. DoD has submitted the project filed pursuant to 49 U.S.C. This rule does not: following proposal to OMB under the 44718 would result in an unacceptable (1) Have an annual effect to the provisions of the Paperwork Reduction risk to the national security of the economy of $100 million or more or Act (44 U.S.C. Chapter 35). Comments United States. The Under Secretary of adversely affect in a material way the are invited on: (a) Whether the proposed Defense for Acquisition, Technology, economy; a section of the economy; collection of information is necessary and Logistics is designated as the senior productivity; competition; jobs; the for the proper performance of the official who may make a environment; public health or safety; or functions of DoD, including whether the recommendation to the Deputy State, local, or tribal governments or information will have practical utility; Secretary of Defense that such a project communities; (b) the accuracy of the estimate of the would result in such a risk. The Deputy (2) Create serious inconsistency or burden of the proposed information Under Secretary of Defense otherwise interfere with an action taken collection; (c) ways to enhance the (Installations & Environment) is or planned by another agency; quality, utility, and clarity of the designated as the official who, in (3) Materially alter the budgetary information to be collected; and (d) coordination with the Deputy Assistant impact of entitlements, grants, user fees, ways to minimize the burden of the Secretary of Defense (Readiness) and the or loan programs, or the rights and information collection on respondents, Principal Deputy Director, Operational obligation of recipients thereof; or including the use of automated (4) Raise novel legal or policy issues Test and Evaluation, reviews such a collection techniques or other forms of arising out of legal mandates, the project and provides a preliminary information technology. President’s priorities, or the principles assessment of the level of risk of adverse Title: Information for DoD Informal set forth in Executive Order 12866. impact on military operations and Review of Renewable Energy Source readiness that would arise from the Section 202, Public Law 104–4, Projects. project and the extent of mitigation that Unfunded Mandates Reform Act Type of Request: New. may be needed to address such risk. The Number of Respondents: 350. It has been certified that 32 CFR part Responses per Respondent: 15. Office of the Deputy Under Secretary of 211 does not contain a Federal mandate Defense (Installations & Environment) is Annual Responses: 5,250. that may result in the expenditure by Average Burden per Response: 1 hour. designated as the lead organization, and State, local, and tribal governments, in Annual Burden Hours: 5,250 hours. the DoD Siting Clearinghouse is aggregate, or by the private sector, of Needs and Uses: This information is established and organized under the $100 million or more in any one year. necessary to allow the Department of Deputy Under Secretary. Defense to assess the impact on military Section 211.6 provides the procedures Public Law 96–354, ‘‘Regulatory Flexibility Act’’ (5 U.S.C. 601) operations and the risk to national for formal DoD review of a project filed security of proposed construction, by an applicant with the Secretary of The Congress enacted the Regulatory alteration, establishment, or expansion, Transportation pursuant to 49 U.S.C. Flexibility Act (RFA) of 1980, as of a structure or sanitary landfill. 44718. amended, 5 U.S.C. 601–612, to ensure Affected Public: Business or other for- Section 211.7 provides the procedures that Government regulations do not profit; State, local or tribal governments. for informal DoD review of a project unnecessarily or disproportionately Frequency: On occasion. submitted by a requester prior to burden small entities. The RFA requires Respondent’s Obligation: Voluntary. submitting a formal application a regulatory flexibility analysis if a rule OMB Desk Officer: Written comments pursuant to 49 U.S.C. 44718. would have a significant economic and recommendations on the Section 211.8 directs DoD impact, either detrimental or beneficial, information collection should be sent to Components to forward any inquiries or on a substantial number of small Ms. Jasmeet Seehra at the Office of requests they may receive to the entities. The RFA requires agencies to Management and Budget, DoD Desk Clearinghouse so as to avoid analyze the economic impact of Officer, Room 10102, New Executive unauthorized action by a Component regulations to determine the extent to Office Building, Washington, DC 20503, outside of the process established by which there is anticipated to be a with a copy to the Executive Director, this rule. significant economic impact on a DoD Siting Clearinghouse, Office of the Section 211.9 provides some of the substantial number of small entities. Deputy Under Secretary of Defense types of mitigation to be considered by DoD anticipates that the Interim Rule (Installations and Environment), 3400 the DoD and the applicant/requester could potentially affect a few entities Defense Pentagon, Room 5C646, when discussing mitigation. that might otherwise have located Washington, DC 20301–3400. Section 211.10 provides for the structures on public or private lands Comments can be received from 30 to notification to Congress required by that would present an unreasonable risk 60 days after the date of this notice, but section 358 when the senior officer to the national security of the United comments to OMB will be most useful makes a determination that a project States. DoD further anticipates that if received by OMB within 30 days after presents an unacceptable risk to the some of these entities will be small the date of this notice. national security of the United States. entities as defined by the Small You may also submit comments, Section 211.11 provides for a public Business Administration; however, DoD identified by docket number [DoD– Web site where the public can review does not expect the potential impact to 2011–OS–0113] and title, by the the actions being considered by DoD, be significant because this rule provides following method:

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• Federal eRulemaking Portal: http:// 211.12 Public Outreach. 101(a)(4) but does not include the Coast www.regulations.gov. Follow the Authority: Public Law 111–383, Section Guard. instructions for submitting comments. 358. (d) Clearinghouse. The DoD Siting Instructions: All submissions received Clearinghouse, established under the must include the agency name, docket Subpart A—General Deputy Under Secretary of Defense number and title for this Federal § 211.1 Purpose. (Installations & Environment). Register document. The general policy (e) Congressional defense committees. This part prescribes procedures for comments and other submissions The— pursuant to section 358 of the Ike from members of the public is to make (1) Committee on Armed Services and Skelton National Defense Authorization these submissions available for public the Committee on Appropriations of the Act for Fiscal Year 2011 to provide: viewing on the Internet at http:// (a) A formal review of projects for Senate; and www.regulations.gov as they are which applications are filed with the (2) Committee on Armed Services and received without change, including any Secretary of Transportation under 49 the Committee on Appropriations of the personal identifiers or contact U.S.C. 44718, to determine if they pose House of Representatives. information. an unacceptable risk to the national (f) Days. All days are calendar days To request more information on this security of the United States. but do not include Federal holidays. information collection or to obtain a (b) An informal review of a renewable (g) Military readiness. Includes any copy of the proposal and associated energy development or other energy training or operation that could be collection instruments, please write to project in advance of the filing of an related to combat readiness, including the Executive Director, DoD Siting application with the Secretary of testing and evaluation activities. Clearinghouse, Office of the Deputy Transportation under 49 U.S.C. 44718. (h) Mitigation. Actions taken by either Under Secretary of Defense or both the DoD or the applicant to (Installations and Environment), 3400 § 211.2 Applicability. ensure that a project does not create an Defense Pentagon, Room 5C646, This part applies to: unacceptable risk to the national Washington, DC 20301–3400. (a) The Office of the Secretary of security of the United States. Defense, the Military Departments, the Executive Order 13132, Federalism (i) Proposed project. A proposed Chairman of the Joint Chiefs of Staff and project is the project as described in the It has been certified that this part does the Joint Staff, the Combatant application submitted to the Secretary not have federalism implications, as set Commands, the Office of the Inspector of Transportation pursuant to 49 U.S.C. forth in Executive Order 13132. This General of the Department of Defense, 44718 and transmitted by the Secretary rule does not have substantial direct the Defense Agencies, the DoD Field of Transportation to the Clearinghouse. effects on: Activities, and all other organizational (j) Requester. A developer of a (1) The States; entities in the Department of Defense renewable energy development or other (2) The relationship between the (hereafter referred to collectively as the energy project or a state or local official National Government and the States; or ‘‘DoD Components’’). seeking an informal review by the DoD (3) The distribution of power and (b) Persons filing applications with of a project. responsibilities among the various the Secretary of Transportation for (k) Section 358. Section 358 of the Ike levels of Government. proposed projects pursuant to 49 U.S.C. Skelton National Defense Authorization List of Subjects in 32 CFR Part 211 44718, when such applications are Act for Fiscal Year 2011, Public Law received by the Department of Defense 111–383. Energy; Evaluation. from the Secretary of Transportation. (l) Unacceptable risk to the national ■ Accordingly 32 CFR Part 211 is added (c) A State or local official or a security of the United States. The to read as follows: developer of a renewable energy construction, alteration, establishment, development or other energy project or expansion, or the proposed PART 211—MISSION COMPATIBILITY seeking a review of such project by DoD. construction, alteration, establishment, EVALUATION PROCESS (d) Members of the general public or expansion, of a structure or sanitary from whom comments are received on Subpart A—General landfill that: notices of actions being taken by the (1) Endangers safety in air commerce, Sec. Department of Defense under this part. related to the activities of the DoD. 211.1 Purpose. (e) The United States. 211.2 Applicability. (2) Interferes with the efficient use 211.3 Definitions. § 211.3 Definitions. and preservation of the navigable airspace and of airport traffic capacity at Subpart B—Policy (a) Adverse impact on military operations and readiness. Any adverse public-use airports, related to the 211.4 Policy. impact upon military operations and activities of the DoD. 211.5 Responsibilities. readiness, including flight operations, (3) Will significantly impair or Subpart C—Project Evaluation Procedures research, development, testing, and degrade the capability of the DoD to 211.6 Initiating a Formal DoD Review of a evaluation, and training that is conduct training, research, Proposed Project. demonstrable and is likely to impair or development, testing, and evaluation, 211.7 Initiating an Informal DoD Review of degrade the ability of the armed forces and operations or maintain military a Project. to perform their warfighting missions. readiness. 211.8 Inquiries Received by DoD (b) Applicant. An entity filing an (m) United States. The several States, Components. application with the Secretary of the District of Columbia, the 211.9 Mitigation Options. Transportation pursuant to 49 U.S.C. Commonwealths of Puerto Rico and the 211.10 Reporting Determinations to Northern Mariana Islands, American Congress. 44718, and whose proper application has been provided by the Secretary of Samoa, Guam, Midway and Wake Subpart D—Communications and Outreach Transportation to the Clearinghouse. Islands, the U.S. Virgin Islands, any 211.11 Communications With the (c) Armed forces. This term has the other territory or possession of the Clearinghouse. same meaning as provided in 10 U.S.C. United States, and associated navigable

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waters, contiguous zones, and territorial (d) Pursuant to subsection (b)(1) of (B) Designate one or more DoD seas and the airspace of those areas. section 358, the Office of the Deputy Components to engage in discussions Under Secretary of Defense with the applicant to attempt to mitigate Subpart B—Policy (Installations & Environment) is the adverse impact; § 211.4 Policy. designated as the lead organization. (C) Notify the Secretary of Under the authority, direction, and Transportation that the Department of (a) It is an objective of the Department control of the Under Secretary of Defense has determined that the of Defense to ensure that the robust Defense for Acquisition, Technology, proposed project may have an adverse development of renewable energy and Logistics, there is, within the Office impact on military operations and sources and the increased resiliency of of the Deputy Under Secretary, a DoD readiness, and, if the cause of the the commercial electrical grid may Siting Clearinghouse. The adverse impact is due to the proposed move forward in the United States, Clearinghouse: project exceeding an obstruction while minimizing or mitigating any (1) Shall have a governing board standard set forth in subpart C of part adverse impacts on military operations organized in accordance with DoD 77 of title 14 of the Code of Federal and readiness. Instruction 5105.18, DoD Regulations, identify the specific (b) The participation of the DoD in the Intergovernmental and standard and how it would be exceeded; process of the Federal Aviation Intragovernmental Committee and Administration conducted pursuant to Management Program. (D) Notify the Secretary of 49 U.S.C. 44718 shall be conducted in (2) Has an executive director who is Transportation and the Secretary of accordance with this part. No other a Federal Government employee, Homeland Security that the process shall be used by a DoD appointed by the Deputy Under Clearinghouse has offered to engage in Component. Secretary of Defense (Installations & mitigation discussions with the (c) Nothing in this part shall be Environment). applicant. construed as affecting the authority of (3) Performs such duties as assigned (4) The applicant must provide to the the Secretary of Transportation under 49 in this part and as the Deputy Under Clearinghouse its agreement to discuss U.S.C. 44718. Secretary directs. the possibility of mitigation within five days of receipt of the notification from § 211.5 Responsibilities. Subpart C—Project Evaluation the Clearinghouse. Procedures (a) Pursuant to subsection (e)(4) of (b) If the applicant agrees to enter into section 358, the Deputy Secretary of § 211.6 Initiating a Formal DoD Review of discussions with the DoD to seek to Defense is designated as the senior a Proposed Project. mitigate an adverse impact, the officer. Only the senior officer may (a) A formal review of a proposed designated DoD Components shall convey to the Secretary of project begins with the receipt from the engage in discussions with the applicant Transportation a determination that a Secretary of Transportation by the to attempt to reach agreement on project filed with the Secretary of Clearinghouse of a proper application measures that would mitigate the Transportation pursuant to 49 U.S.C. filed with the Secretary of adverse impact of the proposed project 44718 would result in an unacceptable Transportation pursuant to 49 U.S.C. on military operations and readiness. risk to the national security of the 44718. The Clearinghouse shall invite the United States. (1) The Clearinghouse will convey the Administrator of the Federal Aviation (b) Pursuant to subsection (b)(1) of application as received to those DoD Administration and the Secretary of section 358, the Under Secretary of Components it believes may have an Homeland Security to participate in Defense for Acquisition, Technology, interest in reviewing the application. such discussions. and Logistics is designated as the senior (2) The DoD Components that receive (1) Such discussions shall not extend official. Only the senior official may the application shall provide their more than 90 days beyond the initial provide to the senior officer a comments and recommendations on the notification to the applicant, unless both recommendation that the senior officer application to the Clearinghouse no the designated DoD Components and determine a project filed with the later than 20 days after they receive the the applicant agree, in writing, to an Secretary of Transportation pursuant to application. extension of a specific period of time. 49 U.S.C. 44718 would result in an (3) Not later than 30 days after (i) If agreement between the applicant unacceptable risk to the national receiving the application from the and the designated DoD Components security of the United States. Secretary of Transportation, the has not been reached on mitigation (c) Pursuant to subsection (e)(1) of Clearinghouse shall evaluate all measures by that time and no extension section 358, the Deputy Under Secretary comments and recommendations has been mutually agreed to, the of Defense (Installations & received and take one of two actions: designated DoD Components shall Environment), in coordination with the (i) Determine that the proposed notify the Clearinghouse of the results of Deputy Assistant Secretary of Defense project will not have an adverse impact the discussions and the analysis and (Readiness) and the Principal Deputy on military operations and readiness, in recommendations of the Components Director, Operational Test and which case it shall notify the Secretary with regard to the proposed project as Evaluation, shall review a proper of Transportation of such determination. it is proposed after discussions. application for a project filed pursuant (ii) Determine that the proposed (ii) If agreement between the to 49 U.S.C. 44718 and received from project may have an adverse impact on applicant and the designated DoD the Secretary of Transportation and military operations and readiness. When Components has been reached on provide a preliminary assessment of the the Clearinghouse makes such a mitigation measures that remove the level of risk of adverse impact on determination it shall immediately— adverse impact of the proposed project military operations and readiness that (A) Notify the applicant of the on military operations and readiness, would arise from the project and the determination of the Clearinghouse and the DoD Components shall notify the extent of mitigation that may be needed offer to discuss mitigation with the Clearinghouse of the agreement and the to address such risk. applicant to reduce the adverse impact; applicant shall notify the Secretary of

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Transportation of such agreement and analysis and recommendations of the will be the accuracy and reliability of amend its application accordingly. designated DoD Components and the resulting DoD review. (2) If the applicant and the designated determine if the proposed project would (b) The Clearinghouse shall, within DoD Components are unable to reach result in an unacceptable risk to the five days of receiving the information agreement on mitigation, the national security of the United States. If provided by the requestor, convey that Clearinghouse shall review the analysis the Clearinghouse determines that the information to those DoD Components it and recommendations of the DoD proposed project would result in an believes may have an interest in Components and determine if the unacceptable risk to the national reviewing the request. proposed project as it may have been security of the United States, it shall (1) The DoD Components that receive modified by the applicant after make a recommendation to the senior the request from the Clearinghouse shall discussions would result in an official to that effect. If the provide their comments and unacceptable risk to the national Clearinghouse determines, contrary to recommendations on the request to the security of the United States. the recommendations of the DoD Clearinghouse no later than 30 days (i) If the Clearinghouse determines Components, that the proposed project after they receive the request. that the proposed project as it may have would not result in an unacceptable risk (2) Not later than 50 days after been modified by the applicant after to the national security of the United receiving the request from the requester, discussions would result in an States, it shall make a recommendation the Clearinghouse shall evaluate all unacceptable risk to the national to the senior official to that effect. comments and recommendations security of the United States, it shall (2) If the senior official concurs with received and take one of two actions: make a recommendation to the senior the recommendation of the (i) Determine that the project will not official to that effect. If the Clearinghouse, the senior official shall have an adverse impact on military Clearinghouse determines, contrary to make a recommendation to the senior operations and readiness, in which case the recommendations of the DoD officer that is consistent with the it shall notify the requester of such Components, that the proposed project recommendation of the Clearinghouse. determination. In doing so, the as it may have been modified by the If the senior official does not agree with Clearinghouse shall also advise the applicant after discussions would not the recommendation of the requester that the informal review by result in an unacceptable risk to the Clearinghouse, the senior official may the DoD does not constitute an action national security of the United States, it make a recommendation to the senior under 49 U.S.C. 44718 and that neither shall make a recommendation to the officer to that effect. the DoD nor the Secretary of senior official to that effect. (3) The senior officer shall consider Transportation are bound by the (ii) If the senior official concurs with the recommendation of the senior determination made under the informal the recommendation of the official, and, after giving full review. Clearinghouse, the senior official shall consideration to mitigation actions (ii) Determine that the project will make a recommendation to the senior available to the DoD and those agreed to have an adverse impact on military officer that is consistent with the by the applicant, determine whether the operations and readiness. recommendation of the Clearinghouse. proposed project would result in an (A) When the requester is the project If the senior official does not agree with unacceptable risk to the national proponent and the Clearinghouse makes the recommendation of the security of the United States. If the such a determination, the Clearinghouse Clearinghouse, the senior official may senior officer makes such a shall immediately— make a recommendation to the senior determination, the senior officer shall (1) Notify the requester of the officer to that effect. convey that determination to the determination and the reasons for the (iii) The senior officer shall consider Secretary of Transportation, identifying conclusion of the Clearinghouse and the recommendation of the senior which of the three criteria in section advise the requester that the DoD would official, and, after giving full 211.3(l) creates the unacceptable risk to like to discuss the possibility of consideration to mitigation actions the national security of the United mitigation to reduce any adverse available to the DoD and those agreed to States. impact; and by the applicant, determine whether the (d) The Clearinghouse may, on behalf (2) Designate one or more DoD proposed project as it may have been of itself, the senior official, or the senior Components to engage in discussions modified by the applicant would result officer, seek an extension of time from with the requester to attempt to mitigate in an unacceptable risk to the national the Secretary of Transportation for the adverse impact. security of the United States. If the consideration of the application. (B) When the requester is a state or senior officer makes such a local official, notify the requester of the determination, the senior officer shall § 211.7 Initiating an Informal DoD Review determination of the Clearinghouse and convey that determination to the of a Proposed Project. the reasons for that conclusion. Secretary of Transportation, identifying (a) An informal review of a project (c) If the requester is the project which of the three criteria in section begins with the receipt from a requester proponent and agrees to enter into 211.3(l) creates the unacceptable risk to by the Clearinghouse of a request for an discussions with the DoD to seek to the national security of the United informal review. In seeking an informal mitigate an adverse impact, the States. review, the requester shall provide the designated DoD Components shall (iv) Any mitigation discussions following information to the engage in discussions with the requester engaged in by the Department of Clearinghouse: in an attempt to reach agreement on Defense pursuant to this part shall not (1) The geographic location of the measures that would mitigate the be binding upon any other Federal project including its latitude and adverse impact of the project on military agency, nor waive required compliance longitude; and operations and readiness. with any other law or regulation. (2) The nature of the project. (c)(1) If the applicant does not agree (3) The requester is encouraged to § 211.8 Inquiries Received by DoD to enter into discussions with the DoD provide as much additional information Components. to seek to mitigate an adverse impact, as is available. The more information (a) An inquiry received by a DoD the Clearinghouse shall review the provided by the requester, the greater Component other than the

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Clearinghouse relating to an application officer shall submit to the congressional DEPARTMENT OF HOMELAND filed with the Secretary of defense committees a report on such SECURITY Transportation pursuant to 49 U.S.C. determination and the basis for such 44718 shall be forwarded to the determination. Coast Guard Clearinghouse by the DoD Component (b) Such a report shall include— except when that DoD Component has 33 CFR Part 117 (1) An explanation of the operational been designated by the Clearinghouse to [Docket No. USCG–2011–0816] engage in discussions with the entity impact that led to the determination. making the inquiry. (2) A discussion of the mitigation RIN 1625–AA09 (b) A request for informal DoD review options considered. or any other inquiry related to matters Drawbridge Operation Regulation; (3) An explanation of why the covered by this part and received by a Bear Creek, Sparrows Point, MD mitigation options were not feasible or DoD Component other than the AGENCY: Coast Guard, DHS. Clearinghouse shall be forwarded to the did not resolve the conflict. ACTION: Final rule. Clearinghouse by that Component Subpart D—Communications and except when that DoD Component has Outreach SUMMARY: The Coast Guard is canceling been designated by the Clearinghouse to a portion of an existing drawbridge engage in discussions with the entity § 211.11 Communications With the operation regulation. The Baltimore making the request. Clearinghouse. County Revenue Authority (Dundalk § 211.9 Mitigation Options. All communications to the Avenue) highway toll drawbridge across (a) In discussing mitigation to avoid Clearinghouse by applicants, requesters, Bear Creek, mile 1.5, Sparrows Point, an unacceptable risk to the national or members of the public should be MD was replaced with a fixed bridge in security of the United States, the DoD addressed to: 1998. Therefore, that portion of the Components designated to discuss operating regulation, as it pertains to the Executive Director, DoD Siting Dundalk Avenue highway toll mitigation with an applicant or Clearinghouse, Office of the Deputy requester shall, as appropriate and as drawbridge, is no longer applicable or Under Secretary of Defense necessary. time allows, analyze the following types (Installations and Environment), Room of DoD mitigation to determine if they DATES: This rule is effective October 20, 5C646, 3400 Defense Pentagon, identify feasible and affordable actions 2011. Washington, DC 20301–3400 or to such that may be taken to mitigate adverse ADDRESSES: Documents indicated in this impacts of projects on military internet address as the Clearinghouse may provide. preamble as being available in the operations and readiness: docket, are part of docket USCG–2011– (1) Modifications to military § 211.12 Public Outreach. 0816 and are available by going to operations. http://www.regulations.gov, inserting (2) Modifications to radars or other (a) The DoD shall establish a Web site USCG–2011–0816 in the ‘‘Keyword’’ items of military equipment. accessible to the public that— box, and then clicking ‘‘Search.’’ This (3) Modifications to military test and (1) Lists the applications and requests material is also available for inspection evaluation activities, military training for informal review the DoD is currently or copying at the Docket Management routes, or military training procedures. considering. Facility (M–30), U.S. Department of (4) Providing upgrades or Transportation, West Building Ground modifications to existing systems or (2) Identifies the stage of the action, e.g., preliminary review, referred for Floor, Room W12–140, 1200 New Jersey procedures. Avenue, SE., Washington, DC 20590, mitigation discussions, determined to be (5) The acquisition of new systems by between 9 a.m. and 5 p.m., Monday an unacceptable risk. the DoD and other departments and through Friday, except Federal holidays. agencies of the Federal Government. (3) Indicates how the public may FOR FURTHER INFORMATION CONTACT: If (b) In discussing mitigation to avoid provide comments. you have questions on this rule, call or an unacceptable risk to the national (b) The Clearinghouse shall publish a e-mail Lindsey Middleton, Coast Guard; security of the United States, the telephone 757–398–6629, e-mail applicant or requester, as the case may handbook to provide applicants, [email protected]. If you be, should consider the following requesters, and members of the public have questions on viewing the docket, possible actions: with necessary information to assist call Renee V. Wright, Program Manager, (1) Modification of the proposed them in participating in the Mission Docket Operations, telephone 202–366– structure, operating characteristics, or Compatibility Evaluation Process. 9826. the equipment in the proposed project. Dated: October 12, 2011. SUPPLEMENTARY INFORMATION: (2) Changing the location of the Patricia L. Toppings, proposed project. OSD Federal Register Liaison Officer, Regulatory Information (3) Providing a voluntary contribution Department of Defense. of funds to offset the cost of measures The Coast Guard is issuing this final undertaken by the Secretary of Defense [FR Doc. 2011–26987 Filed 10–19–11; 8:45 am] rule without prior notice and to mitigate adverse impacts of the BILLING CODE 5001–06–P opportunity to comment pursuant to project on military operations and authority under section 4(a) of the readiness. Administrative Procedure Act (APA) (5 U.S.C. 553(b)). This provision § 211.10 Reporting Determinations to authorizes an agency to issue a rule Congress. without prior notice and opportunity to (a) Not later than 30 days after making comment when the agency for good a determination of unacceptable risk cause finds that those procedures are pursuant to section 211.6, the senior ‘‘impracticable, unnecessary, or contrary

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to the public interest.’’ Under 5 U.S.C. necessitates the modification of the of Management and Budget has not 553(b), the Coast Guard finds that good Baltimore County Revenue Authority reviewed it under that Order. cause exists for not publishing a notice (Dundalk Avenue) highway toll The Coast Guard does not consider of proposed rulemaking (NPRM) with drawbridge operation regulation. this rule to be ‘‘significant’’ under that respect to this rule because the The regulation governing the Order because it is an administrative Baltimore County Revenue Authority operation of the bridge is found in 33 change and does not affect the way (Dundalk Avenue) highway toll draw CFR 117.543(a). The purpose of this rule vessels operate on the waterway. bridge requiring draw operations, as is to remove the portion of 33 CFR Small Entities specified in 33 CFR 117.543(a), was 117.543(a) that refers to the Baltimore removed and replaced with a fixed County Revenue Authority (Dundalk Under the Regulatory Flexibility Act bridge in 1998. That portion of the Avenue) highway toll bridge at mile 1.5, (5 U.S.C. 601 et seq.), the Coast Guard regulation has not been enforced since from the Code of Federal Regulations considers whether this final rule will the replacement of the bridge, since it governs a bridge that is no have a significant economic impact on approximately thirteen years ago. The longer able to be opened. a substantial number of small entities. regulations governing the bridge, which The regulation found at 33 CFR ‘‘Small entities’’ include (1) small is no longer a drawbridge, are no longer 117.543 also governs the Peninsula businesses, not-for-profit organizations applicable and shall be removed from Parkway Bridge, mile 2.1, and the Wise that are independently owned and this section. It is unnecessary to publish Avenue Bridge, mile 3.4. This Final operated and are not dominant in their an NPRM as this regulation cancels a Rule shall not alter the operating fields, and (2) governmental regulation that has no further practical regulations in place at 33 CFR 117.543 jurisdictions with populations of less value. It is further unnecessary to for the Peninsula Parkway Bridge and than 50,000. publish an NPRM because operators the Wise Avenue Bridge. This rule shall Since this drawbridge has been transiting this portion of the waterway only remove that verbiage regulating the removed and replaced with a fixed are aware that the bridge is now a fixed Dundalk Avenue Bridge. bridge, the regulation governing draw bridge. And, it is unnecessary to publish operations for this bridge is no longer Discussion of Rule an NPRM because this regulation does needed. There is no new restriction or not purport to place any restriction on The Coast Guard is changing the regulation being imposed by this rule; mariners but rather removes a regulation in 33 CFR 117.543 by therefore, the Coast Guard certifies restriction that has no further removing the restrictions and the under 5 U.S.C. 605(b) that this final rule applicability. regulatory burden related to the draw will not have a significant economic Under 5 U.S.C. 553(d)(1), a rule that operations for this bridge which is no impact on a substantial number of small relieves a restriction is not required to longer a drawbridge. The change entities provide the 30 day notice period before removes the portion of the regulation its effective date. This rule removes the governing the Baltimore County Collection of Information Baltimore County Revenue Authority Revenue Authority (Dundalk Avenue) This rule calls for no new collection (Dundalk Avenue) highway toll draw highway toll bridge because the bridge of information under the Paperwork operation requirements under 33 CFR has been replaced with a fixed bridge. Reduction Act of 1995 (44 U.S.C. 3501– 117.543(a), thus removing a regulatory The replacement took place in 1998, 3520). restriction on the public. Additionally, approximately thirteen years ago. This Federalism under 5 U.S.C. 553(d)(3), the Coast Final Rule seeks to update the Code of Guard finds that good cause exists for Federal Regulations by removing A rule has implications for federalism making this rule effective in less than language that regulates signaling and under Executive Order 13132, 30 days after publication in the Federal notice requirements for the opening of Federalism, if it has a substantial direct Register. The bridge has been a fixed a bridge that, in fact, can no longer effect on State or local governments and bridge for the past 13 years; this rule open. This change does not affect vessel would either preempt State law or merely requires an administrative operators using the waterway. This impose a substantial direct cost of change to the Federal Register, in order change does not affect nor does it alter compliance on them. We have analyzed to omit a regulatory requirement that is those portions of 33 CFR 117.543 this rule under that Order and have no longer applicable or necessary. dealing with the Peninsula Parkway determined that it does not have implications for federalism. Basis and Purpose Bridge and the Wise Avenue Bridge. The drawbridge across Bear Creek, Regulatory Analyses Unfunded Mandates Reform Act mile 1.5 was removed and replaced with We developed this rule after The Unfunded Mandates Reform Act a fixed bridge in 1998. Prior to 1998, a considering numerous statutes and of 1995 (2 U.S.C. 1531–1538) requires regulation was necessary to govern the executive orders related to rulemaking. Federal agencies to assess the effects of operation of the openings of the Below we summarize our analyses their discretionary regulatory actions. In drawbridge. After 1998, because the based on 13 of these statutes or particular, the Act addresses actions bridge can no longer be opened, there executive orders. that may result in the expenditure by a became no need for a regulation State, local, or tribal government, in the Regulatory Planning and Review governing openings. It has come to the aggregate, or by the private sector of attention of the Coast Guard that the This rule is not a significant $100,000,000 (adjusted for inflation) or regulation was never updated regulatory action under section 3(f) of more in any one year. Though this rule subsequent to the completion of the Executive Order 12866, Regulatory will not result in such an expenditure, fixed bridge. Therefore, this regulation Planning and Review, as supplemented we do discuss the effects of this rule seeks to alter the original regulation, to by Executive Order 13563, Improving elsewhere in this preamble. remove that portion which does not Regulation and Regulatory Review, and have present applicability due to the does not require an assessment of Taking of Private Property present capabilities of the bridge. The potential costs and benefits under This rule will not cause a taking of elimination of this drawbridge section 6(a)(3) of that Order. The Office private property or otherwise have

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taking implications under Executive procedures; and related management DEPARTMENT OF HOMELAND Order 12630, Governmental Actions and systems practices) that are developed or SECURITY Interference with Constitutionally adopted by voluntary consensus Protected Property Rights. standards bodies. Coast Guard Civil Justice Reform This rule does not use technical standards. Therefore, we did not 33 CFR Part 117 This rule meets applicable standards consider the use of voluntary consensus [Docket No. USCG–2011–0962] in sections 3(a) and 3(b)(2) of Executive standards. Order 12988, Civil Justice Reform, to Drawbridge Operation Regulation; Environment minimize litigation, eliminate Islais Creek, San Francisco, CA ambiguity, and reduce burden. We have analyzed this rule under AGENCY: Coast Guard, DHS. Protection of Children Department of Homeland Security Management Directive 023–01 and ACTION: Notice of temporary deviation We have analyzed this rule under Commandant Instruction M16475.lD, from regulations. Executive Order 13045, Protection of which guides the Coast Guard in SUMMARY: The Commander, Eleventh Children from Environmental Health complying with the National Coast Guard District, has issued a Risks and Safety Risks. This rule is not Environmental Policy Act of 1969 temporary deviation from the regulation an economically significant rule and (NEPA) (42 U.S.C. 4321–4370f), and governing the operation of the Third would not create an environmental risk have concluded that this action is one Street Drawbridge across Islais Creek, to health or risk to safety that might of a category of actions which do not mile 0.4, at San Francisco, CA. The disproportionately affect children. individually or cumulatively have a deviation is necessary to allow the City significant effect on the human Indian Tribal Governments of San Francisco to make emergency environment. This rule is categorically This rule does not have tribal electrical repairs on the bridge. This excluded, under figure 2–1, paragraph implications under Executive Order deviation allows the bridge to be (32)(e), of the Instruction. 13175, Consultation and Coordination secured in the closed-to-navigation Under figure 2–1, paragraph (32)(e), of with Indian Tribal Governments, position during the deviation period. the Instruction, an environmental because it does not have a substantial DATES: This deviation is effective from direct effect on one or more Indian analysis checklist and a categorical exclusion determination are not 8 a.m. on October 3, 2011 to 6 p.m. on tribes, on the relationship between the November 18, 2011. Federal Government and Indian tribes, required for this rule because this rule affects the promulgation of operating ADDRESSES: Documents mentioned in or on the distribution of power and this preamble as being available in the responsibilities between the Federal regulations or procedures for drawbridges. docket are part of the docket USCG– Government and Indian tribes. 2011–0962 and are available online by Energy Effects List of Subjects in 33 CFR Part 117 going to http://www.regulations.gov, inserting USCG–2011–0962 in the We have analyzed this rule under Bridges. ‘‘Keyword’’ box and then clicking Executive Order 13211, Actions For the reasons discussed in the ‘‘Search’’. They are also available for Concerning Regulations That preamble, the Coast Guard amends 33 inspection or copying at the Docket Significantly Affect Energy Supply, CFR part 117 as follows: Management Facility (M–30), U.S. Distribution, or Use. We have Department of Transportation, West determined that it is not a ‘‘significant PART 117—DRAWBRIDGE Building Ground Floor, Room W12–140, energy action’’ under that order because OPERATION REGULATIONS 1200 New Jersey Avenue, SE., it is not a ‘‘significant regulatory action’’ ■ Washington, DC 20590, between 9 a.m. under Executive Order 12866 and is not 1. The authority citation for part 117 and 5 p.m., Monday through Friday, likely to have a significant adverse effect continues to read as follows: except Federal holidays. on the supply, distribution, or use of Authority: 33 U.S.C. 499; 33 CFR 1.05–1; energy. The Administrator of the Office Department of Homeland Security Delegation FOR FURTHER INFORMATION CONTACT: If of Information and Regulatory Affairs No. 0170.1. you have questions on this rule, call or e-mail David H. Sulouff, Chief, Bridge has not designated it as a significant ■ 2. Revise paragraph (a) of § 117.543 to Section, Eleventh Coast Guard District; energy action. Therefore, it does not read as follows: require a Statement of Energy Effects telephone 510–437–3516, e-mail under Executive Order 13211. § 117.543 Bear Creek. [email protected]. If you have (a) The draw of the Peninsula questions on viewing the docket, call Technical Standards Parkway Bridge, mile 2.1, between Renee V. Wright, Program Manager, The National Technology Transfer Dundalk and Sparrows Point, shall open Docket Operations, telephone 202–366– and Advancement Act (NTTAA) (15 on signal; except that, from April 16 9826. U.S.C. 272 note) directs agencies to use through November 15 from 12 midnight SUPPLEMENTARY INFORMATION: The City voluntary consensus standards in their to 8 a.m. except Saturdays and Sundays, of San Francisco requested a temporary regulatory activities unless the agency and Federal and State holidays, at least change to the operation of the Third provides Congress, through the Office of one half hour notice is required. Street Drawbridge, mile 0.4, over Islais Management and Budget, with an * * * * * Creek, at San Francisco, CA. The explanation of why using these drawbridge navigation span provides a standards would be inconsistent with October 5, 2011. vertical clearance of 4 feet above Mean applicable law or otherwise impractical. William D. Lee, High Water in the closed-to-navigation Voluntary consensus standards are Rear Admiral, U.S. Coast Guard, Commander, position. As required by 33 CFR technical standards (e.g., specifications Fifth Coast Guard District. 117.163(b), the draw shall open on of materials, performance, design, or [FR Doc. 2011–27128 Filed 10–19–11; 8:45 am] signal if at least 72 hours advance notice operation; test methods; sampling BILLING CODE 9110–04–P is given to the San Francisco

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Department of Public Works. Navigation acquire private forest lands that are the term. The only land cover Congress on the waterway is commercial and threatened by conversion to nonforest references is ‘‘forests.’’ As a result, in recreational. uses. Existing provisions in Forest this final rule, the term ‘‘open space’’ is The Third Street Drawbridge will be Service regulations pertaining to the not used, and it is assumed that the only secured in the closed-to-navigation Stewardship Incentive Program will be type of ‘‘open space’’ on which Congress position from 8 a.m. on October 3, 2011 removed as deauthorized by the Farm wanted the CFP to focus is ‘‘forests.’’ to 6 p.m. on November 18, 2011, to Security and Rural Investment Act of The Forest Service believes that these allow the City of San Francisco to 2002, and this final rule will be regulations for the CFP will facilitate complete emergency electrical repairs. substituted in lieu thereof. administration of the program and This temporary deviation has been DATES: This final rule is effective provide uniform criteria for program coordinated with the waterway users. November 21, 2011. participation. The program will focus its funding towards forests that provide No objections to the proposed FOR FURTHER INFORMATION CONTACT: community benefits as defined in this temporary deviation were received. Kathryn Conant, U.S. Forest Service, rule and are identified as a national, Vessels that can transit the bridge, State and Private Forestry, Cooperative regional, or local priority for protection. while in the closed-to-navigation Forestry, (202) 401–4072. Individuals See Ranking Criteria and Proposal position, may continue to do so at any who use telecommunication devices for selection in § 230.5 of this final rule. time. the deaf (TDD) may call the Federal In accordance with 33 CFR 117.35(e), Benefits provided by forests acquired Information Relay Service (FIRS) at under the CFP may address a variety of the drawbridge must return to its regular 1–800–877–8339 between 8 a.m. and operating schedule immediately at the outcomes such as protecting a 8 p.m., Eastern Standard Time, Monday municipal water supply, providing end of the designated time period. This through Friday. deviation from the operating regulations public access for outdoor recreation, or SUPPLEMENTARY INFORMATION: is authorized under 33 CFR 117.35. providing economic benefits from Background and Need for Final Rule sustainable forest management, Dated: October 7, 2011. including harvesting forest products and D.H. Sulouff, Congress authorized the Community using woody biomass for renewable Bridge Section Chief, Eleventh Coast Guard Forest and Open Space Conservation energy production. Beyond local District. Program (CFP) to address the needs of measures of success, the contribution of [FR Doc. 2011–27129 Filed 10–19–11; 8:45 am] communities to protect and maintain community forests to larger protected BILLING CODE 4910–15–P their forest resources. In the CFP areas of forest helps support resource- authorization, Congress found that tens based economies and adds needed of thousands of acres of private forest resiliency to natural systems as they DEPARTMENT OF AGRICULTURE land are under pressure from respond to climate change. Therefore, in development; public access to privately addition to public engagement to Forest Service owned forest land for recreational articulate local needs and capacity, opportunities has declined; people successful community forests in the CFP 36 CFR Part 230 derive health benefits from having should be part of a larger conservation access to forests for recreation and RIN 0596–AC84 effort that protects a variety of land exercise; forests protect public water types and working lands, which provide Community Forest and Open Space supplies and may provide financial ecosystem services. In this way, the Conservation Program benefits from forest products; forest program delivers local benefits that can parcels owned by local governments also have a larger impact. AGENCY: Forest Service, USDA. and nonprofit organizations provide Relationship to Other Cooperative ACTION: Final rule. important educational opportunities for private forest landowners; and there is Forestry Assistance Act Programs SUMMARY: This final rule implements an urgent need to leverage financial The Cooperative Forestry Assistance the Community Forest and Open Space resources to purchase important parcels Act of 1978 (CFAA) enables the Forest Conservation Program (CFP), authorized of privately owned forest land as the Service to work with States, private by Section 8003 of the Food, parcels are offered for sale. landowners, and communities to Conservation, and Energy Act of 2008. The CFP is a competitive grant address the full range of forest resources The CFP legislation is an amendment to program whereby local governments, from urban street trees to large rural the Cooperative Forestry Assistance Act Indian tribes, and qualified nonprofit timber lands. The CFP recognizes that of 1978. The CFP is a competitive grant organizations are eligible to apply for successful protection of community program whereby local governments, grants to establish community forests forests depends on engaged citizens. Indian tribes, and qualified nonprofit through fee-simple land acquisitions. Their participation is equal in organizations are eligible to apply for ‘‘Fee-simple’’ means absolute interest in importance to the forests being grants to establish community forests real property, versus a partial interest protected. The CFP complements and through fee-simple acquisition of such as a conservation easement. By builds upon other CFAA programs that private forest land. The program’s two creating community forests through focus on stewardship and education by purposes are to provide public benefits land acquisition, communities and providing the opportunity for to communities including economic Indian tribes can sustainably manage communities to go a step further and benefits through sustainable forest forests for these and many other directly acquire and manage forests. The management, environmental benefits benefits, including wildlife habitat, CFP provides grant assistance directly to including clean air, water, and wildlife stewardship demonstration sites for Indian tribes, local governments, or habitat; benefits from forest-based forest landowners, and environmental qualified nonprofit organizations; it is educational programs; benefits from education. able to assist those entities that have serving as models of effective forest While the statutory title for the CFP demonstrated a sustained commitment stewardship; and recreational benefits includes the term ‘‘open space,’’ the to community forestry. Through public secured with public access; and to authorizing language does not discuss engagement, these entities are able to

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articulate specific community needs maintain, and use wood from revise the community forest plan that this program can meet and community trees and forests to (§ 230.9). demonstrate that they have the capacity maximize social, environmental, and Proximity to Community Requirements to manage a public asset such as a economic benefits. The CFP provides community forest. grants directly to local governments, The final rule does not impose a Indian tribes, and qualified nonprofits requirement on the proximity of the Relationship to the Forest Legacy for fee-simple acquisition of land to community forest to the benefitting Program establish community forests. community or on the size of the There are now two land protection benefitting community (§ 230.4). The programs under the Cooperative Community Forest Plan final rule will fund quality projects with Forestry Assistance Act, the Forest The CFP requires communities to active community participation. Legacy Program (FLP) codified at 16 draft a community forest plan (§ 230.2 U.S.C. 2103c and the CFP codified at 16 and § 230.4) as part of the application Project Review and Selection Process U.S.C. 2103d. Both the CFP and FLP process. The draft community forest The Forest Service will conduct a provide financial assistance to partners plan submitted with the application review and ranking process to select to protect forest land that is threatened should be as specific as possible, but the projects for funding. The application by conversion to nonforest uses and Forest Service recognizes that the plan process is outlined in § 230.3 of this provide significant environmental, may not be finalized until after the final rule. Individual applications will economic, and social benefits. The two project is closed. The community forest be ranked according to criteria outlined programs are complementary; each plan may build upon existing land in § 230.5 of this final rule. The Forest engages unique partners and utilizes management plans to meet the Service anticipates providing additional different tools for land protection. While requirements of the CFP. specificity on the review process, a few projects may align with the intent Landscape-Level Conservation Plans review criteria, and timelines in an of both programs, most projects will and the Community Forest Plan annual Request for Applications (RFA). qualify for only one. An applicant is not allowed to submit a project application The community forest plan can tier to Role of the State Forester or Equivalent to both the CFP and FLP an existing broader landscape-level Official of the Indian Tribe simultaneously. plan. Applicants should start by using Under the CFP, applications will be The FLP provides grants to State the landscape level plan most germane submitted to the State Forester (for local agencies, though other units of to the CFP project; examples of plans government and non profit government have partnered with the include community green infrastructure organizations) or the equivalent official State agency on a few projects. The CFP plans, community land use plans, of the Indian tribe (for Indian tribes). As provides grants directly to local Indian tribe’s area of interest/homelands time and resources allow, these entities governments, Indian tribes and qualified plans, and others as long as there are may conduct a general review of all nonprofit organizations. The FLP allows overlapping or shared goals. A applications submitted to them for for the acquisition of conservation Statewide Forest Resource Assessment eligibility and compatibility with easements or fee-simple titles, while the and Strategy is an example of a land use landscape conservation efforts. The CFP permits only fee-simple acquisition plan that may also be useful. The Forest State Forester or equivalent official of of land as a community forest. While Service recommends that applicants the Indian tribe may provide technical proponents of FLP are encouraged to contact their State Forester or equivalent assistance to applicants in the coordinate with and obtain input from official of the Indian tribe or Bureau of preparation of applications. the public, such coordination is not a Indian Affairs to see if they may provide The final rule requires the State critical project selection criterion. In technical assistance during the Forester or equivalent official of the contrast, successful CFP projects will be development of a CFP application. Indian tribe to forward all CFP evaluated on the extent of community Professional specialists, including applications they receive to the Forest involvement in the development and foresters may also provide valuable Service, but provides them with an the long-term management of the assistance at the project development opportunity to comment. Application community forest. While FLP stage; however, the services of a review by State Foresters or equivalent encourages public access or other professional specialist is not mandated officials of the Indian tribe is voluntary, recreational opportunities, it is not a by the program. but will be considered by the Forest program requirement. In contrast, the Grant recipients must submit a final Service. Such participation will not CFP requires public access. community forest plan within 120 days result in a transfer of responsibility for of the title transferring to the grant any aspect of the CFP project selection Relationship to the Urban and recipient (§ 230.9). The community process to the State Forester or Indian Community Forest Program forest plan must be developed with tribes from the Forest Service. The Urban and Community Forestry community involvement and While the Forest Service anticipates (UCF) Program, authorized in the incorporate as much as possible the this intermediate step will add Cooperative Forestry Assistance Act (16 desires of the community. The draft approximately 30 days to the review U.S.C. 2105), is a cooperative program community forest plan should describe process, input from State Foresters or of the Forest Service that encourages the community that benefits from the equivalent officials of the Indian tribes and promotes the creation of healthier, community forest and what benefits the will be valuable in helping the Forest more livable communities; it is not a community forest will provide. The Service make final funding decisions. land protection or acquisition program expectation is that there will be ongoing like the CFP or FLP. UCF provides and meaningful community Eligible Entities technical, financial, educational, and participation in plan development and The statute establishing the CFP states research assistance to communities, revision; this could be through a that only local governments, Indian through its primary partner the State standing advisory board or similar tribes, and qualified nonprofit forestry agencies, to plan urban forestry mechanism. The community is organizations are eligible to receive a programs and to plant, protect, encouraged to periodically review and grant through the CFP. The statute also

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provides definitions for those three conducted by the Forest Service to non-Federal cost share. However, eligible organizations. Local verify that property acquired under the separate tracts donated for the purpose governments are defined as municipal, CFP has not been sold or converted to of providing the non-Federal cost share county, and other local governments nonforest uses or a use inconsistent may be appraised using the Uniform with jurisdiction over local land use with the purpose of the CFP (§ 230.9). Standards of Professional Appraisal decisions. Indian tribes are defined as In the statute establishing the CFP, Practice (USPAP) or the IRS regulations prescribed by Section 4 of the Indian Congress required that the grant for a donation in land. The Forest Self-Determination and Education recipient cannot sell the land or convert Service will be available to advise Assistance Act (U.S.C. 450b), which it to nonforest uses (Sec. 8003.e). In the applicants with the appraisal and includes federally recognized Indian event that these conditions are violated, associated appraisal review and will tribes and Alaska Native Corporations. the law requires that the grant recipient conduct spot checks to assure Finally, qualified nonprofit pay the Federal Government an amount compliance with Federal Appraisal organizations are defined as charities equal to the greater of the current sale Standards. described in the Internal Revenue Code price or current appraised value of the of 1986 26 USCS § 170(h)(3) which land. An additional penalty is that the Government-to-Government operates in accordance with one or more grant recipient that sells or converts a Consultation With Indian Tribes of the conservation purposes specified parcel acquired under the CFP will not Indian tribes were invited to consult in Section 170(h)(4)(A). A conservation be allowed to receive additional grants on the CFP proposed rule prior to purpose is defined as the preservation of under the program. Ramifications for review and comment by the general land for outdoor recreation or conversion to nonforest use or sale are public. The consultation process was education, protection of natural habitat discussed in § 230.9 ‘‘Ownership Use initiated September 30, 2010. The or ecosystems, preservation of open and Requirements’’ of this final rule. Deputy Chief for State and Private space, and preservation of historic lands Uniform Relocation Assistance and Forestry sent a letter to the Forest or structures. Consistent with Real Property Acquisition for Federal Service regional leadership requesting regulations of the Internal Revenue and Federally-Assisted Programs that they initiate consultation. Each unit Service (26 CFR 1.170A–14(c)(1)) then initiated consultation with Indian qualified nonprofit organizations must The Uniform Relocation Assistance tribes, providing them with information also have a commitment to protect in and Real Property Acquisition Policy about the CFP, the proposed rule, how perpetuity, the purposes for which the Act of 1970 (‘‘Uniform Act’’) (42 U.S.C. to request government-to-government tract was acquired under the CFP, and 4601, et seq.) provides guidance and consultation, and where to send demonstrate that they have the procedures for the acquisition of real comments. Consultation concluded resources to enforce the protection of property by the Federal government, March 7, 2011. including relocation benefits to the property as a community forest. In Three Indian tribes consulted with the displaced persons. Department of general, a land conservancy or land trust Forest Service about the CFP, many Transportation regulations would be a typical organization that Indian tribes discussed the CFP with implementing the Uniform Act (49 CFR would be considered a qualified Forest Service personnel, and three part 24) have been adopted by the nonprofit organization under the Indian tribes sent comments through the Department of Agriculture (7 CFR part authorizing statute of the CFP. public comment process. Two regions of 21). The CFP is deemed exempt from the United States Department of the Ensuring Permanence of Community the Uniform Act because it meets the Interior, Bureau of Indian Affairs (BIA) Forest Projects exemption criteria stated at 49 CFR also sent comments through the public 24.101(b)(1). In order to minimize the chances that comment process. Indian tribe and BIA the community forest is ever sold, or Federal Appraisal Standards comments were analyzed separately converted to nonforest uses or a use Section 7A(c)(4) of the Cooperative from general public comments. The inconsistent with the CFP, the following Forest Service incorporated the input three actions will be required of the Forestry Assistance Act (16 U.S.C. 2103d(c)(4)), requires that land acquired received through consultation and the grant recipient: public comment process into the (1) Grant recipients will be required to under the CFP be appraised in development of this final rule. record a Notice of Grant Requirements accordance with the current Uniform with the deed in the lands records of the Appraisal Standards for Federal Land Indian Tribal Input and Agency local county or municipality. Acquisitions developed by the Responses (2) Grant recipients will define Interagency Land Acquisition objectives for the use and management Conference (also known as the Yellow The Authorizing Statute of the community forest in the required Book), hereafter referred to as the The following comments suggested community forest plan. Because the Federal Appraisal Standards, in order to changes to the rule, but these points are size, condition, and possible uses of determine the non-Federal share of the governed by the authorizing statute community forests under this program cost of a parcel of privately-owned Section 8003 of the Food, Conservation, could be quite varied, the community forest land. The Federal Appraisal and Energy Act of 2008 (Pub. L. 110– forest plan will identify forest uses for Standards are contained in a readily 234; Stat. 2043) and are not within the the property. In order to guide available public document (http:// discretion of the Forest Service. As a compliance with the requirements of the www.justice.gov/enrd/3044.htm). A result, no changes will be made to the CFP, ‘‘nonforest uses’’ is defined in grant recipient will be responsible for final rule. § 230.2 of this final rule. assuring that the appraisal of the CFP (3) Every five years, grant recipients tract is done in conformance with the Eligible Entities will submit to the Forest Service a self Federal Appraisal Standards. The Comment: Eligible entities should certifying statement that the property Federal Appraisal Standards will be include Tribal Organizations—such as has not been sold or converted to used to determine the market value for the Native American Land Conservancy, nonforest uses. In addition, the grant the purpose of determining CFP whose mission is ‘‘to acquire and recipients will be subject to a spot check contribution and reimbursement for the preserve our sacred lands’’. We believe

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inclusion of these types of tribal No change to the final rule. locality, state or region as defined in the organizations is implied, as they are proposed rule? General Comments authorized by Tribal Governments Response: Areas of interest/ through approval of Tribal Resolution to Comment: Following discussions on homelands would equate to locality, fulfill this mission. We strongly the possible uses of the CFP within our state or region as defined in the final recommend the regulations clearly state traditional territory, there is interest in rule; no change made to the final rule. potential utilization of the program once that Tribal Organizations or Tribal BIA’s Indian Reservation Roads Program Government Organizations can also it is in place and final guidelines apply under this program. established. Comment: The rule should require a Response: ‘‘Eligible entity’’ is defined Response: The Forest Service agrees public route be identified to Community in the authorizing statute and, after that the CFP will be a valuable tool for Forest Program parcels through the consultation with the Office of General all eligible entities; no change to the BIA’s Indian Reservation Roads (IRR) Counsel, the Forest Service interprets final rule. Program to ensure the public continues ‘‘eligible entity’’ to mean federally Comment: Community benefits have a to have access to lands purchased with recognized Indian tribes and Alaska lot of application to tribal interests on CFP funds by an Indian tribe. IRR routes Native Corporations, local government their homelands. must, by law, be accessible to the entities, and qualified nonprofit Response: The Forest Service agrees public. organizations that are qualified to that the benefits provided by Response: The issue is more acquire and manage land. If a Tribal community forests will be appreciated appropriately addressed on a case by Organization meets these definitions, it by communities; no change made to the case basis in specific project grants; no would be an eligible entity. Tribal final rule. change made to the final rule. organizations that meet the definition of Comment: Our Indian tribe has no Public Access Restrictions for Tribal a ‘‘qualified nonprofit organization’’ objection to the proposed CFP. Ceremonies would be an ‘‘eligible entity.’’ No Response: None required; no change change made to the final rule. to the final rule. Comment: Indian tribes or Tribal Organizations should have the authority Eligible Lands Priority for Indian Tribes to control access on lands acquired by Comment: § 230.2 Definition: Expand Comment: Are Indian tribes on an a Indian tribe or Tribal Organization; the definition of community forest to even playing field with all other could a management plan for a include vacant, undeveloped, or applicants? Provide priority to Indian community forest owned by the Indian underutilized developed lands because tribes which have lost land base due to tribe provide opportunities for closing many lands that are sacred or important Federal land acquisitions in the past. all or portions of a community forest for to Indian tribes that they would like to Response: The Forest Service will short durations (a few days to a few acquire may or may not be forested. ensure that all applicants are ranked weeks) to allow culturally sensitive Response: Eligible land is described using the criteria in § 230.5 and are tribal ceremonies to take place at as ‘‘private forest land’’ by the given an equal opportunity for funding. various times during a year undisturbed authorizing statute; no change made to Indian tribes’ specific concerns, such as by non-tribal members? the final rule. loss of land base, may be described in Response: As long as reasonable the application, and the acquisition of public access is allowed, limited Conversion of Forest to Nonforest Land the community forest should be closures, which are outlined and Comment: Allow forest land to be discussed in the community benefits; no explained in the community forest plan, converted to nonforest land. change to the final rule. to accommodate tribal ceremonies Response: Conversion to nonforest would be consistent with the definition Department of the Interior (DOI) or land is a prohibited use in the of public access (§ 230.2). Bureau of Indian Affairs (BIA) authorizing statute; no change made to Appraisers Public Comments and Agency the final rule. Responses Comment: Could a DOI or BIA Federal Trust Lands Land Appraiser be used? On January 6, 2011, the Forest Service Comment: Allow for the conversion of Response: If the appraiser is allowed published a notice of proposed rule and fee lands to Indian Trust. by his or her agency and is qualified to request for comment on 36 CFR part 230 Response: Conversion of fee lands conduct the appraisal as required in in the Federal Register (76 FR 33344). into Indian Trust is a prohibited use in § 230.8 of the final rule, then a BIA or During the comment period, which the authorizing statute; no change made DOI appraiser could be used; no change ended March 7, 2011, the Forest Service to the final rule. made to final rule. received 28 responses containing over Comment: Because the program Comment: Include the BIA on ranking 150 comments. Responses from Indian disallows placing CFP purchased land committee. tribes, the agencies that work with them in Tribal trust, this requirement Response: The Forest Service will and government-to-government probably precludes Indian tribes from continue to engage BIA throughout consultations were also received and finding this program useful. In addition, implementation of the CFP. analyzed separately (see ‘‘Government- the requirements of matching funds and Composition of the ranking committee to-Government Consultation with inability to place in tribal trust lands has yet to be decided. No change made Indian Tribes’’ above and ‘‘Consultation essentially make the proposed program to the final rule. and Coordination with Indian Tribes’’ in of very little use. the ‘‘Regulatory Certifications’’ to Response: The CFP authorizing Tribal Area of Interest/Homeland follow). statute prohibits CFP acquired lands to Comment: Tribal government Twenty respondents explicitly be transferred into Tribal trust lands. documents/plans identify conservation expressed support, sixteen respondents Financial gain from the community needs and goals that apply to their area suggested minor revisions, one forest is possible through timber harvest of interests/homelands. Would their respondent objected to Federal spending and other land management practices. area of interest/homelands equate to for any new program, and one

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respondent felt program funds should proposals and draft community forest and forest resource inventories; 2. be spent on other Forest Service plans; could States be reimbursed for Operations and maintenance funding. priorities. time spent providing technical Response: These activities are outside assistance and/or processing on a ‘‘per the scope of this program; no change The Authorizing Statute application’’ basis? made to the final rule. Comment: § 230.2 Definition: Expand Response: The authorizing statute Penalties the definition of ‘‘eligible entity’’ to limits funding for technical assistance to include a wider range of nonprofit ‘‘not more than 10 percent of all funds Comment: Allow forest land to be organizations. made available to carry out the Program converted to nonforest land. Response: ‘‘Eligible entity’’ is defined for each fiscal year to State Foresters or Response: The authorizing statute in the authorizing statute; no change equivalent officials (including specifies a penalty for converting the made to the final rule. equivalent officials of Indian tribes) for forests to nonforest uses; no change Comment: § 230.2 Definition: Expand Program administration and technical made to the final rule. the definition of ‘‘community forest’’ to assistance.’’ The amount of funds Comment: Strengthen the penalties include vacant, undeveloped, or available for technical assistance may for selling or converting CFP acquired underutilized developed lands. not enable the Forest Service to lands to nonforest uses to help Response: The authorizing statute reimburse State and Indian tribes for all discourage sale or conversion to requires the Secretary to award grants to technical assistance rendered both nonforest uses. acquire private forest land, and no other before and after the applications are Response: The penalties for selling or land cover is eligible; no change made submitted. Grant recipients should be converting CFP acquired lands are to the final rule. prepared to incur the cost of ongoing defined in the authorizing statute; no Comment: § 230.3 Application maintenance and some cost associated change made to the final rule. process: The States should be able to with the application; no change made to limit the number of applications being Support for the Proposed Rule the final rule. submitted for funding from each State to Comment: Twenty respondents Comment: Project costs should prevent applications that do not meet expressed support for the Community include dedicated, restricted funds for program requirements. Forest Program the long-term maintenance and Response: The authorizing statute Response: None required; no change management of community forests. requires the State Forester or equivalent made to the final rule. official of the Indian tribe to submit a Such funds should be allowable project list that includes a description of each and cost share costs. General Comments project submitted by an eligible entity. Response: The authorizing statute Comment: Ten comments from six The Forest Service encourages States only allows funds to be expended on respondents identified program benefits: and equivalent official of the Indian acquiring land to establish community • Creates many more community tribe to review and comment on the forests. Long term maintenance funds forests nationwide applications, but will not require it; no are the responsibility of the grant • Increases green space and enhances change made to the final rule. recipient; no change made to the final the health of any community Comment: § 230.4 Application rule. • Develops a broader appreciation for requirements: Delete the requirement for Comment: Provide adequate funding the importance of our Country’s forests a draft community forest plan. to communities for technical assistance. among youth and citizens of all ages Response: A community forest plan is The program should be structured to • Keeps people connected to our a requirement of the authorizing statute; make sure that grant recipients are made forest heritage by sustaining timber no change made to the final rule. fully aware of the range of resources management, protecting forest-based available to them through State forestry natural resources like water and Technical Assistance agencies—especially as they create and wildlife, providing model forests to Comment: § 230.10 Technical implement a community forest educate private landowners, and assistance funds: Provide for ongoing management plan. providing a natural setting for youth technical assistance as a component of Response: The Forest Service will recreation and education the grants. Technical assistance will be help identify resources grant recipients • Encourages the incorporation of called for in all stages of establishing can utilize when establishing their environmental education into and maintaining a community forest, community forest. However, the community institutions and the funding structure should reflect authorizing statute does not provide • Provides much needed resources for this; the CFP should allow awarding of funding for technical assistance directly forest conservation on the local level technical assistance funds to State to the community but rather funds go to through local government and land trust Foresters/Tribal governments before States Foresters and equivalent officials partners CFP projects have been funded to help of Indian tribes; no change made to the • Conserves threatened forestlands get the program started and develop final rule. that can meet locally-identified competitive applications with partner community needs for natural resource Use of CFP Funds communities; this program puts an protection, economic development, and increased workload and unfunded Comment: The CFP should provide public connections to the land. responsibility on the State Forester or capacity building grants to establish Community forests, whether owned by equivalent Tribal Government official new community forests. a local government, Indian tribe, or since technical assistance funding is Response: Capacity building grants nonprofit organization, have a strong only available for implementation after are outside scope of this program by track record of engaging a broad range a grant is awarded in their jurisdiction; statute; no change made to the final of citizens in forest conservation, is it possible for States with projects rule. stewardship, and governance. Where submitted within their jurisdiction to be Comment: The CFP should provide situated near Federal and State lands, reimbursed for any technical assistance funding for the following two efforts as establishment of community forests can provided in helping applicants prepare part of the upcoming program: 1. Tree foster new collaboration across

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boundaries to achieve landscape-level cfp.shtml) will have current CFP contact community’s sustained commitment to management objectives information, and the Forest Service will their urban and community forests (e.g., • The option to develop community make available information about the as demonstrated through Tree City USA forests under nonprofit ownership can program; no change made to final rule. or other public recognition programs, be particularly valuable when a local Comment: A requirement for native hiring of city foresters, establishment of government desires community-based species regeneration would be tree boards) and the community’s ability conservation of a tract but does not have appropriate. to manage the community forest after it the capacity to effectively oversee Response: Such a requirement may or is acquired through the program. management and governance issues for may not be appropriate depending on Response: While this criterion would a community forest goals and objectives of the community work well for local governments’ • Creates potentially tens of forest and, while encouraged, will be applications, it would not fit for thousands of jobs nationwide, provides left to the discretion of the community; applications submitted by qualified significant environmental benefits and no change made to final rule. nonprofit organizations and some spurs economic growth in regions that Comment: Divert funds or resources Indian tribes; no change made to final are suffering greatly from job losses, from existing Forest Service programs rule. environmental degradation and rising for the CFP. Comment: Training may be required health costs due to obesity and other Response: The CFP is subject to to build capacity within the State environmental related illnesses such as annual appropriations by Congress, Foresters’ offices, and flexibility should asthma. Furthermore, the program which will specify the amount of funds be built into the implementation of this would provide communities an for the program. Funds authorized for component to see whether this system opportunity to study urban forest one program cannot be used for another; works or not, and how to implement it ecology from its genesis and to develop no change made to final rule. effectively across the States. models to be used in urban forests in the Comment: Final community forest Response: The Forest Service is 21st century plans should have an approval willing to provide CFP information to Response: None required; no change requirement by either the Forest Service State Foresters, Indian tribes, and made to the final rule. or the State. eligible entities in a variety of formats. Comment: Once created, community Response: The purpose of the forests could sell environmental credits community forest plan is to document Suggested Edits and Agency Responses to help defray longer term operation and and maximize the community benefits Numerous changes were made to the maintenance costs. identified by the community. Therefore, preamble and or final rule to clarify Response: The buying and selling of the community developing the aspects of the program and address environmental credits is an evolving community forest plan should approve questions raised by respondents practice and may be subject to it. The community forest plan will be (italicized text was added;): regulation by other Federal or State consulted during spot checks to ensure Comment: A number of comments agencies. All community forest projects consistency with the program; no proposed expanding eligible lands to would need to be compliant with those change made to final rule. include nonforested and developed land regulations and the CFP regulation; Comment: Use the Forest Resources to achieve open space conservation. therefore, no change made to the final Coordinating Committee (FRCC), Response: The Forest Service refers to rule. established in the 2008 Farm Bill, to this program as the ‘‘Community Forest Comment: Augment the funding for establish ranking criteria for the CFP. Program’’ or ‘‘CFP’’ throughout this rule, Forest Legacy Program administration Response: The FRCC focuses on as opposed to the ‘‘Community Forest funds and allow those funds to be used private forest conservation issues which and Open Space Conservation for both programs (Forest Legacy and are not necessarily the only issues of Program.’’ The authorizing statute limits CFP). concern for community forests; no eligible lands to currently forested Response: Funds authorized for one change made to final rule. lands, precluding nonforested lands program cannot be used for another. Use Comment: The term ‘‘landscape from consideration. To avoid future of Forest Legacy Program dollars for the conservation initiative’’ is not widely confusion regarding nonforested open CFP would constitute misappropriation interpreted as inclusive of a town plan space, the Forest Service will begin to of funds; no change made to final rule. or similar conservation plan at the local colloquially refer to the program as the Comment: Make monitoring level; clarify how to tie CFP projects to Community Forest Program or CFP. requirements for new community forests a landscape level conservation Section 230.2 Definitions more stringent by increasing the number initiative. of spot checks and develop a schedule Response: Applicants should use the Comment: Depending on how the in order to improve accountability. landscape level plan most germane to term borrowed funds is defined, cost Response: Each community forest will their CFP project. The definition of share contributions from bonded have unique monitoring needs, and the landscape conservation initiative was sources may or may not be eligible. Forest Service believes that the notice of revised in the final rule and changed the Response: The Forest Service agrees grant agreement, self certification every order of the ranking criteria in § 230.5 that there was a need to clarify the five years, and spot checks identified in Ranking criteria and proposal selection. definition of borrowed funds as a cost the final rule are sufficient project Comment: Clarify the differences share; reworded the definition to read oversight; no change made to final rule. between the CFP and the Forest Legacy ‘‘Funds used for the purpose of cost Comment: The CFP should identify a Program. share which would encumber the specific person or ‘‘face’’ for the Response: The Forest Service felt this subject property, in whole or in part, to program so that communities and was an important clarification; added another party.’’ The prohibition against supporting institutions will know who comparison of the CFP and Forest borrowed funds is intended to protect to contact when they need assistance Legacy Program to the preamble of the the Federal investment and the and information about the program. final rule. community forest property from Response: The CFP Web site (http:// Comment: Add a ranking criterion for foreclosure. Bonds issued by units of www.fs.fed.us/spf/coop/programs/loa/ local governments which recognizes a government would be allowed because

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failure to honor those debts would not conflict with the common use of rock Section 230.5 Ranking Criteria and likely put the community forest at risk quarries on forestland necessary to Proposal Selection and these funding mechanisms are maintain roads essential to working Comment: Remove (a)(2) ‘‘An commonly used to finance land forest operations. Many private forest application with a subject property that purchases. lands have mineral rights retained by makes a substantial contribution to a Comment: Concerns were raised that previous owners, and this aspect of the landscape conservation initiative. A there are a variety of formal and rule would eliminate many good landscape conservation initiative, as informal educational benefits that can projects from consideration; definition defined in this rule, is a landscape-level be linked to community forests not of nonforest uses should distinguish conservation or management plan or specifically mentioned in the proposed between smaller, community-based rule; community forests also help activity that identifies conservation provide clean air as well as clean water. industrial uses that support sustainable needs and goals of a locality, state, or Response: The Forest Service felt this forest management, and large-scale, region,’’ was a valuable addition and amended industrial uses that would dramatically Response: The Forest Service felt that definition of ‘‘Community benefits’’ (2) alter the character of the land. this was an appropriate edit as this criteria was already listed and the to read ‘‘Environmental benefits, Response: The Forest Service felt that revised order of the criteria was including clean air and water, storm this was a valuable clarification water management, and wildlife consistent with the purpose of the CFP; consistent with the purpose of the CFP; deleted (a)(2) language in ‘‘§ 230.5 habitat;’’ and (3) to read ‘‘Benefits from amended ‘‘nonforest uses’’ to read forest-based experiential education Ranking Criteria and Proposal ‘‘Activities that threaten forest cover Selection’’ of the final rule. programs, including K–12 conservation and are inconsistent with the education programs; vocational community forest plan, and include the Section 230.6 Project Costs and Cost education programs; and environmental following: (3) Mining and nonrenewable Share Requirements education through individual study or resource extraction, except for activities voluntary participation in programs Comment: A typical source of cost offered by organizations such as 4–H, that would not require surface share contribution is likely to be in the Boy or Girl Scouts, Master Gardeners, disturbance of the community forest form of bonded monies. Depending on etc. in final rule. such as offsite directional drilling for oil how the term borrowed funds is Comment: Respondents proposed and gas development or onsite use of defined, cost share contributions from alternative definitions of ‘‘forest lands;’’ gravel from existing gravel pits * * * (6) bonded sources may or may not be and questioned if the definitions Structures and facilities, except for eligible; we urge you to find a included prospective reforested or compatible recreational facilities, mechanism (such as subordination afforested acreage (prohibited by concession and educational kiosks, agreements) to allow local governments statute), or included the mangrove forest energy development for onsite use, and qualified conservation type. facilities associated with appropriate organizations to engage local individual Response: The number of comments forest management, and parking areas. investors in purchasing property that related to the definition of forest lands Said structures, facilities and parking would contribute to the match requirements for USFS Community made it clear that some additional areas must have minimal impacts to Forest projects. Provision in the clarification was necessary. A number of forest and water resources.’’ alternative definitions were considered, legislation for a subordination and the Forest Service decided to Section 230.3 Application Process agreement, or other arrangement amend the definition of ‘‘Forest lands’’ perhaps unacceptable to a commercial Role of Professional Forester, State to read ‘‘Lands that are at least five acres lending institution, would still enable Forester or Equivalent Official of the in size, suitable to sustain natural interested individuals to work with Indian Tribe vegetation, and at least 75% forested. local entities and the USFS to preserve working forest; nonprofit organizations Forests are determined both by the Comment: A number of comments sometime pursue bank loans to allow presence of trees and the absence of requested clarification or suggested them to protect properties in a timely other prevailing land uses.’’ either increasing or decreasing the role Comment: Clarify the term manner (e.g., during ‘‘stop gap’’ of State Foresters, Indian tribe officials, ‘‘Landscape conservation initiative’’ by acquisitions) until they can raise the or professional foresters. stating that conservation or management necessary funds through capital plans or activities identify conservation Response: All applicants are campaigns or other fundraising needs and goals of a locality, state, or encouraged to consult with their State activities. Monies from such loans region. Conservation goals identified Forester or equivalent official of the contribute directly to the land need to correspond with the community Indian tribe, but the final rule does not acquisitions, they are accountable, and and environmental benefits outlined for require professional consultation. To they should therefore be allowed as cost the CFP. address the comments, the final rule share. Response: The Forest Service felt that was changed to state that the State Response: The Forest Service this was a valuable clarification, Forester’s review would be based on determined that borrowed funds for the adopted proposed language in both the available time and resources. In purpose of this rule are funds used for preamble explanatory text and the final addition, the State Forester’s review was the purpose of cost share, which would rule. Examples of initiatives include clarified to include determining encumber the subject property, in whole green infrastructure plans, a community eligibility of the applicant and the land, or in part, to another party. The or county land use plan, Indian tribe’s confirming that the project is not also prohibition against borrowed funds is intended to protect the Federal area of interest/homelands plans, a being proposed for funding through the Statewide Forest Resource Assessment investment and the community forest Forest Legacy Program, and identifying and Strategy, etc. property from foreclosure. Bonds issued Comment: Definition of ‘‘nonforest if the project is part of a larger by units of government would be uses’’: The exclusion of mining is in conservation initiative. allowed since failure to honor those

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debts would not likely put the occur in communities from rural to including K–12 conservation education community forest at risk and these urban. Because there will be diversity programs, vocational education funding mechanisms are commonly among forests and among their benefits, programs in disciplines such as forestry used to finance land purchases; this analysis used qualitative, as well as and environmental biology, and reworded the definition of borrowed quantitative, methods to describe the environmental education through funds. potential benefits and costs of the CFP. individual study or voluntary Comment: Amend (e) ‘‘Cost share The primary cost of the CFP is the participation in programs offered by contributions may include the purchase acquisition of the land itself. organizations such as 4–H, Boy or Girl or donation of lands located within the Additionally, the transfer of lands out of Scouts, Master Gardeners, etc.; benefits community forest as long as it is private ownership may reduce the tax from serving as replicable models of provided by an eligible entity and base, or result in forgone economic effective forest stewardship for private legally dedicated to perpetual land benefits offered by development. The landowners; recreational benefits such conservation consistent with CFP analysis assumed that development and as hiking, hunting and fishing secured objectives’’ to include ‘‘such donations associated activity will be established through public access. need to meet the requirements specified elsewhere without resulting in The acquisition of land by eligible under § 230.8 Acquisition requirements forestland conservation and the entities may affect the local real (a)(1)(ii).’’ opportunity cost of lower economic property tax base, depending on Response: The Forest Service felt that activity will be off-set by the benefits applicable state law and the tax status this was a valuable clarification; provided by the community forest, such of the acquiring entity. The possible adopted proposed language in final rule. that the main analyzed costs are the cost impact on the real property tax base of the acquisition and the tax revenue cannot be ascertained, but it is assumed Section 230.7 Grant Requirements foregone by the local government unit. that any land going from taxable to Comment: A grantee may need more These costs were compared with the nontaxable status would cause a than two years to complete the project largely intangible benefits of protecting commensurate shifting of the tax burden and proposed the following language forest land, such as environmental to other taxable properties or, change to (c) as follows ‘‘The grant may goods and services from the land and alternatively, a reduction in local tax be reasonably extended by the Forest nonmarket valued amenities, such as revenues. Service when necessary to scenic views, but also included the The CFP would not materially alter accommodate unforeseen circumstances economic value of retaining an active the budgetary impact of entitlements, in the land acquisition process.’’ working forest in the local economy. user fees, loan programs, or the rights Response: The Forest Service felt that Qualitative and quantitative evidence and obligations of program participants. the proposed change was consistent supported the assertion that community The program is voluntary for each with the purpose of the CFP and forests provide many benefits to participating eligible entity. communities, especially in areas provided the program with additional Project Compliance With the National threatened by conversion of private flexibility; adopted proposed language Environmental Policy Act in final rule. forest land. This final rule will not have an Project grants are subject to National Regulatory Certifications annual effect of $100 million or more on Environmental Policy Act (NEPA) and Regulatory Planning and Review the economy nor adversely affect must comply with agency NEPA productivity, competition, jobs, the implementing procedures as described Executive Orders 13563 and 12866 environment, public health or safety, in 40 CFR parts 1500–1508 as well as direct agencies to assess all costs and nor adversely affect State or local the Council on Environmental Quality’s benefits of available regulatory governments. This final rule will not NEPA procedures at 40 CFR parts 1500– alternatives and, if regulation is interfere with an action taken or 1508. CFP grants are to be used for necessary, to select regulatory planned by another agency nor raise transferring title and ownership of approaches that maximize net benefits new legal or policy issues. private lands to third parties and will (including potential economic, Finally, this final rule will not alter not fund any ground-disturbing environmental, public health and safety the budgetary impact of entitlements, activities. The Forest Service has effects, distributive impacts and equity). grants, user fees, or loan programs, or concluded that CFP grants fall under the Executive Order 13563 emphasizes the the rights and obligations of recipients categorical exclusion provided in the importance of quantifying both costs of such programs. This final rule does Forest Service’s NEPA procedures for and benefits, of reducing costs, of not regulate the private use of land or ‘‘acquisition of land or interest in land’’ harmonizing rules, and of promoting the conduct of business. It is a grant 36 CFR 220.6(d)(6); 73 FR 43084 (July flexibility. This rule has been program to local governments, Indian 24, 2008). As a result, CFP project grants designated a ‘‘significant regulatory tribes, and qualified nonprofit are excluded from documentation in an action’’ although not economically organizations for purposes of acquiring environmental assessment or significant, under Section 3(f) of land in fee-simple for resource environmental impact statement. Executive Order 12866. Accordingly, conservation and open space the rule has been reviewed by the Office preservation. By providing funding to Proper Consideration of Small Entities of Management and Budget. eligible entities for land acquisition, the This final rule has been considered in A Cost Benefit Analysis has been Federal Government will promote a light of Executive Order 13272 regarding completed and emphasizes that the variety of benefits from sustainable property considerations of small entities benefits for each established forest will forest management including, but not and the Small Business Regulatory vary, depending on characteristics of the limited to: Economic benefits such as Enforcement Fairness Act of 1996. The forest land, the community, and the timber and non-timber products; Forest Service consulted with the Small management objectives. Where these environmental benefits, including clean Business Administration which forests are located will also be air and water, stormwater management, concurred that the final rule for dependent on the communities that and wildlife habitat; benefits from voluntary participation in the CFP does support them; therefore, they could forest-based experiential learning, not impose significant direct costs on

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small entities. This final rule imposes Consultations and Coordination With No Takings Implementations no additional requirements on the Indian Tribes This final rule has been analyzed in affected public. Entities most likely This final rule has tribal implications accordance with the principles and affected by this final rule are the local criteria contained in Executive Order governments, qualified nonprofit as defined in Executive Order 13175. Section 7A(a)(1) of the Cooperative 12630, and the Forest Service has been organizations, and Indian tribes eligible determined that the final rule does not to receive a grant through the CFP. The Forestry Assistance Act establishes that Indian tribes as defined by Section 4 of pose the risk of a taking of minimum requirements on small constitutionally protected private entities imposed by this final rule are the Indian Self-Determination and Education Assistance Act (25 U.S.C. property. This final rule implements a necessary to protect the public interest, program to assist eligible entities to are not administratively burdensome or 450b) are eligible entities to participate in the CFP. acquire land from willing landowners. costly to meet, and are within the Any land use restrictions are voluntarily capabilities of small entities to perform. Indian tribes were invited to consult undertaken by program participants. It does not compel the expenditure of on the CFP proposed rule prior to $100 million or more by any State, local review and comment by the general Environmental Impact or Indian tribal government, or anyone public. The consultation process was The Forest Service has determined in the private sector. initiated September 30, 2010. The that this final rule falls under the Unfunded Mandates Deputy Chief for State and Private categorical exclusion provided in Forest Forestry sent a letter to Forest Service Service regulations on National Pursuant to Title II of the Unfunded regional leadership requesting that they Mandates Reform Act of 1995 (2 U.S.C. Environmental Policy Act procedures. initiate consultation. Each unit then Such procedures exclude from 1531–1538), signed into law on March initiated consultation with Indian tribes, 22, 1995, the Agency has assessed the documentation in an environmental providing them with information about assessment or environmental impact effects of this final rule on State, local, the CFP, the proposed rule, how to and Indian Tribal governments and the statement ‘‘rules, regulations, or policies request government-to-government to establish service wide administrative private sector. This final rule does not consultation, and where to send compel the expenditure of $100 million procedures, program processes, or comments. Consultation concluded instructions.’’ 36 CFR 220.6(d)(2); 73 FR or more by any State, local or Indian March 7, 2011. tribal governments, or anyone in the 43084 (July 24, 2008). This final rule private sector. Therefore, a statement Three Indian tribes consulted with the outlines the programmatic under Section 202 of that Act is not Forest Service about the CFP, many implementation of the CFP and has no required. Indian tribes discussed the CFP with direct effect on Forest Service decisions Forest Service personnel, and three for its land management activities or on Federalism Indian tribes sent comments through the ground disturbing activities conducted The Forest Service has considered public comment process. Two regions of by third-party entities. this final rule under the requirements of the United States Department of the Energy Effects Executive Order 13132, Federalism, and Interior, Bureau of Indian Affairs (BIA) Executive Order 12875, Government also sent comments through the public This final rule was reviewed under Partnerships. The Forest Service has comment process. Indian tribal and BIA Executive Order 13211 of May 18, 2001, determined that the rule conforms to the comments were analyzed separately Actions Concerning Regulations That federalism principles set out in these from general public comments. The Significantly Affect Energy Supply, Executive Orders. The rule would not Forest Service incorporated the input Distribution, or Use. It was determined impose any compliance costs on the received through consultation and the that this final rule does not constitute a States other than those imposed by public comment process into the significant energy action as defined in statute, and would not have substantial development of this final rule. the Executive Order. direct effects on the States, on the Through consultation and comments Civil Justice Reform relationship between the Federal a number of Indian tribes questioned if This final rule has been reviewed Government and the States, or on the they are on an even playing field with distribution of power and under Executive Order 12988, Civil all other applicants, and asked if the Justice Reform. The Forest Service did responsibilities among the various CFP would provide priority to Indian levels of government. Based on not identify any State or local laws or tribes which have lost land base due to regulations that are in conflict with this comments received on the proposed Federal land acquisitions in the past. rule, additional consultation with State final rule or that would impede full The Forest Service will ensure that all implementation of this final rule. and local governments was determined applicants are given an equal to not be necessary. Nevertheless, in the event that such a opportunity. Specific tribal concerns, conflict is identified, the final rule Controlling Paperwork Burdens on the such as loss of land base, may be would not preempt the State or local Public described in the application. laws or regulations found to be in In accordance with the Paperwork The Agency has determined that the conflict. Further, in that case, no Reduction Act of 1995 [44 U.S.C. CFP does not impose substantial direct retroactive effect would be given to this Chapter 35], the Forest Service compliance costs on Indian tribes. This rule. The Forest Service would not requested and received an approval of a rule does not mandate Indian tribe require the use of administrative new information collection. participation in the CFP, but does proceedings before parties could file ensure they have an opportunity to suit in court challenging its provisions. OMB Number: 0596—New apply. A more complete summary of List of Subjects in 36 CFR Part 230 Comments were sought on the tribal consultation may be found in the information collection aspect of this preamble of this rule, under Grant programs, Grants rule at the proposed rule stage; none ‘‘Government to Government administration, Community forest, State were received. Consultation with Indian Tribes’’. and local governments, Indian tribes,

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Nonprofit organizations, Conservation, Community benefits. One or more of Eligible lands. Private forest lands Forests and forest products, Land sales. the following: that: For the reasons set forth in the (1) Economic benefits such as timber (1) Are threatened by conversion to preamble, the Forest Service hereby and non-timber products resulting from nonforest uses; amends part 230 of Title 36 of the Code sustainable forest management and (2) Are not lands held in trust by the of Federal Regulations by revising tourism; United States; and subpart A to read as follows: (2) Environmental benefits, including (3) If acquired by an eligible entity, clean air and water, stormwater can provide defined community benefits PART 230—STATE AND PRIVATE management, and wildlife habitat; under the CFP and allow public access. FORESTRY ASSISTANCE (3) Benefits from forest-based Equivalent officials of Indian tribes. experiential learning, including K–12 An individual designated and ■ 1. The authority citation for part 230 conservation education programs; authorized by the Indian tribe. is revised to read as follows: vocational education programs in Federal appraisal standards. The Authority: 16 U.S.C. 2103(d) & 2109(e). disciplines such as forestry and current Uniform Appraisal Standards environmental biology; and for Federal Land Acquisitions ■ 2. Revise Subpart A to read as follows. environmental education through developed by the Interagency Land individual study or voluntary Acquisition Conference (also known as Subpart A—Community Forest and participation in programs offered by the yellow book). Open Space Conservation Program organizations such as 4–H, Boy or Girl Fee-simple. Absolute interest in real Scouts, Master Gardeners, etc.; Sec. property, versus a partial interest such 230.1 Purpose and scope. (4) Benefits from serving as replicable as a conservation easement. 230.2 Definitions. models of effective forest stewardship Forest lands. Lands that are at least 230.3 Application process. for private landowners; and, five acres in size, suitable to sustain 230.4 Application requirements. (5) Recreational benefits such as natural vegetation, and at least 75 230.5 Ranking criteria and proposal hiking, hunting and fishing secured percent forested. Forests are determined selection. with public access. both by the presence of trees and the 230.6 Project costs and cost share Community forest. Forest land owned absence of nonforest uses. requirements. in fee-simple by an eligible entity that Grant recipient: An eligible entity that 230.7 Grant requirements. provides public access and is managed receives a grant from the U.S. Forest 230.8 Acquisition requirements. to provide community benefits pursuant Service through the CFP. 230.9 Ownership and use requirements. to a community forest plan. 230.10 Technical assistance funds. Indian tribe. Defined by Section 4 of Community forest plan. A tract- the Indian Self-Determination and Subpart A—Community Forest and specific plan that guides the Education Assistance Act (25 U.S.C. Open Space Conservation Program management and use of a community 450b); for purposes of this rule, Indian forest, was developed with community tribe includes federally recognized § 230.1 Purpose and scope. involvement, and includes the following Indian tribes and Alaska Native (a) The regulations of this subpart components: Corporations. govern the rules and procedures for the (1) A description of the property, Landscape conservation initiative. A Community Forest and Open Space including acreage and county location, landscape conservation initiative, as Conservation Program (CFP), land use, forest type and vegetation defined in this final rule, is a landscape- established under Section 7A of the cover; level conservation or management plan (2) Objectives for the community Cooperative Forestry Assistance Act of or activity that identifies conservation forest; 1978 (16 U.S.C. 2103d). Under the CFP, (3) Community benefits to be needs and goals of a locality, state, or the Secretary of Agriculture, acting achieved from the establishment of the region. Examples of initiatives include through the Chief of the Forest Service, community forest; community green infrastructure plans, a awards grants to local governments, (4) Mechanisms promoting community or county land use plan, Indian tribes, and qualified nonprofit community involvement in the Indian tribe’s area of interest/homelands organizations to establish community development and implementation of the plans, a Statewide Forest Resource forests for community benefits by community forest plan; Assessment and Strategy, etc. The acquiring and protecting private (5) Implementation strategies for conservation goals identified in the plan forestlands. achieving community forest plan must correspond with the community (b) The CFP applies to eligible entities objectives; and environmental benefits outlined for within any of the 50 States, the District (6) Plans for the utilization or the CFP. of Columbia, the Commonwealth of demolition of existing structures and Local governmental entity. Any Puerto Rico, the Virgin Islands of the proposed needs for further municipal government, county United States, the Commonwealth of the improvements; government, or other local government Northern Mariana Islands, the Federated (7) Planned public access, including body with jurisdiction over local land States of Micronesia, the Republic of the proposed limitations to protect cultural use decisions as defined by Federal or Marshall Islands, the Republic of Palau, or natural resources, or public health State law. and the territories and possessions of and safety. In addition, local Nonforest uses. Activities that the United States. governments and qualified nonprofits threaten forest cover and are need to provide a rationale for any inconsistent with the community forest § 230.2 Definitions. proposed limitations; and plan, and include the following: The terms used in this subpart are (8) A description for the long-term use (1) Subdivision; defined as follows: and management of the property. (2) Residential development, except Borrowed funds. Funds used for the Eligible entity. A local governmental for a caretaker building; purpose of cost share which would entity, Indian tribe, or a qualified (3) Mining and nonrenewable encumber the subject property, in whole nonprofit organization that is qualified resource extraction, except for activities or in part, to another party. to acquire and manage land. that would not require surface

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disturbance of the community forest Public access. Access that is provided § 230.4 Application requirements. such as directional drilling for oil and on a non-discriminatory basis at The following section outlines gas development or onsite use of gravel reasonable times and places, but may be minimum application requirements, but from existing gravel pits; limited to protect cultural and natural the RFA may include additional (4) Industrial use, including the resources or public health and safety. requirements. manufacturing of products; State Forester. The State employee (a) Documentation verifying that the (5) Commercial use, except for who is responsible for administration applicant is an eligible entity and that sustainable timber or other renewable and delivery of forestry assistance the proposed acquisition is of eligible resources, and limited compatible within a State, or equivalent official. lands. commercial activities to support (b) Applications must include the cultural, recreational and educational § 230.3 Application process. following regarding the property use of the community forest by the (a) The Forest Service will issue a proposed for acquisition: public; and national request for applications (RFA) (1) A description of the property, (6) Structures and facilities, except for for grants under the CFP. The RFA will including acreage and county location; compatible recreational facilities, be posted to http://www.grants.gov as (2) A description of current land uses, concession and educational kiosks, well as other venues. The RFA will including improvements; energy development for onsite use, include the following information (3) A description of forest type and facilities associated with appropriate outlined in this final rule: vegetative cover; forest management and parking areas; (1) The process for submitting an (4) A map of sufficient scale to show said structures, facilities and parking application; the location of the property in relation areas must have minimal impacts to (2) Application requirements to roads and other improvements as forest and water resources. (§ 230.4); well as parks, refuges, or other protected Qualified nonprofit organization. (3) Review process and criteria that lands in the vicinity; Defined by the CFP authorizing statute will be used by the Forest Service (5) A description of applicable zoning (Pub. L. 110–234; 122 Stat. at 1281), an (§ 230.5); and and other land use regulations affecting organization that is described in Section (4) Other conditions determined the property; 170(h)(3) of the Internal Revenue Code appropriate by the Forest Service. (6) Relationship of the property of 1986 (26 U.S.C. 170(h)(3)) and (b) Pursuant to the RFA, interested within and its contributions to a operates in accordance with one or more eligible entities will submit an landscape conservation initiative; and of the conservation purposes specified application for program participation to: (7) A description of any threats of in Section 170(h)(4)(A) of that Code (26 (1) The State Forester or equivalent conversion to nonforest uses. U.S.C. 170(h)(4)(A)). For the purposes of official, for applications by local (c) Information regarding the the CFP, a qualified nonprofit governments and qualified nonprofit proposed establishment of a community organization must meet the following organizations, or forest, including: requirements: (2) The equivalent officials of the (1) A description of the benefiting (1) Consistent with regulations of the Indian tribe, for applications submitted community, including demographics, Internal Revenue Service at 26 CFR by an Indian tribe. and the associated benefits provided by 1.170A–14(c)(1): (c) Interested eligible entities will also the proposed land acquisition; (i) Have a commitment to protect in notify the Forest Service, pursuant to (2) A description of the community perpetuity the purposes for which the the RFA, when submitting an involvement to date in the planning of tract was acquired under the CFP; and application to the State Forester or the community forest and of the (ii) Demonstrate that it has the equivalent officials of the Indian tribe. community involvement anticipated in resources to enforce the protection of (d) The State Forester or equivalent its long-term management; the property as a community forest as a official of the Indian tribe will forward (3) An identification of persons and condition of acquiring a tract under the all applications to the Forest Service, organizations that support the project CFP. and, as time and resources allow: and their specific role in acquiring the (2) Operate primarily or substantially (1) Provide a review of each land and establishing and managing the in accordance with one or more of the application to help the Forest Service community forest; and conservation purposes specified in determine: (4) A draft community forest plan. Section 170(h)(4)(A) of I.R.S. code (26 (i) That the applicant is an eligible The eligible entity is encouraged to U.S.C. 170(h)(4)(A)). Conservation entity; work with the State Forester or purposes include: (ii) That the land is eligible; equivalent official of the Indian tribe for (i) The preservation of land areas for (iii) That the proposed project has not technical assistance when developing or outdoor recreation by, or for the been submitted for funding updating the Community Forest Plan. In education of, the general public, consideration under the Forest Legacy addition, the eligible entity is (ii) The protection of a relatively Program; and encouraged to work with technical natural habitat of fish, wildlife, or (iv) Whether the project contributes to specialists, such as professional plants, or similar ecosystem, a landscape conservation initiative. foresters, recreation specialists, wildlife (iii) The preservation of open space (2) Describe what technical assistance biologists, or outdoor education (including farmland and forest land) provided through CFP they may render specialists, when developing the where such preservation is for the in support of implementing the Community Forest Plan. scenic enjoyment of the general public, proposed community forest project and (d) Information regarding the or pursuant to a clearly delineated an estimate of needed financial proposed land acquisition, including: Federal, State, or local governmental assistance (§ 230.10). (1) A proposed project budget conservation policy, and will yield a (e) A proposed application cannot be (§ 230.6); significant public benefit, or submitted for funding consideration (2) The status of due diligence, (iv) The preservation of a historically simultaneously for both the CFP and the including signed option or purchase and important land area or a certified Forest Service’s Forest Legacy Program sale agreement, title search, minerals historic structure. (16 U.S.C. 2103c). determination, and appraisal;

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(3) Description and status of cost (4) Extent to which the community the River and Harbor Act, or the share (secure, pending, commitment forest contributes to a landscape Endangered Species Act; letter, etc.) (§ 230.6); conservation initiative; (5) Not include borrowed funds; and (4) The status of negotiations with (5) Extent of due diligence completed (6) Be accomplished within the grant participating landowner(s) including on the project, including cost share period. purchase options, contracts, and other committed and status of appraisal; (e) Cost share contributions may terms and conditions of sale; (6) Likelihood that, unprotected, the include the purchase or donation of (5) The proposed timeline for property would be converted to lands located within the community completing the acquisition and nonforest uses; forest as long as it is provided by an establishing the community forest; and (7) Costs to the Federal government; eligible entity and legally dedicated to (6) Long term management costs and and perpetual land conservation consistent funding source(s). (8) Additional considerations as may with CFP program objectives; such (e) Applications must comply with be outlined in the RFA. donations need to meet the requirements specified under § 230.8 the Uniform Federal Assistance § 230.6 Project costs and cost share Regulations (7 CFR part 3015). Acquisition requirements (a)(1)(ii). requirements. (f) For the purposes of calculating the (f) Applications must also include the (a) The CFP Federal contribution forms required to process a Federal cost share contribution, the grant cannot exceed 50 percent of the total recipient may request the inclusion of grant. Section 230.7 references the grant project costs. forms that must be included in the project due diligence costs, such as title (b) Allowable project and cost share review and appraisals, that were application and the specific costs will include the purchase price administrative requirements that apply incurred prior to issuance of the grant. and the following transactional costs These pre-award costs may occur up to to the type of Federal grant used for this associated with the acquisition: program. one year prior to the issuance of the appraisals and appraisal reviews, land grant, but cannot include the purchase § 230.5 Ranking criteria and proposal surveys, legal and closing costs, of CFP land, including cost share tracts. selection. development of the community forest § 230.7 Grant requirements. (a) Using the criteria described below, plan, and title examination. The to the extent practicable, the Forest following principles and procedures (a) The following grant forms and Service will give priority to an will determine allowable costs for supporting materials must be included application that maximizes the delivery grants: in the application: of community benefits, as defined in (1) For local and Indian tribal (1) An Application for Federal this final rule, through a high degree of governments, refer to 2 CFR Part 225, Assistance (Standard Form 424); public participation; and Cost Principles for State, Local, and (2) Budget information (Standard Indian Tribal Governments (OMB Form SF 424c—Construction Programs); (b) The Forest Service will evaluate Circular A–87) . (3) Assurances of compliance with all all applications received by the State (2) For qualified nonprofit applicable Federal laws, regulations, Foresters or equivalent officials of the organizations, refer to 2 CFR Part 230, and policies (Standard Form 424d— Indian tribe and award grants based on Cost Principles for Non-Profit Construction Programs); and the following criteria: Organizations (OMB Circular A–122). (4) Additional forms, as may be (1) Type and extent of community (c) Project costs do not include the required. benefits provided. Community benefits following: (b) Once an application is selected, are defined in this final rule as: (1) Long-term operations, funding will be obligated to the grant (i) Economic benefits such as timber maintenance, and management of the recipient through a grant. and non-timber products; land; (c) The initial grant period will be two (ii) Environmental benefits, including (2) Construction of buildings or years, and acquisition of lands should clean air and water, stormwater recreational facilities; occur within that timeframe. The grant management, and wildlife habitat; (3) Research; may be reasonably extended by the (iii) Benefits from forest-based (4) Existing liens or taxes owed; and Forest Service when necessary to experiential learning, including K–12 (5) Costs associated with preparation accommodate unforeseen circumstances conservation education programs; of the application, except any allowable in the land acquisition process. vocational education programs in project costs specified in section (d) The grant paperwork must adhere disciplines such as forestry and 230.6(b) completed as part of the to grant requirements listed below: environmental biology; and application. (1) Local and Indian tribal environmental education through (d) Cost share contributions can governments should refer to 2 CFR Part individual study or voluntary include cash, in-kind services, or 225 Cost Principles for State, Local, and participation in programs offered by donations and must meet the following Indian Tribal Governments (OMB organizations such as 4–H, Boy or Girl requirements: Circular A–87) and 7 CFR Part 3016 Scouts, Master Gardeners, etc; (1) Be supported by grant regulations (Uniform Administrative Requirements (iv) Benefits from serving as replicable described above; for Grants and Cooperative Agreements models of effective forest stewardship (2) Not include other Federal funds to State and Local Governments) for for private landowners; and unless specifically authorized by directions. (v) Recreational benefits such as Federal statute; (2) Nonprofit organizations should hiking, hunting and fishing secured (3) Not include non-Federal funds refer to 2 CFR Part 215 Uniform through public access. used as cost share for other Federal Administrative Requirements for Grants (2) Extent and nature of community programs; and Other Agreements with Institutions engagement in the establishment and (4) Not include funds used to satisfy of Higher Education, Hospitals and long-term management of the mandatory or compensatory mitigation Other Nonprofit Organizations (OMB community forest; requirements under a Federal Circular A–110) and 7 CFR Part 3019 (3) Amount of cost share leveraged; regulation, such as the Clean Water Act, Uniform Administrative Requirements

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for Grants and Cooperative Agreements which address both surface and (e) Every five years, the grant with Institutions of Higher Education, subsurface minerals. recipients will submit to the Forest Hospitals, and other Nonprofit (4) Ensure that title to lands acquired Service a self-certifying statement that Organizations for directions. conforms to title standards applicable to the property has not been sold or (e) Forest Service must approve any State land acquisitions where the land converted to nonforest uses or a use amendment to a proposal or request to is located: inconsistent with the purpose of the reallocate funding within a grant (i) Title to lands acquired using CFP CFP. proposal. If negotiations on a selected funds must not be subject to (f) Grant recipients will be subject to project fail, the applicant cannot encumbrances or agreements of any a spot check conducted by the Forest substitute an alternative site. kind that would be contrary to the Service to verify that property acquired (f) The grant recipient must comply purpose of the CFP. under the CFP has not been sold or with the requirements in § 230.8 before (ii) Title insurance must not be a converted to nonforest uses or a use funds will be released. substitute for acceptable title. inconsistent with the purpose of the (g) After the project has closed, as a (5) Record with the deed in the lands CFP. requirement of the grant, grant record of the local county or recipients will be required to provide municipality, a Notice of Grant § 230.10 Technical assistance funds. the Forest Service with a Geographic Requirement, which includes the CFP technical assistance funds may Information System (GIS) shapefile: a following: be provided to State Foresters or digital, vector-based storage format for (i) States that the property (including equivalent officials of Indian tribes storing geometric location and cost share tracts) was purchased with through an administrative grant to help associated attribute information, of CFP CFP funds; implement community forest projects project tracts and cost share tracts, if (ii) Provides a legal description; funded through the CFP, and as a result, (iii) Identifies the name and address applicable. funds will only be provided to States or of the grant recipient who is the (h) Any funds not expended within Indian tribes with a CFP project funded authorized title holder; the grant period must be de-obligated within their jurisdiction. Section 7A (f) (iv) States the purpose of the CFP; and revert to the Forest Service for (v) References the Grant Agreement of the authorizing statute limits the redistribution. with the Forest Service (title and funds made available for program (i) All media, press, signage, and other agreement number) and the address administration and technical assistance documents discussing the creation of where it is kept on file; to no more than 10% of all funds made the community forest must reference the (vi) States that the grant recipient available to carry out the program for partnership and financial assistance by confirms its obligation to manage the each fiscal year. the Forest Service through the CFP. interest in real property pursuant to the Dated: October 14, 2011. § 230.8 Acquisition requirements. grant, the Community Forest Plan, and Arthur L. Blazer, (a) Grant recipients participating in the purpose of the CFP; Deputy Under Secretary, NRE. (vii) States that the grant recipient the CFP must complete the following, [FR Doc. 2011–27117 Filed 10–17–11; 4:15 pm] will not convey or encumber the interest which applies to all tracts, including BILLING CODE 3410–11–P in real property, in whole or in part, to cost share tracts: (1) Complete an appraisal: another party; and (viii) States that the grant recipient (i) For lands purchased with CFP DEPARTMENT OF VETERANS will manage the interest in real property funds, the appraisal must comply with AFFAIRS consistent with the purpose of the CFP. Federal Appraisal Standards prior to the release of the grant funds. The grant § 230.9 Ownership and use requirements. 38 CFR Part 1 recipient must provide documentation (a) Grant recipient shall complete the RIN 2900–AN95 that the appraisal and associated final community forest plan within 120 appraisal review were conducted in a days of the land acquisition, and must Sharing Information Between the manner consistent with the Federal update the plan periodically to guide Department of Veterans Affairs and the appraisal standards. the management and the community Department of Defense (ii) For donated cost share tracts, the benefits of the community forest. AGENCY: market value must be determined by an (b) Grant recipient shall provide Department of Veterans Affairs. independent appraiser. The value needs appropriate public access. ACTION: Interim final rule. to be documented by a responsible (c) In the event that a grant recipient SUMMARY: This document amends the official of the party to which the sells or converts to nonforest uses or a Department of Veterans Affairs (VA) property is donated. use inconsistent with the purpose of the regulation pertaining to the applicability (2) Prior to closing, notify the CFP, a parcel of land acquired under the of certain VA regulations that restrict landowner in writing of the appraised CFP, the grant recipient shall: the disclosure of certain medical value of the property and that the sale (1) Pay the United States an amount information to the Department of is voluntary. If the grant recipient has a equal to the current sale price or the Defense (DoD). This interim final rule voluntary option for less than appraised current appraised value of the parcel, removes a restriction that is not required value, they do not have to renegotiate whichever is greater; and the agreement. (2) Not be eligible for additional by the applicable statute, 38 U.S.C. (3) Purchase all surface and grants under the CFP. 7332(e), and is inconsistent with the subsurface mineral rights, whenever (d) For Indian tribes, land acquired intent and purpose of that statute. possible. However, if severed mineral using a grant provided under the CFP DATES: Effective Date: This interim final rights cannot be obtained, then the grant must not be sold, converted to nonforest rule is effective October 20, 2011. recipient must follow the retention of uses or a use inconsistent with the Comments must be received by VA on qualified mineral interest requirements purpose of the CFP, or converted to land or before December 19, 2011. outlined in the Internal Revenue Service held in trust by the United States on ADDRESSES: Written comments may be regulations (26 CFR 1.170A–14 (g)(4)), behalf of any Indian tribe. submitted through www.

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Regulations.gov; by mail or hand- is or was subject to the Uniform Code Administrative Procedure Act delivery to the Director, Regulations of Military Justice.’’ This restriction is Management (02REG), Department of narrower than the statutory restriction, In accordance with 5 U.S.C. Veterans Affairs, 810 Vermont Ave., and it impedes VA’s ability to share 553(b)(3)(B) and (d)(3), the Secretary of NW., Room 1068, Washington, DC with DoD important medical Veterans Affairs finds that there is good 20420; or by fax to (202) 273–9026. information pertaining to veterans, so cause to dispense with the opportunity (This is not a toll-free number.) that we can coordinate their care and for advance notice and public comment Comments should indicate that they are treatment. Our need to share this and good cause to publish this rule with submitted in response to ‘‘RIN 2900– information is critical to the health and an immediate effective date. As stated AN95—Sharing Information between well-being of our veterans, particularly above, this interim final rule is the Department of Veterans Affairs and those whose records are transferred necessary to eliminate an unnecessary the Department of Defense.’’ Copies of electronically between DoD and VA for regulatory restriction on VA’s ability to comments received will be available for medical care. Medical care requires the share certain patient information with public inspection in the Office of ability to make accurate and informed DoD that impedes VA’s ability to Regulation Policy and Management, decisions, often under great time provide needed health care to veterans Room 1063B, between the hours of 8 constraints. VA and DoD clinicians and engage in critical programs with a.m. and 4:30 p.m. Monday through must have the most accurate and DoD, as described earlier in this notice. Friday (except holidays). Please call comprehensive data available to ensure Delaying the effective date of this rule (202) 461–4902 for an appointment. that they provide the highest quality would negatively impact the full (This is not a toll-free number.) In care possible. VA and DoD have made development and implementation of a addition, during the comment period, great strides in ensuring that the VA and DoD electronic record system. comments may be viewed online exchange of medical information Over 4 million patients are seen jointly through the Federal Docket Management regarding current and former members by VA and DoD. By removing this System (FDMS) at http://www. of the military is available wherever the unnecessary restriction, VA and DoD Regulations.gov. care is being provided. We have can each maximize the benefits of an FOR FURTHER INFORMATION CONTACT: discovered that, particularly in this age electronic record system through which Stephania Griffin, Veterans Health of electronic health records, this clinicians in either Department are able Administration Privacy Officer, Office regulatory restriction creates an to access health data on those shared of Information (19F2), Veterans Health impediment to maximizing the patients in real time and similar Administration, Department of Veterans exchange of information. Critical information exchanges for outpatient Affairs, 810 Vermont Ave., NW., medical history may be out of reach of pharmacy and medication allergy data Washington DC, 20420, (704) 245–2492. the clinician treating a patient with a and for the electronic sharing of order (This is not a toll-free number.) chronic condition. In contrast, having a entry and results retrieval of chemistry, SUPPLEMENTARY INFORMATION: Section fully developed medical record will hematology, anatomic pathology, and 7332(a)(1) of title 38, United States ensure that VA and DoD clinicians microbiology laboratory tests. To delay Code, affords special protection against avoid allergic reactions from known the effective date would hamper the the disclosure of VA medical ‘‘[r]ecords drug allergies and negative interactions electronic exchange of health of the identity, diagnosis, prognosis, or of a new drug with one previously information between VA and DoD, treatment of any patient or subject prescribed. It will also ensure that which, to ensure high levels of patient which are maintained in connection patients will not unnecessarily undergo care and safety, must include the with the performance of any program or medical procedures that were already information related to the diagnoses activity (including education, training, performed elsewhere. covered by this regulation. In light of treatment, rehabilitation, or research) Further, the additional restriction these detrimental and potentially relating to drug abuse, alcoholism or impedes VA’s ability to fully engage in detrimental effects, the Secretary finds it alcohol abuse, infection with the human Presidential- and Congressional- is impracticable, unnecessary, and immunodeficiency virus, or sickle cell supported interoperability initiatives contrary to public interest to delay this anemia.’’ However, an exception in with DoD, such as electronic health regulation for the purpose of soliciting section 7332(e) states: ‘‘The prohibitions record initiatives pursuant to Executive advance public comment, or to have a of this section shall not prevent any Order 13335 and the Virtual Lifetime delayed effective date. interchange of records-(1) within and Electronic Record initiative, a strategic Accordingly, we are issuing this rule among those components of [VA] initiative that will ensure timely access as an interim final rule, with an furnishing health care to veterans, or to key electronic information on immediate effective date. We will determining eligibility for benefits patients from the time they enter the consider and address comments that are under this title; or (2) between such military through their status as received within 60 days of the date this components furnishing health care to Veterans. We note as well that this interim final rule is published in the veterans and the Armed Forces.’’ regulatory limitation was not intended VA implemented section 7332(e) in to have these negative results on VA’s Federal Register. 38 CFR 1.461(c)(1); however, in so ability to provide comprehensive high- Effect of Rulemaking doing, we did not implement the quality health care to veterans and, specific exception that Congress where applicable, to support DoD in The Code of Federal Regulations, as provided in the statute for the exchange similarly caring for servicemembers and revised by this interim final rule, of information between VA and DoD. military retirees. Therefore, the represents the exclusive legal authority Instead, we imposed an additional proposed amendment to 38 CFR on this subject. No contrary rules or restriction on the scope of information 1.461(c)(1) will allow VA to fulfill procedures are authorized. All VA that may be interchanged and shared Congress’ clear intention that VA and guidance will be read to conform with between VA and DoD, limiting it to only DOD engage in the interchange of this rulemaking if possible or, if not ‘‘information pertaining to a person records while remaining consistent with possible, such guidance is superseded relating to a period when such person 38 U.S.C. 7332. by this rulemaking.

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Paperwork Reduction Act or tribal governments or communities; authorized the undersigned to sign and This rule contains no collections of (2) create a serious inconsistency or submit the document to the Office of the otherwise interfere with an action taken information under the Paperwork Federal Register for publication or planned by another agency; (3) Reduction Act (44 U.S.C. 3501–3521). electronically as an official document of materially alter the budgetary impact of the Department of Veterans Affairs. John Regulatory Flexibility Act entitlements, grants, user fees, or loan R. Gingrich, Chief of Staff, Department The Secretary hereby certifies that the programs or the rights and obligations of of Veterans Affairs, approved this adoption of this rule would not have a recipients thereof; or (4) raise novel document on October 14, 2011, for significant economic impact on a legal or policy issues arising out of legal publication. mandates, the President’s priorities, or substantial number of small entities as List of Subjects in 38 CFR Part 1 they are defined in the Regulatory the principles set forth in the Executive Flexibility Act, 5 U.S.C. 601–612. This Order. Administrative practice and The economic, interagency, rule will not directly affect any small procedure, Archives and records, budgetary, legal, and policy entities; only individuals could be Cemeteries, Claims, Courts, Crime, implications of this interim final rule directly affected. Therefore, pursuant to Flags, Freedom of information, have been examined and it has been 5 U.S.C. 605(b), this rule is exempt from Government contracts, Government determined not to be a significant the initial and final regulatory flexibility employees, Government property, regulatory action. analysis requirements of sections 603 Infants and children, Penalties, Privacy, and 604. Unfunded Mandates Reporting and recordkeeping requirements, Security measures. Executive Orders 13563 and 12866 The Unfunded Mandates Reform Act of 1995 requires, at 2 U.S.C. 1532, that Dated: October 17, 2011. Executive Orders 13563 and 12866 agencies prepare an assessment of William F. Russo, direct agencies to assess the costs and anticipated costs and benefits before Deputy Director, Office of Regulation Policy benefits of available regulatory issuing any rule that may result in the and Management, Department of Veterans alternatives and, when regulation is expenditure by State, local, and tribal Affairs. necessary, to select regulatory governments, in the aggregate, or by the For the reasons stated in the approaches that maximize net benefits private sector, of $100 million or more (including potential economic, preamble, the Department of Veterans (adjusted annually for inflation) in any Affairs amends 38 CFR part 1 as follows: environmental, public health and safety one year. This rule will have no such effects, distributive impacts, and effect on State, local, and tribal PART 1—GENERAL PROVISIONS equity). Executive Order 13563 governments, or on the private sector. emphasizes the importance of ■ 1. The authority citation for part 1 Catalog of Federal Domestic Assistance quantifying both costs and benefits, continues to read as follows: reducing costs, harmonizing rules, and The Catalog of Federal Domestic promoting flexibility. Executive Order Authority: 38 U.S.C. 501(a), and as noted Assistance numbers and titles for the in specific sections. 12866 defines a ‘‘significant regulatory programs affected by this document are action,’’ which requires review by the 64.008, Veterans Domiciliary Care; § 1.461 [Amended] Office of Management and Budget 64.009, Veterans Medical Care Benefits; ■ 2. In the first sentence of § 1.461(c)(1), (OMB), as any regulatory action that is 64.010, Veterans Nursing Home Care; remove the phrase ‘‘, of information likely to result in a rule that may: (1) 64.011, Veterans Dental Care; 64.012, pertaining to a person relating to a Have an annual effect on the economy Veterans Prescription Service; and period when such person is or was of $100 million or more or adversely 64.013, Veterans Prosthetic Appliances. affect in a material way the economy, a subject to the Uniform Code of Military sector of the economy, productivity, Signing Authority Justice’’. competition, jobs, the environment, The Secretary of Veterans Affairs, or [FR Doc. 2011–27155 Filed 10–19–11; 8:45 am] public health or safety, or State, local, designee, approved this document and BILLING CODE 8320–01–P

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Proposed Rules Federal Register Vol. 76, No. 203

Thursday, October 20, 2011

This section of the FEDERAL REGISTER 11.43 and 11.45, by any of the following FAA–2010–0562; Directorate Identifier contains notices to the public of the proposed methods: 2009–NE–29–AD’’ at the beginning of issuance of rules and regulations. The • Federal eRulemaking Portal: Go to your comments. We specifically invite purpose of these notices is to give interested http://www.regulations.gov. Follow the comments on the overall regulatory, persons an opportunity to participate in the instructions for submitting comments. economic, environmental, and energy rule making prior to the adoption of the final • rules. Fax: 202–493–2251. aspects of this proposed AD. We will • Mail: U.S. Department of consider all comments received by the Transportation, Docket Operations, M– closing date and may amend this DEPARTMENT OF TRANSPORTATION 30, West Building Ground Floor, Room proposed AD because of those W12–140, 1200 New Jersey Avenue, SE., comments. Federal Aviation Administration Washington, DC 20590. We will post all comments we • Hand Delivery: Deliver to Mail receive, without change, to http:// 14 CFR Part 39 address above between 9 a.m. and www.regulations.gov, including any 5 p.m., Monday through Friday, except personal information you provide. We [Docket No. FAA–2010–0562; Directorate will also post a report summarizing each Identifier 2009–NE–29–AD] Federal holidays. For service information identified in substantive verbal contact we receive RIN 2120–AA64 this AD, contact Rolls-Royce plc, about this proposed AD. Corporate Communications, P.O. Box Discussion Airworthiness Directives; Rolls-Royce 31, Derby, England, DE248BJ; phone: plc (RR) Turbofan Engines 011–44–1332–242424; fax: 011–44– On April 12, 2011, we issued AD 2011–09–07, Amendment 39–16669 (76 AGENCY: Federal Aviation 1332–245418 or e-mail from http:// FR 24793, May 3, 2011), for all RR Administration (FAA), DOT. www.rolls-royce.com/contact/ civil_team.jsp, or download the model RB211–524G2–T–19, –524G3–T– ACTION: Notice of proposed rulemaking 19, –524H–T–36, and –524H2–T–19; (NPRM). publication from https:// www.aeromanager.com. You may and RB211 Trent 553–61, 553A2–61, SUMMARY: We propose to supersede an review copies of the referenced service 556–61, 556A2–61, 556B–61, 556B2–61, existing airworthiness directive (AD) information at the FAA, Engine & 560–61, 560A2–61; RB211 Trent 768– that applies to all RR model RB211– Propeller Directorate, 12 New England 60, 772–60, 772B–60; and RB211 Trent 524G2–T–19, –524G3–T–19, –524H–T– Executive Park, Burlington, MA. For 875–17, 877–17, 884–17, 884B–17, 892– 36, and –524H2–T–19; and RB211– information on the availability of this 17, 892B–17, and 895–17 turbofan Trent 553–61, 553A2–61, 556–61, material at the FAA, call 781–238–7125. engines. That AD requires initial and 556A2–61, 556B–61, 556B2–61, 560–61, repetitive fluorescent penetrant 560A2–61; RB211–Trent 768–60, 772– Examining the AD Docket inspections of the HP compressor stage 60, 772B–60; and RB211–Trent 875–17, You may examine the AD docket on 1 to 4 rotor discs at the first shop visit 877–17, 884–17, 884B–17, 892–17, the Internet at http:// after accumulating 1,000 cycles-since- 892B–17, and 895–17 turbofan engines www.regulations.gov; or in person at the new on the stage 1 to 4 rotor discs or that have a high-pressure (HP) Docket Management Facility between at the next shop visit after the effective compressor stage 1 to 4 rotor disc with 9 a.m. and 5 p.m., Monday through date of that AD, which ever occurs later. a part number (P/N) listed in Table 1 of Friday, except Federal holidays. The AD That AD also requires repetitive this proposed AD. The existing AD docket contains this proposed AD, the inspections at every shop visit. That AD currently requires repetitive inspections regulatory evaluation, any comments resulted from findings of anomalies at of the axial dovetail slots, and follow-on received, and other information. The the corners of the disc posts during corrective action depending on findings. street address for the Docket Office manufacture of stage 1 and stage 2 discs Since we issued that AD, we determined (phone: 800–647–5527) is in the with axial dovetails slots. We issued that AD to detect cracks in the HP that the definition of shop visit is too ADDRESSES section. Comments will be compressor stage 1 and stage 2 disc restrictive in the existing AD. This available in the AD docket shortly after posts, which could result in failure of proposed AD would continue to require receipt. those repetitive inspections and follow- the disc post and release of HP FOR FURTHER INFORMATION CONTACT: compressor blades, release of on corrective actions, and it would Alan Strom, Aerospace Engineer, Engine change the definition of a shop visit to uncontained engine debris, and damage Certification Office, FAA, Engine and to the airplane. be less restrictive. We are proposing this Propeller Directorate, 12 New England AD to detect cracks in the HP Executive Park, Burlington, MA 01803; Actions Since Existing AD Was Issued compressor stage 1 and 2 disc posts, phone: 781–238–7143; fax: 781–238– Since we issued AD 2011–09–07, which could result in failure of the disc 7199; e-mail: [email protected]. Amendment 39–16669 (76 FR 24793, post and HP compressor blades, release SUPPLEMENTARY INFORMATION: May 3, 2011), we found that the of uncontained engine debris, and definition of ‘‘shop visit’’ in the AD is damage to the airplane. Comments Invited too restrictive, in that it would require DATES: We must receive comments on We invite you to send any written operators to inspect more often than this proposed AD by December 19, relevant data, views, or arguments about required to ensure safety. We also found 2011. this proposed AD. Send your comments that Alert Service Bulletin (ASB) No. ADDRESSES: You may send comments, to an address listed under the RB.211–72–AF964, Revision 2, dated using the procedures found in 14 CFR ADDRESSES section. Include ‘‘Docket No. June 8, 2011, also may be appropriate to

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the corrective action in that AD, as is rules on aviation safety. Subtitle I, List of Subjects in 14 CFR Part 39 ASB No. RB.211–72–AF964, Revision 1, section 106, describes the authority of dated June 6, 2008 which is referenced the FAA Administrator. Subtitle VII, Air transportation, Aircraft, Aviation in AD 2011–09–07. Aviation Programs, describes in more safety, Incorporation by reference, detail the scope of the Agency’s Safety. Relevant Service Information authority. The Proposed Amendment We reviewed RR ASB No. RB.211–72– We are issuing this rulemaking under AF964, Revision 1, dated June 6, 2008, the authority described in subtitle VII, Accordingly, under the authority and Revision 2, dated June 8, 2011. The part A, subpart III, section 44701, delegated to me by the Administrator, ASB describes procedures for cleaning ‘‘General requirements.’’ Under that the FAA proposes to amend 14 CFR part and inspecting the axial dovetail slots. section, Congress charges the FAA with 39 as follows: promoting safe flight of civil aircraft in FAA’s Determination air commerce by prescribing regulations PART 39—AIRWORTHINESS We are proposing this AD because we for practices, methods, and procedures DIRECTIVES evaluated all the relevant information the Administrator finds necessary for 1. The authority citation for part 39 and determined the definition of shop safety in air commerce. This regulation continues to read as follows: visit was too restrictive, and that the is within the scope of that authority unsafe condition described previously is because it addresses an unsafe condition Authority: 49 U.S.C. 106(g), 40113, 44701. likely to exist or develop in other that is likely to exist or develop on § 39.13 [Amended] products of these same type designs. products identified in this rulemaking 2. The FAA amends § 39.13 by Proposed AD Requirements action. removing airworthiness directive (AD) This proposed AD would change the Regulatory Findings 2011–09–07, Amendment 39–166679 definition of a shop visit in AD 2011– We have determined that this (76 FR 24793, May 3, 2011), and adding 09–07 to ‘‘whenever all compressor proposed AD would not have federalism the following new AD: blades are removed from the HP implications under Executive Order Rolls-Royce plc: Docket No. FAA–2010– compressor drum.’’ This proposed AD 13132. This proposed AD would not 0562; Directorate Identifier 2009–NE– would also allow using ASB No. have a substantial direct effect on the 29–AD. RB.211–72–AF964, Revision 1, dated States, on the relationship between the (a) Comments Due Date June 6, 2008, or ASB No. RB.211–72– national Government and the States, or AF964, Revision 2, dated June 8, 2011, on the distribution of power and The FAA must receive comments on this to perform the inspection. responsibilities among the various AD action by December 19, 2011. Costs of Compliance levels of government. (b) Affected ADs For the reasons discussed above, I This AD supersedes AD 2011–09–07, Based on the service information, we certify that the proposed regulation: Amendment 39–16669 (76 FR 24793, May 3, estimate that this proposed AD would (1) Is not a ‘‘significant regulatory 2011). affect about 371 products of U.S. action’’ under Executive Order 12866, registry. We also estimate that it would (2) Is not a ‘‘significant rule’’ under (c) Applicability take about 20 work-hours per product to the DOT Regulatory Policies and This AD applies to Rolls-Royce plc (RR) comply with this AD. The average labor Procedures (44 FR 11034, February 26, model RB211–524G2–T–19, –524G3–T–19, rate is $85 per work-hour. No parts 1979), –524H–T–36, and –524H2–T–19; and RB211– would be required per product. Based (3) Will not affect intrastate aviation Trent 553–61, 553A2–61, 556–61, 556A2–61, in Alaska, and 556B–61 556B2–61, 560–61, 560A2–61; on these figures, we estimate the cost of RB211–Trent 768–60, 772–60, 772B–60; and the AD on U.S. operators to be $630,700. (4) Will not have a significant RB211–Trent 875–17, 877–17, 884–17, 884B– economic impact, positive or negative, Authority for This Rulemaking 17, 892–17, 892B–17, and 895–17 turbofan on a substantial number of small entities engines that have a high-pressure (HP) Title 49 of the United States Code under the criteria of the Regulatory compressor stage 1 to 4 rotor disc with a part specifies the FAA’s authority to issue Flexibility Act. number (P/N) listed in Table 1 of this AD.

TABLE 1—AFFECTED HP COMPRESSOR STAGE 1 TO 4 ROTOR DISC P/NSBYENGINE MODEL

Engine model HP compressor stage 1 to 4 rotor disc P/N

(1) RB211–524G2–T–19, –524G3–T–19, –524H–T–36, and –524H2–T–19 ...... FW20195, FK25502, or FW23711. (2) RB211 Trent 553–61, 553A2–61, 556–61, 556A2–61, 556B–61, 556B2–61, 560–61, and FK30524. 560A2-61. (3) RB211 Trent 768–60, 772–60, and 772B–60 ...... FK22745, FK24031, FK26185, FK23313, FK25502, FK32129, FW20195, FW20196, FW20197, FW20638, or FW23711. (4) RB211 Trent 875–17, 877–17, 884–17, 884B–17, 892-17, 892B–17, and 895–17 ...... FK24009, FK26167, FK32580, FW11590, or FW61622.

(d) Unsafe Condition compressor stage 1 and 2 disc posts, which (e) Compliance This AD was prompted by our could result in failure of the disc post and Comply with this AD within the determination that the definition of ‘‘shop HP compressor blades, release of compliance times specified, unless already visit’’ in the existing AD is too restrictive, in uncontained engine debris, and damage to done. that it would require operators to inspect the airplane. more often than required to ensure safety. We are issuing this AD to detect cracks in the HP

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(f) Cleaning and Inspection DEPARTMENT OF THE TREASURY ENVIRONMENTAL PROTECTION (1) Clean and perform a fluorescent AGENCY penetrant inspection of the HP compressor Internal Revenue Service stage 1 to 4 rotor discs at the first shop visit 40 CFR Part 60 and 63 after accumulating 1,000 cycles since new on 26 CFR Part 1 the stage 1 to 4 rotor discs or at the next shop [REG–140280–09] [EPA–HQ–OAR–2010–0505; FRL–9481–8] visit after the effective date of this AD, which ever occurs later. RIN 1545–BK16 RIN 2060–AP76 (2) Use paragraph 3.A through 3.E.(11) of the Accomplishment Instructions of Rolls- Tax Return Preparer Penalties Under Oil and Natural Gas Sector: New Royce Alert Service Bulletin (ASB) No. Section 6695; Correction Source Performance Standards and RB.211–72–AF964, Revision 1, dated June 6, National Emission Standards for AGENCY: 2008, or ASB No. RB.211–72–AF964, Internal Revenue Service (IRS), Treasury. Hazardous Air Pollutants Reviews; Revision 2, dated June 8, 2011, to do the Correction of Comment Period Closing inspections. ACTION: Correction to notice of proposed Date (3) Thereafter at every engine shop visit, rulemaking and notice of public perform the inspection specified by hearing. AGENCY: Environmental Protection paragraph (f) of this AD. Agency (EPA). SUMMARY: This document contains a (g) Definition correction to a notice of proposed ACTION: Proposed rule; correction of public comment period closing date. For the purpose of this AD, an ‘‘engine rulemaking and notice of public hearing (REG–140280–09) that would modify shop visit’’ is whenever all compressor SUMMARY: The EPA is announcing that existing regulations related to the tax blades are removed from the HP compressor the period for providing public return preparer penalties under section drum. comments on the August 23, 2011, ‘‘Oil 6695 of the Internal Revenue Code. The and Natural Gas Sector: New Source (h) Alternative Methods of Compliance document was published in the Federal (AMOCs) Performance Standards and National Register on Tuesday, October 11, 2011 Emission Standards for Hazardous Air The Manager, Engine Certification Office, (76 FR 62689). FAA may approve AMOCs for this AD. Use Pollutants Reviews,’’ closes on October FOR FURTHER INFORMATION CONTACT: the procedures found in 14 CFR 39.19 to 31, 2011. This notice does not address Concerning these proposed regulations, make your request. the requests the EPA has received for Spence Hanemann, (202) 622–4940 (not extending this period. (i) Related Information a toll-free number). DATES: Comments. The public comment (1) For more information about this AD, SUPPLEMENTARY INFORMATION: period for the proposed rules published contact Alan Strom, Aerospace Engineer, Background on August 23, 2011 (76 FR 52738) closes Engine Certification Office, FAA, Engine and on October 31, 2011. Propeller Directorate, 12 New England The correction notice that is the Executive Park, Burlington, MA 01803; subject of this document is under ADDRESSES: Comments. Written phone: 781–238–7143; fax: 781–238–7199; section 6695 of the Internal Revenue comments on the proposed rules may be e-mail: [email protected]. Code. submitted to the EPA electronically, by (2) See European Aviation Safety Agency mail, by facsimile or through hand Need for Correction Airworthiness Directive 2011–0073R1, dated delivery/courier. Please refer to the April 8, 2009, for related information. As published, a notice of proposed proposal for the addresses and detailed (3) For service information identified in rulemaking and notice of public hearing instructions. this AD, contact Rolls-Royce plc, Corporate (REG–140280–09) contains an error that Docket. Publicly available documents Communications, P.O. Box 31, Derby, may prove to be misleading and is in relevant to this action are available for England, DE248BJ; phone: 011–44–1332– need of clarification. public inspection either electronically 242424; fax: 011–44–1332–245418 or e-mail in http://www.regulations.gov, or in Correction of Publication from http://www.rolls-royce.com/contact/ hard copy at the EPA Docket Center, civil_team.jsp, or download the publication Accordingly, the publication of a Room 3334, 1301 Constitution Avenue, from https://www.aeromanager.com. You notice of proposed rulemaking and NW., Washington, DC. The Public may review copies at the FAA, Engine & notice of public hearing (REG–140280– Reading Room is open from 8:30 a.m. to Propeller Directorate, 12 New England 09), which was the subject of FR Doc. 4:30 p.m., Monday through Friday, Executive Park, Burlington, MA. For 2011–26247, is corrected as follows: excluding legal holidays. A reasonable information on the availability of this On page 62690, column 2, in the fee may be charged for copying. material at the FAA, call 781–238–7125. preamble, under the paragraph heading World Wide Web. The EPA Web site Issued in Burlington, Massachusetts, on ‘‘Explanation of Provisions’’, first for this rulemaking is located at: http:// October 14, 2011. paragraph of the column, line 17, the www.epa.gov/airquality/oilandgas.html. language ‘‘proposed § 1.6695–2(c)(2) Peter A. White, FOR FURTHER INFORMATION CONTACT: Mr. provides that,’’ is removed and is Manager, Engine & Propeller Directorate, Bruce Moore, Fuels and Incineration replaced with the new language Group (E143–05), Sector Policies and Aircraft Certification Service. ‘‘proposed § 1.6695–2(c)(3) provides [FR Doc. 2011–27069 Filed 10–19–11; 8:45 am] Programs Division, Office of Air Quality that,’’. Planning and Standards, U.S. BILLING CODE 4910–13–P LaNita Van Dyke, Environmental Protection Agency, Chief, Publications and Regulations Branch, Research Triangle Park, North Carolina Legal Processing Division, Associate Chief 27711; Telephone number: (919) 541– Counsel (Procedure and Administration). 5460; Fax number (919) 541–3470; E- [FR Doc. 2011–27183 Filed 10–19–11; 8:45 am] mail address: [email protected]. BILLING CODE 4830–01–P SUPPLEMENTARY INFORMATION:

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Comment Period imported, or supplied from existing pre- consider to be CBI or otherwise On August 23, 2011, the EPA phaseout inventory for those uses in protected through http:// published in the Federal Register the 2012. EPA is taking action under the www.regulations.gov or e-mail. The proposed rule, ‘‘Oil and Natural Gas authority of the Clean Air Act to reflect http://www.regulations.gov Web site is Sector: New Source Performance a recent consensus decision taken by the an ‘‘anonymous access’’ system, which Standards and National Emission Parties to the Montreal Protocol on means EPA will not know your identity standards for Hazardous Air pollutants Substances that Deplete the Ozone or contact information unless you Review.’’ In that notice, the EPA Layer at the Twenty-Second Meeting of provide it in the body of your comment. announced that all comments must be the Parties. EPA is seeking comment on If you send an e-mail comment directly received by October 24, 2011. The EPA the list of critical uses and on EPA’s to EPA without going through http:// conducted three public hearings on this determination of the amounts of methyl www.regulations.gov your e-mail proposed rule, the last of which was bromide needed to satisfy those uses. address will be automatically captured held on September 29, 2011, in DATES: Comments must be submitted by and included as part of the comment Arlington, Texas. See 76 FR 53371, November 21, 2011. Any party that is placed in the public docket and August 26, 2011. Under section 307(d) requesting a public hearing must notify made available on the Internet. If you of the CAA, the EPA must keep the the contact person listed below by 5 submit an electronic comment, EPA record open for thirty days after p.m. Eastern Standard Time on October recommends that you include your completion of the hearings to provide an 25, 2011. If a hearing is requested it will name and other contact information in opportunity for submission of rebuttal be held on November 4, 2011 and the body of your comment and with any and supplementary information. comments will be due to the agency disk or CD–ROM you submit. If EPA Accordingly, the public comment December 5, 2011. EPA will post cannot read your comment due to period will end on October 31, 2011, information regarding a hearing, if one technical difficulties and cannot contact rather than on October 24, 2011, as is requested, on the Ozone Protection you for clarification, EPA may not be originally published. Web site http://www.epa.gov/ozone/ able to consider your comment. The EPA has also received numerous strathome.html. Persons interested in Electronic files should avoid the use of requests for extending the public attending a public hearing should special characters, any form of comment period for this proposed rule. consult with the contact person below encryption, and be free of any defects or This notice only corrects the public regarding the location and time of the viruses. For additional information comment period pursuant to section hearing. about EPA’s public docket visit the EPA Docket Center homepage at http:// 307(d) of the CAA. This notice does not ADDRESSES: Submit your comments, www.epa.gov/epahome/dockets.htm. address the pending requests being identified by Docket ID No. EPA–HQ– FOR FURTHER INFORMATION CONTACT: considered for extending the public OAR–2009–0277, by one of the For comment period. following methods: further information about this proposed • http://www.regulations.gov: Follow rule, contact Jeremy Arling by telephone How can I get copies of this document at (202) 343–9055, or by e-mail at and other related information? the on-line instructions for submitting comments. [email protected] or by mail at U.S. The EPA has established the official • E-mail: [email protected]. Environmental Protection Agency, public docket No. EPA–HQ–OAR–2010– • Fax: (202) 566–9744. Stratospheric Protection Division, 0505. The EPA has also developed Web • Phone: (202) 566–1742. Stratospheric Program Implementation sites for the proposed rulemaking at the • U.S. Mail: Docket EPA–HQ–OAR– Branch (6205J), 1200 Pennsylvania addresses given above. 2009–0277, U.S. Environmental Avenue, NW., Washington, DC 20460. Dated: October 14, 2011. Protection Agency, EPA Docket Center, You may also visit the methyl bromide Gina McCarthy, Air and Radiation Docket, Mail Code section of the Ozone Depletion Web site of EPA’s Stratospheric Protection Assistant Administrator for Air and 28221T, 1200 Pennsylvania Avenue, Radiation. NW., Washington, DC 20460. Division at http://www.epa.gov/ozone/ • mbr for further information about the [FR Doc. 2011–27237 Filed 10–19–11; 8:45 am] Hand Delivery or Courier: Docket methyl bromide critical use exemption, BILLING CODE 6560–50–P EPA–HQ–OAR–2009–0277, EPA Docket Center—Public Reading Room, EPA other Stratospheric Ozone Protection West Building, Room 3334, 1301 regulations, the science of ozone layer ENVIRONMENTAL PROTECTION Constitution Avenue, NW., Washington, depletion, and related topics. AGENCY DC 20004. Such deliveries are only SUPPLEMENTARY INFORMATION: This accepted during the Docket’s normal proposed rule concerns Clean Air Act 40 CFR Part 82 hours of operation, and special (CAA) restrictions on the consumption, production, and use of methyl bromide [EPA–HQ–OAR–2009–0277; FRL–9481–9] arrangements should be made for deliveries of boxed information. (a Class I, Group VI controlled RIN 2060–AQ83 Instructions: Direct your comments to substance) for critical uses during Docket ID No. EPA–HQ–OAR–2009– calendar year 2012. Under the Clean Air Protection of Stratospheric Ozone: The 0277. EPA’s policy is that all comments Act, methyl bromide consumption 2012 Critical Use Exemption From the received will be included in the public (consumption is defined under the CAA Phaseout of Methyl Bromide docket without change and may be as production plus imports minus AGENCY: Environmental Protection made available online at http:// exports) and production were phased Agency (EPA). www.regulations.gov, including any out on January 1, 2005, apart from ACTION: Proposed rule. personal information provided, unless allowable exemptions, such as the the comment includes information critical use exemption and the SUMMARY: EPA is proposing uses that claimed to be Confidential Business quarantine and preshipment (QPS) qualify for the 2012 critical use Information (CBI) or other information exemption. With this action, EPA is exemption and the amount of methyl whose disclosure is restricted by statute. proposing and seeking comment on the bromide that may be produced, Do not submit information that you uses that will qualify for the 2012

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critical use exemption as well as distributors of methyl bromide; and • Provide specific examples to specific amounts of methyl bromide that users of methyl bromide that applied for illustrate your concerns, and suggest may be produced and imported, or sold the 2012 critical use exemption alternatives. from pre-phaseout inventory (also including farmers of vegetable crops, • Explain your views as clearly as referred to as ‘‘stocks’’ or ‘‘inventory’’) fruits and nursery stock and owners of possible, avoiding the use of profanity for proposed critical uses in 2012. stored food commodities and structures or personal threats. such as grain mills and processors. This • Make sure to submit your Table of Contents rulemaking does not affect applications comments by the comment period I. General Information for future control periods. deadline identified. A. Regulated Entities This list is not intended to be II. What is methyl bromide? B. What should I consider when preparing exhaustive, but rather to provide a guide my comments? Methyl bromide is an odorless, for readers regarding entities likely to be II. What is methyl bromide? colorless, toxic gas which is used as a regulated by this proposed action. To III. What is the background to the phaseout broad-spectrum pesticide and is determine whether your facility, regulations for ozone-depleting controlled under the CAA as a Class I substances? company, business, or organization ozone-depleting substance (ODS). IV. What is the legal authority for exempting could be regulated by this proposed Methyl bromide was once widely used the production and import of methyl action, you should carefully examine as a fumigant to control a variety of bromide for critical uses authorized by the regulations promulgated at 40 CFR the parties to the Montreal Protocol? pests such as insects, weeds, rodents, part 82, subpart A. If you have questions V. What is the critical use exemption pathogens, and nematodes. Information process? regarding the applicability of this action on methyl bromide can be found at A. Background of the Process to a particular entity, consult the person http://www.epa.gov/ozone/mbr. B. How does this proposed rule relate to listed in the preceding section. Methyl bromide is also regulated by previous critical use exemption rules? EPA under the Federal Insecticide, C. Proposed Critical Uses B. What should I consider when D. Proposed Critical Use Amounts preparing my comments? Fungicide, and Rodenticide Act (FIFRA) 1. Approach for Determining Critical Stock and other statutes and regulatory 1. Confidential Business Information. authority, as well as by States under Allowances Do not submit confidential business 2. Approach for Determining New their own statutes and regulatory Production and Import Allowances information (CBI) to EPA through http: authority. Under FIFRA, methyl 3. Summary of Calculations //www.regulations.gov or e-mail. Clearly bromide is a restricted use pesticide. E. The Criteria in Decisions IX/6 and Ex. mark the part or all of the information Restricted use pesticides are subject to I/4 that you claim to be CBI. For CBI Federal and State requirements F. Emissions Minimization information in a disk or CD–ROM that governing their sale, distribution, and G. Critical Use Allowance Allocations you mail to EPA, mark the outside of the H. Critical Stock Allowance Allocations use. Nothing in this proposed rule disk or CD–ROM as CBI and then implementing the Clean Air Act is I. Stocks of Methyl Bromide identify electronically within the disk or VI. Statutory and Executive Order Reviews intended to derogate from provisions in A. Executive Order 12866: Regulatory CD–ROM the specific information that any other Federal, State, or local laws or Planning and Review and Executive is claimed as CBI. Information so regulations governing actions including, Order 13563: Improving Regulation and marked will not be disclosed except in but not limited to, the sale, distribution, Regulatory Review accordance with procedures set forth in transfer, and use of methyl bromide. B. Paperwork Reduction Act 40 CFR part 2. In addition to one Entities affected by this proposal must C. Regulatory Flexibility Act complete version of the comment that D. Unfunded Mandates Reform Act continue to comply with FIFRA and includes information claimed as CBI, a other pertinent statutory and regulatory E. Executive Order 13132: Federalism copy of the comment that does not F. Executive Order 13175: Consultation requirements for pesticides (including, and Coordination With Indian Tribal contain the information claimed as CBI but not limited to, requirements Governments must be submitted for inclusion in the pertaining to restricted use pesticides) G. Executive Order 13045: Protection of public docket. when importing, exporting, acquiring, Children From Environmental Health 2. Tips for Preparing Your Comments. selling, distributing, transferring, or and Safety Risks When submitting comments, remember H. Executive Order 13211: Actions That using methyl bromide for critical uses. to: The provisions in this proposed action Significantly Affect Energy Supply, • Identify the rulemaking by docket Distribution, or Use are intended only to implement the I. National Technology Transfer and number and other identifying CAA restrictions on the production, Advancement Act information (subject heading, Federal consumption, and use of methyl J. Executive Order 12898: Federal Actions Register date, and page number). bromide for critical uses exempted from • To Address Environmental Justice in Follow directions—The agency may the phaseout of methyl bromide. Minority Populations and Low-Income ask you to respond to specific questions Populations or organize comments by referencing a III. What is the background to the phaseout regulations for ozone- I. General Information Code of Federal Regulations (CFR) part or section number. depleting substances? A. Regulated Entities • Explain why you agree or disagree; The regulatory requirements of the Entities potentially regulated by this suggest alternatives and substitute stratospheric ozone protection program proposed action are those associated language for your requested changes. that limit production and consumption with the production, import, export, • Describe any assumptions and of ozone-depleting substances are in 40 sale, application, and use of methyl provide any technical information and/ CFR part 82, subpart A. The regulatory bromide covered by an approved critical or data that you used. program was originally published in the use exemption. Potentially regulated • If you estimate potential costs or Federal Register on August 12, 1988 (53 categories and entities include burdens, explain how you arrived at FR 30566), in response to the 1987 producers, importers, and exporters of your estimate in sufficient detail to signing and subsequent ratification of methyl bromide; applicators and allow for it to be reproduced. the Montreal Protocol on Substances

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that Deplete the Ozone Layer (Montreal exemptions permitted for critical uses. amount of methyl bromide that may be Protocol). The Montreal Protocol is the At that time, the U.S. continued to have produced, imported, or supplied from international agreement aimed at a 2001 phaseout date in accordance inventory to satisfy those uses. reducing and eliminating the with section 602(d) of the CAAA of This proposed action on critical uses production and consumption of 1990. At the Ninth MOP in 1997, the for 2012 reflects Decision XXII/6, taken stratospheric ozone-depleting Parties agreed to further adjustments to at the Twenty-Second Meeting of the substances. The U.S. was one of the the phaseout schedule for methyl Parties in November 2010. In original signatories to the 1987 Montreal bromide in industrialized countries, accordance with Article 2H(5), the Protocol and the U.S. ratified the with reduction steps leading to a 2005 Parties have issued several Decisions Protocol on April 12, 1988. Congress phaseout. The Parties also established a pertaining to the critical use exemption. then enacted, and President George phaseout date of 2015 for Article 5 These include Decisions IX/6 and Ex. H.W. Bush signed into law, the Clean countries. I/4, which set forth criteria for review of Air Act Amendments of 1990 (CAAA of IV. What is the legal authority for proposed critical uses. The status of 1990) which included Title VI on exempting the production and import of Decisions is addressed in NRDC v. EPA, Stratospheric Ozone Protection, codified methyl bromide for critical uses (464 F.3d 1, D.C. Cir. 2006) and in EPA’s as 42 U.S.C. Chapter 85, Subchapter VI, authorized by the parties to the ‘‘Supplemental Brief for the to ensure that the U.S. could satisfy its Montreal Protocol? Respondent,’’ filed in NRDC v. EPA and obligations under the Protocol. EPA In October 1998, the U.S. Congress available in the docket for this action. In issued regulations to implement this this proposed rule on critical uses for legislation and has since amended the amended the Clean Air Act (CAA) to 2012, EPA is honoring commitments regulations as needed. prohibit the termination of production made by the United States in the Methyl bromide was added to the of methyl bromide prior to January 1, Protocol as an ozone-depleting 2005, to require EPA to bring the U.S. Montreal Protocol context. substance in 1992 through the phaseout of methyl bromide in line with V. What is the critical use exemption Copenhagen Amendment to the the schedule specified under the process? Protocol. The Parties to the Montreal Protocol, and to authorize EPA to Protocol (Parties) agreed that each provide certain exemptions. These A. Background of the Process industrialized country’s level of methyl amendments were contained in Section The critical use exemption is bromide production and consumption 764 of the 1999 Omnibus Consolidated designed to permit the production and in 1991 should be the baseline for and Emergency Supplemental import of methyl bromide for uses that establishing a freeze in the level of Appropriations Act (Pub. L. 105–277, do not have technically and methyl bromide production and October 21, 1998) and were codified in economically feasible alternatives and consumption for industrialized section 604 of the CAA, 42 U.S.C. for which the lack of methyl bromide countries. EPA published a final rule in 7671c. The amendment that specifically would result in significant market the Federal Register on December 10, addresses the critical use exemption disruption (40 CFR 82.3). Article 2H of appears at section 604(d)(6), 42 U.S.C. 1993 (58 FR 65018), listing methyl the Montreal Protocol established the 7671c(d)(6). EPA revised the phaseout bromide as a Class I, Group VI critical use exemption provision. At the schedule for methyl bromide production controlled substance, freezing U.S. Ninth Meeting of the Parties (1997) the and consumption in a direct final production and consumption at this criteria for the exemption appeared in rulemaking on November 28, 2000 (65 1991 baseline level of 25,528,270 Decision IX/6. In that Decision, the FR 70795), which allowed for the kilograms, and setting forth the Parties agreed that ‘‘a use of methyl phased reduction in methyl bromide percentage of baseline allowances for bromide should qualify as ‘critical’ only consumption specified under the methyl bromide granted to companies in if the nominating Party determines that: Protocol and extended the phaseout to each control period (each calendar year) (i) The specific use is critical because 2005 while creating a placeholder for until 2001, when the complete phaseout the lack of availability of methyl would occur. This phaseout date was critical use exemptions. EPA again bromide for that use would result in a established in response to a petition amended the regulations to allow for an significant market disruption; and (ii) filed in 1991 under sections 602(c)(3) exemption for quarantine and there are no technically and and 606(b) of the CAAA of 1990, preshipment (QPS) purposes on July 19, economically feasible alternatives or requesting that EPA list methyl bromide 2001 (66 FR 37751), with an interim substitutes available to the user that are as a Class I substance and phase out its final rule and with a final rule on acceptable from the standpoint of production and consumption. This date January 2, 2003 (68 FR 238). environment and public health and are was consistent with section 602(d) of On December 23, 2004 (69 FR 76982), suitable to the crops and circumstances the CAAA of 1990, which for newly EPA published a final rule (the of the nomination.’’ These criteria are listed Class I ozone-depleting ‘‘Framework Rule’’) that established the substances provides that ‘‘no extension framework for the critical use reflected in EPA’s definition of ‘‘critical [of the phaseout schedule in section exemption; set forth a list of approved use’’ at 40 CFR 82.3. 604] under this subsection may extend critical uses for 2005; and specified the In response to EPA’s request for the date for termination of production of amount of methyl bromide that could be critical use exemption applications any class I substance to a date more than supplied in 2005 from stocks and new published in the Federal Register on 7 years after January 1 of the year after production or import to meet the needs May 20, 2009 (74 FR 23705), applicants the year in which the substance is of approved critical uses. EPA provided data on the technical and added to the list of class I substances.’’ subsequently published rules applying economic feasibility of using At the Seventh Meeting of the Parties the critical use exemption framework alternatives to methyl bromide. (MOP) in 1995, the Parties made for each of the control periods from Applicants also submitted data on their adjustments to the methyl bromide 2006 to 2011. Under authority of section use of methyl bromide, research control measures and agreed to 604(d)(6) of the CAA, this action programs into the use of alternatives to reduction steps and a 2010 phaseout proposes the uses that will qualify as methyl bromide, and efforts to minimize date for industrialized countries with approved critical uses in 2012 and the use and emissions of methyl bromide.

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EPA’s Office of Pesticide Programs 2012 critical uses. In February 2010, framework is discussed in Section V.D.1 reviews the data submitted by MBTOC sent questions to the USG of the preamble. applicants, as well as data from concerning technical and economic C. Proposed Critical Uses governmental and academic sources, to issues in the 2012 nomination. The USG establish whether there are technically transmitted responses to MBTOC in In Decision XXII/6, taken in and economically feasible alternatives March, 2010. These documents, together November 2010, the Parties to the available for a particular use of methyl with reports by the advisory bodies Protocol agreed ‘‘to permit, for the bromide, and whether there would be a noted above, are in the public docket for agreed critical-use categories for 2012 significant market disruption if no this rulemaking. The proposed critical set forth in table C of the annex to the exemption were available. In addition, uses and amounts reflect the analysis present decision for each party, subject EPA reviews other parameters of the contained in those documents. to the conditions set forth in the present exemption applications such as dosage decision and in decision Ex.I/4 to the and emissions minimization techniques B. How does this proposed rule relate to extent that those conditions are and applicants’ research or transition previous critical use exemption rules? applicable, the levels of production and plans. This assessment process The December 23, 2004, Framework consumption for 2012 set forth in table culminates in the development of a Rule (69 FR 76982) established the D of the annex to the present decision document referred to as the critical use framework for the critical use which are necessary to satisfy critical nomination (CUN). The U.S. exemption program in the U.S., uses * * *’’ Department of State has submitted a including definitions, prohibitions, The following uses are those set forth CUN annually to the United Nations trading provisions, and recordkeeping in table C of the annex to Decision XXII/ Environment Programme (UNEP) Ozone and reporting obligations. The preamble 6 for the United States: Secretariat. The Methyl Bromide to the Framework Rule included EPA’s • Commodities. • Technical Options Committee (MBTOC) determinations on key issues for the National Pest Management and the Technology and Economic critical use exemption program. Association food processing structures. • Assessment Panel (TEAP), which are Since publishing the Framework Rule, Mills and processors. advisory bodies to Parties to the • Dried cured pork. EPA has annually promulgated • Montreal Protocol, review the CUNs of regulations to exempt from the phaseout Cucurbits. • Eggplant—field. the Parties and make recommendations of methyl bromide specific quantities of • Forest nursery seedlings. to the Parties on the nominations. The production and import for each control Parties then take Decisions to authorize • Nursery stock—fruits, nuts, flowers. period (each calendar year), to • critical use exemptions for particular Orchard replants. determine the amounts that may be • Parties, including how much methyl Ornamentals. supplied from pre-phaseout inventory, • bromide may be supplied for the Peppers—field. and to indicate which uses meet the • Strawberry—field. exempted critical uses. As required in criteria for the exemption program for • section 604(d)(6) of the CAA, for each Strawberry runners. that year. See 71 FR 5985 (calendar year • Tomatoes—field. exemption period, EPA consults with 2006), 71 FR 75386 (calendar year • the United States Department of Sweet potato slips. 2007), 72 FR 74118 (calendar year The Decision XXII/6 critical use levels Agriculture (USDA) and other 2008), 74 FR 19878 (calendar year departments and institutions of the for 2012 total 1,022,826 kilograms (kg), 2009), 75 FR 23167 (calendar year which is equivalent to 4.0% of the U.S. Federal government that have regulatory 2010), 76 FR 23769 (calendar year 2011 authority related to methyl bromide, 1991 methyl bromide consumption proposal). and provides an opportunity for public baseline of 25,528,270 kg. The Today’s action proposes to utilize the comment on the amounts of methyl maximum amount of allowable new bromide that the agency is proposing to existing regulatory framework to production and import for U.S. critical exempt for critical uses and the uses determine critical uses for 2012 and the uses in Table D of Decision XXII/6 is that the agency is proposing as amounts of Critical Use Allowances 922,826 kg (3.6% of baseline), minus approved critical uses. (CUAs) and Critical Stock Allowances available stocks. More on the domestic review process (CSAs) to be allocated for those uses. A EPA is proposing a total critical use and methodology employed by the CUA is the privilege granted through 40 exemption in 2012 of 1,022,826 kg Office of Pesticide Programs is available CFR part 82 to produce or import 1 kg (4.0% of baseline) with new production in a detailed memorandum titled of methyl bromide for an approved or import of methyl bromide for critical ‘‘Development of 2003 Nomination for a critical use during the specified control uses up to 759,744 kg (3.0% of Critical Use Exemption for Methyl period. These allowances expire at the baseline), and with up to 263,082 kg Bromide for the United States of end of the control period and, as (1.0% of baseline) coming from pre- America,’’ contained in the docket for explained in the Framework Rule, are phaseout inventory (i.e., stocks). this rulemaking. While the particulars of not bankable from one year to the next. EPA is seeking comment on the the data continue to evolve and A CSA is the right granted through 40 technical analysis contained in the U.S. administrative matters are further CFR part 82 to sell 1 kg of methyl nomination (available for public review streamlined, the technical review itself bromide from inventory produced or in the docket to this rulemaking), and remains rigorous with careful imported prior to the January 1, 2005, seeks information regarding any changes consideration of new technical and phaseout date for an approved critical to the registration (including economic conditions. use during the specified control period. cancellation or new registrations), use, On January 22, 2010, the U.S. The critical uses that EPA is or efficacy of alternatives that have Government (USG) submitted the eighth proposing to approve as 2012 critical transpired after the 2012 U.S. Nomination for a Critical Use uses are the uses included in the USG’s nomination was written. EPA recognizes Exemption for Methyl Bromide for the eighth CUN and authorized by the that as the market for alternatives United States of America to the Ozone Parties in Decision XXII/6. EPA is evolves, the thresholds for what Secretariat of the UNEP. This utilizing the existing regulatory constitutes ‘‘significant market nomination contained the request for framework for critical uses. This disruption’’ or ‘‘technical and economic

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feasibility’’ change. Comments on the Management Association treating cheese critical uses in excess of the amount of technical data contained in the storage facilities.’’ EPA seeks comment CSAs held by the seller. In addition, nomination or new information could on these proposed changes to Appendix EPA noted that pre-phaseout inventories potentially alter the agency’s analysis on L. were further taken into account through the uses and amounts of methyl EPA is not proposing other changes to the trading provisions that allow CUAs bromide qualifying for the critical use the table but is repeating the following to be converted into CSAs. EPA is not exemption. The agency may, in clarifications made in previous years for proposing changes to these CSA response to new information, reduce the ease of reference. The ‘‘local township provisions for calendar year 2012. proposed quantities of critical use limits prohibiting 1,3-dichloropropene’’ In the Framework Rule (69 FR 52366), methyl bromide, or decide not to are prohibitions on the use of 1,3- EPA issued CSAs in an amount equal to approve uses authorized by the Parties. dichloropropene products in cases the difference between the total However, the agency will not increase where local township limits on use of authorized CUE amount and the amount the quantities or add new uses in the this alternative have been reached. In of new production or import authorized final rule beyond those authorized by addition, ‘‘pet food’’ under subsection B by the Parties. In each of the CUE the Parties. of Food Processing refers to food for allocation rules from 2006 through EPA is also proposing to modify the domesticated dogs and cats. Finally, 2010, EPA allocated CSAs in amounts table in 40 CFR part 82, subpart A, ‘‘rapid fumigation’’ for commodities is that represented not only the difference appendix L to reflect the agreed critical when a buyer provides short (two between the total authorized CUE use categories identified in Decision working days or fewer) notification for amount and the amount of authorized XXII/6. The agency is amending the a purchase or there is a short period new production and import but also an table of critical uses based in part on the after harvest in which to fumigate and additional amount to reflect available technical analysis contained in the 2012 there is limited silo availability for stocks. In the 2006 CUE Rule, EPA U.S. nomination that assesses data using alternatives. issued a total of 1,136,008 CSAs, submitted by applicants to the CUE equivalent to 4.4% of baseline. For D. Proposed Critical Use Amounts program. First, EPA is proposing to 2006, the difference in the Parties’ remove from the list of approved critical Table C of the annex to Decision XXII/ decision between the total CUE amount users those uses that did not submit 6 lists critical uses and amounts agreed and the amount of new production and applications and therefore were not to by the Parties to the Montreal import was 3.6% of baseline. In the included in the U.S. nomination. These Protocol. When added together, the total 2007 rule, EPA added to the minimum uses are International Paper and authorized critical use for 2012 is amount (6.3% of baseline) an additional Weyerhaeuser Company in the forest 1,022,826 kg, which is equivalent to amount (1.2% of baseline) for a total of nursery seedlings sector and beans in 4.0% of the U.S. 1991 methyl bromide 1,914,600 CSAs (7.5% of baseline). In the commodities sector. The Parties consumption baseline. The maximum the 2008 rule, EPA added to the have not authorized them as critical amount of new production or import minimum amount (3.0% of baseline) an uses for 2012 and EPA proposes not to authorized by the Parties is 922,826 kg additional amount (3.8% of baseline) for list these uses as critical for this control (3.6% of baseline) as set forth in Table a total of 1,729,689 CSAs (6.8% of period. D of the annex to Decision XXII/6. The baseline). In the 2009 rule, EPA added Second, EPA is proposing to remove difference between the total authorized to the minimum amount (1.2% of North Carolina and Tennessee amount and the authorized amount of baseline) an additional amount (6.3% of strawberry nurseries. Growers in this new production is 100,000 kg (0.4% of baseline) for a total of 1,919,193 CSAs sector applied for a critical use in 2012. baseline). This difference is the (7.5% of baseline). In the 2010 rule, EPA The U.S. did not submit a nomination minimum that the Parties expect the added to the minimum amount (1.8% of to UNEP for this use because EPA’s U.S. to use from pre-phaseout inventory baseline) an additional amount (2.2% of technical review found that there are on critical uses. baseline) for a total of 1,028,108 CSAs alternatives to methyl bromide for EPA is proposing to allocate 759,744 (4.0% of baseline). After determining Southeast strawberry nurseries. The kg (3.0% of baseline) of new production the CSA amount, EPA reduced the Parties have not authorized them as and import of methyl bromide for portion of CUE methyl bromide to come critical uses for 2012 and EPA proposes critical uses for 2012. EPA is also from new production and import such not to list these uses as critical for this proposing to allocate 263,082 kg (1.0% that the total amount of methyl bromide control period. of baseline) in the form of Critical Stock exempted for critical uses did not Third, EPA is proposing to reduce the Allowances for sale of pre-phaseout exceed the total amount authorized by number of allowable uses for the inventory for critical uses in 2012. EPA the Parties for that year. National Pest Management Association’s is seeking comment on the proposed As established in the earlier (NPMA) post harvest fumigations. Past total levels of exempted new production rulemakings, EPA views the inclusion of critical uses for NPMA included and import for critical uses and the these additional amounts in the ‘‘processed food, cheese, herbs and amount of material that may be sold calculation of the year’s overall CSA spices, and spaces and equipment in from pre-phaseout inventory for critical level as an appropriate exercise of associated processing and storage uses. The sub-sections below explain discretion. The Agency is not required facilities.’’ MBTOC found that the EPA’s reasons for proposing the above to allocate the full amount of authorized nomination for food processing facilities critical use amounts for 2012. new production and consumption. The was inadequately justified and Parties only agree to ‘‘permit’’ a recommended only cheese storage 1. Approach for Determining Critical particular level of production and facilities for consideration by the Parties Stock Allowances consumption; they do not—and as a critical use. MBTOC’s comments The 2004 Framework Rule established cannot—mandate that the U.S. authorize can be found in the May 2010 TEAP the provisions governing the sale of pre- this level of production and Progress Report in the docket to this phaseout inventories for critical uses, consumption domestically. Nor does the rule. EPA is proposing to modify the including the concept of Critical Stock CAA require EPA to allow the full NPMA critical use to include only Allowances (CSAs) and a prohibition on amount permitted by the Parties. ‘‘Members of the National Pest the sale of pre-phaseout inventories for Section 604(d)(6) of the CAA does not

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require EPA to exempt any amount of D2011 ¥ SCF2012, where AS2012 is the average only 58% of the CSAs allocated production and consumption from the available stocks on January 1, 2012; for a control period are reported as sold phaseout, but instead specifies that the ES2011 is the existing pre-phaseout in that control period. Based on this Agency ‘‘may’’ create an exemption for stocks of methyl bromide held in the historical pattern, EPA believes that not critical uses, providing EPA with United States by producers, importers, all of the CSAs will actually be substantial discretion. When and distributors on January 1, 2011; expended in 2011 either. To estimate determining the CSA amount for a year, D2011 is the estimated drawdown of the number of expended CSAs in 2011, EPA considers what portion of existing existing stocks during calendar year EPA conservatively assumes that 70% of stocks is ‘‘available’’ for critical uses. As 2011; and SCF2012 is the supply chain the CSAs allocated for 2011 will be sold. discussed in prior CUE rulemakings, the factor for 2012. Using this formula, EPA This amount is greater than any year’s Parties to the Protocol recognized in calculates that there will be 263,082 kg use of CSA allocations. Thus, EPA their Decisions that the level of existing of pre-phaseout stocks of methyl estimates that 337,633 kg of inventory stocks may differ from the level of bromide ‘‘available’’ on January 1, 2012. will be sold for critical uses in 2011. available stocks. Decision XXII/6 states Existing Stocks. In the above formula, The second element in the drawdown that ‘‘production and consumption of ‘‘ES2011’’ is methyl bromide that was estimate is the amount of methyl methyl bromide for critical uses should produced before the January 1, 2005, bromide used on non-critical uses in be permitted only if methyl bromide is phaseout date but is still held by 2011. Under the recent reregistration not available in sufficient quantity and domestic producers, distributors, and decision for methyl bromide, seven non- quality from existing stocks.’’ In third-party applicators as of January 1, critical uses remain on the pre-plant addition, earlier decisions refer to the 2011. ES2011 does not include critical methyl bromide labels. These non- use of ‘‘quantities of methyl bromide use methyl bromide that was produced critical uses can continue to use methyl from stocks that the Party has after January 1, 2005, and carried over bromide but are restricted to pre- recognized to be available.’’ Thus, it is into subsequent years. Nor does it phaseout inventory. The uses are clear that individual Parties have the include methyl bromide produced (1) caneberries, fresh market tomatoes ability to determine their level of Under the quarantine and preshipment grown in California, fresh market available stocks. Decision XXII/6 further (QPS) exemption, (2) with Article 5 peppers grown in California, Vidalia reinforces this concept by including the allowances to meet the basic domestic onions grown in Georgia, ginger grown phrase ‘‘minus available stocks’’ as a needs of Article 5 countries, or (3) for in Hawaii, soils on golf courses and footnote to the United States’ authorized feedstock or transformation purposes. athletic/recreational fields for level of production and consumption in EPA considers all pre-phaseout resurfacing/replanting of turf, and Table D. Section 604(d)(6) of the CAA inventory to be suitable for both pre- tobacco seedling trays. See 76 FR 7200. does not require EPA to adjust the plant and post harvest uses. Similarly, Collectively they are referred to as amount of new production and import EPA considers inventory methyl ‘‘Group II uses.’’ EPA proposes to to reflect the availability of stocks; bromide to be available to all users, estimate the amount of inventory that however, as explained in previous including users in California and the will be sold to these Group II uses in rulemakings, making such an Southeastern United States. These 2011 by averaging the amounts sold in adjustment is a reasonable exercise of assumptions are discussed in the 2009 2006–2010 for all non-critical uses. EPA’s discretion under this provision. CUE rule (74 FR 19887). There is no clear trend in the pattern of EPA employs the concept of Estimated Drawdown. In past CUE usage which is why EPA is proposing to ‘‘available stocks’’ in determining rules, EPA either estimated the simply take an average. EPA is not whether to allocate additional CSAs drawdown of existing stocks using a including 2005 because it does not have beyond the minimum stock amount simple linear fit estimation of inventory data for that year. These data are stipulated by the Parties. In response to data from all available years or used contained in EPA’s annual Accounting stakeholder questions about how EPA actual reported end of year data if Frameworks submitted to UNEP and are derived its CSA amounts, the 2008 CUE available. A linear estimate would available in the docket. The average use rule established a refined approach for project that no methyl bromide would of pre-phaseout inventory on all non- determining the amount of existing remain in inventory on January 1, 2012. critical uses over the last five years is methyl bromide stocks that is EPA does not believe this estimate to be 773 MT. EPA believes that this estimate ‘‘available’’ for critical uses. The accurate because it does not consider is conservative because it includes the approach uses a tool called the Supply that the use of inventory on critical uses use of inventory for all non-critical uses, Chain Factor (SCF). The SCF is EPA’s is limited by the allocation of CSAs. A not just for Group II uses. Therefore, technical estimate of the amount of better estimate of drawdown would EPA proposes to adopt this average as methyl bromide inventory that would be instead add the estimated amount of its estimate of non-critical use in 2011. adequate to meet the need for critical CSAs that will be expended in 2011 Therefore, EPA proposes to estimate use methyl bromide after an unforeseen plus the estimated amount of methyl the potential drawdown of inventory in domestic production failure. The SCF bromide that will be used in 2011 for 2011 as (1) The projected sum of the use recognizes the benefit of allowing the non-critical uses. of CSAs for 2011 and (2) the estimate for private sector to maintain a buffer in The first element of EPA’s proposed Group II uses for 2011. Using this case of a major supply disruption. drawdown estimate is the amount of method, EPA projects that the pre- However, the SCF is not intended to set inventory that will be used in 2011 on phaseout methyl bromide inventory will aside or physically separate stocks as an critical uses. This can be no more than be drawn down by 1,110,633 kg inventory reserve. the number of CSAs EPA allocates in (337,633 + 773,000) during 2011. This the final 2011 CUE Rule. For purposes would result in a pre-phaseout 2. Calculation of Available Pre-Phaseout of this estimate, we are assuming the inventory declining from 1,802,715 kg Inventory number of CSAs allocated in the final on January 1, 2011, to 692,082 kg on For 2012, EPA proposes to calculate 2011 CUE Rule will be the same as the January 1, 2012. EPA welcomes the amount of ‘‘available’’ stocks as number EPA has proposed, which is comment on this proposed method of follows, using the formula adopted in 482,333 kg. As discussed in the calculating inventory drawdown. If EPA the 2008 CUE rule: AS2012 = ES2011 ¥ Technical Support Document, on receives actual end-of-year reported data

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on inventory levels before this rule is framework established in the Framework. Past U.S. Accounting finalized, EPA may substitute that data Framework Rule. Under this approach, Frameworks, including the one for 2010, for this estimate. the amount of new production would are available in the public docket for Supply Chain Factor. The SCF equal the total amount authorized by the this rulemaking. represents EPA’s technical estimate of Parties to the Montreal Protocol in Uptake of Alternatives. EPA also is the amount of pre-phaseout inventory Decision XXII/6, minus the CSA amount proposing to continue considering new that would be adequate to meet a need detailed above, minus any reductions data about alternatives that were not for critical use methyl bromide after an for carryover and the uptake of available at the time the U.S. unforeseen domestic production failure. alternatives. Applying this established Government submitted its CUN to the As described in the 2008 CUE Rule, and approach, EPA is proposing to exempt Parties and adjust the allocation for new the Technical Support Document limited amounts of new production and production accordingly. Two contained in the docket to this rule, EPA imports of methyl bromide for critical alternatives not considered in the 2012 estimates that it would take 15 weeks uses in 2012 in the amount of 759,744 CUN, which was submitted to UNEP in for significant imports of methyl kg (3.0% of baseline). EPA is taking January 2010, may potentially be used bromide to reach the U.S. in the event comment on this approach. in 2012. In July 2010, EPA registered of a major supply disruption. Consistent Carryover Material. The Parties in Dimethyl Disulfide (DMDS) to control with the regulatory framework used in paragraph 6 of Decision XXII/6 ‘‘urge nematodes, weeds, and pathogens in previous CUE allocation rules, the SCF parties operating under a critical-use tomatoes, peppers, eggplants, for 2012 conservatively reflects the exemption to put in place an effective curcurbits, strawberries, ornamentals effect of a supply disruption occurring system to discourage the accumulation and forest nursery seedlings, and in the peak period of critical use methyl of methyl bromide produced under the onions. Currently, 12 states have bromide production, which is the first exemption.’’ As discussed in the registered DMDS for use in that state. quarter of the year. While this 15-week Framework Rule, EPA does not permit Neither California nor Florida has yet to disruption is based on shipping capacity the building of stocks of methyl bromide register DMDS. EPA anticipates uptake and does not change year to year, other produced or imported after January 1, during 2012 to be minimal as the inputs to EPA’s analysis do change each 2005, under the critical use exemption. primary states with critical uses have year including the total U.S. and global Quantities of methyl bromide produced, not yet registered the alternative. In authorizations for methyl bromide and imported, exported, or sold to end-users addition, once registered, growers are the average seasonal production of under the critical use exemption in a likely to experiment on only a limited critical use methyl bromide in the U.S. control period must be reported to EPA number of acres. Using updated numbers, EPA estimates the following year. EPA uses these Second, California registered that critical use production in the first reports to calculate the amount of Iodomethane in December of 2010. EPA 15 weeks of each year (the peak supply methyl bromide produced or imported is unable to estimate uptake of period) currently accounts for under the critical use exemption, but Iodomethane in California during 2012 approximately 42% of annual critical not exported or sold to end-users in that due to uncertainties created by the use methyl bromide demand. EPA, year. EPA deducts an amount equivalent California label, specifically impacts of therefore, estimates that the peak 15- to this ‘‘carryover’’ from the total level larger buffer zones and the lack of week shortfall in 2012 could be 429 MT. of allowable new production and import efficacy studies at the California label’s As EPA stated in previous CUE Rules, in the year following the year of the data lower use rates. In addition to the state the SCF is not a ‘‘reserve’’ or ‘‘strategic report. Carryover material (which is registration, County Agricultural inventory’’ of methyl bromide but is produced using critical use allowances) Commissioners must permit each merely an analytical tool used to is not included in EPA’s definition of iodomethane application that occurs provide greater transparency regarding existing stocks (which applies to pre- within their jurisdiction. how the Agency determines CSA phaseout material) because this would While EPA is not proposing a specific amounts. Its use in the equation above lead to a double-counting of carryover amount of reduction to account for the demonstrates that 263,082 kg are amounts, and a double reduction of uptake of these alternatives, EPA will available to be allocated. Further general critical use allowances (CUAs). consider new data received during the discussion of the SCF is in the final Unlike past control periods, all comment period. If the registration 2008 CUE rule (72 FR 74118) and critical use methyl bromide that status of either of these alternatives further detail about the analysis used to companies reported to be produced or changes, EPA is proposing to estimate derive the value for the 2012 supply imported in 2010 was sold to end users. and account for that uptake in the final chain factor is provided in the The information reported to EPA is that rule. EPA is not proposing to take any Technical Support Document available 1,954,610 kg of critical use methyl other reductions for alternatives because on the public docket for this bromide was produced or imported. A the 2012 CUN properly applied rulemaking. slightly higher amount than the amount transition rates for all other alternatives. Using the following formula AS2012 = produced or imported was actually sold The TEAP report of October 2010 ES2011¥D2011¥SCF2012, EPA estimates to end-users in 2010. This additional included reductions in its that there will be 263,082 kg of pre- amount was from distributors selling recommendations for critical use phaseout stocks of methyl bromide amounts that were carried over from the categories based on the transition rates ‘‘available’’ on January 1, 2012. (263,082 2009 control period. Using the existing in the 2012 CUN. The TEAP’s = 1,802,715¥1,110,633¥429,000). framework, EPA is proposing to apply recommendations were then considered Therefore, EPA proposes to allocate the carryover deduction of 0 kg to the in the Parties’ 2012 authorization 263,082 kg as Critical Stock Allowances new production amount. EPA’s amounts, as listed in Decision XXII/6. for 2012. calculation of the amount of carryover at Therefore, transition rates, which the end of 2010 is consistent with the account for the uptake of alternatives, 2. Approach for Determining New method used in previous CUE rules, and have already been applied for Production and Import Allowances with the method agreed to by the Parties authorized 2012 critical use amounts. For the 2012 control period, EPA is in Decision XVI/6 for calculating EPA continues to gather information proposing to apply the existing column L of the U.S. Accounting about methyl bromide alternatives

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through the CUE application process, calculation using end of year inventory proposing it as the lead approach and by other means. EPA also continues data. It also means that the critical stock because the number of CUAs in the to support research and adoption of allocation was 128,382 kg less than the 2011 rule did not exceed the Parties’ methyl bromide alternatives, and to amount of ‘‘available stocks.’’ EPA production authorization for 2011 and request information about the economic stated in the 2011 proposed rule that the the total CUE amount for 2011 was and technical feasibility of all existing Agency could reduce critical-use unaffected. EPA does not believe the and potential alternatives. allowances for new production and 2011 allocation will result in carryover; In addition, EPA is taking comment import in the 2012 allocation rule to however, if it does, EPA will follow its on an issue raised in the proposed 2011 account for this difference. standard practice, discussed in prior CUE rule. In that rulemaking, EPA EPA is taking comment on an CUE notices, of subtracting the proposed a critical-use allowance alternative approach in which EPA carryover amount from the CUA amount allocation of 1,500,000 kg for 2011, would allocate 631,362 kg (2.5% of in a subsequent year. In addition, any given that regulated entities had been baseline) of CUAs for 2012. This amount effects that the 2011 CSA allocation had acting in good faith on statements made is 128,382 kg less than the proposed on the amount of pre-phaseout by the Agency in No Action Assurance CUA amount. The CSA amount could inventory used in 2011 is captured in letters that producers and importers remain either at 263,082 kg or be the ‘‘available stocks’’ analysis could assume the allocation would be at increased to 391,464 kg to reflect the contained in this rule. least that much. While the total lower CSA allocation in 2011. The total 3. Summary of Calculations allocation was not affected, the amount allocation for 2012 would be 894,444 kg of new production was 128,382 kg more or 1,022,826 kg depending on how The calculations described above for than what EPA would have proposed for many CSAs are issued under this determining the level of new production 2011 had the CSA and CUA amounts alternative. While EPA is taking and critical stock allowances are been based on the ‘‘available stocks’’ comment on this alternative, EPA is not summarized in the table below:

Kilograms

Step 1: Calculate supply chain factor: U.S. authorization for 2012 in Decision XXII/6 ...... 1,022,826 ¥ Reduction for uptake of alternatives ...... 0 = One year’s CUE need ...... 1,022,826 × Percentage of year’s production to recover from production failure ...... 42%

= Supply Chain Factor ...... 429,000

Step 2: Calculate available stocks: Existing pre-phaseout inventory on January 1, 2011 ...... 1,802,715 ¥ Drawdown of inventory for critical uses ...... 337,633 ¥ Drawdown of inventory for non-critical uses ...... 773,000 ¥ Supply Chain Factor (Step 1) ...... 429,000

= Available stocks = Critical Stock Allowance ...... 263,082

Step 3: Calculate new production: Total U.S. authorization for 2012 ...... 1,022,826 ¥ Critical Stock Allowance (Step 2) ...... 263,082 ¥ Carryover ...... 0 ¥ Uptake of alternatives ...... 0

= New production/import = Critical Use Allowance ...... 759,744

E. The Criteria in Decisions IX/6 and Ex. Decision IX/6, apart from the criterion Bromide for the United States of I/4 located at (b)(ii), as well as the criteria America’’ for further elaboration. in paragraphs 5 and 6 of Decision The remaining considerations, Paragraphs 2 and 5 of Decision XXII/ Ex. I/4. 6 request Parties to ensure that the including the lack of available conditions or criteria listed in Decisions The criterion in Decision IX/ technically and economically feasible Ex. I/4 and IX/6, paragraph 1, are 6(1)(b)(ii), which refers to the use of alternatives under the circumstance of applied to exempted critical uses for the available stocks of methyl bromide, is the nomination; efforts to minimize use 2012 control period. A discussion of the addressed in sections V.D., V.G., and and emissions of methyl bromide where agency’s application of the criteria in V.H. of this preamble. The agency has technically and economically feasible; paragraph 1 of Decision IX/6 appears in previously provided its interpretation of the development of research and sections V.A., V.C., V.D., and V.H. of the criterion in Decision IX/6(1)(a)(i) transition plans; and the requests in this preamble. In section V.C. the regarding the presence of significant Decision Ex. I/4(5) and (6) that Parties agency solicits comments on the market disruption in the absence of an consider and implement MBTOC technical and economic basis for exemption, and EPA refers readers to recommendations, where feasible, on determining that the uses listed in this the 2006 CUE final rule (71 FR 5989) as reductions in the critical use of methyl proposed rule meet the criteria of the well as to the memo on the docket titled bromide and include information on the critical use exemption. The CUNs detail ‘‘Development of 2003 Nomination for a methodology they use to determine how each proposed critical use meets Critical Use Exemption for Methyl economic feasibility, are addressed in the criteria listed in paragraph 1 of the nomination documents.

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Some of these criteria are evaluated in technologies, deep shank injection and/ CFR 82.12, which are discussed in other documents as well. For example, or other techniques that promote section V.G. of the preamble to the the U.S. has further considered matters environmental protection, whenever Framework Rule (69 FR 76982). regarding the adoption of alternatives technically and economically feasible. Paragraph 3 of Decision XXII/6 states and research into methyl bromide Through the recent Reregistration ‘‘that Parties shall endeavor to license, alternatives, criterion (1)(b)(iii) in Eligibility Decision (RED) for methyl permit, authorize or allocate quantities Decision IX/6, in the development of the bromide, the agency requires that of critical-use methyl bromide as listed National Management Strategy methyl bromide applications be tarped in tables A and C of the annex to the submitted to the Ozone Secretariat in except for California orchard replant present decision.’’ This is similar to December 2005, updated in October where EPA instead requires deep (18 language in prior Decisions authorizing 2009, as well as in ongoing inches or greater) shank applications. critical uses. The language from these consultations with industry. The The RED also encourages the use of Decisions calls on Parties to endeavor to National Management Strategy high-barrier tarps, such as virtually allocate critical use methyl bromide on addresses all of the aims specified in impermeable film (VIF), by providing a sector basis. The Framework Rule Decision Ex.I/4(3) to the extent feasible credits that applicators can use to proposed several options for allocating and is available in the docket for this minimize their buffer zones. In addition critical use allowances, including a rulemaking. to minimizing emissions, use of high- sector-by-sector approach. The agency There continues to be a need for barrier tarps has the benefit of providing evaluated the various options based on methyl bromide for research purposes. pest control at lower application rates. their economic, environmental, and A common example is an outdoor field The amount of methyl bromide practical effects. After receiving experiment that requires methyl nominated by the USG reflects the lower comments, EPA determined that a bromide as a standard control treatment application rates necessary when using lump-sum, or universal, allocation, with which to compare the trial high-barrier tarps, where such tarps are modified to include distinct caps for alternatives’ results. As in past CUE allowed. Emissions minimization efforts pre-plant and post-harvest uses, was the rules, EPA is proposing to allocate CSAs should not be limited to pre-plant most efficient and least burdensome rather than CUAs for any amounts fumigations. While the RED addresses approach that would achieve the authorized specifically for research emissions minimization only in the desired environmental results, and that purposes. Also as in past years, EPA is context of pre-plant fumigation, EPA a sector-by-sector approach would pose proposing to retain research on the also urges users to reduce emissions significant administrative and practical crops shown in the table in Appendix from structures and port facilities difficulties. For the reasons discussed in L to subpart A as a critical use of methyl through the use of recapture the preamble to the 2009 CUE rule (74 bromide. The USG recently submitted a technologies. FR 19894), the agency believes that supplemental nomination for 2,576 kg Users of methyl bromide should under the approach adopted in the for research activities in 2012. Because continue to make every effort to Framework Rule, the actual critical use the supplemental nomination was minimize overall emissions of methyl will closely follow the sector breakout submitted this year, the Parties have not bromide to the extent consistent with listed in the Parties’ decisions, but yet taken a decision authorizing an State and local laws and regulations. continues to welcome comments on this amount. The Parties are expected to take The agency encourages researchers and issue. a decision at their upcoming Meeting of users who are successfully utilizing H. Critical Stock Allowance Allocations the Parties in November 2011. such techniques to inform EPA of their Therefore, EPA is proposing to increase experiences as part of their comments A preambular paragraph to Decision the final CSA allocation by up to 2,576 on this proposed rule and to provide XXII/6 states ‘‘that parties should kg after consideration of the action such information with their critical use reduce their stocks of methyl bromide taken by the Parties in November and applications. In addition, the agency retained for employment in critical-use comments received on this proposed welcomes comments on the exemptions to a minimum in as short a rule regarding research needs. implementation of emission time period as possible.’’ EPA notes that EPA encourages methyl bromide minimization techniques and whether the U.S. Government is not retaining suppliers to sell inventory to researchers and how emissions could be reduced pre-phaseout inventory for any and encourages researchers to purchase further. particular purpose. Pre-phaseout inventory for research purposes. As inventory is held by private companies G. Critical Use Allowance Allocations discussed in the 2010 CUE rule, who may sell to any use that meets the research is a key element of the critical EPA is proposing to allocate 2012 labeling under FIFRA. However, EPA use process. Therefore, researchers may critical use allowances for new believes that its practice of encouraging continue to use newly produced methyl production or import of methyl bromide the use of inventory by allocating CSAs bromide, as well as pre-phaseout up to the amount of 759,744 kg (3.0% equivalent to all ‘‘available stocks’’ is inventory purchased through the of baseline) as shown in the proposed consistent with this statement by the expenditure of CSAs, for field, post- changes to the table in 40 CFR Parties. EPA is proposing to allocate harvest, and emission minimization 82.8(c)(1). EPA is seeking comment on CSAs for the 2012 control period in the studies requiring the use of methyl the total levels and allocations of amount of 263,082 kg (1.0% of bromide. EPA is taking comment on this exempted new production or import for baseline). This amount is greater than proposal to increase the CSA amount as pre-plant and post-harvest critical uses the difference between the total U.S. described above for research. in 2012. Each critical use allowance CUE amount approved by the Parties (CUA) is equivalent to 1 kg of critical and the permitted level of U.S. F. Emissions Minimization use methyl bromide. These allowances production and consumption. For 2012, Previous decisions have stated that expire at the end of the control period that difference is 100,000 kg (0.4% of Parties shall request critical users to and, as explained in the Framework baseline). employ emission minimization Rule, are not bankable from one year to EPA’s proposed allocation of CSAs is techniques such as virtually the next. The proposed CUA allocation based on each company’s proportionate impermeable films, barrier film is subject to the trading provisions at 40 share of the aggregate inventory. In

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2006, the United States District Court critical use methyl bromide to come application, recordkeeping, and for the District of Columbia upheld from stocks compared to new reporting requirements have already EPA’s treatment of company-specific production and import. been established under previous Critical methyl bromide inventory information As explained in the 2008 CUE Rule, Use Exemption rulemakings and this as confidential. NRDC v. Leavitt, 2006 the agency intends to continue releasing action does not propose to change any WL 667327 (D.D.C. March 14, 2006). the aggregate of methyl bromide of those existing requirements. The Therefore, the documentation regarding stockpile information reported to the Office of Management and Budget company-specific allocation of CSAs is agency under the reporting (OMB) has previously approved the in the confidential portion of the requirements at 40 CFR 82.13 for the information collection requirements rulemaking docket and the individual end of each control period. EPA notes contained in the existing regulations at CSA allocations are not listed in the that if the number of competitors in the 40 CFR part 82 under the provisions of table in 40 CFR 82.8(c)(2). EPA will industry were to decline appreciably, the Paperwork Reduction Act, 44 U.S.C. inform the listed companies of their EPA would revisit the question of 3501 et seq. and has assigned OMB CSA allocations in a letter following whether the aggregate is entitled to control number 2060–0482. The OMB publication of the final rule. treatment as confidential information control numbers for EPA’s regulations I. Stocks of Methyl Bromide and whether to release the aggregate without notice. EPA is not proposing to in 40 CFR are listed in 40 CFR part 9. An approved critical user may change the treatment of submitted C. Regulatory Flexibility Act purchase methyl bromide produced or information but welcomes information imported with CUAs as well as limited concerning the composition of the The RFA generally requires an agency inventories of pre-phaseout methyl industry in this regard. The aggregate to prepare a regulatory flexibility bromide, the combination of which information for 2003 through 2011 is analysis of any rule subject to notice- constitute the supply of ‘‘critical use available in the docket for this and-comment rulemaking requirements methyl bromide’’ intended to meet the rulemaking. under the Administrative Procedure Act needs of agreed critical uses. The or any other statute unless the agency Framework Rule established provisions VI. Statutory and Executive Order governing the sale of pre-phaseout Reviews certifies that the rule will not have a inventories for critical uses, including significant economic impact on a A. Executive Order 12866: Regulatory substantial number of small entities. the concept of CSAs and a prohibition Planning and Review and Executive on the sale of pre-phaseout inventories Small entities include small businesses, Order 13563: Improving Regulation and small organizations, and small for critical uses in excess of the amount Regulatory Review of CSAs held by the seller. It also governmental jurisdictions. For established trading provisions that Under Executive Order (EO) 12866 purposes of assessing the impacts of this allow CUAs to be converted into CSAs. (58 FR 51735, October 4, 1993), this rule on small entities, small entity is EPA is not proposing to change these proposal is a ‘‘significant regulatory defined as: (1) A small business as provisions. action.’’ This action is likely to result in defined by the Small Business The aggregate amount of pre-phaseout a rule that may raise novel legal or Administration’s regulations at 13 CFR methyl bromide reported as being in policy issues. Accordingly, EPA 121.201; (2) a small business that is inventory at the beginning of 2011 is submitted this action to the Office of identified by the North American 1,802,715 kg. As in prior years, the Management and Budget (OMB) for Industry Classification System (NAICS) Agency will continue to closely monitor review under Executive Orders 12866 Code in the Table below; (3) a small CUA and CSA data. As stated in the and 13563 (76 FR 3821, January 21, governmental jurisdiction that is a final 2006 CUE Rule, if an inventory 2011) and any changes made in government of a city, county, town, shortage occurs, EPA may consider response to interagency school district or special district with a various options including authorizing recommendations have been population of less than 50,000; and (4) the conversion of a limited number of documented in the docket for this a small organization that is any not-for- CSAs to CUAs through a rulemaking, action. bearing in mind the upper limit on U.S. profit enterprise which is independently production/import for critical uses. In B. Paperwork Reduction Act owned and operated and is not sections V.D. and V.G. of this preamble, This action does not impose any new dominant in its field. EPA seeks comment on the amount of information collection burden. The

NAICS Small business size standard Category NAICS code SIC code (in number of employees or millions of dollars)

Agricultural production...... 1112—Vegetable and Melon 0171—Berry Crops ...... $0.75 million. farming. 1113—Fruit and Nut Tree Farm- 0172—Grapes. ing. 1114—Greenhouse, Nursery, and 0173—Tree Nuts. Floriculture Production. 0175—Deciduous Tree Fruits (except apple orchards and farms). 0179—Fruit and Tree Nuts, NEC. 0181—Ornamental Floriculture and Nursery Products. 0831—Forest Nurseries and Gathering of Forest Products.

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NAICS Small business size standard Category NAICS code SIC code (in number of employees or millions of dollars)

Storage Uses ...... 115114—Postharvest Crop activi- ...... $7 million. ties (except Cotton Ginning). 311211—Flour Milling ...... 2041—Flour and Other Grain Mill 500 employees. Products. 311212—Rice Milling ...... 2044—Rice Milling ...... 500 employees. 493110—General Warehousing 4225—General Warehousing and $25.5 million. and Storage. Storage. 493130—Farm Product 4221—Farm Product $25.5 million. Warehousing and Storage. Warehousing and Storage. Distributors and Applicators ...... 115112—Soil Preparation, Plant- 0721—Crop Planting, Cultivation, $7 million. ing and Cultivating. and Protection. Producers and Importers ...... 325320—Pesticide and Other Ag- 2879—Pesticides and Agricultural 500 employees. ricultural Chemical Manufac- Chemicals, NEC. turing.

Agricultural producers of minor crops substantial number of small entities if E. Executive Order 13132: Federalism and entities that store agricultural the rule relieves a regulatory burden, or This action does not have federalism commodities are categories of affected otherwise has a positive economic effect implications. It will not have substantial entities that contain small entities. This on all of the small entities subject to the direct effects on the States, on the proposed rule would only affect entities rule. Since this rule would exempt relationship between the national that applied to EPA for an exemption to methyl bromide for approved critical government and the States, or on the the phaseout of methyl bromide. In most uses after the phaseout date of January distribution of power and cases, EPA received aggregated requests 1, 2005, this action would confer a responsibilities among the various for exemptions from industry consortia. benefit to users of methyl bromide. EPA levels of government, as specified in On the exemption application, EPA estimates in the Regulatory Impact Executive Order 13132. This proposed asked consortia to describe the number Assessment found in the docket to this rule is expected to primarily affect and size distribution of entities their rule that the reduced costs resulting producers, suppliers, importers, and application covered. EPA estimated that from the de-regulatory creation of the exporters and users of methyl bromide. 3,218 entities petitioned EPA for an Thus, Executive Order 13132 does not exemption for the 2005 control period. exemption are approximately $22 million to $31 million on an annual apply to this proposed rule. In the spirit EPA revised this estimate in 2011 down of Executive Order 13132, and to 1,800 end users of critical use methyl basis (using a 3% or 7% discount rate respectively). These reduced costs are consistent with EPA policy to promote bromide. EPA believes that the number communications between EPA and State continues to decline as growers cease dramatic owing to the high value of methyl bromide for crop production and and local governments, EPA specifically applying for critical uses. Since many solicits comment on this proposed agriculture related activities. We have applicants did not provide information action from State and local officials. on the distribution of sizes of entities therefore concluded that this proposed covered in their applications, EPA rule would relieve regulatory burden for F. Executive Order 13175: Consultation estimated that, based on the above all small entities. and Coordination With Indian Tribal definition, between one-fourth and one- Governments D. Unfunded Mandates Reform Act third of the entities may be small This action does not have tribal businesses. In addition, other categories This action contains no Federal implications, as specified in Executive of affected entities do not contain small mandates under the provisions of Title Order 13175 (65 FR 67249, November 9, businesses based on the above II of the Unfunded Mandates Reform 2000). This rule does not significantly or description. Act of 1995 (UMRA), 2 U.S.C. 1531– uniquely affect the communities of After considering the economic 1538 for State, local, or tribal Indian tribal governments nor does it impacts of this proposed rule on small governments or the private sector. The impose any enforceable duties on entities, EPA certifies that this action action imposes no enforceable duty on communities of Indian tribal will not have a significant economic governments. Thus, Executive Order impact on a substantial number of small any State, local or tribal governments or the private sector. Instead, this action 13175 does not apply to this action. EPA entities. In determining whether a rule specifically solicits additional comment would provide an exemption for the has a significant economic impact on a on this proposed action from tribal manufacture and use of a phased out substantial number of small entities, the officials. impact of concern is any significant compound and would not impose any adverse economic impact on small new requirements on any entities. G. Executive Order No. 13045: entities, since the primary purpose of Therefore, this action is not subject to Protection of Children From the regulatory flexibility analyses is to the requirements of sections 202 or 205 Environmental Health and Safety Risks identify and address regulatory of the UMRA. This action is also not EPA interprets EO 13045 (62 FR alternatives ‘‘which minimize any subject to the requirements of section 19885, April 23, 1997) as applying only significant economic impact of the 203 of UMRA because it contains no to those regulatory actions that concern proposed rule on small entities.’’ (5 regulatory requirements that might health or safety risks, such that the U.S.C. 603–604). Thus, an agency may significantly or uniquely affect small analysis required under section 5–501 of certify that a rule will not have a governments. the EO has the potential to influence the significant economic impact on a regulation. This action is not subject to

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EO 13045 because it does not establish bodies. NTTAA directs EPA to provide minority or low-income population. an environmental standard intended to Congress, through OMB, explanations Any ozone depletion that results from mitigate health or safety risks. when the agency decides not to use this proposed rule will impact all available and applicable voluntary affected populations equally because H. Executive Order 13211: Actions That consensus standards. This proposed ozone depletion is a global Significantly Affect Energy Supply, Distribution, or Use rulemaking does not involve technical environmental problem with standards. Therefore, EPA is not environmental and human effects that This proposed rule is not a considering the use of any voluntary are, in general, equally distributed ‘‘significant energy action’’ as defined in consensus standards. across geographical regions. Executive Order 13211, ‘‘Actions Concerning Regulations That J. Executive Order 12898: Federal List of Subjects in 40 CFR Part 82 Actions To Address Environmental Significantly Affect Energy Supply, Environmental protection, Ozone Justice in Minority Populations and Distribution, or Use’’ (66 FR 28355 (May depletion, Chemicals, Exports, Imports. 22, 2001)) because it is not likely to Low-Income Populations Dated: October 13, 2011. have a significant adverse effect on the Executive Order (EO) 12898 (59 FR supply, distribution, or use of energy. Lisa P. Jackson, 7629 (Feb. 16, 1994)) establishes Federal Administrator. This proposed rule does not pertain to executive policy on environmental any segment of the energy production justice. Its main provision directs For the reasons stated in the economy nor does it regulate any federal agencies, to the greatest extent preamble, 40 CFR part 82 is proposed to manner of energy use. Therefore, we practicable and permitted by law, to be amended as follows: have concluded that this proposed rule make environmental justice part of their is not likely to have any adverse energy mission by identifying and addressing, PART 82—PROTECTION OF effects. as appropriate, disproportionately high STRATOSPHERIC OZONE I. National Technology Transfer and and adverse human health or 1. The authority citation for part 82 Advancement Act environmental effects of their programs, continues to read as follows: Section 12(d) of the National policies, and activities on minority populations and low-income Authority: 42 U.S.C. 7414, 7601, 7671– Technology Transfer and Advancement 7671q. Act of 1995 (‘‘NTTAA’’), Public Law populations in the United States. 104–113, 12(d) (15 U.S.C. 272 note) EPA has determined that this 2. Section 82.8 is amended as follows: directs EPA to use voluntary consensus proposed rule will not have a. by revising the table in paragraph standards in its regulatory activities disproportionately high and adverse (c)(1); unless to do so would be inconsistent human health or environmental effects b. by revising paragraph (c)(2) with applicable law or otherwise on minority or low-income populations, including the table. impractical. Voluntary consensus because it affects the level of standards are technical standards (e.g., environmental protection equally for all § 82.8 Grant of essential use allowances materials specifications, test methods, affected populations without having any and critical use allowances. sampling procedures, and business disproportionately high and adverse * * * * * practices) that are developed or adopted human health or environmental effects (c) * * * by voluntary consensus standards on any population, including any (1) * * *

2012 Critical use 2012 Critical use allowances for Company allowances for post-harvest pre-plant uses * uses * (kilograms) (kilograms)

Great Lakes Chemical Corp., A Chemtura Company ...... 425,197 36,499 Albemarle Corp ...... 174,851 15,009 ICL–IP America ...... 96,626 8,294 TriCal, Inc ...... 3,009 258

Total ** ...... 699,683 60,061 * For production or import of Class I, Group VI controlled substance exclusively for the Pre-Plant or Post-Harvest uses specified in appendix L to this subpart. ** Due to rounding, numbers do not add exactly.

(2) Allocated critical stock allowances Crop Production Services Univar granted for specified control period. The Degesch America, Inc. Western Fumigation following companies are allocated Helena Chemical Co. critical stock allowances for 2012 on a Hendrix & Dail Total—263,082 kilograms pro-rata basis in relation to the Hy Yield Products 3. Appendix L to Subpart A is revised inventory held by each. ICL–IP America to read as follows: Industrial Fumigant Company Company Pacific Ag Supplies Inc. Appendix L to Subpart A of Part 82— Albemarle Pest Fog Sales Corp. Approved Critical Uses and Limiting Bill Clark Pest Control, Inc. Prosource One Critical Conditions for Those Uses for Burnside Services, Inc. Reddick Fumigants the 2012 Control Period Cardinal Professional Products TriCal, Inc. Chemtura Corp. Trident Agricultural Products

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Column A Column B Column C

Approved Critical Uses Approved Critical User and Location of Use Limiting Critical Conditions that exist, or that the approved critical user reasonably expects could arise without methyl bromide fumigation

PRE-PLANT USES

Cucurbits ...... (a) Growers in Delaware and Maryland ...... Moderate to severe soilborne disease infestation. (b) Growers in Georgia and Southeastern U.S. limited Moderate to severe yellow or purple nutsedge infesta- to growing locations in Alabama, Arkansas, Ken- tion. tucky, Louisiana, Mississippi, North Carolina, South Moderate to severe soilborne disease infestation. Carolina, Tennessee, and Virginia. Moderate to severe root knot nematode infestation. Eggplant ...... (a) Florida growers ...... Moderate to severe yellow or purple nutsedge infestation. Moderate to severe soilborne disease infestation. Restrictions on alternatives due to karst topographical features and soils not supporting seepage irrigation. (b) Georgia growers ...... Moderate to severe yellow or purple nutsedge infestation. Moderate to severe nematode infestation. Moderate to severe pythium collar, crown and root rot. Moderate to severe southern blight infestation. Restrictions on alternatives due to karst topographical features. Forest Nursery Seedlings .... (a) Southern Forest Nursery Management Cooperative Moderate to severe yellow or purple nutsedge infesta- (Growers in Alabama, Arkansas, Florida, Georgia, tion. Kentucky, Louisiana, Mississippi, North Carolina, Moderate to severe soilborne disease infestation. Oklahoma, South Carolina, Tennessee, Texas, and Moderate to severe nematode infestation. Virginia. (b) Northeastern Forest and Conservation Nursery As- Moderate to severe weed infestation including purple sociation (Government-owned seedling nurseries in and yellow nutsedge infestation. Illinois, Indiana, Kentucky, Maryland, Missouri, New Moderate to severe Canada thistle infestation. Jersey, Ohio, Pennsylvania, West Virginia, and Wis- Moderate to severe nematode infestation. consin). Moderate to severe soilborne disease infestation. (c) Michigan Seedling Growers ...... Moderate to severe soilborne disease infestation. Moderate to severe Canada thistle infestation. Moderate to severe nutsedge infestation. Moderate to severe nematode infestation. Nursery Stock (Fruit, Nut, (a) Members of the California Association of Nursery Moderate to severe nematode infestation. Flower). and Garden Centers representing Deciduous Tree Medium to heavy clay soils. Fruit Growers. Local township limits prohibiting 1,3-dichloropropene. (b) California rose nurseries ...... Moderate to severe nematode infestation. Local township limits prohibiting 1,3-dichloropropene. Orchard Replant...... California stone fruit, table and raisin grape, wine Moderate to severe nematode infestation. grape, walnut, and almond growers. Moderate to severe soilborne disease infestation. Replanted orchard soils to prevent orchard replant disease. Medium to heavy soils. Local township limits prohibiting 1,3-dichloropropene. Ornamentals ...... (a) California growers ...... Moderate to severe soilborne disease infestation. Moderate to severe nematode infestation. Local township limits prohibiting 1,3-dichloropropene. (b) Florida growers ...... Moderate to severe weed infestation. Moderate to severe soilborne disease infestation. Moderate to severe nematode infestation. Restrictions on alternatives due to karst topographical features and soils not supporting seepage irrigation. Peppers ...... (a) Alabama, Arkansas, Kentucky, Louisiana, Mis- Moderate to severe yellow or purple nutsedge infesta- sissippi, North Carolina, South Carolina, Tennessee, tion. and Virginia growers. Moderate to severe nematode infestation. Moderate to severe pythium root, collar, crown and root rots. (b) Florida growers ...... Moderate to severe yellow or purple nutsedge infestation. Moderate to severe soilborne disease infestation. Moderate to severe nematode infestation. Restrictions on alternatives due to karst topographical features and soils not supporting seepage irrigation.

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Column A Column B Column C

(c) Georgia growers ...... Moderate to severe yellow or purple nutsedge infestation. Moderate to severe nematode infestation, or moderate to severe pythium root and collar rots. Moderate to severe southern blight infestation, crown or root rot. Restrictions on alternatives due to karst topographical features. Strawberry Fruit ...... (a) California growers ...... Moderate to severe black root rot or crown rot. Moderate to severe yellow or purple nutsedge infestation. Moderate to severe nematode infestation. Local township limits prohibiting 1,3-dichloropropene. Time to transition to an alternative. (b) Florida growers ...... Moderate to severe yellow or purple nutsedge infestation. Moderate to severe nematode infestation. Moderate to severe soilborne disease infestation. Carolina geranium or cut-leaf evening primrose infestation. Restrictions on alternatives due to karst topographical features and soils not supporting seepage irrigation. (c) Alabama, Arkansas, Georgia, Illinois, Kentucky, Moderate to severe yellow or purple nutsedge infesta- Louisiana, Maryland, Mississippi, Missouri, New Jer- tion. sey, North Carolina, Ohio, South Carolina, Ten- Moderate to severe nematode infestation. nessee, and Virginia growers. Moderate to severe black root and crown rot. Strawberry Nurseries ...... California growers ...... Moderate to severe soilborne disease infestation. Moderate to severe yellow or purple nutsedge infestation. Moderate to severe nematode infestation. Sweet Potato Slips ...... California growers ...... Local township limits prohibiting 1,3-dichloropropene. Tomatoes ...... (a) Alabama, Arkansas, Florida, Georgia, Kentucky, Moderate to severe yellow or purple nutsedge infesta- Louisiana, Mississippi, North Carolina, South Caro- tion. lina, Tennessee, and Virginia growers. Moderate to severe soilborne disease infestation. Moderate to severe nematode infestation. Restrictions on alternatives due to karst topographical features and, in Florida, soils not supporting seepage irrigation. (b) Maryland growers ...... Moderate to severe fungal pathogen infestation.

POST-HARVEST USES

Food Processing ...... (a) Rice millers in the U.S. who are members of the Moderate to severe beetle, weevil, or moth infestation. USA Rice Millers Association. Presence of sensitive electronic equipment subject to corrosion. Time to transition to an alternative. (b) Pet food manufacturing facilities in the U.S. who are Moderate to severe beetle, moth, or cockroach infesta- members of the Pet Food Institute. tion. Presence of sensitive electronic equipment subject to corrosion. Time to transition to an alternative. (c) Members of the North American Millers’ Association Moderate to severe beetle infestation. in the U.S. Presence of sensitive electronic equipment subject to corrosion. Time to transition to an alternative. (d) Members of the National Pest Management Asso- Mite infestation. ciation treating cheese storage facilities. Commodities ...... California entities storing walnuts, dried plums, figs, rai- Rapid fumigation required to meet a critical market win- sins, and dates (in Riverside county only) in Cali- dow, such as during the holiday season. fornia. Dry Cured Pork Products ..... Members of the National Country Ham Association and Red legged ham beetle infestation. the Association of Meat Processors, Nahunta Pork Cheese/ham skipper infestation. Center (North Carolina), and Gwaltney and Smithfield Dermested beetle infestation. Inc. Ham mite infestation

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[FR Doc. 2011–27186 Filed 10–19–11; 8:45 am] (EC) species, and the development of amendment is available for review and BILLING CODE 6560–50–P species groups. comment. DATES: Written comments must be The four FMPs being revised by the received on or before December 19, Comprehensive ACL Amendment were DEPARTMENT OF COMMERCE 2011. prepared by the Council and implemented through regulations at 50 National Oceanic and Atmospheric ADDRESSES: You may submit comments CFR parts 622 under the authority of the Administration on the amendment identified by Magnuson-Stevens Act. ‘‘NOAA–NMFS–2011–0087’’ by any of Background 50 CFR Part 622 the following methods: • Electronic submissions: Submit The 2006 revisions to the Magnuson- RIN 0648–AY73 electronic comments via the Federal Stevens Act require that in 2011, for fish e-Rulemaking Portal: http:// Fisheries of the Caribbean, Gulf of stocks determined by the Secretary to www.regulations.gov. Follow the Mexico, and South Atlantic; not be subject to overfishing, ACLs must instructions for submitting comments. Comprehensive Annual Catch Limit be established at a level that prevents • Mail: Nikhil Mehta, Southeast Amendment for the South Atlantic overfishing and helps to achieve Regional Office, NMFS, 263 13th optimum yield (OY) within a fishery. AGENCY: National Marine Fisheries Avenue South, St. Petersburg, FL 33701. The Magnuson-Stevens Act requires Service (NMFS), National Oceanic and Instructions: All comments received NMFS and regional fishery management Atmospheric Administration (NOAA), are a part of the public record and will councils to prevent overfishing and Commerce. generally be posted to http:// achieve, on a continuing basis, the OY ACTION: Notice of availability; request www.regulations.gov without change. from federally managed stocks. These for comments. All Personal Identifying Information (for mandates are intended to ensure fishery example, name, address, etc.) resources are managed for the greatest SUMMARY: NMFS announces that the voluntarily submitted by the commenter overall benefit to the nation, particularly South Atlantic Fishery Management may be publicly accessible. Do not with respect to providing food Council (Council) has submitted the submit Confidential Business production and recreational Comprehensive Annual Catch Limit Information or otherwise sensitive or opportunities, and protecting marine Amendment (Comprehensive ACL protected information. ecosystems. Amendment) for review, approval, and To submit comments through the Actions Contained in the Amendment implementation by NMFS. The Federal e-Rulemaking Portal: http:// Comprehensive ACL Amendment www.regulations.gov, click on ‘‘submit a Golden Crab FMP amends the Fishery Management Plans comment,’’ then enter ‘‘NOAA–NMFS– The Comprehensive ACL Amendment (FMPs) for the Snapper-Grouper Fishery 2011–0087’’ in the keyword search and proposes to specify an ABC, an ABC of the South Atlantic Region, the Golden click on ‘‘search’’. To view posted control rule, an ACL, and an AM for Crab Fishery of the South Atlantic comments during the comment period, golden crab. Region, the Dolphin and Wahoo Fishery enter ‘‘NOAA–NMFS–2011–0087’’ in off the Atlantic States, and the Pelagic the keyword search and click on Dolphin and Wahoo FMP Sargassum Habitat of the South Atlantic ‘‘search’’. NMFS will accept anonymous The Comprehensive ACL Amendment Region. The Comprehensive ACL comments (enter N/A in the required proposes to specify ABCs, ABC control Amendment proposes actions to specify field if you wish to remain anonymous). rules, ACLs, and AMs for dolphin and annual catch limits (ACLs), allowable You may submit attachments to wahoo. Sector allocations, ACTs for biological catch (ABC), ABC control electronic comments in Microsoft Word, dolphin and wahoo, and management rules, and accountability measures Excel, WordPerfect, or Adobe PDF file measures for dolphin are also proposed. (AMs) for species in the FMPs for formats only. Snapper-Grouper FMP Snapper-Grouper, Dolphin and Wahoo, Comments received through means Golden Crab, and Sargassum. The not specified in this rule will not be The Comprehensive ACL Amendment Comprehensive ACL Amendment considered. proposes to identify snapper-grouper proposes to specify ABC, and describe Electronic copies of the amendment species that do not need Federal the current terminology and measures in may be obtained from the Southeast management and can therefore be place in the Sargassum FMP that are Regional Office Web site at http:// removed from the Snapper-Grouper consistent with an ACL and AMs. For sero.nmfs.noaa.gov. FMP; designate selected snapper- Sargassum, this amendment would not grouper species as EC species; and specifically set an ACL because there is FOR FURTHER INFORMATION CONTACT: establish species groups for selected currently a commercial quota in place Nikhil Mehta, telephone: 727–824– snapper-grouper species for more which functions as an ACL, and there 5305, or e-mail: [email protected]. effective management. The are commercial closure provisions in SUPPLEMENTARY INFORMATION: The Comprehensive ACL Amendment the event the quota is met or projected Magnuson-Stevens Fishery would establish ABC control rules, to be met which functions as an AM. Conservation and Management Act ACLs for the commercial and Sector allocations, annual catch targets (Magnuson-Stevens Act) requires each recreational sectors, and ACTs (ACTs), and management measures are regional fishery management council to (recreational sector only) for individual also proposed for species in the submit any fishery management plan or species and species groups. Snapper-Grouper and Dolphin and amendment to NMFS for review and Additionally, the Comprehensive ACL Wahoo FMPs. In addition, the approval, partial approval, or Amendment would define the allocation Comprehensive ACL Amendment disapproval. The Magnuson-Stevens Act of black grouper, mutton snapper, and proposes actions to the snapper-grouper also requires that NMFS, upon receiving yellowtail snapper across the fishery management unit (FMU), a plan or amendment, publish an jurisdictional boundary between the including the removal of some species, announcement in the Federal Register Gulf of Mexico Fishery Management designation of ecosystem component notifying the public that the plan or Council (Gulf Council) and the South

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Atlantic Council. Furthermore, the and targeted species, species that have specifically set an ACL, however, there Comprehensive ACL Amendment an ACL equal to zero, and species that is currently a commercial quota in place allocates the harvest of species between cannot be placed into a complex based which functions as an ACL and for the commercial and recreational sectors. on the criteria below. Complexes for which commercial closure provisions The Comprehensive ACL Amendment species groups would be established are in effect in the event the quota is met also establishes AMs, which manage using associations based on life history, or projected to be met. harvest within an applicable quota or catch statistics from commercial ACT/AMs for the Golden Crab, Dolphin ACL and manage future harvest, should logbook and observer data, recreational and Wahoo, and Snapper-Grouper a species or species group ACL be headboat logbook and private/charter FMPs exceeded. survey, and fishery-independent data. The Comprehensive ACL Amendment For species in the Snapper-Grouper Removal of Stocks From the Snapper- would establish selected snapper- and Dolphin and Wahoo FMPs, ACTs Grouper FMP grouper species into the complexes for for the commercial sector would not be There are currently 73 species in the selected deep-water species, shallow- established in this amendment but Snapper-Grouper FMP. Many water groupers, snappers, jacks, grunts, would be set for the recreational sector. uncommonly harvested species were and porgies. ACTs would not be established for the originally placed in the FMP because Golden Crab FMP. In-season and post- they were considered to be sub-tropical/ ABC Control Rules for the Sargassum, season AMs are proposed for the tropical in distribution, and therefore Golden Crab, Dolphin and Wahoo, and commercial sector of the Golden Crab, limited in their range to south of Cape Snapper-Grouper FMPs Dolphin and Wahoo, and Snapper- Hatteras, North Carolina, on the east Standard methods for determining the Grouper FMPs that would maintain coast of the U.S., and were part of a appropriate ABC would allow the catch levels within the proposed ACLs, large multi-species fishery where co- Council’s Scientific and Statistical or restore catch levels to those limits if occurring species were taken together Committee (SSC) to determine an exceeded. AMs would be established for with the same gear in the same area. The objective and efficient assignment of selected snapper-grouper, dolphin and Magnuson-Stevens Act requires ABC. The SSC’s recommendation of an wahoo, and golden crab. For the Councils to prepare FMPs only for ABC takes into account scientific Snapper-Grouper-FMP, when a complex overfished fisheries, for other fisheries uncertainty regarding the harvest levels ACL is exceeded, all species in that where regulation would serve some that would lead to overfishing. The complex would be subject to AMs, and useful purpose, and where the present quality and quantity of landings when an individual ACL is exceeded, or future benefits of regulation would information varies according to the the individual stock would be subject to justify the costs. The Council evaluated stock in question, thus different control AMs. For the recreational sector whether all species currently included rules are needed for data-adequate (Dolphin and Wahoo and Snapper- in the snapper-grouper FMU are in need (assessed species) and data-poor (un- Grouper FMPs), AMs would be of Federal conservation and assessed species) stocks. implemented during the year following management and determined 13 species any potential overage of the ACL during Allocations for Species in the Snapper- should be removed from the FMU. the previous year. ACLs and AMs would Grouper and Dolphin and Wahoo FMPs Species proposed for removal from the apply to the applicable species for both snapper-grouper FMU are black The Comprehensive ACL Amendment the commercial and recreational sectors. margate, bluestriped grunt, crevalle jack, would set jurisdictional allocations for Additional Management Measures for French grunt, grass porgy, porkfish, black grouper, yellowtail snapper, and Wreckfish in the Snapper-Grouper FMP puddingwife, queen triggerfish, mutton snapper between the South and Dolphin in the Dolphin and Wahoo sheepshead, smallmouth grunt, Spanish Atlantic and Gulf of Mexico. The FMP grunt, tiger grouper, and yellow jack. amendment would also establish allocations for the commercial and The Comprehensive ACL Amendment Designation of Ecosystem Component recreational sectors for snapper-grouper would also implement a one wreckfish Species in the Snapper-Grouper FMP species and dolphin and wahoo that do per vessel recreational daily bag limit The Council chose six species to be not currently have allocations specified. and a recreational wreckfish closed selected as EC species in the season of January 1 through June 30 and Specification of ACLs and OY for the Comprehensive ACL Amendment. The September 1 through December 31, each Golden Crab, Dolphin and Wahoo, and proposed EC species are bank sea bass, year. Additionally, the Comprehensive Snapper-Grouper FMPs cottonwick, longspine porgy, ocean ACL Amendment proposes to prohibit triggerfish, rock sea bass, and The Comprehensive ACL Amendment bag limit sales of dolphin from for-hire schoolmaster. The designation of these would assign initial ACLs and OY, for vessels and establish a minimum size species as EC species retains them in the each of the species retained for Federal limit for dolphin of 20 inches (50.8 cm) snapper-grouper FMU, but does not management in the amendment, fork length from Florida through South require that these species have an ACL excluding EC species. An ACL would be Carolina. and AM specified. EC species would set equal to the OY for a species or Consideration of Public Comments also no longer be subject to any other species group for selected snapper- Federal management measures, such as grouper, dolphin and wahoo, and A proposed rule that would bag limits and size limits. golden crab (commercial sector only). implement measures outlined in the ACL would be set equal to the OY and Comprehensive ACL Amendment has Species Groupings in the Snapper- equal to the ABC for species in this been received from the Council. In Grouper FMP amendment requiring ACLs. ACLs accordance with the Magnuson-Stevens The Council decided to establish both would be specified for species in both Act, NMFS is evaluating the proposed species complex ACLs and single the commercial and recreational sectors rule to determine whether it is species ACLs within the Comprehensive for species in the Dolphin and Wahoo consistent with the FMPs, the ACL Amendment. Single species ACLs and Snapper-Grouper FMPs. For Magnuson-Stevens Act, and other would be established for both assessed Sargassum, this amendment would not applicable law. If that determination is

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affirmative, NMFS will publish the there would be no limit on swordfish http://www.pcouncil.org/hms/ proposed rule in the Federal Register retained. Regulations prohibiting the hmsfmp.html. for public review and comment. use of shallow-set longline gear to target The HMS FMP was developed by the Comments received by December 19, swordfish would remain in place. Council in response to the need to 2011, will be considered by NMFS in its DATES: Comments must be received by coordinate state, Federal, and decision to approve, disapprove, or November 21, 2011. international management of HMS partially approve the amendment. stocks. The management unit in the ADDRESSES: Comments received after that date will You may submit comments FMP consists of highly migratory not be considered by NMFS in this on this document, identified by NOAA– species (tunas, billfish, and sharks) that decision. All comments received by NMFS–2011–0211, by any of the occur within the West Coast (California, following methods: Oregon, and Washington) Exclusive NMFS on the amendment or the • proposed rule during their respective Electronic Submission: Submit all Economic Zone (EEZ) and to a limited comment periods will be addressed. electronic public comments via the extent on adjacent high seas waters. Federal e-Rulemaking Portal http:// Authority: 16 U.S.C. 1801 et seq. NMFS, on behalf of the U.S. Secretary www.regulations.gov. To submit of Commerce, partially approved the Dated: October 17, 2011. comments via the e-Rulemaking Portal, HMS FMP on February 4, 2004 (69 FR Alan D. Risenhoover, first click the ‘‘submit a comment’’ icon, 18444). The majority of HMS FMP Director, Office of Sustainable Fisheries, then enter NOAA–NMFS–2011–0211 in implementing regulations became National Marine Fisheries Service. the keyword search. Locate the effective on April 7, 2004. Reporting [FR Doc. 2011–27203 Filed 10–19–11; 8:45 am] document you wish to comment on and recordkeeping provisions became BILLING CODE 3510–22–P from the resulting list and click on the effective on February 10, 2005. ‘‘Submit a Comment’’ icon on the right Since being adopted in 2004, the HMS of that line. FMP has been amended twice. On June DEPARTMENT OF COMMERCE • Mail: Submit written comments to 7, 2007, NMFS approved Amendment 1 Rodney R. McInnis, Regional to the HMS FMP to incorporate National Oceanic and Atmospheric Administrator, Southwest Region, recommended international measures to Administration NMFS, 501 West Ocean Blvd., Suite end overfishing of the Pacific stock of 4200, Long Beach, CA 90802–4213. bigeye tuna, Thunnus obesus, in 50 CFR Part 660 • Fax (562) 980–4047; Attn: Rodney response to formal notification from [Docket No. 110211137–1599–01] R. McInnis. NMFS that overfishing was occurring on Instructions: Comments must be this stock. On June 12, 2011, NMFS RIN 0648–BA87 submitted by one of the above methods approved Amendment 2 to the HMS Fisheries Off West Coast States; to ensure that the comments are FMP (76 FR 56328) to ensure that it is Highly Migratory Species Fisheries; received, documented, and considered consistent with revised guidelines to Swordfish Retention Limits by NMFS. Comments sent by any other implement National Standard 1 of the method, to any other address or MSA in order to more effectively AGENCY: National Marine Fisheries individual, or received after the end of prevent overfishing and rebuild Service (NMFS), National Oceanic and the comment period, may not be overfished stocks, or stocks that may Atmospheric Administration (NOAA), considered. All comments received are become overfished. Commerce. a part of the public record and will In a letter dated July 16, 2010, the ACTION: Proposed rule; request for generally be posted for public viewing Council received a request to modify comments. on http://www.regulations.gov without HMS FMP longline regulations at 50 change. All personal identifying CFR 660.712. To avoid interactions with SUMMARY: NMFS proposes regulations information (e.g., name, address, etc.) sea turtles, those regulations prohibit under the Magnuson-Stevens Fishery submitted voluntarily by the sender will vessels based on the West Coast from Conservation and Management Act be publicly accessible. Do not submit using longline gear to make shallow (MSA) to modify retention limits for confidential business information, or sets. Longline vessels that make deep swordfish, Xiphias gladius, harvested in otherwise sensitive or protected sets with longline (DSLL) are limited to the U.S. West Coast-based deep-set tuna information. NMFS will accept landing 10 swordfish per trip. The trip longline (DSLL) fishery. The DSLL anonymous comments (enter ‘‘N/A’’ in limit was implemented to prevent fishery is managed under the Fishery the required fields if you wish to remain vessels departing ostensibly to fish Management Plan for U.S. West Coast anonymous). Attachments to electronic DSLL gear targeting bigeye and Fisheries for Highly Migratory Species comments will be accepted in Microsoft yellowfin tuna, from switching to make (HMS FMP). The proposed rule would Word or Excel, WordPerfect, or Adobe shallow sets using longline (SSLL) that implement the Pacific Fishery PDF file formats only. is used to target swordfish, and that Management Council’s (Council) might result in higher incidental catch recommendation to modify HMS FMP FOR FURTHER INFORMATION CONTACT: rates of sea turtles. The letter to the regulations governing the possession Craig Heberer, Sustainable Fisheries Council requested that these regulations and landing limits of swordfish Division, NMFS, 760–431–9440, ext. be modified to increase the trip limits captured in the DSLL fishery, 303. on swordfish, in order to make them contingent on hook type and fisheries SUPPLEMENTARY INFORMATION: consistent with regulations observer presence. If a vessel without an implementing the Western Pacific observer onboard uses any J-hooks (tuna Electronic Access Fishery Management Council’s Pacific hooks), the trip limit would be 10 This proposed rule is also accessible Pelagics Fishery Ecosystem Plan (FEP) swordfish. If a vessel without an at (http://swr.nmfs.noaa.gov/). An governing DSLL fishing retention limits. observer onboard uses only circle hooks, electronic copy of the current HMS FMP Specifically, the letter requested that the the trip limit would be 25 swordfish. If and accompanying appendices are Council modify 50 CFR 660.712 the vessel carries a NMFS-approved available on the Pacific Fishery governing the DSLL fishery by observer during the entire fishing trip, Management Council’s Web site at recommending removal of the 10

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swordfish per trip limit in light of the levels will be minimized as required by DSLL fishery are expected to be Western Pacific Fishery Management National Standard 9 of the MSA. relatively small, and the additional Council’s recommendation to do the potential income de minimis relative to Classification same at their 148th meeting on June 28– the economics of a fishing trip in this July 1, 2010. NMFS has determined that the fishery. The population of north Pacific The Council considered the request to proposed rule is consistent with the swordfish is considered healthy and not modify the trip limit and determined HMS FMP and preliminarily in an overfished condition or that the current HMS FMP regulations, determined that this proposed rule is experiencing overfishing. There are no which proscribe SSLL fishing and set consistent with the MSA and other quotas or harvest guidelines in place specific trip limits on swordfish catch, applicable laws. under the HMS FMP for swordfish. provide adequate controls on both DSLL An Initial Regulatory Impact Review Accordingly, and as a result of this and SSLL fishing. However, the Council was conducted to analyze the potential analysis, an initial regulatory flexibility noted that the single vessel in the DSLL economic impacts and costs of this analysis is not required and none has fishery has 100% observer coverage, and proposed rule. been prepared. This proposed rule has been that coverage reduces the likelihood of determined to be not significant for List of Subjects in 50 CFR Part 660 that vessel engaging in SSLL fishing. purposes of Executive Order 12866. Additionally, the Council found that the Fisheries, Fishing, Reporting and Under the Regulatory Flexibility Act, recordkeeping requirements. deterrent effect to SSLL fishing the Chief Counsel for Regulation of the provided by the 100% observer coverage Department of Commerce certified to Dated: October 17, 2011. makes the current 10 swordfish per trip the Chief Counsel for Advocacy of the Samuel D. Rauch III, limit unnecessary for longline Small Business Administration that this Deputy Assistant Administrator for fishermen. Moreover, the Council noted proposed rule, if adopted, would not Regulatory Programs, National Marine that the 10 swordfish per trip limit have a significant economic impact on Fisheries Service. might create regulatory discards (a form a substantial number of small entities. For the reasons set out in the of bycatch) and potential loss of income The factual basis for that determination preamble, 50 CFR part 660 is proposed from the sale of swordfish harvested in is as follows: to be amended as follows: excess of the current retention limit. The proposed rule would revise the In response to these findings, in HMS FMP to modify the current PART 660—FISHERIES OFF THE WEST November 2010, the Council regulation, which allows a maximum of COAST STATES recommended to NMFS that the 10 swordfish per trip when using regulations at 50 CFR 660.712 be authorized DSLL gear regardless of hook 1. The authority citation for part 660 modified. Specifically, the Council type or the presence of an observer on continues to read as follows: recommended retaining the 10 any given trip. The proposed action Authority: 16 U.S.C. 1801 et seq. swordfish limit for DSLL vessels fishing would impose a trip limit of 10 2. In § 660.705, revise paragraphs (s) with J-hooks (tuna hooks), because those swordfish when using J-hooks (tuna and (mm) to read as follows: types of hooks have higher sea turtle hooks), and 25 swordfish when using bycatch rates, and the trip limit acts as circle hooks. For trips carrying an § 660.705 Prohibitions. a deterrent to engaging in fishing observer there would be no retention * * * * * practices that may result in sea turtle limit in place, regardless of hook type, (s) If no observer is on the vessel and bycatch. The Council recommended because the observer’s coverage on the J-type fishing hooks are used, possess changing the trip limits for vessels trip reduces the likelihood of the vessel more than 10 swordfish; if no observer fishing without observers but using engaging in fishing practices prohibited on the vessel and only circle-type circle hooks, because those types of by the regulations, or that would result fishing hooks are used, possess more hooks are known to minimize the in sea turtle bycatch. than 25 swordfish on board a longline bycatch and mortality of sea turtles. There is currently a single longline vessel from a fishing trip where any part However, for trips with a NMFS- fisherman operating in the DSLL fishery of the trip included fishing west of 150 approved observer, the Council based out of the U.S. West Coast, and °W. long. and north of the equator (0 recommended removing the trip limits, that is the only entity expected to be °lat.) in violation of § 660.712(a)(9). because the observer acts a sufficient affected by this rule. The annual * * * * * deterrent to SSLL activities prohibited revenue generated by that single (mm) Except when fishing under a by the rules. fisherman is unknown, but for the western Pacific longline limited entry If implemented, this proposed rule purpose of this analysis, that entity is permit issued under § 660.21, possess will assist vessels in the DSLL fishery considered to be a small business. more than 10 swordfish on board a by reducing the unnecessary discard of However, the proposed action is longline vessel from a fishing trip where swordfish (regulatory ‘‘bycatch’’ under expected to have only positive (and any part of the trip included fishing on the Magnuson Act) when a vessel quite minor) economic impacts on the the high seas of the Pacific Ocean west employs DSLL fishing methods known effected entity, because it would not of 150 °W. long. north of the equator in to reduce the risk of incidentally change the number of permitted vessels violation of § 660.720 (a)(3). catching sea turtles. It will also benefit authorized to fish or the manner in * * * * * the DSLL vessels by allowing them to which the fishery is prosecuted, nor 3. In § 660.712, revise paragraphs land a greater number of swordfish than would it impose any additional (a)(10) and (a)(11) to read as follows: allowed under the current regulations, reporting, procedural or other which will result in fishermen to requirements on the affected entity. § 660.712 Longline fishery. realizing greater profits from DSLL Indeed, the rule would allow fishermen (a) * * * fishing trips, especially those with carrying observers to retain and sell (10) If no observer on board the NMFS-approved observer coverage. more swordfish than they can under the vessel, owners and operators of longline Furthermore, by not forcing fishermen current regulations, but even then the vessels registered for use of longline to discard so many swordfish, bycatch numbers of swordfish caught by the gear may land or posses no more than

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10 swordfish from a fishing trip when (11) Owners and operators of longline target swordfish in waters beyond the using any J-type fishing hooks, and no vessels registered for use of longline U.S. EEZ and east of 150 °W. long. more than 25 swordfish from a fishing gear are subject to the provisions at 50 * * * * * trip when using only circle hook-type CFR part 223 prohibiting shallow sets to [FR Doc. 2011–27212 Filed 10–19–11; 8:45 am] fishing hooks. BILLING CODE 3510–22–P

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Notices Federal Register Vol. 76, No. 203

Thursday, October 20, 2011

This section of the FEDERAL REGISTER VI. Award Administration Information to make grants to assist agricultural contains documents other than rules or VII. Agency Contact employers and farmworkers by proposed rules that are applicable to the VIII. Other Information improving the supply, stability, safety, public. Notices of hearings and investigations, Administrative Procedure Act and training of the agricultural labor committee meetings, agency decisions and force. Such grants may be made to rulings, delegations of authority, filing of Statement eligible entities for use in providing petitions and applications and agency This Notice of Funds Availability statements of organization and functions are services to assist farmworkers who are (NOFA) is being issued without advance citizens or otherwise legally present in examples of documents appearing in this rulemaking or public comment. The section. the United States in securing, retaining, Administrative Procedure Act (‘‘APA’’, upgrading, or returning from 5 U.S.C. 553), has several exemptions to agricultural jobs. The 2010 DEPARTMENT OF AGRICULTURE rulemaking requirements. Among them Appropriations Act included an is an exemption for matters relating to appropriation of $4 million to the Agricultural Career and Employment federal benefits, but under the USDA’s Rural Housing Service (RHS) Grants Program or ‘‘ACE’’ provisions of the ‘‘Statement of Policy of for this program, and the delegation of the Secretary of Agriculture effective AGENCY: Departmental Management, authority and funding for the program July 24, 1971,’’ issued by Secretary has since been transferred to OAO, Office of Advocacy and Outreach, Hardin in 1971 (36 FR 13804 (the Agriculture. within Departmental Management of ‘‘Hardin Memorandum’’), the USDA. OAO has designated the program ACTION: Funding opportunity Department will normally engage in the Agricultural Career and announcement. rulemaking related to federal benefits Employment (ACE) Grants Program and despite that exemption. However, the it will be referred to as such hereafter. FOA No.: USDA2011ACE01. Hardin Memorandum does not waive Catalog of Federal Domestic certain other APA-contained Purpose of the ‘‘ACE’’ Grants Program Assistance (CFDA) No.: 10.465. exemptions, in particular the ‘‘good As the title of Section 14204 of the DATES: Proposals must be received by cause’’ exemption found at 5 U.S.C. http://www.Grants.gov by 5 p.m. EST on 2008 Farm Bill suggests—‘‘Grants to 553(b)(3)(B), which allows effective Improve the Supply, Stability, Safety, Tuesday, November 14, 2011. Proposals government action without rulemaking received after this deadline will not be and Training of Agricultural Labor procedures where withholding the Force’’—the ACE grants program is considered for funding. action would be ‘‘impracticable, SUMMARY: To improve the supply of designed to address the needs of both unnecessary, or contrary to the public agricultural employers and farmworkers skilled agricultural workers and bring interest.’’ The Hardin memorandum greater stability to the workforce in this with respect to the supply of skilled specifically provides for the use of the labor in American agriculture and the sector through provision of services ‘‘good cause’’ exemption, albeit specifically designed to assist stability of employment in that sector. sparingly, when a substantial basis for About 800,000 hired farmworkers are farmworkers in securing, retaining, so doing exists, and where, as will be upgrading or returning from an employed in U.S. agriculture, with hired described more fully below, that workers making up an estimated one- agricultural job. The intended outcomes substantial basis is explained. are that, as a result of the services to be third of the total agricultural labor force. USDA has determined, consistent Particularly critical for labor-intensive provided, farmers will have access to a with the APA and the Hardin more skilled pool of workers and sectors of agriculture, such as fruits and Memorandum, that making these funds vegetables, the hired agricultural labor farmworkers who will have an available under this Notice to support enhanced skill set, making on-the-farm force in the United States is farmworker training activities is in the characterized by considerable employment opportunities more public interest. Withholding this NOFA plentiful. instability. Among the hired workforce to provide for public notice and are large numbers of migrant and The total funding for this competitive comment would unduly delay the opportunity is $4,000,000. The U.S. seasonal farmworkers, many of whom provision of benefits associated with travel long distances to obtain Department of Agriculture’s (USDA), this program and be contrary to the Office of Advocacy and Outreach employment, and often move from crop public interest. Should the actual to crop as conditions warrant. See (OAO), anticipates awarding a total of practice of the program produce reasons approximately no less than 8 grants Profile of Hired Farmworkers, A 2008 for program modifications, those Update, by William Kandel, U.S. from this announcement, subject to modifications can be brought to the availability of funds and the quality of Department of Agriculture, Economic attention of the Department and changes Research Service. This study can be applications received. A maximum made in the future rulemaking process. award will be limited to $500,000. found at http://www.ers.usda.gov/ I. Funding Opportunity Description Publications/ERR60/. Contents of This Announcement Despite this regular flow of workers, A. Background Administrative Procedure Act Statement regional differences in crops, variations I. Funding Opportunity Description Section 14204, of the Food in harvest times, and unpredictable II. Award Information Conservation and Energy Act of 2008, weather conditions mean that many III. Eligibility Information Public Law 110–246 (June 18th, 2008) farm owners complain of chronic labor IV. Application and Submission Information 2008 Farm Bill, 7 U.S.C. 2008q–1 shortages, while farmworkers frequently V. Application Review Information authorizes the Secretary of Agriculture report it is difficult to locate

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employment or obtain sufficient hours 2. Outcomes. The term ‘‘outcome’’ outcome measures of quantitative and of work to earn a living. Unemployment means the result, effect, or consequence qualitative results: rates among farmworkers generally are that will occur from carrying out an • What are the measurable short term double those of other wage and salaried outreach or assistance program or and longer term results the project will workers and those working in field activity that is related to a programmatic achieve? crops have twice the unemployment goal or objective. Outcomes may be • How does the plan measure rate of livestock workers. Historically, agricultural, behavioral, social, progress in achieving the expected the uncertainty farmworkers have faced economic, or programmatic in nature. results (including outputs and as to the availability or duration of They may not necessarily be achievable outcomes) and how will the approach work, along with the low wages within an assistance agreement funding use resources effectively and efficiently? generally earned by hired farm laborers, period. Projects to be funded under this • How will the results be achieved in have led to many employed in the announcement are required to the proposed timeline? agricultural labor sector to leave document anticipated outcomes, II. Award Information agriculture for employment in other including but not limited to: industries. Because of high turnover Improvements in the supply, stability, A. Expected Amount of Funding rates in agricultural employment, it is safety and/or training of the agricultural The total funding available for awards estimated that 2.0 to 2.5 individual labor force in a given geographic area or under this competitive opportunity is farmworkers fill each job slot in the a given sector of the agricultural approximately $4,000,000. course of a year. This phenomenon has industry; an increase in the numbers of lead to chronic instability in the labor farmworkers in a given geographic area B. Expected Number of Awards market and a shortage of skilled and or agricultural sector who obtain skill- OAO anticipates awarding no less experienced workers. based certifications, licenses, or than 8 grants from this announcement, demonstrated competencies qualifying B. Scope of Work subject to availability of funds and the them for enhanced employment quality of applications received. A The ACE grants program is intended opportunities; the number of maximum award will be limited to to improve the supply of skilled farmworkers in a given area who, as a $500,000. OAO reserves the right to agricultural workers and bring greater result of program activities, advance to make additional awards under this stability to the workforce in this sector. a position in agricultural employment announcement, consistent with Agency This stability will be realized through which offers more hours of work and/ policy, if additional funding becomes services specifically designed to assist or better terms and conditions of available. Any additional selections for farmworkers in securing, retaining, employment and/or an increase in awards will be made no later than six upgrading or returning from agricultural wages; the number of farmworkers for months from the date of the original jobs. Such services include the whom English is not their first language selection date. following: who achieve, as a result of program • Agricultural labor skills activities, demonstrable improvements C. Project Period development; in workplace literacy in English; the The estimated project period for • The provision of agricultural labor establishment of new programs of health awards resulting from this solicitation market information; and safety instruction for farmworkers will begin April 2, 2012. Proposed • Transportation; which, among other things, address project periods may be up to three years. • ways of safeguarding the U.S. food Short-term housing while in transit D. Award Type to an agricultural worksite; supply; the establishment of new • Workplace literacy and assistance partnerships, networks or community The funding for selected projects will with English as a second language; support for services designed to assist be in the form of a grant. Although OAO • Health and safety instruction, farmworkers in securing, retaining, will negotiate precise terms and including ways of safeguarding the food upgrading or returning from agricultural conditions relating to the degree of supply of the United States; and jobs, with the ultimate goal of involvement under the grant agreement • Other such services the Secretary improving the supply, stability, safety as part of the award process, the deems appropriate. and training of the agricultural labor anticipated Federal involvement for force. these projects will be limited to the C. Anticipated Outputs/Outcomes 3. Performance Measures. To be following activities: • 1. Outputs. The term ‘‘output’’ means eligible for consideration for funding the Approval of awardees’ final budget the creation or provision of services to applicant must develop performance and statement of work accompanying measures they expect to achieve through the grant agreement assist farmworkers in securing, • retaining, upgrading or returning from the proposed activities. These Monitoring of awardees’ agricultural jobs. Outputs may be performance measures will help gather performance through quarterly and final insights and will be the mechanism to progress reports quantitative or qualitative but must be • measurable during an assistance track progress concerning success Evaluating awardees’ use of federal agreement funding period. process and outcome strategies and will funds through quarterly and final Examples of outputs from the projects provide the basis for developing lessons financial reports to be funded under this announcement to inform future awardees. It is expected III. Eligibility Information may include, but are not limited to, the that the description of performance following: Number of farmworkers measures will include an estimate of the A. Eligible Entities served; number of farmworkers who number of farmworkers served by the Entities eligible for awards are non- attended conferences or trainings; activities of the project including the profit organizations or a consortium of number of conferences or training assumptions used to make those entities comprised of a non-profit sessions held; or number of farmworkers estimates. organization and one or more of the completing labor skills programs or The following are questions to following: Agribusinesses, State and health and safety training programs. consider when developing output and local governments, agricultural labor

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organizations, farmer or rancher proposal, pages in excess of the page C. Content of Proposal Package cooperatives, and community-based limitation will not be reviewed. Submission organizations with the capacity to train ii. Proposals must be received by All proposal submissions must farmworkers. The criteria by which an OAO as specified in Section IV of this contain completed and signed original entity’s capacity to train farmworkers announcement on or before the proposal application forms, as well as the Project will be evaluated, at a minimum, by the submission deadline published in Narrative and other required following items: (1) An understanding Section IV of this announcement. attachments, as described below. of the issues facing hired farmworkers Applicants are responsible for ensuring 1. Forms. The forms listed below can and conditions under which they work; that their application reaches the be found in the proposal package on (2) familiarity with the agricultural designated person/office specified in www.Grants.gov. industry in the geographic area to be Section IV of this announcement by the • Standard Form 424, Application for served, including agricultural labor submission deadline. Federal Assistance needs and existing services for • iii. Proposals received after the Standard Form 424A, Budget farmworkers; and (3) the capacity to Information—Non-Construction effectively administer a program of submission deadline will be considered late and returned to the sender without Programs services and benefits authorized by the • Standard Form 424B, Non- grants program. further consideration unless the applicant can clearly demonstrate that it Construction Programs 2. Attachments. The elements listed B. Beneficiary Eligibility was late due to www.Grants.gov or below are included in the proposal Farmworkers who are citizens of the USDA mishandling. Applicants may package on www.Grants.gov as fillable United States or are otherwise legally confirm receipt of their proposal with PDF templates. Applicants must present in the United States and who OAO after the submission deadline to download and complete these meet the definition of ‘‘United States ensure proposal review. attachments and save the completed workers’’ established by the U.S. iv. Proposals will only be accepted via PDF files to the application submission Department of Labor in its regulations at www.Grants.gov, except in extenuating portal on www.Grants.gov. Note: Please 20 CFR 655.4. circumstances such as trouble number each page of each attachment C. Credentials/Documentation submitting electronically to that site or and indicate the total number of pages as determined by OAO. per attachment (i.e., 1 of 10, 2 of 10, etc). Grantees must have the financial, • legal, administrative and operational v. Proposals must address one or more Attachment 1: Project Summary. In capacity to carry out the objectives of of the program areas that would provide 500 words or less, indicate the the program. Grantees shall be farmworkers assistance in securing, organizations or entities that will responsible for verifying the retaining, upgrading or returning from conduct the project, their eligibility, the employment of farmworkers who are an agricultural job. geographical area served by the project, actively employed and are seeking to vi. Proposals requesting federal and the priority areas that will be participate in program services or funding exceeding $500,000 will be addressed by the project. Please be benefits. Unemployed farmworkers deemed ineligible and will not be concise. • Attachment 2: Project Narrative. In seeking to participate shall be required considered for award. to certify to grantees that they are 10 double-spaced pages or less (one- eligible for program services and IV. Application and Submission inch margins, 12-point font), discuss the benefits. Information merits of your proposed project. Specifically, it is critical that the D. Cost-Sharing or Matching A. Proposal and Submission proposal: (1) Explain how the project Information OAO does not require matching will assist employers and farmworkers support for this program. Matching Applicants may download individual by improving the supply, stability, resources will not be factored into the grant proposal forms from safety and training of the agricultural review process as part of the evaluation www.Grants.gov. For assistance with labor force; (2) describe the way in criteria. www.Grants.gov, please consult the which the services to be provided will assist farmworkers in securing, E. Threshold Eligibility Criteria Applicant User Guide (http://grants.gov/ assets/ApplicantUserGuide.pdf). retaining, upgrading, or returning from These are requirements that if not met an agricultural job); (3) identify the by the time of proposal submission will B. Form of Proposal Submission experience of the organization(s) taking result in the elimination of the proposal part in the project; and (4) identify from consideration for funding. Only Applicants are required to submit project performance measures, applications from eligible entities (see proposals through www.Grants.gov. including an estimated number of above) that meet all of these criteria will Applicants will be required to register farmworkers served, as described in be evaluated in the proposal review through www.Grants.gov in order to Section I.C.; process in Section V of this begin the proposal submission process. • Attachment 3: Personnel. In 2 announcement. Applicants deemed Any applicant who experiences double-spaced pages or less per ineligible for funding consideration as a significant technical difficulty with individual (one-inch margins, 12-point result of the threshold eligibility review www.Grants.gov should contact OAO as font), identify the qualifications, will be notified within 15 calendar days soon as possible to obtain an alternate relevant experience, and knowledge of of the ineligibility determination. method of electronic submission each Project Director or collaborator. i. Proposals must substantially (i.e., e-mail). Also, specifically discuss the roles and comply with the proposal submission Proposals must be submitted via responsibilities of each person within instructions and requirements set forth http://www.Grants.gov by 5 p.m. EST on the scope of work to be completed by in Section IV of this announcement. November 14, 2011. Proposals received the proposed project. Where a page limit is expressed in after this deadline will not be • Attachment 4: Budget Narrative. In Section IV with respect to the narrative considered for funding. an organized format identify and

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describe the costs associated with the received after the closing date and time V. Application Review Information proposed project, including subawards will not be considered for funding. A. Evaluation Criteria or contracts and indirect costs. Each F. Confidential Information cost indicated must be fully allowable Only eligible entities whose proposals under the Federal Cost Principles in The names of entities submitting meet the threshold criteria in Section III order to be funded by the award. proposals, as well as proposal contents of this announcement will be reviewed • Attachment 5: Program of Work. In and evaluations, except to those according to the evaluation criterion set an organized format, map out the involved in the review process, will be forth below. Applicants should timeline for each task to be kept confidential to the extent explicitly and fully address these accomplished during the proposed permissible by law. If an applicant criteria as part of their proposal package project period. Identify the relationship chooses to include confidential or submittal. of each task to a priority area. Examples proprietary information in the proposal, OAO will use a points system to rate of priority areas are listed under Section it will be treated in confidence to the each proposal, with a total of 100 points I.B. extent permitted by law, provided that possible. Each proposal will be given a the information is clearly marked by the numerical score and will be rank- D. Subawards and Partnerships applicant with the term ‘‘confidential ordered according to that score. and proprietary information.’’ Preliminary funding recommendations OAO awards funds to one eligible will be provided to the designated applicant as the awardee even if other G. Pre-Submission Proposal Assistance approving official based on this ranking. eligible applicants are named as OAO may not assist individual Final funding decisions will be made by partners or co-applicants or members of applicants by reviewing draft proposals the designated approving official based a coalition or consortium. The awardee or providing advice on how to respond on the rankings and preliminary is accountable to OAO for the proper to evaluation criteria. However, OAO recommendation of OAO review panel expenditure of funds, consistent with will respond to questions from evaluations. In making final funding the OAO approved proposal. individual applicants regarding decisions, the designated approving E. Submission Dates and Times eligibility criteria, administrative issues official may also consider programmatic related to the submission of the priorities and geographic diversity of The closing date and time for receipt proposal, and requests for clarification applicants. Once final decisions have of proposal submissions via about the announcement. Any questions been made, a funding recommendation www.Grants.gov is by 5 p.m., EST on should be submitted to christine.chavez will be developed and forwarded to the Tuesday, November 15, 2011. Proposals @osec.usda.gov. Program Leader.

Criteria Points

1. Project Narrative: Under this criterion, OAO will evaluate the extent and quality to which the narrative includes a well-conceived strategy for addressing the requirements and objectives stated Section I, Part B (Scope of Work) related to (i) (15 points) estimated number of farmworkers assisted in securing, training, retaining, upgrading and returning from an agricultural job Section I.B.; (ii) (15 points) the extent to which the proposal would bring together services for farmworkers and/or help build networks or partnerships to leverage resources to further program goals (iii) (10 points) estimate the number of farmworkers who will demonstrate improvements in workplace literacy in English (iv) (10 points) extent to which the applicant clearly demonstrates how they will ensure timely and successful completion of the project and whether the proposal sets forth a reasonable time schedule for execution of the tasks associated with the projects ...... 50 2. Anticipated Outcomes and Outputs: Under this criterion, OAO will evaluate: (i) (15 points) the effectiveness of the applicant’s plan for tracking and measuring its progress toward achieving the expected project outputs and outcomes related to assisting farmworkers in securing, training, retaining, upgrading or returning from an agricultural job, such as those identified in Section I.C of this announcement ...... 15 3. Capability of Applicant: Under this criterion, applicants will be evaluated based on their ability to successfully complete and manage the proposed project taking into account the applicant’s: (i) (5 points) past performance in successfully completing and managing prior funding agreements identified in Attachment 1 of the proposal as described in Section IV.C of the announcement; (ii) (10 points) organizational experience and plan for timely and successfully achieving the objectives of the proposed project; and (iii) (5 points) staff expertise/qualifications, staff knowledge, and resources or the ability to obtain them, to successfully achieve the goals of the proposed project ...... 20 4. Budget: Under this criterion, OAO will evaluate the proposed project budget to determine whether, (i) (10 points) costs are reasonable to accomplish the proposed goals, objectives, and measurable outcomes; and (ii) (5 points) the proposed budget provides a detailed breakdown of the approximate funding used for each major activity, including associated administrative expenses incurred by implementing the ACE grants ...... 15

B. Selection of Reviewers VI. Award Administration Information October 30, 2011. The notification will advise the applicant that its proposed A. Award Notices Reviewers will be selected from project has been successfully evaluated within USDA based upon training and Following evaluation of proposals, all and recommended for award. The experience in relevant fields including, applicants will be notified regarding notification will be sent to the original knowledge, experience and expertise in their status. signer of the SF–424, Application for serving the needs of the farmworker Federal Assistance. This notification, B. Proposal Notifications and Feedback community. which advises that the applicant’s 1. OAO anticipates notification of the proposed project has been successful applicant will be made using recommended for award, is not an one of the following methods via authorization to begin work. The award telephone, e-mail, or postal mail by notice signed by USDA grants officer is

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the authorizing document and will be sections of the SF–425. Quarterly ADDRESSES: You may submit comments provided through postal mail. At a financial reports must be submitted to by either of the following methods: minimum, this process can take up to 90 the designated OAO official within 30 • Federal eRulemaking Portal: Go to days from the date of recommendation. days after the end of each calendar http://www.regulations.gov/# 2. OAO anticipates notification to quarter. !documentDetail;D=APHIS-2011-0098- unsuccessful applicants will be made 2. Final progress and financial reports 0001. via e-mail or postal mail by February 6, will be required. The final progress • Postal Mail/Commercial Delivery: 2012. The notification will be sent to the report should include a summary of the Send your comment to Docket No. original signer of the SF–424, project or activity, achievements of the APHIS–2011–0098, Regulatory Analysis Application for Federal Assistance. project or activity, and a discussion of and Development, PPD, APHIS, Station 3. Non-selected notification letters problems experienced in conducting the 3A–03.8, 4700 River Road Unit 118, will contain information on how to project or activity. The final financial Riverdale, MD 20737–1238. obtain feedback. At OAO’s discretion report should consist of a complete SF– Supporting documents and any feedback will be either written or 425 indicating the total costs of the comments we receive on this docket through oral debriefings. See Section VII project. Final progress and financial may be viewed at http://www. for Agency Contact information. reports must be submitted to the regulations.gov/ C. DUNS Number and CCR Registration designated OAO official within 90 days #!docketDetail;D=APHIS-2011-0098 or after the completion of the award in our reading room, which is located in In accordance with the Federal period. room 1141 of the USDA South Building, Funding Accountability and 14th Street and Independence Avenue, VII. Agency Contact Transparency Act (FFATA) and the SW., Washington, DC. Normal reading USDA implementation, all applicants Attn: Christine Chavez, Program room hours are 8 a.m. to 4:30 p.m., must obtain and provide an identifying Leader, U.S. Department of Agriculture, Monday through Friday, except number from Dun and Bradstreet’s Data Office of Advocacy and Outreach, 1400 holidays. To be sure someone is there to Universal Numbering System (DUNS). Independence Avenue, SW., Whitten help you, please call (202) 690–2817 Applicants can receive a DUNS number, Building Room 533–A, Washington, DC before coming. at no cost, by calling the toll-free DUNS 20250, Phone: (202) 205–4215, Fax: FOR FURTHER INFORMATION CONTACT: For Number request line at 1–866–705– (202) 720–7136, Email: information on regulations for the 5711, or visiting the D&B Web site at [email protected]. importation of peppers from the http://www.dnb.com. Republic of Korea, contact Mr. Alex In addition, FFATA requires VIII. Other Information Belano, Senior Import Specialist, applicants to register with the Central None. Regulations, Permits, and Manuals, Contractor Registry (CCR). This Signed in Washington, DC, on October 14, APHIS, 4700 River Road Unit 156, registration must be maintained and 2011. Riverdale, MD 20737; (301) 734–5333. updated annually. Applicants can Pearlie S. Reed, For copies of more detailed information register or update their profile, at no Assistant Secretary for Administration for the on the information collection, contact cost, by visiting the CCR Web site at Office of the Secretary. Mrs. Celeste Sickles, APHIS’ http://www.ccr.gov. [FR Doc. 2011–27078 Filed 10–19–11; 8:45 am] Information Collection Coordinator, at D. Reporting Requirement BILLING CODE 3412–89–P (301) 851–2908. The following reporting requirements SUPPLEMENTARY INFORMATION: Title: Importation of Peppers From the will apply to awards provided under DEPARTMENT OF AGRICULTURE this FOA. OAO reserves the right to Republic of Korea. revise the schedule and format of Animal and Plant Health Inspection OMB Number: 0579–0282. reporting requirements as necessary in Service Type of Request: Extension of the award agreement. approval of an information collection. 1. Quarterly progress reports and [Docket No. APHIS–2011–0098] Abstract: The Plant Protection Act (PPA, 7 U.S.C. 7701 et seq.) authorizes financial reports will be required. Notice of Request for Extension of • Quarterly Progress Reports. The the Secretary of Agriculture to restrict Approval of an Information Collection; awardee must submit the OMB- the importation, entry, or interstate Importation of Peppers From the approved Performance Progress Report movement of plants, plant products, and Republic of Korea form (SF–PPR, Approval Number: 0970– other articles to prevent the 0334). For each report, the awardee AGENCY: Animal and Plant Health introduction of plant pests into the must complete fields 1 through 12 of the Inspection Service, USDA. United States or their dissemination SF–PPR. To complete field 10, the ACTION: Extension of approval of an within the United States. Regulations awardee should provide a brief narrative information collection; comment authorized by the PPA concerning the of project performance and activities, as request. importation of fruits and vegetables into described in the award agreement and the United States from certain parts of in sample documents provided by OAO. SUMMARY: In accordance with the the world are contained in ‘‘Subpart— Quarterly progress reports must be Paperwork Reduction Act of 1995, this Fruits and Vegetables’’ (7 CFR 319.56– submitted to the designated OAO notice announces the Animal and Plant 1 through 319.56–51). official within 30 days after the end of Health Inspection Service’s intention to Under these regulations, peppers from each calendar quarter. request an extension of approval of an the Republic of Korea are subject to • Quarterly Financial Reports. The information collection associated with certain conditions before entering the awardee must submit the Standard regulations for the importation of United States to prevent the Form 425, Federal Financial Report. For peppers from the Republic of Korea. introduction of plant pests into the each report, the awardee must complete DATES: We will consider all comments United States. The regulations include both the Federal Cash Transaction that we receive on or before December requirements for greenhouse inspections Report and the Financial Status Report 19, 2011. by South Korean national plant

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quarantine service (NPQS) officials and DEPARTMENT OF AGRICULTURE of more detailed information on the the use of a phytosanitary certificate information collection, contact Mrs. with a declaration by NPQS officials Animal and Plant Health Inspection Celeste Sickles, APHIS’ Information stating the peppers were grown in Service Collection Coordinator, at (301) 851– accordance with the regulations and [Docket No. APHIS–2011–0097] 2908. found free of certain plant pests. SUPPLEMENTARY INFORMATION: We are asking the Office of Notice of Request for Extension of Title: Christmas Cactus and Easter Management and Budget (OMB) to Approval of an Information Collection; Cactus in Growing Media From the approve our use of these information Importation of Christmas Cactus and Netherlands and Denmark. collection activities for an additional 3 Easter Cactus in Growing Media From OMB Number: 0579–0266. years. the Netherlands and Denmark Type of Request: Extension of approval of an information collection. The purpose of this notice is to solicit AGENCY: Animal and Plant Health comments from the public (as well as Inspection Service, USDA. Abstract: The Plant Protection Act affected agencies) concerning our (7 U.S.C. 7701 et seq.) authorizes the ACTION: Extension of approval of an information collection. These comments Secretary of Agriculture to restrict the information collection; comment will help us: importation, entry, or interstate request. (1) Evaluate whether the collection of movement of plants, plant products, and information is necessary for the proper SUMMARY: In accordance with the other articles to prevent the performance of the functions of the Paperwork Reduction Act of 1995, this introduction of plant pests into the Agency, including whether the notice announces the Animal and Plant United States or their dissemination information will have practical utility; Health Inspection Service’s intention to within the United States. The regulations contained in ‘‘Subpart— (2) Evaluate the accuracy of our request an extension of approval of an Plants for Planting’’ (7 CFR 319.37 estimate of the burden of the collection information collection associated with through 319.37–14) prohibit or restrict, of information, including the validity of regulations for the importation of among other things, the importation of the methodology and assumptions used; Christmas cactus and Easter cactus in living plants, plant parts, and seeds for (3) Enhance the quality, utility, and growing media from the Netherlands and Denmark. propagation. clarity of the information to be Under these regulations, Christmas DATES: collected; and We will consider all comments cactus and Easter cactus in approved (4) Minimize the burden of the that we receive on or before growing media may be imported into collection of information on those who December 19, 2011. the United States from the Netherlands are to respond, through use, as ADDRESSES: You may submit comments and Denmark under certain conditions, appropriate, of automated, electronic, by either of the following methods: which require the use of a phytosanitary • mechanical, and other collection Federal eRulemaking Portal: Go to certificate and declaration stating the technologies; e.g., permitting electronic http://www.regulations.gov/ plants were grown in accordance with submission of responses. #!documentDetail;D=APHIS-2011-0097- specific conditions, an agreement 0001. Estimate of burden: The public between APHIS and the plant protection • Postal Mail/Commercial Delivery: reporting burden for this collection of service of the country where the plants Send your comment to Docket No. information is estimated to average 0.6 are grown, and an agreement between APHIS–2011–0097, Regulatory Analysis hours per response. the foreign plant protection service and and Development, PPD, APHIS, Station Respondents: South Korean national the grower. 3A–03.8, 4700 River Road, Unit 118, We are asking the Office of plant quarantine service officials and Riverdale, MD 20737–1238. growers of peppers in South Korea. Management and Budget (OMB) to Supporting documents and any approve our use of these information Estimated annual number of comments we receive on this docket collection activities for an additional 3 respondents: 1. may be viewed at http:// years. Estimated annual number of www.regulations.gov/ The purpose of this notice is to solicit responses per respondent: 5. #!docketDetail;D=APHIS-2011-0097 or comments from the public (as well as Estimated annual number of in our reading room, which is located in affected agencies) concerning our responses: 5. room 1141 of the USDA South Building, information collection. These comments 14th Street and Independence Avenue, Estimated total annual burden on will help us: SW., Washington, DC. Normal reading respondents: 3 hours. (Due to averaging, (1) Evaluate whether the collection of room hours are 8 a.m. to 4:30 p.m., the total annual burden hours may not information is necessary for the proper Monday through Friday, except equal the product of the annual number performance of the functions of the holidays. To be sure someone is there to of responses multiplied by the reporting Agency, including whether the help you, please call (202) 690–2817 burden per response.) information will have practical utility; before coming. (2) Evaluate the accuracy of our All responses to this notice will be FOR FURTHER INFORMATION CONTACT: For estimate of the burden of the collection summarized and included in the request information on regulations for the of information, including the validity of for OMB approval. All comments will importation of Christmas cactus and the methodology and assumptions used; also become a matter of public record. Easter cactus in growing media from the (3) Enhance the quality, utility, and Done in Washington, DC, this 14th day of Netherlands and Denmark, contact Dr. clarity of the information to be October 2011. Arnold Tschanz, Senior Plant collected; and Kevin Shea, Pathologist/Risk Manager, Plants for (4) Minimize the burden of the Acting Administrator, Animal and Plant Planting Policy, Regulations, Permits, collection of information on those who Health Inspection Service. and Manuals, PHP, PPQ, APHIS, 4700 are to respond, through use, as [FR Doc. 2011–27168 Filed 10–19–11; 8:45 am] River Road Unit 133, Riverdale, MD appropriate, of automated, electronic, BILLING CODE 3410–34–P 20737–1236; (301) 734–0627. For copies mechanical, and other collection

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technologies; e.g., permitting electronic • Postal Mail/Commercial Delivery: green coffee scale, the bean pod borer, submission of responses. Send your comment to Docket No. and other plant pests to noninfested Estimate of burden: The public APHIS–2011–0096, Regulatory Analysis areas of the United States. reporting burden for this collection of and Development, PPD, APHIS, Station Administering these regulations information is estimated to average 3A–03.8, 4700 River Road Unit 118, requires APHIS to collect information 0.5714285 hours per response. Riverdale, MD 20737–1238. from a variety of individuals who are Respondents: Foreign plant protection Supporting documents and any involved in growing, packing, handling, service officials and growers in the comments we receive on this docket and transporting plants and plant Netherlands and Denmark. may be viewed at http:// products. This information serves as Estimated annual number of www.regulations.gov/ supporting documentation required for respondents: 20. #!docketDetail;D=APHIS-2011-0096 or the issuance of forms and documents, Estimated annual number of in our reading room, which is located in including limited permits, Federal responses per respondent: 10.5. room 1141 of the USDA South Building, certificates, compliance agreements, and Estimated annual number of 14th Street and Independence Avenue, applications for transit permits, that responses: 210. SW., Washington, DC. Normal reading authorize the movement of regulated Estimated total annual burden on room hours are 8 a.m. to 4:30 p.m., articles and is vital to help ensure that respondents: 120 hours. (Due to Monday through Friday, except injurious plant pests are not spread averaging, the total annual burden hours holidays. To be sure someone is there to interstate from the State of Hawaii and may not equal the product of the annual help you, please call (202) 690–2817 U.S. territories to noninfested areas of number of responses multiplied by the before coming. the United States. reporting burden per response.) All responses to this notice will be FOR FURTHER INFORMATION CONTACT: For We are asking the Office of summarized and included in the request information on regulations for the Management and Budget (OMB) to for OMB approval. All comments will interstate movement of fruits and approve our use of these information also become a matter of public record. vegetables from Hawaii and U.S. collection activities for an additional 3 territories, contact Mr. David Lamb, years. Done in Washington, DC, this 14th day of Import Specialist, Regulations, Permits, The purpose of this notice is to solicit October 2011. and Manuals, PPQ, APHIS, 4700 River comments from the public (as well as Kevin Shea, Road, Unit 156, Riverdale, MD 20737; affected agencies) concerning our Acting Administrator, Animal and Plant (301) 734–0627. For copies of more information collection. These comments Health Inspection Service. detailed information on the information will help us: [FR Doc. 2011–27170 Filed 10–19–11; 8:45 am] collection, contact Mrs. Celeste Sickles, (1) Evaluate whether the collection of BILLING CODE 3410–34–P APHIS’ Information Collection information is necessary for the proper Coordinator, at (301) 851–2908. performance of the functions of the Agency, including whether the DEPARTMENT OF AGRICULTURE SUPPLEMENTARY INFORMATION: Title: Hawaiian and Territorial information will have practical utility; Animal and Plant Health Inspection Quarantine Notices. (2) Evaluate the accuracy of our Service OMB Number: 0579–0198. estimate of the burden of the collection Type of Request: Extension of of information, including the validity of [Docket No. APHIS–2011–0096] approval of an information collection. the methodology and assumptions used; Abstract: As authorized by the Plant (3) Enhance the quality, utility, and Notice of Request for Extension of Protection Act (7 U.S.C. 7701 et seq.) clarity of the information to be Approval of an Information Collection; (PPA), the Secretary of Agriculture may collected; and Hawaiian and Territorial Quarantine prohibit or restrict the importation, (4) Minimize the burden of the Notices entry, exportation, or movement in collection of information on those who AGENCY: Animal and Plant Health interstate commerce of any plant, plant are to respond, through use, as Inspection Service, USDA. product, biological control organism, appropriate, of automated, electronic, ACTION: Extension of approval of an noxious weed, means of conveyance, or mechanical, and other collection information collection; comment other article if the Secretary determines technologies; e.g., permitting electronic request. that the prohibition or restriction is submission of responses. necessary to prevent a plant pest or Estimate of burden: The public SUMMARY: In accordance with the noxious weed from being introduced reporting burden for this collection of Paperwork Reduction Act of 1995, this into or disseminated within the United information is estimated to average notice announces the Animal and Plant States. This authority has been 0.7371428 hours per response. Health Inspection Service’s intention to delegated to the Animal and Plant Respondents: State plant health request an extension of approval of an Health Inspection Service (APHIS), regulatory officials, irradiation facility information collection associated with which administers regulations to personnel, and individuals involved in regulations to prevent the interstate implement the PPA. growing, packing, handling, and spread of plant pests from the State of Regulations governing the interstate transporting plants and plant products. Hawaii and U.S. territories. movement of plants and plant products Estimated annual number of DATES: We will consider all comments from Hawaii and U.S. territories, respondents: 110. that we receive on or before December including Guam, Puerto Rico, and the Estimated annual number of 19, 2011. U.S. Virgin Islands, are contained in 7 responses per respondent: 38.181818. ADDRESSES: You may submit comments CFR part 318, ‘‘State of Hawaii and Estimated annual number of by either of the following methods: Territories Quarantine Notices.’’ responses: 4,200. • Federal eRulemaking Portal: Go to These regulations are necessary to Estimated total annual burden on http://www.regulations.gov/ prevent the interstate spread of plant respondents: 3,096 hours. (Due to #!documentDetail;D=APHIS-2011-0096- pests such as the Mediterranean fruit averaging, the total annual burden hours 0001. fly, the melon fly, the Oriental fruit fly, may not equal the product of the annual

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number of responses multiplied by the plants and plant products into the resources more effectively by targeting reporting burden per response.) United States to prevent the our efforts towards plants for planting All responses to this notice will be introduction of plant pests that are not that are known to present a higher risk, summarized and included in the request already established in the United States based on past inspection results for for OMB approval. All comments will or plant pests that may be established those plants for planting. Such an also become a matter of public record. but are under official control to approach would be consistent with Done in Washington, DC, this 14th day of eradicate or contain them within the International Standard for Phytosanitary October 2011. United States. Measures (ISPM) #31, ‘‘Methodologies The regulations in ‘‘Subpart—Plants 1 Kevin Shea, for Sampling of Consignments.’’ for Planting,’’ §§ 319.37 through 319.37– Therefore, we are standardizing our Acting Administrator, Animal and Plant 14 (referred to below as the regulations), sampling and inspection approach to Health Inspection Service. restrict the importation of plants for adjust the intensity of our inspection of [FR Doc. 2011–27172 Filed 10–19–11; 8:45 am] planting. Plants for planting is defined imported plants for planting based on BILLING CODE 3410–34–P in § 319.37–1 as plants intended to the risk they present of introducing remain planted, to be planted or quarantine pests into the United States. replanted. The definition of plant in that We will evaluate the risk associated DEPARTMENT OF AGRICULTURE section includes any plant (including with combinations of taxa of plants for Animal and Plant Health Inspection any plant part) for or capable of planting and countries from which they Service propagation, including a tree, a tissue are exported and assign risk ratings to culture, a plantlet culture, pollen, a those articles. [Docket No. APHIS–2011–0092] shrub, a vine, a cutting, a graft, a scion, Plants for planting determined to a bud, a bulb, a root, and a seed. present an extremely low risk will be Importation of Plants for Planting; All plants for planting imported into inspected under the Propagative Risk-Based Sampling and Inspection the United States must be presented for Monitoring and Release Program Approach and Propagative Monitoring inspection. Inspectors examine the (PMRP). Taxa of plants for planting and Release Program plants for planting to determine whether included in this program will be AGENCY: Animal and Plant Health they show any visual evidence of being periodically monitored at plant Inspection Service, USDA. infested with quarantine pests or inspection stations. Not every infected with quarantine pathogens. consignment of plants for planting ACTION: Notice. After inspection, the plants may be included in the PRMP will be inspected, SUMMARY: We are advising the public of allowed entry into the United States but those consignments that are our decision to implement a risk-based (with treatment, if necessary), inspected will be inspected at normal sampling approach for the inspection of destroyed, or reexported, depending on levels to confirm the plants’ continued imported plants for planting. In our the results of the inspection. eligibility for the PMRP. previous approach, we inspected 2 Plants for planting that are required to Subsequently, we will also implement percent of consignments of imported be imported under a written permit a risk-based sampling plan for all other plants for planting regardless of under § 319.37–3(a)(1) through (a)(6) plants for planting. We will implement previous evidence of the risk posed by and that are not from Canada must be this approach initially by considering the plants for planting. The risk-based imported or offered for importation at a all taxa of plants for planting to be high sampling and inspection approach will U.S. Department of Agriculture (USDA) risk. All plants for planting will be allow us to target high-risk plants for plant inspection station. Under sampled at high risk rates until we have planting for more extensive inspection § 319.37–3(a)(5), lots of 13 or more gathered sufficient data to establish that to help ensure that plants for planting articles (other than seeds, bulbs, or the plants for planting present a sterile cultures of orchid plants) from infested with quarantine pests do not medium or low risk. any country or locality except Canada enter the United States, while providing If a taxon of plants for planting from may be imported into the United States a speedier inspection process for lower- a certain country is determined to only after issuance of a written permit. risk plants for planting. In addition, for present a medium or low risk, it will be Therefore, most consignments of plants taxa of plants for planting that pose an sampled at the plant inspection stations for planting must be imported or offered extremely low risk, we are establishing at a less intensive rate than high-risk for importation at a USDA plant a Propagative Monitoring and Release plants for planting. We will continue to inspection station. Such stations are Program under which consignments of sample some consignments of the taxon listed in § 319.37–14. Plants for planting those taxa will be periodically at higher rates to monitor whether the that are offered for inspection at a USDA monitored but not every consignment taxon should still be considered to be plant inspection station are inspected by will be inspected. medium or low risk. We will update our Plant Protection and Quarantine (PPQ) categorizations of taxa regularly in FOR FURTHER INFORMATION CONTACT: Mr. inspectors. response to data from all inspections. Gordon Muraoka, National Plant This notice announces our decision to This approach will allow us to target Inspection Station Coordinator, PPQ, standardize our approach to sampling our resources towards taxa of plants for APHIS, 4700 River Road Unit 133, and inspecting consignments of plants planting that pose the greatest risk and Riverdale, MD 20737; (301) 734–0932; for planting offered for importation at thus to provide greater security against or Dr. Mary Palm, Senior Mycologist USDA plant inspection stations based the introduction of quarantine pests into and Lab Director, National Identification on the pest risk presented by the plants the United States. Services, Molecular Diagnostic Lab, for plant for planting. PPQ, APHIS, B–580, BARC-East, To this point, PPQ inspectors have 1 ISPMs are developed under the auspices of the Powder Mill Road, Beltsville, MD inspected a minimum of 2 percent of International Plant Protection Convention, to which 20705; (301) 504–7154. every consignment of plants for planting the United States is a signatory. To view this and SUPPLEMENTARY INFORMATION: other ISPMs on the Internet, go to http:// The presented for inspection. We have www.ippc.int/ and click on the ‘‘Adopted regulations in 7 CFR part 319 prohibit assessed our sampling and inspection Standards’’ link under the ‘‘Core activities’’ or restrict the importation of certain methods and found that we can use our heading.

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For importers of plants for planting, www.regulations.gov/ international standard-setting this approach may increase or decrease #!docketDetail;D=APHIS-2011-0091 or organization. The designated agency inspection time at the plant inspection in our reading room, which is located in must inform the public by publishing an station, depending on the risk level of room 1141 of the USDA South Building, annual notice in the Federal Register the material. We believe this new 14th Street and Independence Avenue, that provides the following information: sampling and inspection approach will SW., Washington, DC. Normal reading (1) The SPS standards under result in increased effectiveness and room hours are 8 a.m. to 4:30 p.m., consideration or planned for that the difference in inspection time Monday through Friday, except consideration by the international will be an incentive for importers to holidays. To be sure someone is there to standard-setting organization; and (2) present high-quality, pest-free plants for help you, please call (202) 690–2817 for each SPS standard specified, a planting for inspection at plant before coming. description of the consideration or inspection stations. FOR FURTHER INFORMATION CONTACT: For planned consideration of that standard, We plan to implement the PMRP on general information on the topics a statement of whether the United States October 17, 2011. The risk-based covered in this notice, contact Mr. John is participating or plans to participate in sampling will be implemented Greifer, Associate Deputy Administrator the consideration of that standard, the following further analysis of the for SPS Management, International agenda for U.S. participation, if any, and sampling protocol. Services, APHIS, room 1132, USDA the agency responsible for representing Done in Washington, DC, this 14th day of South Building, 14th Street and the United States with respect to that October 2011. Independence Avenue, SW., standard. Kevin Shea, Washington, DC 20250; (202) 720–7677. ‘‘International standard’’ is defined in Acting Administrator, Animal and Plant For specific information regarding 19 U.S.C. 2578b as any standard, Health Inspection Service. standard-setting activities of the World guideline, or recommendation: (1) [FR Doc. 2011–27173 Filed 10–19–11; 8:45 am] Organization for Animal Health, contact Adopted by the Codex Alimentarius Commission (Codex) regarding food BILLING CODE 3410–34–P Dr. Michael David, Director, International Animal Health Standards safety; (2) developed under the auspices Team, National Center for Import and of the World Organization for Animal DEPARTMENT OF AGRICULTURE Export, VS, APHIS, 4700 River Road, Health (OIE, formerly known as the Unit 33, Riverdale, MD 20737–1231; Office International des Epizooties) Animal and Plant Health Inspection (301) 734–5324. regarding animal health and welfare, Service For specific information regarding the and zoonoses; (3) developed under the standard-setting activities of the auspices of the Secretariat of the [Docket No. APHIS–2011–0091] International Plant Protection International Plant Protection International Sanitary and Convention or the North American Plant Convention (IPPC) in cooperation with Phytosanitary Standard-Setting Protection Organization, contact Ms. the North American Plant Protection Activities Julie E. Aliaga, Program Director, Organization (NAPPO) regarding plant International Phytosanitary Standards, health; or (4) established by or AGENCY: Animal and Plant Health PPQ, APHIS, 4700 River Road, Unit 140, developed under any other international Inspection Service, USDA. Riverdale, MD 20737–1236; (301) 734– organization agreed to by the member ACTION: Notice and request for 0763. countries of the North American Free comments. SUPPLEMENTARY INFORMATION: Trade Agreement (NAFTA) or the member countries of the WTO. SUMMARY: In accordance with legislation Background The President, pursuant to implementing the results of the Uruguay The World Trade Organization (WTO) Proclamation No. 6780 of March 23, Round of negotiations under the General was established as the common 1995 (60 FR 15845), designated the Agreement on Tariffs and Trade, we are international institutional framework for Secretary of Agriculture as the official informing the public of the international governing trade relations among its responsible for informing the public of standard-setting activities of the World members in matters related to the the SPS standard-setting activities of Organization for Animal Health, the Uruguay Round Agreements. The WTO Codex, OIE, IPPC, and NAPPO. The Secretariat of the International Plant is the successor organization to the United States Department of Protection Convention, and the North General Agreement on Tariffs and Agriculture’s (USDA’s) Food Safety and American Plant Protection Organization, Trade. U.S. membership in the WTO Inspection Service (FSIS) informs the and we are soliciting public comment was approved by Congress when it public of Codex standard-setting on the standards to be considered. enacted the Uruguay Round Agreements activities, and USDA’s Animal and ADDRESSES: You may submit comments Act (Pub. L. 103–465), which was Plant Health Inspection Service (APHIS) by either of the following methods: signed into law on December 8, 1994. informs the public of OIE, IPPC, and • Federal eRulemaking Portal: Go to The WTO Agreements, which NAPPO standard-setting activities. http://www.regulations.gov/ established the WTO, entered into force FSIS publishes an annual notice in #!documentDetail;D=APHIS-2011-0091- with respect to the United States on the Federal Register to inform the 0001. January 1, 1995. The Uruguay Round public of SPS standard-setting activities • Postal Mail/Commercial Delivery: Agreements Act amended Title IV of the for Codex. Codex was created in 1962 by Send your comment to Docket No. Trade Agreements Act of 1979 (19 two United Nations organizations, the APHIS–2011–0091, Regulatory Analysis U.S.C. 2531 et seq.). Section 491 of the Food and Agriculture Organization and Development, PPD, APHIS, Station Trade Agreements Act of 1979, as (FAO) and the World Health 3A–03.8, 4700 River Road, Unit 118, amended (19 U.S.C. 2578), requires the Organization. It is the major Riverdale, MD 20737–1238. President to designate an agency to be international organization for Supporting documents and any responsible for informing the public of encouraging international trade in food comments we receive on this docket the sanitary and phytosanitary (SPS) and protecting the health and economic may be viewed at http:// standard-setting activities of each interests of consumers.

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APHIS is responsible for publishing achieve these through the development responsibilities of a Member with an annual notice of OIE, IPPC, and and revision of international standards respect to a given notifiable disease. NAPPO activities related to for diagnostic tests, vaccines, and the 3. Chapter 6.4, Biosecurity Procedures international standards for plant and safe international trade of animals and in Poultry Production animal health and representing the animal products. United States with respect to these The OIE provides annual reports on The text in this chapter was modified standards. Following are descriptions of the global distribution of animal for clarity and completeness in content. the OIE, IPPC, and NAPPO diseases, recognizes the free status of 4. Chapter 6.5, Zoning and organizations and the standard-setting Members for certain diseases, Compartmentalization, and Chapter 4.4, agenda for each of these organizations. categorizes animal diseases with respect Application of Compartmentalization We have described the agenda that each to their international significance, of these organizations will address at publishes bulletins on global disease The text in these chapters was their annual general sessions, including status, and provides animal disease modified for clarity in content. No standards that may be presented for control guidelines to Members. Various substantive changes were made to these adoption or consideration, as well as OIE commissions and working groups chapters. other initiatives that may be underway undertake the development and 5. Chapter 6.5, Prevention, Detection at the OIE, IPPC, and NAPPO. preparation of draft standards, which and Control of Salmonella in Poultry The agendas for these meetings are are then circulated to Members for subject to change, and the draft consultation (review and comment). The terms ‘‘farm’’ and standards identified in this notice may Draft standards are revised accordingly ‘‘establishment’’ were removed and not be sufficiently developed and ready and are then presented to the OIE World replaced with ‘‘flock.’’ for adoption as indicated. Also, while it Assembly of Delegates (all the Members) 6. Chapter 8.1, Anthrax is the intent of the United States to during the General Session, which support adoption of international meets annually every May, for review The changes in the text of this chapter standards and to participate actively and adoption. Adoption, as a general included the procedures for inactivation and fully in their development, it rule, is based on consensus of the OIE of B. anthracis spores in animal should be recognized that the U.S. membership. products. position on a specific draft standard will The next OIE General Session is depend on the acceptability of the final 7. Chapter 8.2, Aujeszky’s Disease scheduled for May 20–25, 2012, in draft. Given the dynamic and interactive The text in this chapter was modified Paris, France. Currently, the Deputy nature of the standard-setting process, to make it consistent with the structure Administrator for APHIS’ Veterinary we encourage any persons who are of other chapters, update the definition Services program is the official U.S. interested in the most current details of the disease and clarify what is meant Delegate to the OIE. The Deputy about a specific draft standard or the by affected populations. U.S. position on a particular standard- Administrator for APHIS’ Veterinary setting issue, or in providing comments Services program intends to participate 8. Chapter 8.5, Foot and Mouth Disease on a specific standard that may be under in the proceedings and will discuss or (FMD) development, to contact APHIS. Contact comment on APHIS’ position on any The text in this chapter was modified information is provided at the beginning standard up for adoption. Information to allow for the option of OIE of this notice under FOR FURTHER about OIE draft Terrestrial and Aquatic endorsement of a Member’s official INFORMATION CONTACT. Animal Health Code chapters may be FMD control or eradication program. found on the Internet at http:// OIE Standard-Setting Activities www.aphis.usda.gov/import_export/ 9. Chapter 8.15, Vesicular Stomatitis The OIE was established in Paris, animals/oie/ or by contacting Dr. A list of safe commodities that can be France, in 1924 with the signing of an Michael David (see FOR FURTHER traded regardless of a country’s international agreement by 28 countries. INFORMATION CONTACT above). vesicular stomatitis status was It is currently composed of 178 OIE Terrestrial and Aquatic Animal incorporated into the chapter. Members, each of which is represented Health Code Chapters and Appendices 10. Chapter 10.4, Avian Influenza by a delegate who, in most cases, is the Adopted by the May 2011 General chief veterinary officer of that country Session Minor changes were made to this or territory. The WTO has recognized chapter to improve clarity. the OIE as the international forum for Over 50 Code chapters were amended, setting animal health and welfare rewritten, or newly proposed and 11. Chapter 10.13, Newcastle Disease standards, reporting global animal presented for adoption at the General The text in this chapter was modified disease events, and presenting Session. The following Code chapters to revise the time-temperature guidelines and recommendations on are of particular interest to the United parameters for inactivation of Newcastle sanitary measures relating to animal States: disease virus in poultry meat. health. 1. Glossary The OIE facilitates intergovernmental 12. Chapter 12.6, Equine Influenza cooperation to prevent the spread of Several Code chapter definitions were The text in this chapter was modified contagious diseases in animals by modified, rewritten, or deleted. for clarity. sharing scientific research among its Modified or rewritten definitions The following Aquatic Code chapters Members. The major functions of the include the definitions for ‘‘euthanasia,’’ are of particular interest to the United OIE are to collect and disseminate ‘‘veterinary legislation,’’ and ‘‘wildlife’’. States: information on the distribution and 2. Chapter 1.1, Notification of Diseases occurrence of animal diseases and to 1. Manual Chapter 2.1.1., and Epidemiological Information ensure that science-based standards Batrachochytrium Dendrobatidis govern international trade in animals The change in the text of this chapter This is a new chapter proposed for and animal products. The OIE aims to helps to clarify the reporting adoption in 2011.

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2. Chapter 6.3., Principles for their control. Under the IPPC, the Protection and Quarantine (PPQ) Responsible and Prudent use of Anti- understanding of plant protection has program. The steps for developing a Microbia Agents in Aquatic Animals been, and continues to be, broad, standard under the IPPC are described Minor changes were made to this encompassing the protection of both below. Step 1: Proposals for a new chapter to improve clarity. cultivated and noncultivated plants from direct or indirect injury by plant international standard for phytosanitary 3. Chapter 8.2., Infection With pests. Activities addressed by the IPPC measures (ISPM) or for the review or Ranavirus include the development and revision of an existing ISPM are Conditions are defined to allow establishment of international plant submitted to the Secretariat of the IPPC unrestricted international trade in health standards, the harmonization of in a standardized format on a 2-year untested animal products from phytosanitary activities through cycle. Alternatively, the Secretariat can countries, zones or compartments not emerging standards, the facilitation of propose a new standard or amendments declared free of Ranavirus. the exchange of official and scientific to existing standards. information among countries, and the Step 2: After review by the Standards OIE Terrestrial Animal Health Code furnishing of technical assistance to Committee and the Strategic Planning Chapters and Appendices for Future developing countries that are signatories and Technical Assistance Working Review to the IPPC. Group, a summary of proposals is Existing Terrestrial Animal Health The IPPC is under the authority of the submitted by the Secretariat to the CPM. Code chapters that may be further Food and Agriculture Organization The CPM identifies the topics and revised and new chapters that may be (FAO), and the members of the priorities for standard setting from drafted in preparation for the next Secretariat of the IPPC are appointed by among the proposals submitted to the General Session in 2012 include the the FAO. The IPPC is implemented by Secretariat and others that may be raised following: national plant protection organizations by the CPM. • Chapter 1.2, Criteria for listing (NPPOs) in cooperation with regional Step 3: Specifications for the diseases. plant protection organizations (RPPOs); standards identified as priorities by the • Chapter 6.5, Prevention, Detection the Commission on Phytosanitary CPM are drafted by the Standards and Control of Salmonella in Poultry. Measures (CPM, formerly referred to as Committee. The draft specifications are • Chapter 8.6, Aujesky’s disease. the International Commission on subsequently made available to • Chapter 8.10, Rabies. Phytosanitary Measures); and the members and RPPOs for comment (60 • Chapter 8.12, Rinderpest. Secretariat of the IPPC. The United days). Comments are submitted in • Chapter 11.3, Bovine brucellosis. States plays a major role in all standard- writing to the Secretariat. Taking into • Chapter 12.1, African horse setting activities under the IPPC and has account the comments, the Standards sickness. representation on FAO’s highest Committee finalizes the specifications. • Chapter 15.2, Classical swine fever. governing body, the FAO Conference. Step 4: The standard is drafted or • Chapter 15.4, Swine Vesicular The United States became a revised in accordance with the Disease. contracting party to the IPPC in 1972 specifications by a working group • Chapter X.X.X, Animal Welfare and and has been actively involved in designated by the Standards Committee. Broiler Chicken Production. (This furthering the work of the IPPC ever The resulting draft standard is proposed chapter that focuses on since. The IPPC was amended in 1979, submitted to the Standards Committee establishing standard commercial and the amended version entered into for review. poultry production practices was not force in 1991 after two-thirds of the Step 5: Draft standards approved by adopted to allow for further Member contracting countries accepted the the Standards Committee are distributed consultations.) amendment. More recently, in 1997, to members by the Secretariat and • Chapter X.X.X. Animal Welfare and contracting parties completed RPPOs for consultation (100 days). Beef Production. (This will be a new negotiations on further amendments Comments are submitted in writing to proposed chapter on standard practices that were approved by the FAO the Secretariat. Where appropriate, the for commercial beef production.) Conference and submitted to the parties Standards Committee may establish for acceptance. This 1997 amendment open-ended discussion groups as OIE Terrestrial Animal Health updated phytosanitary concepts and forums for further comment. The Standards Commission Future Work formalized the standard-setting Secretariat summarizes the comments Program structure within the IPPC. The 1997 and submits them to the Standards During the next few years, the OIE amended version of the IPPC entered Committee. Terrestrial Animal Commission may into force after two-thirds of the Step 6: Taking into account the address the following issues or establish contracting parties notified the Director comments, the Secretariat, in ad hoc groups of experts to update or General of FAO of their acceptance of cooperation with the Standards develop standards for the following the amendment in October 2005. The Committee, revises the draft standard. issues: U.S. Senate gave its advice and consent The Standards Committee submits the • Diseases of Honey Bees and to acceptance of the newly revised IPPC final version to the CPM for adoption. Hygiene and disease security on October 18, 2000. The President Step 7: The ISPM is established procedures in apiaries. submitted the official letter of through formal adoption by the CPM • Epizootic Hemorrhagic Disease. acceptance to the FAO Director General according to Rule X of the Rules of on October 4, 2001. Procedure of the CPM. IPPC Standard-Setting Activities The IPPC has been, and continues to Step 8: Review of the ISPM is The IPPC is a multilateral convention be, administered at the national level by completed by the specified date or such adopted in 1952 for the purpose of plant quarantine officials whose other date as may be agreed upon by the securing common and effective action to primary objective is to safeguard plant CPM. prevent the spread and introduction of resources from injurious pests. In the Each member country is represented pests of plants and plant products and United States, the national plant on the CPM by a single delegate. to promote appropriate measures for protection organization is APHIS’ Plant Although experts and advisors may

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accompany the delegate to meetings of 15. Election of the Bureau. (Tephritidae). It will provide guidance the CPM, only the delegate (or an 16. Membership of CPM subsidiary on the establishment and maintenance authorized alternate) may represent bodies. of regulated areas within pest free areas each member country in considering a 17. Calendar. (PFA) when fruit fly outbreaks are standard up for approval. Parties 18. Other business. detected. It will provide guidance on involved in a vote by the CPM are to 19. Date and venue of the next phytosanitary measures which are make every effort to reach agreement on meeting. intended to protect other production all matters by consensus. Only after all 20. Adoption of the report. areas and, as far as possible, will allow efforts to reach a consensus have been It is expected that the following for the continuation of fruit and exhausted may a decision on a standard standards will be sufficiently developed vegetables production, movement and be passed by a vote of two-thirds of to be considered by the CPM for handling, treatment, and shipping when delegates present and voting. adoption at its 2012 meeting. The some or all of the components of the Technical experts from the United United States, represented by the export process are located in the States have participated directly in Deputy Administrator for APHIS’ PPQ regulated areas within the PFA. program, will participate in working groups and indirectly as 2. Minimizing pest movement by sea consideration of these standards. The reviewers of all IPPC draft standards. containers and conveyances in U.S. position on each of these issues The United States also has a international trade. The standard will will be developed prior to the CPM representative on the Standards provide guidance to NPPOs as to session and will be based on APHIS’ Committee. In addition, documents and identifying particular pest risks analysis, information from other U.S. positions developed by APHIS and associated with shipping containers as Government agencies, and relevant NAPPO have been sources of significant pathways in sea and overland transport scientific information from interested input for many of the standards adopted between countries; identifying stakeholders. to date. This notice describes each of the appropriate phytosanitary measures to IPPC standards currently under 1. Integrated measures for plants for planting in international trade. This mitigate such risks, in particular prior to consideration or up for adoption. The export, including procedures for full text of each standard will be standard outlines the main criteria for the identification and application of packing and cleaning of the interior and available on the Internet at http:// exterior of shipping containers, as well www.aphis.usda.gov/import_export/ integrated measures for the production _ and international movement of plants as inspection and measures related to plants/plant exports/ the area surrounding packing, storage phyto_international_standards.shtml. for planting (excluding seeds) as a pathway. It provides guidance to help and loading locations; and identifying Interested individuals may review the verification procedures. The purpose of standards posted on this Web site and identify and manage pest risks associated with plants for planting. this standard is to minimize the risk of submit comments via the Web site. quarantine pests moved as contaminants The next CPM meeting is scheduled 2. Systems approach for pest risk with shipping containers, irrespective of for March 26–30, 2012, at FAO management of fruit flies (Diptera: the cargo carried. The standard should Headquarters in Rome, Italy. The Tephritidae). This standard provides Deputy Administrator for APHIS’ PPQ guidelines for the development, provide guidance as to how appropriate program is the U.S. delegate to the CPM. implementation, and verification of pest risk management can be achieved The Deputy Administrator intends to integrated measures in a systems with minimum impediment to efficient participate in the proceedings and will approach for pest risk management of movement and management of shipping discuss or comment on APHIS’ position fruit flies (Tephritidae) of economic containers. on any standards up for adoption. The importance. For more detailed information on the agenda for the Fifth Session of the above topics, which will be addressed New Standard-Setting Initiatives, Commission of Phytosanitary Measures by various working groups established Including Those in Development is as follows: by the CPM, contact Ms. Julie E. Aliaga 1. Opening of the session. A number of expert working group (see FOR FURTHER INFORMATION CONTACT 2. Adoption of the agenda. meetings or other technical above). 3. Election of the Rapporteur. consultations will take place during APHIS posts draft standards on the 4. Report by the CPM chairperson. 2011 and 2012 on the topics listed Internet (http://www.aphis.usda.gov/ 5. Report by the Secretariat. below. These standard-setting initiatives import_export/plants/plant_exports/ 6. Report of the technical consultation are under development and may be phyto_international_standards.shtml) as among RPPOs. considered for future adoption. APHIS they become available and provides 7. Report of observer organizations. intends to participate actively and fully information on the due dates for 8. Goal 1: A robust international in each of these working groups. The comments. Additional information on standard-setting and implementation U.S. position on each of the topics to be IPPC standards is available on the IPPC program. Web site at http://www.ippc.int/IPP/En/ 9. Goal 2: Information exchange addressed by these various working default.htm. For the most current systems appropriate to meet IPPC groups will be developed prior to these obligations. working group meetings and will be information on official U.S. 10. Goal 3: Effective dispute based on APHIS’ technical analysis, participation in IPPC activities, settlement systems. information from other U.S. including U.S. positions on standards 11. Goal 4: Improved phytosanitary Government agencies, and relevant being considered, contact Ms. Julie E. capacity of members. scientific information from interested Aliaga (see FOR FURTHER INFORMATION 12. Goal 5: Sustainable stakeholders. CONTACT above). Those wishing to implementation of the IPPC. 1. Establishment and maintenance of provide comments on any of the areas 13. Goal 6: International promotion of fruit fly quarantine areas within pest of work being undertaken by the IPPC the IPPC and cooperation with relevant free areas in the event of an outbreak may do so at any time by responding to regional and international organizations. detection. This draft is proposed as an this notice (see ADDRESSES above) or by 14. Goal 7: Review of the status of Annex to ISPM 26, Establishment of providing comments through Ms. plant protection in the world. pest free areas for fruit flies Aliaga.

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NAPPO Standard-Setting Activities obtained from the NAPPO homepage at NAPPO region; review and comment on NAPPO, a regional plant protection http://www.nappo.org or by contacting forest-related international standards organization created in 1976 under the Ms. Julie E. Aliaga (see FOR FURTHER being developed by the IPPC, in IPPC, coordinates the efforts among INFORMATION CONTACT above). particular a proposed standard on the international movement of wood. The Canada, the United States, and Mexico 1. Accreditation Panel to protect their plant resources from the panel will prepare a discussion paper The panel will perform an in-depth entry, establishment, and spread of reviewing the applicability of current audit of the Mexican NPPO’s adherence harmful plant pests, while facilitating standards for heat treatment of wood to Regional Standard for Phytosanitary intra- and inter-regional trade. NAPPO and wood packaging in relation to Measures (RSPM) 9, ‘‘Authorization of conducts its business through panels emerging information that certain insect laboratories for phytosanitary testing’’ and annual meetings held among the species appear to be thermo-tolerant. and review the audit training program three member countries. The NAPPO with a view to establish a harmonized 6. Fruit Panel Executive Committee charges individual approach for NAPPO countries. panels with the responsibility for The panel will develop a strategy to drawing up proposals for NAPPO 2. Biological Control Panel mitigate the risk of introduction of positions, policies, and standards. These Lobesia botrana into NAPPO countries, The panel will investigate possible including measures to deal with a panels are made up of representatives biological control strategies for the from each member country who have possible outbreak; determine Emerald Ash Borer; review the draft appropriate phytosanitary measures scientific expertise related to the policy regional standard on ‘‘Guidelines for or standard being considered. Proposals against Drosophila suzukii for trade in shipment of biological control agents products which are hosts; complete drawn up by the individual panels are among NAPPO countries’’ and, in circulated for review to Government and RSPM 34, ‘‘Guidelines to develop and collaboration with the Pest Risk apply phytosanitary protocol treatments industry officials in Canada, the United Analysis panel, will assess the risks States, and Mexico, who may suggest for arthropod pests for fruits and associated with the importation of bee vegetables,’’ and complete the technical revisions. In the United States, draft pollen and royal jelly diverted for use in standards are circulated to industry, advisory group documents on pollination and recommend Rhagoletis and Tetranychus trapping. States, and various government agencies management measures. for consideration and comment. The 7. Grains Panel draft standards are posted on the 3. Citrus Panel Internet at http://www.aphis.usda.gov/ The panel will conclude sampling The panel will contribute to the import_export/plants/plant_exports/ procedures for citrus propagative organization (agenda and speakers) of phyto_international_standards.shtml. material for the detection of the IPPC workshop on the international Once revisions are made, the proposal is Huanglongbing (HLB) as part of the movement of grain, to be held in Canada sent to the NAPPO Working Group and diagnostic procedure and organize a in late 2011. the NAPPO Standards Panel for second international workshop on citrus 8. Invasive Species Panel technical reviews, and then to the quarantine pests. Subjects to be covered Executive Committee for final approval, would include: HLB, citrus black spot, The panel will develop a pathway risk which is granted by consensus. citrus leprosis, citrus canker, and citrus analysis standard with support from the The annual NAPPO meeting is variegated chlorosis. PRA panel; complete the discussion scheduled for October 17 to 21, 2011, in paper describing NAPPO’s role in Merida, Yucatan, Mexico. The NAPPO 4. Electronic Phytosanitary Certification invasive alien species including Executive Committee meeting will take Panel documentation of relevant Federal place on October 17, 2011. The The panel will participate in the legislative authority for regulation of Associate Deputy Administrator for PPQ international development of electronic both terrestrial and aquatic plants in is a member of the NAPPO Executive certification towards a functioning North America; and collaborate with the Committee. The Associate Deputy regional and global e-certification PRA panel to review the scientific Administrator intends to participate in capability; finalize the review of the literature on climate change and the proceedings and will discuss or United Nations Centre for Trade complete the discussion paper on its comment on APHIS’ position on any Facilitation and Electronic Business pertinence to the PRA process. standard up for adoption or any (UN/CEFACT) data mapping, preparing 9. Pest Risk Analysis Panel proposals to develop new standards. data mapping for phytosanitary Below is a summary of current panel certificates; and consolidate previously The panel will complete the assignments as they relate to the developed documents into an e- discussion paper on the potential for ongoing development of NAPPO certification technical guide to be climate change to affect the ability of standards. The United States (i.e., further discussed with members of the pests to spread and establish in new USDA/APHIS) intends to participate international e-certification working areas, including the implications for the actively and fully in the work of each of groups. current PRA process, with assistance these panels. The U.S. position on each from the Invasive Species panel; assist topic will be guided and informed by 5. Forestry Panel the Biological Control panel by the best scientific information available The panel will work on completing assessing the risks associated with on each of these topics. For each of the the drafting of a standard for regulating importation of bee pollen into NAPPO following panels, the United States will the movement of wooden articles countries; complete a discussion paper consider its position on any draft intended for indoor and outdoor use; summarizing the risk associated with standard after it reviews a prepared complete the drafting of a standard on the movement of wooden articles draft. Information regarding the the movement of Christmas trees within intended for indoor and outdoor use; following NAPPO panel topics, the NAPPO region; deliver a workshop and complete the development of the assignments, activities, and updates on related to the import and export of PRA format including risk-ranking meeting times and locations may be Christmas trees within and from the guidelines.

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10. Phytosanitary Alert System (PAS) The PPQ Associate Deputy of the Board’s standard 2,000-acre Panel Administrator, as the official U.S. activation limit for a general-purpose zone project. The application was The panel will prepare a checklist of delegate to NAPPO, intends to submitted pursuant to the Foreign-Trade alert sources and ensure that all participate in the adoption of these Zones Act, as amended (19 U.S.C. 81a– available sources are being utilized but regional plant health standards, 81u), and the regulations of the Board not duplicated; coordinate outreach including the work described above, (15 CFR part 400). It was formally filed with other related Web sites and link once they are completed and ready for on October 13, 2011. them to the PAS; evaluate whether users such consideration. The information in this notice FTZ 272 was approved by the Board are visiting the resources page on the contains all the information available to on April 5, 2007 (Board Order 1502, 72 PAS Web site and determine whether us on NAPPO standards currently under FR 18960, 04/16/07), and expanded on this page should continue to be development or consideration. For February 13, 2009 (Board Order 1605, maintained; post pest reports and alerts updates on meeting times and for 74 FR 8903, 02/13/09), and on May 13, to the NAPPO PAS Web site and information on the working panels that 2010 (Board Order 1679, 75 FR 29975– prepare guidelines for the development may become available following 29976, 05/28/10). of pest alerts. publication of this notice, go to the The current zone project includes the 11. Plants for Planting NAPPO Web site on the Internet at following sites: Site 1 (727 acres)— Lehigh Valley Industrial Park VII at The panel will organize information http://www.nappo.org or contact Ms. Julie Aliaga (see FOR FURTHER Bethlehem Commerce Center, 1805 E, exchange among Government and 4th St., Bethlehem; Site 2 (96 acres)— industry in NAPPO countries to INFORMATION CONTACT above). Information on official U.S. Arcadia East Industrial Park (Lot 3), encourage progress towards Route 512 and Silver Crest Rd., East implementation of RSPM 24, participation in NAPPO activities, including U.S. positions on standards Allen Township; Site 3 (83 acres)— ‘‘Integrated pest risk management Arcadia West Industrial Park (Lots 2, 5, measures for the importation of plants being considered, may also be obtained from Ms. Aliaga. Those wishing to 6 and 7), I–78 and Route 863, for planting into NAPPO member Weisenburg Township; Site 4 (226 countries’’; complete the pest list provide comments on any of the topics being addressed by any of the NAPPO acres)—West Hills Business Center, I–78 annexes; complete development of a and Route 863, Weisenburg Township; protocol for hot water treatment of panels may do so at any time by responding to this notice (see Site 5 (399 acres)—Liberty Business grapevines to control Phylloxera; and Center, Industrial Blvd. and Boulder Dr., review and update RSPM 18, ADDRESSES above) or by transmitting comments through Ms. Aliaga. Breinigsville; Site 6 (183 acres)—Lehigh ‘‘Guidelines for phytosanitary action Valley West Corporate Center, Nestle following detection of Plum Pox Virus.’’ Done in Washington, DC, this 14th day of Way and Schantz Rd., Breinigsville; Site October 2011. 12. Potato Panel 7 (213 acres)—LogistiCenter, 4950 Kevin Shea, Hanoverville Rd., Bethlehem; Site 8 The panel will develop a NAPPO Acting Administrator, Animal and Plant (163 acres)—ProLogis Park 33, 3819 and diagnostic protocol for Ralstonia Health Inspection Service. 3850 ProLogis Parkway, Lower solanacearum Race 3 Biovar 2; develop [FR Doc. 2011–27174 Filed 10–19–11; 8:45 am] Nazareth; and, Site 9 (442 acres)— a NAPPO discussion paper on the BILLING CODE 3410–34–P Majestic Bethlehem Center, 3001 efficacy of potato sprout inhibitors; Commerce Blvd., Bethlehem. gather the most recent information The grantee’s proposed service area potato virus Y and identify the strains DEPARTMENT OF COMMERCE under the ASF would be the Counties of of concern to the NAPPO region based Lehigh and Northampton, Pennsylvania, on biological and economic factors; and Foreign-Trade Zones Board as described in the application. If complete the review of RSPM 3, approved, the grantee would be able to [Docket 64–2011] ‘‘Guidelines for movement of potatoes serve sites throughout the service area into a NAPPO member country.’’ Foreign-Trade Zone 272—Counties of based on companies’ needs for FTZ designation. The proposed service area 13. Seeds Panel Lehigh and Northampton, PA; Application for Reorganization/ is within and adjacent to the Lehigh The panel will complete the NAPPO Expansion Under Alternative Site Valley Customs and Border Protection regional standard on seed movement; Framework port of entry. continue to collaborate with COSAVE The applicant is requesting authority on North-South seed trade facilitation; An application has been submitted to to reorganize its existing zone project to support efforts in the development of an the Foreign-Trade Zones (FTZ) Board remove Sites 2–4 and to include existing international standard for seed; and (the Board) by the Lehigh Valley sites 1, 5, 6, 7, 8, and 9 as magnet sites. prepare an agenda and speakers for a Economic Development Corporation, The ASF allows for the possible symposium on seed movement for the grantee of FTZ 272, requesting authority exemption of one magnet site from the 2011 NAPPO Annual meeting. to reorganize and expand the zone ‘‘sunset’’ time limits that generally under the alternative site framework apply to sites under the ASF, and the 14. Standards Panel (ASF) adopted by the Board (74 FR applicant proposes that Site 1 be so The panel will coordinate the review 1170, 1/12/09 (correction 74 FR 3987, 1/ exempted. The applicant is also of new and amended NAPPO standards, 22/09); 75 FR 71069–71070, 11/22/10). requesting approval of the following diagnostic and treatment protocols, and The ASF is an option for grantees for the initial ‘‘usage-driven’’ site: Proposed implementation plans; provide updates establishment or reorganization of Site 10 (21 acres)—Sigma Aldrich on NAPPO standards and ISPMs for the general-purpose zones and can permit Chemical Company, 6950 Ambassador NAPPO Newsletter; maintain the significantly greater flexibility in the Drive, Allentown, Lehigh County, NAPPO Glossary; and provide a formal designation of new ‘‘usage-driven’’ FTZ Pennsylvania. Because the ASF only description of responsibilities for the sites for operators/users located within pertains to establishing or reorganizing panel. a grantee’s ‘‘service area’’ in the context a general-purpose zone, the application

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would have no impact on FTZ 272’s Department is issuing partial The preliminary results of review for authorized subzone. preliminary results for the PRC-wide these seven remaining companies are In accordance with the Board’s entity only, which includes the seven currently due November 10, 2011. regulations, Kathleen Boyce of the FTZ companies listed in Appendix III. Based The Department invites interested Staff is designated examiner to evaluate on timely withdrawals of requests for parties to comment on these partial and analyze the facts and information review, the Department is now preliminary results for the PRC-wide presented in the application and case rescinding the review with respect to 84 entity and on our intent to rescind the record and to report findings and companies which are listed in administrative review of the 14 recommendations to the Board. Appendix I. The Department also companies which certified ‘‘no Public comment is invited from preliminarily determines that a shipments.’’ If the partial preliminary interested parties. Submissions (original rescission of the administrative review results for the PRC-wide entity are and 3 copies) shall be addressed to the is warranted with respect to 14 adopted in the partial final results, the Board’s Executive Secretary at the companies which each timely submitted Department will instruct U.S. Customs address below. The closing period for a ‘‘no shipment’’ certification. The and Border Protection (CBP) to assess their receipt is December 19, 2011. intent to rescind is applicable to the antidumping duties on all appropriate Rebuttal comments in response to companies listed in Appendix II. In entries of subject merchandise during material submitted during the foregoing addition, there are seven companies the POR. period may be submitted during the which the Department determines are DATES: Effective Date: October 20, 2011. subsequent 15-day period to January 3, subject to the PRC-wide entity rate and FOR FURTHER INFORMATION CONTACT: 2012. which are subject to these partial Scott Lindsay or Lingjun Wang, AD/ A copy of the application will be preliminary results. These seven CVD Operations, Office 6, Import available for public inspection at the companies are listed in Appendix III. Administration, International Trade Office of the Executive Secretary, Accordingly, 21 companies are subject Administration, U.S. Department of Foreign-Trade Zones Board, Room 2111, to these partial preliminary results and Commerce, 14th Street and Constitution U.S. Department of Commerce, 1401 the intent to rescind the administrative Avenue, NW., Washington, DC 20230; Constitution Avenue NW., Washington, review and are listed in Appendix IV. telephone: (202) 482–0780 and (202) DC 20230–0002, and in the ‘‘Reading The Department is issuing these 482–2316. partial preliminary results based on Room’’ section of the Board’s Web site, SUPPLEMENTARY INFORMATION: which is accessible via http:// unique circumstances that have raised www.trade.gov/ftz. For further concerns with respect to enforcement of Background information, contact Kathleen Boyce at the antidumping duty order. On November 16, 1994, the [email protected] or (202) 482– Specifically, there are two mandatory Department published in the Federal 1346. respondents who are not participating Register the antidumping duty order on in this review. Because these two Dated: October 13, 2011. fresh garlic from the PRC.3 On companies have failed to establish their Andrew McGilvray, November 1, 2010, the Department eligibility for a separate rate, the published a notice of opportunity to Executive Secretary. Department preliminarily determines [FR Doc. 2011–27213 Filed 10–19–11; 8:45 am] request an administrative review of the that each of these companies are part of antidumping duty order on fresh garlic BILLING CODE P the PRC-wide entity. Thus, each from the PRC for the period November company’s current cash deposit rate is 1, 2009, through October 31, 2010.4 On much lower than the rate preliminarily DEPARTMENT OF COMMERCE November 16, 26, 29, and 30, 2010, determined to be applicable to their eight companies timely requested the entries. While such circumstances do International Trade Administration Department to review their exports of not normally warrant issuance of partial subject merchandise: (1) Chengwu [A–570–831] preliminary results, there are unique County Yuanxiang Industry & and serious enforcement concerns that Commerce Co., Ltd.; (2) Hebei Golden Fresh Garlic From the People’s warrant issuing preliminary results for Bird Trading Co., Ltd. (Golden Bird); (3) Republic of China: Partial Preliminary certain companies at this time. A more Henan Weite Industrial Co., Ltd.; (4) Results, Rescission of, and Intent To detailed explanation of the disposition Jinan Farmlady Trading Co., Ltd. Rescind, in Part, the 2009–2010 of each of the above companies is set (Farmlady); (5) Qingdao Xintianfeng Administrative Review forth below.2 The remaining seven Foods Co., Ltd.; (6) Shenzhen Xinboda companies under review will be covered AGENCY: Import Administration, Industrial Co., Ltd. (Xinboda); (7) in a separate partial preliminary results International Trade Administration, Weifang Hongqiao International Logistic of review, and are listed in Appendix V. Department of Commerce. Co., Ltd. (Hongqiao); (8) Zhengzhou SUMMARY: In response to requests from Harmoni Spice Co., Ltd. (Harmoni). interested parties, the Department of Dadi is its affiliated producer. As such, we will address Zhenghou Dadi in the context of our On November 30, 2010, the Fresh Commerce (the Department) is analysis of Shenzhen Xinboda. We do not include Garlic Producers Association (FGPA) conducting an administrative review of Zhengzhou Dadi in our company counts in this and its individual members 5 the antidumping duty order on fresh notice. (collectively, Petitioners) timely garlic from the People’s Republic of 2 The specific facts underlying the Department’s decision for issuing these partial preliminary results China (PRC) covering the period of are business proprietary. See Memorandum to The 3 See Antidumping Duty Order: Fresh Garlic From review (POR) of November 1, 2009, File, Through Barbara E. Tillman, Director, AD/CVD the People’s Republic of China, 59 FR 59209 through October 31, 2010. The Operations, Office 6, Import Administration, and (November 16, 1994). Thomas Gilgunn, Program Manager, AD/CVD 4 See Antidumping or Countervailing Duty Order, Department initiated this review for 112 Finding, or Suspended Investigation: Opportunity 1 Operations, Office 6, From: Scott Lindsay, Case producers/exporters (companies). The Analyst, AD/CVD Operations, Office 6, Subject: To Request Administrative Review, 75 FR 67079 Discussion of Business Proprietary Information for (November 1, 2010). 1 We also initiated a review of Zhengzhou Dadi. Partial Preliminary Results of Administrative 5 The individual members of the FGPA are However, the responses of Shenzhen Xinboda, a Review for Fresh Garlic from the People’s Republic Christopher Ranch L.L.C., The Garlic Company, mandatory respondent, indicate that Zhengzhou of China, dated concurrently with this notice. Valley Garlic, and Vessey and Company, Inc.

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requested that the Department conduct Administrative Protective Order (APO), Scope of the Order an administrative review of 112 and invited comments regarding the The products covered by the order are 6 companies. On December 28, 2011, the data and respondent selection. No all grades of garlic, whole or separated Department published a notice of parties commented. On March 4, 2011, into constituent cloves, whether or not initiation of administrative review with the Department selected five companies peeled, fresh, chilled, frozen, 7 respect to 112 companies. as mandatory respondents: (1) Golden provisionally preserved, or packed in On March 28, 2011, Petitioners timely Bird; (2) Longtai; (3) Xinboda; (4) water or other neutral substance, but not withdrew their requests to review 84 of Hongqiao; (5) Harmoni.9 prepared or preserved by the addition of the 112 companies they initially On March 14, 2011, the Department other ingredients or heat processing. requested, including Harmoni. See The differences between grades are Attachment I. Harmoni also withdrew issued the Non-Market Economy Antidumping Duty Questionnaire based on color, size, sheathing, and its own review request. On March 31, level of decay. The scope of the order 2011, Hongqiao also withdrew its own (Initial Questionnaire) to the five mandatory respondents. On March 30, does not include the following: (a) review request and claimed that Garlic that has been mechanically Petitioners also withdrew their request 2011, Harmoni notified the Department that it would not submit a questionnaire harvested and that is primarily, but not to review Hongqiao. On April 5, 2011, exclusively, destined for non-fresh use; Petitioners responded to Hongqiao’s response because it anticipated that the Department would rescind its review or (b) garlic that has been specially withdrawal, stating that Petitioners did prepared and cultivated prior to not withdraw their review request for since Petitioners and Harmoni had each withdrawn their requests for review planting and then harvested and Hongqiao. On April 15, 2011, the otherwise prepared for use as seed. The Department notified Hongqiao that it with respect to Harmoni (on March 28, 8 2011 and March 31, 2011, respectively). subject merchandise is used principally continues to be included in the review. as a food product and for seasoning. The On November 30, 2010, Jining Yongjia On April 25 and May 18, 2011, Golden subject garlic is currently classifiable Trade Co., Ltd. (Yongjia), Qingdao Bird and Xinboda each submitted under subheadings 0703.20.0010, Tiantaixing Foods Co., Ltd. (QTF), responses to Section A, C and D of the 10 0703.20.0020, 0703.20.0090, Weifang Chenglong Import & Export Co., questionnaire. On April 25, 2011, 0710.80.7060, 0710.80.9750, Ltd. (Chenglong), Jining Yifa Garlic Hongqiao informed the Department that 0711.90.6000, and 2005.90.9700 of the Produce Co., Ltd. (Yifa), Jinxiang Hejia it would not respond to the Initial Harmonized Tariff Schedule of the Co., Ltd. (Hejia), Qingdao Sea-line Questionnaire.11 Longtai did not respond to the Initial Questionnaire nor United States (HTSUS). International Trading Co., Ltd. (Sea- Although the HTSUS subheadings are line), Shenzhen Bainong Co., Ltd. did it request any extension of time to respond to the questionnaire. provided for convenience and customs (Bainong) each timely certified that it purposes, our written description of the had no shipments during the POR. On On April 6, 2011, Petitioners placed scope of the order is dispositive. In this same date, Yantai Jinyan Trading on the record the CBP data that the order to be excluded from the order, Co., Ltd. (Yantai) certified that it made Department released in the new shipper garlic entered under the HTSUS no shipments during the period June 1, review which covered the first six subheadings listed above that is (1) 2010, through October 31, 2010. On months of the POR. On April 7, 2011, mechanically harvested and primarily, January 18, 2011, Jinxiang Chengda the Department placed additional CBP but not exclusively, destined for non- Import & Export Co., Ltd. (Chengda), data on the record. On April 15, 2011, fresh use or (2) specially prepared and Jinxiang Yuanxin Import & Export Co., Petitioners met with the Department cultivated prior to planting and then Ltd. (Yuanxin), and Zhengzhou Yuanli regarding the possible selection of harvested and otherwise prepared for Trading Co., Ltd. (Yuanli) each timely additional mandatory respondents.12 On use as seed must be accompanied by certified that it had no shipments during May 9, 2011, Petitioners requested the declarations to U.S. Customs and Border the POR. On January 24, 2011, Department to select additional Protection to that effect. Shandong Wonderland Organic Food mandatory respondents.13 On May 17, Co., Ltd. (Wonderland) and XuZhou 2011, Farmlady opposed Petitioners’ Partial Rescission of the Administrative Simple Garlic Industry Co., Ltd. request to select it as one of the Review (Simple) each timely certified that it had additional mandatory respondents. On Pursuant to 19 CFR 351.213(d)(1), the no shipments during the POR. On May 25, 2011, Yantai requested to be a Secretary will rescind an administrative February 3, 2011, Shanghai LJ mandatory respondent. The Department review, in whole or in part, if a party International Trading Co., Ltd. did not select any additional mandatory that requested a review withdraws the (Shanghai LJ) timely certified that it had respondents. request within 90 days of the date of no shipments during the POR. On publication of notice of initiation of the February 24, 2011, Zhengzhou Huachao 9 See Memorandum to Barbara E. Tillman, requested review. Industrial Co., Ltd. (Huachao) timely Through Thomas Gilgunn, From Nicholas For all but one of the 84 companies, certified that it had no shipments during Czajkowski, Re: Antidumping Administrative Petitioners were the only party that the POR. Review of Fresh Garlic from the People’s Republic requested the review. The remaining of China: Respondent Selection Memorandum On January 5, 2011, the Department company, Harmoni, also self-requested a released CBP data for U.S. garlic imports (March 4, 2011). 10 The Department granted several extensions for review. As mentioned above, on March from the PRC during the POR under various sections of the Initial Questionnaire. 28, 2011 and March 31, 2011, within the 11 See Hongqiao’s April 25, 2011 letter to the 90 days of publication of the notice of 6 These 112 companies include the eight Department. initiation, Petitioners and Harmoni each companies that requested their own reviews. 12 See Memorandum to the File, Re: Meeting with 7 See Initiation of Antidumping and Counsel for the Petitioners: Administrative Review timely withdrew their respective review 14 Countervailing Duty Administrative Reviews and of the Antidumping duty Order on Fresh Garlic requests for Harmoni. Therefore, the Request for Revocation in Part, 75 FR 81565, from China (11/01/09–10/30/10) (April 18, 2011). 81568–81569 (December 28, 2010) (Initiation 13 Petitioners argued that the Department should 14 On March 31, 2011, Golden Bird urged the Notice). select the three next largest exporters, during the Department to determine whether Harmoni had any 8 See the Department’s April 15, 2011 letter to POR, to serve as mandatory respondents in this business dealings with Petitioners before any final Hongqiao. review. Continued

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Department is rescinding this review 1, 2009, through May 31, 2010, subject these companies are part of the PRC- with respect to 84 companies in merchandise produced/exported by wide entity.19 See Appendix III for a accordance with 19 CFR 351.213(d)(1). Yantai did enter the United States for complete list of companies that are part See Appendix I. consumption.16 As such, the of the PRC-wide entity. Department is not intending to rescind Intent To Rescind, in Part, the Use of Facts Otherwise Available and the review with respect to Yantai. Administrative Review Adverse Facts Available (AFA) The Department has reviewed all Pursuant to 19 CFR 351.213(d)(3), the relevant no-shipment claims, has Section 776(a) of the Act provides that Department may rescind a review where examined the CBP entry data, and sent the Department shall apply ‘‘facts there are no exports, sales, or entries of no-shipment inquiries to CBP for each otherwise available’’ if (1) necessary subject merchandise during the of these companies. In the no-shipment information is not on the record, or (2) respective POR. In the Initiation Notice, inquiries, we requested CBP to provide an interested party or any other person the Department stated that any company any information regarding entries by (A) withholds information that has been named in the notice of initiation that these companies during the POR within requested, (B) fails to provide had no exports, sales, or entries during 10 days. We did not receive any information within the deadlines the POR should notify the Department responses from CBP to our no-shipment established, or in the form and manner within 60 days of publication of the inquiries. After taking these steps, we requested by the Department, subject to Initiation Notice in the Federal Register. have found no evidence that any of the subsections (c)(1) and (e) of section 782 The Department stated that it would above-noted fourteen companies made of the Act, (C) significantly impedes a consider rescinding the review only if shipments during the POR. Therefore, proceeding, or (D) provides information the company submitted a properly filed pursuant to 19 CFR 357.213(d)(3), the that cannot be verified as provided by and timely statement certifying that it Department is preliminarily rescinding section 782(i) of the Act. Section 776(b) of the Act further had no exports, sales, or entries of the review with respect to Yongjia, QTF, provides that the Department may use subject merchandise during the POR. Chenglong, Yifa, Hejia, Sea-line, an adverse inference in applying the See Initiation Notice. The deadline to Bainong, Chengda, Yuanxin, Yuanli, facts otherwise available when a party submit ‘‘no shipment’’ certifications was Wonderland, Simple, Shanghai LJ, and has failed to cooperate by not acting to February 26, 2011. Huachao. When examining a no-shipment the best of its ability to comply with a certification, the Department’s practice PRC-Wide Entity request for information. Such an adverse is to: (1) Review the respondent’s no Hongqiao and Longtai were selected inference may include reliance on shipment claim; (2) examine CBP entry as mandatory respondents in this information derived from the petition, data to determine whether these data are review. In this review, Hongqiao timely the final determination, a previous administrative review, or other consistent with the claim; and (3) send filed a Separate Rate Certification, but information placed on the record. a ‘‘No Shipment Inquiry’’ to CBP did not respond to the Initial Where the Department determines requesting that CBP notify the 17 Questionnaire. Longtai neither filed a that a response to a request for Department if it has evidence of Separate Rate Certification nor information does not comply with the shipments from the company making responded to the Initial Questionnaire. request, section 782(d) of the Act the claim. If, after taking these three Therefore, the Department finds that provides that the Department will so steps, the Department finds no evidence Hongqiao and Longtai failed to establish inform the party submitting the to indicate that the companies at issue eligibility for separate rate status and response and will, to the extent had exports, entries, or sales of subject thus are properly considered part of the practicable, provide that party the merchandise under the order during the PRC-wide entity for purposes of these opportunity to remedy or explain the POR, the Department preliminarily 18 partial preliminary results. deficiency. If the party fails to remedy rescinds its review, pursuant to 19 CFR In addition, the Department initiated the deficiency within the applicable 351.213(d)(3).15 a review of five companies which were time limits and subject to section 782(e) As noted above, (1) Yongjia, (2) QTF, not selected as mandatory respondents (3) Chenglong, (4) Yifa, (5) Hejia, (6) of the Act, the Department may and which did not file a Separate Rate disregard all or part of the original and Sea-line, (7) Bainong, (8) Chengda, (9) Certification or Separate Rate Yuanxin, (10) Yuanli, (11) Wonderland, subsequent responses, as appropriate. Application to demonstrate eligibility Section 782(e) of the Act provides that (12) Simple, (13) Shanghai LJ, and (14) for separate rate status. Furthermore, the Department ‘‘shall not decline to Huachao each timely certified that it none of these five companies properly consider information that is submitted had no shipments during the POR. filed a timely statement certifying that it by an interested party and is necessary Yantai also submitted a no-shipment had no exports, sales, or entries of to the determination but does not meet certification covering the period June 1, subject merchandise during the POR. all applicable requirements established 2010, through October 31, 2010. Therefore, the Department finds that by the administering authority’’ if the However, during the period November information is timely, can be verified, is 16 See Fresh Garlic From the People’s Republic of not so incomplete that it cannot be used, rescission. The regulations are clear that so long as China: Final Rescission of New Shipper Reviews of the parties that requested the review timely Jining Yifa Garlic Produce Co., Ltd., Shenzhen and if the interested party acted to the withdraw the request, the Secretary will rescind the Bainong Co., Ltd., and Yantai Jinyan Trading Inc., best of its ability in providing the review. Since both withdrawal requests were 76 FR 52315 (August 22, 2011). information. Where all of these timely, the Department has no basis to evaluate the 17 As discussed above, Hongqiao informed the conditions are met, the statute requires reasoning behind a party’s decision to withdraw its Department that it would not participate in this request. Furthermore, Golden Bird provided no review on April 25, 2011. the Department to use the information evidence to support its claim that there have been 18 The Initiation Notice states ‘‘for exporters and business dealings between Petitioners and Harmoni. producers who submit a separate-rate status 19 See, e.g., Fresh Garlic From the People’s 15 See, e.g., Fresh Garlic From the People’s application or certification and subsequently are Republic of China: Final Results and Final Republic of China: Final Results and Partial selected as mandatory respondents, these exporters Rescission, in Part, of the 2008–2009 Antidumping Rescission of the 13th Antidumping Duty and producers will no longer be eligible for Duty Administrative Review, 76 FR 37321 (June 27, Administrative Review and New Shipper Reviews, separate-rate status unless they respond to all parts 2011) (Garlic 15) (finding non-respondent 74 FR 29174 (June 19, 2009)(Garlic 13). of the questionnaire as mandatory respondents.’’ companies to be part of the PRC-wide entity).

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supplied if it can do so without undue Therefore, the Department preliminarily rate on numerous occasions.23 In difficulties. determines to use an adverse inference choosing the appropriate balance in selecting from among the facts between providing a respondent with an Application of AFA to the PRC-Wide otherwise available. By using an incentive to respond accurately and Entity inference that is adverse to the interests imposing a rate that is reasonably Hongqiao and Longtai were selected of the PRC-wide entity, the Department related to the respondent’s prior as mandatory respondents, but neither ensures the companies which comprise commercial activity, selecting the company responded to the Initial the entity will not obtain a more highest prior margin reflects ‘‘a common Questionnaire. As such, neither favorable result by failing to cooperate sense inference that the highest prior company has established its eligibility than had they cooperated fully in the margin is the most probative evidence of for separate rate status, and thus both review. current margins, because, if it were not companies are properly considered part so, the importer, knowing of the rule, of the PRC-wide entity for purposes of Selection of AFA Rates would have produced current these preliminary results. Moreover, In deciding which facts to use as information showing the margin to be because the PRC-wide entity, which AFA, section 776(b) of the Act and 19 less.’’ 24 Therefore, as AFA, the includes these two companies, withheld CFR 351.308(c)(1) provide that the Department has assigned the PRC-wide or failed to timely provide requested Department may rely on information entity a dumping margin of $4.71 per information, the information necessary derived from (1) The petition, (2) a final kilogram, the highest per-unit rate on for the Department to conduct the determination in the investigation, (3) the record of any segment of this analysis is not available on the record. any previous review or determination, proceeding.25 Moreover, the decision to not respond to or (4) any information placed on the the Initial Questionnaire constitutes a Corroboration of Secondary record. The Department’s practice is to Information Used as AFA refusal to participate in the review and select an AFA rate that is sufficiently significantly impeded the proceeding. adverse ‘‘as to effectuate the purpose of Section 776(c) of the Act provides The PRC-wide entity, which includes the facts available rule to induce that, when the Department relies on Hongqiao and Longtai, neither requested respondents to provide the Department secondary information rather than on an extension nor stated it was having with complete and accurate information information obtained in the course of an difficulties in responding to the Initial in a timely manner’’ and that ensures investigation or review, it shall, to the Questionnaire. In fact, Hongqiao clearly ‘‘that the party does not obtain a more extent practicable, corroborate that announced its intent to not participate favorable result by failing to cooperate information from independent sources in this review by its letter of April 25, than if it had cooperated fully.’’ 21 that are reasonably at its disposal. 2011. Specifically, in reviews, the Secondary information is defined as Had the PRC-wide entity, which Department’s practice in selecting a rate information derived from the petition includes Hongqiao and Longtai, as total AFA is to use the highest rate that gave rise to the investigation or participated in the review, the on the record of the proceeding which, review, the final determination Department may have had the to the extent practicable, can be concerning the subject merchandise, or opportunity to calculate a margin. corroborated (assuming the rate is based any previous review under section 751 Pursuant to section 776(a) of the Act, on secondary information).22 The Court of the Act concerning the subject 26 however, as a result of the PRC-wide of International Trade (CIT) and the merchandise. To corroborate means entity’s failure to participate, the CAFC have affirmed decisions to select that the Department will satisfy itself Department shall use facts otherwise the highest margin from any prior that the secondary information to be 27 available to reach the applicable segment of the proceeding as the AFA used has probative value. To determination. corroborate secondary information, the Because of the PRC-wide entity’s Department will, to the extent complete failure to respond to the Initial existed on the part of the respondent, but merely that a ‘‘failure to cooperate to the best of a practicable, examine the reliability and Questionnaire, the Department finds respondent’s ability’’ existed (i.e., information was relevance of the information to be that it has failed to cooperate by not not provided ‘‘under circumstances in which it is used.28 Independent sources used to acting to the best of its ability to comply reasonable to conclude that less than full cooperation has been shown’’). with the Department’s request for 23 See, e.g., NSK Ltd. v. United States, 346 F. 21 See Notice of Final Determination of Sales at Supp. 2d 1312, 1335 (CIT 2004) (affirming a 73.55 information. Pursuant to section 776(b) Less Than Fair Value: Static Random Access percent total AFA rate, the highest available of the Act, the Department shall use an Memory Semiconductors From Taiwan, 63 FR 8909, dumping margin calculated for a different 8911 (February 23, 1998); see also Brake Rotors inference that is adverse to the interest respondent in the investigation); Kompass Food From the People’s Republic of China: Final Results of this entity. Trading International v. United States, 24 CIT 678, and Partial Rescission of the Seventh 683–84 (2000) (affirming a 51.16 percent total AFA The PRC-wide entity, which includes Administrative Review; Final Results of the rate, the highest available dumping margin for a Hongqiao and Longtai, has failed to Eleventh New Shipper Review, 70 FR 69937, 69939 different, fully cooperative respondent); and (November 18, 2005) and the Statement of provide requested information, which Shanghai Taoen International Trading Co., Ltd. v. Administrative Action accompany the Uruguay was in the sole possession of each United States, 360 F. Supp. 2d 1339, 1348 (CIT Round Agreements Act, H.R. Rep. No. 316, 103d 2005) (affirming a 223.01 percent total AFA rate, the respondent and could not be obtained Cong., 2d Sess. at 870 (SAA). highest available dumping margin for a different otherwise. The refusal to provide the 22 See Glycine From the People’s Republic of respondent in a previous administrative review). requested information constitutes China: Preliminary Results of Antidumping Duty 24 See Rhone Poulenc, Inc. v. United States, 899 Administrative Review, 74 FR 15930, 15934 (April circumstances under which it is F.2d 1185, 1190 (CAFC 1990). 8, 2009), unchanged in Glycine From the People’s reasonable to conclude that less than 25 See Garlic 13 and accompanying Issues and 20 Republic of China: Final Results of Antidumping full cooperation has been shown. Duty Administrative Review, 74 FR 41121 (August Decision Memorandum at Comment 8. 14, 2009); see also Fujian Lianfu Forestry Co., Ltd. 26 See SAA. 20 See Nippon Steel Corporation v. United States, v. United States, 638 F. Supp. 2d 1325, 1336 (CIT 27 See id. 337 F.3d 1373, 1383 (Fed. Cir. 2003), where the August 10, 2009) (‘‘Commerce may, of course, begin 28 See Tapered Roller Bearings and Parts Thereof, Court of Appeals for the Federal Circuit (CAFE´ ) its total AFA selection process by defaulting to the Finished and Unfinished, From Japan, and Tapered provided an explanation of the ‘‘failure to act to the highest rate in any segment of the proceeding, but Roller Bearings, Four Inches or Less in Outside best of its ability’’ standard noting that the that selection must then be corroborated, to the Diameter, and Components Thereof, From Japan: Department need not show intentional conduct extent practicable.’’). Continued

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corroborate such evidence may include, With respect to the relevance aspect after the publication of the partial for example, published price lists, of corroboration, the Department will rescission final results in the Federal official import statistics and customs consider information reasonably at its Register. data, and information obtained from disposal to determine whether a margin If these partial preliminary rescission interested parties during the particular continues to have relevance. Where of and preliminary results of review are 29 investigation. circumstances indicate that the selected adopted in the final results, then As discussed above, the $4.71 per margin is not appropriate as AFA, the antidumping duties will be assessed as kilogram is the highest rate on the Department will disregard the margin follows. For all shipments of the subject and determine an appropriate margin.32 record of any segment of the merchandise entered, or withdrawn Similarly, the Department does not antidumping duty order. This rate was from warehouse, for consumption apply a margin that has been calculated using the ad valorem rate during the POR by the companies: 1) discredited.33 None of these contained in the petition in the original who certified no shipments (see circumstances are present with respect investigation of garlic from the PRC and Appendix II), antidumping duties will was applied to the PRC-wide entity in to the rate being used here. In fact, where the Department has be assessed on entries at rates equal to the immediately preceding the cash deposit of estimated administrative review,30 and was not found a mandatory respondent part of antidumping duties required at the time challenged. Furthermore, no the PRC-wide entity, the Department of entry, or withdrawal from warehouse, information has been presented in this need not corroborate the PRC-wide rate for consumption, in accordance with 19 review that calls into question the with respect to information specific to CFR 351.212(c)(1)(i); 2) that are part of reliability of the information. Because that respondent because there is ‘‘no the PRC-wide entity (including those this rate, calculated using the ad requirement that the PRC-wide entity listed in Appendix III), antidumping valorem rate in the original rate based on AFA relate specifically to 34 duties will be assessed at the PRC-wide investigation, was also applied in the the individual company. The entity rate of $4.71 per kilogram. The two most recently completed reviews of Department’s permissible determination Department intends to issue assessment this order, and the PRC-wide rate has that Hongqiao and Longtai are part of instructions directly to CBP 15 days not been challenged in court, and the PRC-wide entity means that because no party has placed evidence inquiring into Hongqiao’s and Longtai’s after the publication of the partial on the record questioning the reliability separate sales behavior ceases to be rescission final results in the Federal of this rate in this review, the meaningful. Register. As this rate is both reliable and Department finds that the selected rate Cash Deposit Requirements is reliable. Moreover, the rate selected is relevant, we determine that it has the rate currently applicable to the PRC- probative value, and is thus in The following cash deposit accordance with the requirement under wide entity. The CAFC has held that the requirements will be effective upon section 776(c) of the Act, that secondary Department ‘‘is permitted to use a publication of this partial rescission of information be corroborated to the ‘common sense inference that the administrative review. For all shipments extent practicable. highest prior margin is the most of the subject merchandise entered, or probative evidence of current margins Assessment Rates withdrawn from warehouse, for because, if it were not so, the importer, The Department will instruct CBP to consumption on or after the publication knowing of the rule, would have assess antidumping duties on all date, as provided for by section produced current information showing appropriate entries. For all shipments of 751(a)(2)(C) of the Act by the companies the margin to be less.’’ 31 the subject merchandise entered, or for whom the Department is rescinding withdrawn from warehouse, for reviews (see Appendix I), the cash Preliminary Results of Antidumping Duty consumption during the POR by the deposit rate will continue to be the rate Administrative Reviews and Partial Termination of companies for whom the Department is currently in effect for that company. Administrative Reviews, 61 FR 57391, 57392 rescinding reviews (see Appendix I), These requirements, when imposed, (November 6, 1996), unchanged in Tapered Roller shall remain in effect until further Bearings and Parts Thereof, Finished and antidumping duties will be assessed on Unfinished, From Japan, and Tapered Roller entries at rates equal to the cash deposit notice. Bearings, Four Inches or Less in Outsider Diameter, of estimated antidumping duties If these partial preliminary results are and Components Thereof, From Japan: Final Results of Antidumping Duty Administrative required at the time of entry, or adopted in the final results, then the Reviews and Termination in Part, 62 FR 11825 withdrawal from warehouse, for following cash deposit requirements (March 13, 1997). consumption, in accordance with 19 will be effective upon publication of the 29 See Notice of Preliminary Determination of CFR 351.212(c)(1)(i). The Department final results of this administrative Sales at Less Than Fair Value: High and Ultra-High intends to issue these assessment Voltage Ceramic Station Post Insulators From review for all shipments of the subject Japan, 68 FR 35627 (June 16, 2003), unchanged in instructions directly to CBP 15 days merchandise entered, or withdrawn Notice of Final Determination of Sales at Less Than from warehouse, for consumption on or Fair Value: High and Ultra-High Voltage Ceramic 32 See, e.g., Fresh Cut Flowers From Mexico; Final after the publication date, as provided Station Post Insulators From Japan, 68 FR 62560 Results of Antidumping Duty Administrative for by section 751(a)(2)(C) of the Act: (1) (November 5, 2003); and Notice of Final Review, 61 FR 6812, 6814 (February 22, 1996). Determination of Sales at Less Than Fair Value: 33 See D&L Supply Co. v. United States, 113 F.3d For the companies that certified no Live Swine From Canada, 70 FR 12181, 12183–84 1220, 1221 (Fed. Cir. 1997) (the Department will not shipments (see Appendix II), the rate (March 11, 2005). use a margin that has been judicially invalidated). continues to be the rate currently in 30 The $4.71 PRC-wide entity rate was calculated 34 See Watanabe v. United States, Slip Op. 2010– effect for that company; (2) for the PRC- in Garlic 13, and subsequently applied in both 139 Court No. 09–00520 (Dec. 22, 2010)(citing Peer wide entities (including those Garlic 14 and Garlic 15. See Fresh Garlic From the Bearing Co.-Changshan v. United States, 587 F. People’s Republic of China: Final Results and Supp. 2d 1319, 1327 (CIT 2008)); Shandong Mach. companies identified in Appendix III), Partial Rescission of the 14th Antidumping Duty Imp. & Exp. Co. v. United States, Slip Op. 09–64, the cash deposit rate will be the PRC- Administrative Review, 75 FR 34976 (June 21, 2010) 2009 Ct. Intl. Trade LEXIS 76, 2009 WL 2017042, wide entity rate of $4.71 per kilogram. (Garlic 14) and (Garlic 15). at *8 (CIT June 24, 2009)(Commerce has no 31 See KYD, Inc. v. United States, 607 F.3d 760 obligation to corroborate the PRC-wide rate as to an These requirements, when imposed, (Fed. Cir. 2010) (quoting Rhone Poulenc, Inc. v. individual party where that party has failed to shall remain in effect until further United States, 899 F.2d at 1190). qualify for a separate rate). notice.

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Comments 351.402(f)(2) to file a certificate 32. Jinxiang Tianheng Trade Co., Ltd. regarding the reimbursement of 33. Jinxiang Tianma Freezing Storage Co., Since no calculations were performed Ltd. for these partial preliminary results, no antidumping duties prior to liquidation of the relevant entries during this 34. Juye Homestead Fruits and Vegetables disclosure is required under 19 CFR Co., Ltd. 351.224(b). Any interested party may review period. Failure to comply with 35. Kingwin Industrial Co., Ltd. request a hearing within 30 days of this requirement could result in the 36. Laiwu Fukai Foodstuff Co., Ltd. publication of this notice in accordance Secretary’s presumption that 37. Laizhou Xubin Fruits and Vegetables with 19 CFR 351.310(c). Any hearing reimbursement of antidumping duties 38. Linyi City Heding District Jiuli will be held 37 days after the occurred and the subsequent assessment Foodstuff Co. of double antidumping duties. 39. Linyi Tianqin Foodstuff Co., Ltd. publication of this notice, or the first 40. Ningjin Ruifeng Foodstuff Co., Ltd. business day thereafter unless the We are issuing and publishing these partial preliminary results in 41. Qingdao Apex Shipping Co., Ltd. Department alters the date pursuant to 42. Qingdao BNP Co., Ltd. 19 CFR 351.310(d). Individuals who accordance with sections 751(a)(2)(B) 43. Qingdao Cherry Leather Garment Co., wish to request a hearing must submit and 777(i) of the Act, and 19 CFR Ltd. a written request within 30 days of the 351.214(h) and 351.221(b)(4). 44. Qingdao Chongzhi International publication of this notice in the Federal Dated: October 13, 2011. Transportation Co., Ltd. 45. Qingdao Lianghe International Trade Register to the Assistant Secretary for Ronald K. Lorentzen, Import Administration, U.S. Department Co., Ltd. Deputy Assistant Secretary for Import 46. Qingdao Saturn International Trade of Commerce, pursuant to the Administration. 35 Co., Ltd. Department’s e-filing regulations. 47. Qingdao Sino-World International Requests for a public hearing should Appendix I—Companies For Which the Administrative Review Is Being Rescinded Trading Co., Ltd. contain: (1) The party’s name, address, 48. Qingdao Winner Foods Co., Ltd. The following companies were named in and telephone number; (2) the number 49. Qingdao Yuankang International our Initiation Notice. Subsequently, of participants; and (3) to the extent 50. Qufu Dongbao Import & Export Trade interested parties timely withdrew all Co., Ltd. practicable, an identification of the requests for review of these companies. 51. Rizhao Huasai Foodstuff Co., Ltd. arguments to be raised at the hearing. Therefore, pursuant to 19 CFR 351.213(d)(1), 52. Samyoung America (Shanghai) Inc. Unless otherwise notified by the we are rescinding this administrative review 53. Shandong Chengshun Farm Produce Department, interested parties may with respect to these companies. Trading Co., Ltd. submit case briefs within 30 days of the 1. APM Global Logistics (Shanghai) Co., 54. Shandong CHINA Bridge Imports Ltd. date of publication of this notice in 55. Shandong Dongsheng Eastsun Foods accordance with 19 CFR 2. American Pioneer Shipping 3. Anhui Dongqian Foods Ltd Co., Ltd. 351.309(c)(1)(ii). As part of the case 56. Shandong Garlic Company brief, parties are encouraged to provide 4. Anqiu Friend Food Co., Ltd. 5. Anqiu Haoshun Trade Co., Ltd. 57. Shandong Jinxiang Zhengyang Import & a summary of the arguments and a table 6. APS Qingdao Export Co., Ltd. of authorities cited in accordance with 7. Chiping Shengkang Foodstuff Co., Ltd. 58. Shandong Sanxing Food Co., Ltd. 19 CFR 351.309(c)(2). Rebuttal briefs, 8. CMEC Engineering Machinery Import & 59. Shandong Xingda Foodstuffs Group which must be limited to issues raised Export Co,. Ltd. Co., Ltd. in the case briefs, must be filed within 9. Dongying Shunyifa Chemical Co., Ltd. 60. Shandong Yipin Agro (Group) Co., Ltd. five days after the case brief is filed in 10. Dynalink Systems Logistics (Qingdao) 61. Shanghai Ever Rich Trade Company. 62. Shanghai Goldenbridge International accordance with 19 CFR 351.309(d). All Inc. 11. Feicheng Acid Chemicals Co., Ltd. Co., Ltd. briefs must be filed in accordance with 63. Shanghai Great Harvest International the Department’s e-filing regulations.36 12. Frog World Co., Ltd. 13. Golden Bridge International, Inc. Co., Ltd. If a hearing is held, an interested party 14. Hangzhou Guanyu Foods Co., Ltd. 64. Shenzhen Fanhui Import & Export Co., may make an affirmative presentation 15. Heze Ever-Best International Trade Co., Ltd. only on arguments included in that Ltd. (f/k/a Shandong Heze International 65. Shanghai Yijia International party’s case brief and may make a Trade and Developing Company) Transportation Co., Ltd. rebuttal presentation only on arguments 16. Hongqiao International Logistics Co. 66. T&S International, LLC. included in that party’s rebuttal brief in 17. Intecs Logistics Service Co., Ltd. 67. Taian Eastsun Foods Co., Ltd. accordance with 19 CFR 351.310(c). 18. IT Logistics Qingdao Branch 68. Taian Fook Huat Tong Kee Pte. Ltd. 19. Jinan Solar Summit International Co., 69. Taian Solar Summit Food Co., Ltd. Parties should confirm by telephone the 70. Tianjin Spiceshi Co., Ltd. time, date, and place of the hearing Ltd. 20. Jinan Yipin Corporation Ltd. 71. Taiyan Ziyang Food Co., Ltd. within 48 hours before the scheduled 21. Jining Highton Trading Co., Ltd. 72. U.S. United Logistics (Ningbo) Inv. time. The Department will issue the 22. Jining Jiulong International Trading 73. V.T. Impex (Shandong) Limited final results of this review, which will Co., Ltd. 74. Weifang Jinbao Agricultural Equipment include the results of its analysis of 23. Jining Tiankuang Trade Co., Ltd. Co., Ltd. issues raised in the briefs, not later than 24. Jining Trans-High Trading Co., Ltd. 75. Weifang Naike Foodstuffs Co., Ltd. 120 days after the date of publication of 25. Jinxiang County Huaguang Food Import 76. Weifang Shennong Foodstuff Co., Ltd. this notice in accordance with section & Export Co., Ltd. 77. Weihai Textile Group Import & Export Co., Ltd. 751(a)(3)(A) of the Act and 19 CFR 26. Jinxiang Dacheng Food Co., Ltd. 27. Jinxiang Dongyun Freezing Storage Co., 78. WSSF Corporation (Weifang) 351.213(h)(1). Ltd. (a/k/a Jinxiang Eastward Shipping 79. Xiamen Huamin Import Export Notification to Importers Import and Export Limited Company). Company 28. Jinxiang Fengsheng Import & Export 80. Xiamen Keep Top Imp. and Exp. Co., This notice serves as a preliminary Co., Ltd. Ltd. reminder to importers of their 29. Jinxiang Jinma Fruits Vegetables 81. Xinjiang Top Agricultural Products Co., responsibility under 19 CFR Products Co., Ltd. Ltd. 30. Jinxiang Meihua Garlic Produce Co., 82. You Shi Li International Trading Co., 35 See https://iaaccess.trade.gov/help/ Ltd. Ltd. IA%20ACCESS%20User%20Guide.pdf. 31. Jinxiang Shanyang Freezing Storage 83. Zhangzhou Xiangcheng Rainbow 36 Id. Co., Ltd. Greenland Food Co., Ltd.

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84. Zhengzhou Harmoni Spice Co., Ltd. 17. Shandong Chenhe Int’l Trading Co., from Vietnam. See Initiation of Ltd. Appendix II—Companies That Have Antidumping Duty Administrative 18. Shenzhen Greening Trading Co., Ltd. Reviews, Requests for Revocation in Certified No-Shipments 19. Sunny Import & Export Limited 1. Jining Yifa Garlic Produce Co., Ltd. 20. Shandong Longtai Fruits and Part, and Deferral of Administrative 2. Jining Yongjia Trade Co., Ltd. Vegetables Co., Ltd. Review, 76 FR 17825 (March 31, 2011) 3. Jinxiang Chengda Import & Export Co., 21. Weifang Hongqiao International (‘‘Initiation Notice’’). The preliminary Ltd. Logistic Co., Ltd. results are currently due no later than 4. Jinxiang Hejia Co., Ltd. October 31, 2011. 5. Jinxiang Yuanxin Import & Export Co., Appendix V—Companies Under Review Ltd. That Are Not Subject to the Partial Statutory Time Limits 6. Qingdao Sea-Line International Trading Preliminary Results Co., Ltd. Companies that remain covered by the In antidumping duty administrative 7. Qingdao Tiantaixing Foods Co., Ltd. second partial preliminary results portion of reviews, section 751(a)(3)(A) of the 8. Shandong Wonderland Organic Food the administrative review. Tariff Act of 1930, as amended (‘‘the Co., Ltd. 1. Chengwu County Yuanxiang Industry & 9. Shanghai LJ International Trading Co., Commerce Co., Ltd. Act’’), requires the Department to make Ltd. 2. Hebei Golden Bird Trading Co., Ltd. a preliminary determination within 245 10. Shenzhen Bainong Co., Ltd. 3. Henan Weite Industrial Co., Ltd. days after the last day of the anniversary 11. Weifang Chenglong Import & Export 4. Jinan Farmlady Trading Co., Ltd. month of an order for which a review Co., Ltd. 5. Qingdao Xintianfeng Foods Co., Ltd. is requested and a final determination 12. XuZhou Simple Garlic Industry Co., 6. Shenzhen Xinboda Industrial Co., Ltd./ within 120 days after the date on which Ltd. (Zhengzhou Dadi Garlic Industry Co., Ltd.) 13. Zhengzhou Huachao Industrial Co., 7. Yantai Jinyan Trading Co., Ltd. the preliminary results are published. Ltd. [FR Doc. 2011–27204 Filed 10–19–11; 8:45 am] However, if it is not practicable to 14. Zhengzhou Yuanli Trading Co., Ltd. BILLING CODE 3510–DS–P complete the review within these time Appendix III—Companies Subject to the periods, section 751(a)(3)(A) of the Act PRC–Wide Entity Rate allows the Department to extend the The following companies are subject to DEPARTMENT OF COMMERCE time limit for the preliminary these partial preliminary results and subject determination to a maximum of 365 to the PRC-wide entity rate. International Trade Administration days after the last day of the anniversary 1. Linshu Dading Private Agricultural [A–552–802] month. Products Co., Ltd. 2. Linyi City Kangfa Foodstuff Drinkable Certain Frozen Warmwater Shrimp Extension of Time Limit of Preliminary Co., Ltd. From the Socialist Republic of Results 3. Shandong Chenhe Int’l Trading Co., Ltd. Vietnam: Extension of Preliminary 4. Shenzhen Greening Trading Co., Ltd. We determine that it is not practicable Results of Antidumping Duty 5. Sunny Import & Export Limited to complete the preliminary results of Administrative Review 6. Shandong Longtai Fruits and Vegetables this administrative review within the Co., Ltd. AGENCY: Import Administration, 7. Weifang Hongqiao International Logistic original time limit because the Co., Ltd. International Trade Administration, Department requires additional time to Department of Commerce. analyze the questionnaire responses Appendix IV DATES: Effective Date: October 20, 2011. which include substantial sales and The following companies are subject to SUMMARY: The Department of Commerce factor information, issue supplemental these partial preliminary results (companies (the ‘‘Department’’) has decided to questionnaires, and to evaluate that the Department preliminarily considers to be part of the PRC-wide entity or are extend the time limit for the preliminary surrogate value submissions. subject to the Department’s intent to rescind results of the sixth administrative Therefore, in accordance with section the administrative review). review of the antidumping duty order 751(a)(3)(A) of the Act and 19 CFR 1. Jining Yifa Garlic Produce Co., Ltd. on certain frozen warmwater shrimp 351.213 (h)(2), the Department is 2. Jining Yongjia Trade Co., Ltd. (‘‘shrimp’’) from the Socialist Republic extending the time limit for the 3. Jinxiang Chengda Import & Export Co., of Vietnam (‘‘Vietnam’’) to January 30, preliminary results by 90 days, until Ltd. 2012. The period of review (‘‘POR’’) is 4. Jinxiang Hejia Co., Ltd. January 30, 2012. The final results February 1, 2010, through January 31, 5. Jinxiang Yuanxin Import & Export Co., 2011. continue to be due 120 days after the Ltd. publication of the preliminary results. 6. Qingdao Sea-Line International Trading FOR FURTHER INFORMATION CONTACT: Toni Co., Ltd. Dach or Seth Isenberg, AD/CVD We are issuing and publishing this 7. Qingdao Tiantaixing Foods Co., Ltd. Operations, Office 9, Import notice in accordance with sections 8. Shandong Wonderland Organic Food Administration, International Trade 751(a)(3)(A) and 777(i) of the Act. Co., Ltd. 9. Shanghai LJ International Trading Co., Administration, U.S. Department of Dated: October 12, 2011. Ltd. Commerce, 14th Street and Constitution Christian Marsh, Avenue, NW., Washington, DC 20230; 10. Shenzhen Bainong Co., Ltd. Deputy Assistant Secretary of Antidumping 11. Weifang Chenglong Import & Export telephone: (202) 482–1655 and (202) and Countervailing Duty Operations. Co., Ltd. 482–0588, respectively. [FR Doc. 2011–27208 Filed 10–19–11; 8:45 am] 12. XuZhou Simple Garlic Industry Co., SUPPLEMENTARY INFORMATION: Ltd. BILLING CODE 3510–DS–P 13. Zhengzhou Huachao Industrial Co., Background Ltd. 14. Zhengzhou Yuanli Trading Co., Ltd. On March 31, 2011, the Department 15. Linshu Dading Private Agricultural published in the Federal Register a Products Co., Ltd. notice of initiation of the administrative 16. Linyi City Kangfa Foodstuff Drinkable review of the antidumping duty order Co., Ltd. on certain frozen warmwater shrimp

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DEPARTMENT OF COMMERCE 2011. See Memorandum to Melissa G. Countervailing Duty Administrative Skinner, Director, AD/CVD Operations, Review, 76 FR 48130 (August 8, 2011) International Trade Administration Office 3, from Robert Copyak, Senior (‘‘Preliminary Results’’). In the [C–489–502] Financial Analyst, AD/CVD Operations, Preliminary Results we stated that we Office 3, regarding ‘‘Decision would issue our final results for the Certain Welded Carbon Steel Standard Memorandum on New Subsidy and countervailing duty administrative Pipe From Turkey: Extension of Time Program-wide Change Allegations,’’ review no later than 120 days after the for Preliminary Results of (October 13, 2011). date of publication of the Preliminary Countervailing Duty Administrative Due to new subsidy allegations and Results. The final results are currently Review. the large number of companies and due December 6, 2011. programs in this administrative review, AGENCY: Import Administration, we have determined that it is not Statutory Time Limits International Trade Administration, practicable to complete the preliminary Department of Commerce. results of this review within the time Section 751(a)(3)(A) of the Tariff Act DATES: Effective Date: October 20, 2011. period specified. Therefore, in of 1930, as amended (‘‘the Act’’), requires the Department to issue the FOR FURTHER INFORMATION CONTACT: accordance with section 751(a)(3)(A) of Kristen Johnson, AD/CVD Operations, the Act, we are extending the time final results of an administrative review Office 3, Import Administration, period for issuing the preliminary within 120 days of the publication of International Trade Administration, results of the review to 365 days. The the Preliminary Results. If it is not U.S. Department of Commerce, 14th preliminary results are now due no later practicable to complete the review Street and Constitution Avenue NW., than March 30, 2012. The final results within the time period, section Washington, DC 20230; telephone: (202) continue to be due 120 days after 751(a)(3)(A) of the Act allows the 482–4793. publication of the notice of preliminary Department to extend this deadline to a results. SUPPLEMENTARY INFORMATION: maximum of 180 days. This notice is issued and published in Background Information accordance with sections 751(a)(3)(A) Extension of Time Limits for Final Results On April 27, 2011, the Department of and 777(i)(1) of the Act. Commerce (the Department) published a Dated: October 14, 2011. The Department has determined that notice of initiation of the administrative Christian Marsh, completion of the final results of this review of the countervailing duty order Deputy Assistant Secretary for Antidumping review within the original time period on certain welded carbon steel standard and Countervailing Duty Operations. (i.e., by December 6, 2011) is not pipe from Turkey covering the period of [FR Doc. 2011–27205 Filed 10–19–11; 8:45 am] practicable. In the Preliminary Results, review January 1, 2010, through BILLING CODE 3510–DS–P the Department investigated several new December 31, 2010. See Initiation of subsidy programs, and the Department Antidumping and Countervailing Duty requires more time to consider the DEPARTMENT OF COMMERCE Administrative Reviews, 76 FR 23545 comments of interested parties (April 27, 2011). The preliminary results concerning the countervailability of are currently due no later than International Trade Administration these programs. Therefore, the December 1, 2011. [C–475–819] Department is extending the time limit Extension of Time Limit for Preliminary Certain Pasta From Italy: Extension of for completion of the final results to not Results Time Limit for the Final Results of the later than February 4, 2012, which is Section 751(a)(3)(A) of the Tariff Act Countervailing Duty Administrative 180 days from the date of publication of of 1930, as amended (the Act), requires Review the Preliminary Results, in accordance the Department to make a preliminary with section 751(a)(3)(A) of the Act. determination within 245 days after the AGENCY: Import Administration, However, February 4, 2012, is a last day of the anniversary month of an International Trade Administration, Saturday, and, when a deadline falls on order or finding for which a review is Department of Commerce. a weekend or federal holiday, the requested. Section 751(a)(3)(A) of the FOR FURTHER INFORMATION CONTACT: appropriate deadline is the next Act further states that if it is not Chris Siepmann at (202) 482–7958 or business day. See Notice of practicable to complete the review Yasmin Nair at (202) 482–3813; AD/ Clarification: Application of ‘‘Next within the time period specified, the CVD Operations, Office 1, Import Business Day’’ Rule for Administrative administering authority may extend the Administration, International Trade Determination Deadlines Pursuant to 245-day period to issue its preliminary Administration, U.S. Department of the Tariff Act of 1930, As Amended, 70 results by up to 120 days. Commerce, 14th Street and Constitution FR 24533 (May 10, 2005). Accordingly, In this administrative review, the Avenue, NW., Washington, DC 20230. the final results of review will be due no Department is conducting a review of SUPPLEMENTARY INFORMATION: later than February 6, 2012. the following respondents: Borusan Mannesmann Boru Sanayi ve Ticaret Background We are issuing and publishing this A.S., Borusan Istikbal Ticaret T.A.S., On August 8, 2011, the Department of notice in accordance with sections Tosyali dis Ticaret A.S., Toscelik Profil Commerce (‘‘Department’’) published 751(a)(3)(A) and 777(i)(1) of the Act. ve Sac Endustrisi A.S., Erbosan Erciyas the preliminary results of the Dated: October 14, 2011. Boru Sanayi ve Ticaret A.S., and the administrative review of the Christian Marsh, Government of the Republic of Turkey. countervailing duty order on certain Deputy Assistant Secretary for Antidumping There are 14 programs under review in pasta from Italy, covering the period and Countervailing Duty Operations. addition to several newly alleged January 1, 2009, through December 31, [FR Doc. 2011–27207 Filed 10–19–11; 8:45 am] subsidies programs, which the 2009. See Certain Pasta from Italy: Department initiated on October 13, Preliminary Results of the 14th (2009) BILLING CODE 3510–DS–P

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DEPARTMENT OF COMMERCE surfclam and ocean quahog permit Dated: October 14, 2011. holders in order to track and properly Gwellnar Banks, National Oceanic and Atmospheric account for Atlantic surfclam and ocean Management Analyst, Office of the Chief Administration quahog harvest that is shucked at sea. Information Officer. Because there is not a standard [FR Doc. 2011–27130 Filed 10–19–11; 8:45 am] Proposed Information Collection; conversion factor for estimating BILLING CODE 3510–22–P Comment Request; Application to unshucked product from shucked Shuck Surf Clams/Ocean Quahogs at product, NMFS requires vessels that Sea choose to shuck product at sea to carry DEPARTMENT OF COMMERCE AGENCY: National Oceanic and on board the vessel a NMFS-approved Atmospheric Administration (NOAA), observer to certify the amount of National Oceanic and Atmospheric Commerce. Atlantic surfclam and ocean quahog Administration ACTION: Notice. harvested. This information, upon receipt, results in an increasingly more Proposed Information Collection; SUMMARY: The Department of efficient and accurate database for Comment Request; Deep Seabed Commerce, as part of its continuing management and monitoring of fisheries Mining Exploration Licenses effort to reduce paperwork and of the Northeastern U.S. EEZ. respondent burden, invites the general AGENCY: National Oceanic and public and other Federal agencies to II. Method of Collection Atmospheric Administration (NOAA), Commerce. take this opportunity to comment on Requests from allocation holders to proposed and/or continuing information transfer quota use paper applications or ACTION: Notice. collections, as required by the an online form. Paper applications are Paperwork Reduction Act of 1995. used to process requests to shuck at sea. SUMMARY: The Department of DATES: Written comments must be Commerce, as part of its continuing III. Data submitted on or before December 19, effort to reduce paperwork and 2011. OMB Control Number: 0648–0240. respondent burden, invites the general public and other Federal agencies to ADDRESSES: Direct all written comments Form Number: None. to Diana Hynek, Departmental Type of Review: Regular submission take this opportunity to comment on Paperwork Clearance Officer, (extension of a currently approved proposed and/or continuing information Department of Commerce, Room 6616, information collection). collections, as required by the 14th and Constitution Avenue, NW., Affected Public: Business or other for- Paperwork Reduction Act of 1995. Washington, DC 20230 (or via the profit organizations. DATES: Written comments must be Internet at [email protected]). Estimated Number of Respondents: submitted on or before December 19, FOR FURTHER INFORMATION CONTACT: 205. 2011. Requests for additional information or Estimated Time per Response: 5 ADDRESSES: Direct all written comments copies of the information collection minutes for the application to transfer to Diana Hynek, Departmental instrument and instructions should be quota, and 30 minutes for the Paperwork Clearance Officer, directed to Douglas Potts, (978) 281– application to shuck surfclams and Department of Commerce, Room 6616, 9341 or [email protected]. ocean quahogs at sea. 14th and Constitution Avenue, NW., SUPPLEMENTARY INFORMATION: Estimated Total Annual Burden Hours: 45. Washington, DC 20230 (or via the I. Abstract Estimated Total Annual Cost to Internet at [email protected]). National Marine Fisheries Service Public: $109,421. FOR FURTHER INFORMATION CONTACT: (NMFS) Northeast Region manages the IV. Request for Comments Requests for additional information or Atlantic surfclam and ocean quahog copies of the information collection fisheries of the Exclusive Economic Comments are invited on: (a) Whether instrument and instructions should be Zone (EEZ) of the Northeastern United the proposed collection of information directed to Kerry Kehoe (301) 713–3155 States through the Atlantic Surfclam is necessary for the proper performance extension 151, or and Ocean Quahog Fishery Management of the functions of the agency, including [email protected]. Plan (FMP). The Mid-Atlantic Fishery whether the information shall have Management Council prepared the FMP practical utility; (b) the accuracy of the SUPPLEMENTARY INFORMATION: pursuant to the Magnuson-Stevens agency’s estimate of the burden I. Abstract Fishery Conservation and Management (including hours and cost) of the Act (Magnuson-Stevens Act). The proposed collection of information; (c) This request is for extension of a regulations implementing the FMP are ways to enhance the quality, utility, and currently approved information specified at 50 CFR 648.70. clarity of the information to be collection. The recordkeeping and reporting collected; and (d) ways to minimize the NOAA’s regulations at 15 CFR 970 requirements at § 648.74 and § 648.75 burden of the collection of information govern the issuing and monitoring of form the basis for this collection of on respondents, including through the exploration licenses under the Deep information. NMFS Northeast Region use of automated collection techniques Seabed Hard Mineral Resources Act. requests information from Atlantic or other forms of information Any persons seeking a license must surfclam and ocean quahog individual technology. submit certain information that allows transferable quota (ITQ) allocation Comments submitted in response to NOAA to ensure the applicant meets the holders in order to process and track this notice will be summarized and/or standards of the Act. The persons with requests from the allocation holders to included in the request for OMB licenses are required to conduct transfer quota allocation to another approval of this information collection; monitoring and make reports, and they entity. NMFS Northeast Region also they also will become a matter of public may request revisions, transfers, or requests information from Atlantic record. extensions of licenses.

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II. Method of Collection DEPARTMENT OF COMMERCE exempted fishing permit (EFP) on August 31, 2011, to conduct commercial Paper submissions are used; however, National Oceanic and Atmospheric fishing activities that the regulations applicants are encouraged to submit Administration would otherwise restrict. The EFP supporting documentation RIN 0648–XA703 would authorize two vessels to use electronically when feasible. electric rod and reel gear in the Western Gulf of Maine (GOM) Closure Area and III. Data Magnuson-Stevens Act Provisions; General Provisions for Domestic to temporarily retain undersized catch OMB Control Number: 0648–0145. Fisheries; Application for Exempted for measurement and data collection. Fishing Permits The project, titled ‘‘Utilization of Form Number: None. Electric Rod and Reel to Target Pollock Type of Review: Regular submission AGENCY: National Marine Fisheries in WGOM Closed Area,’’ is funded by (extension of a currently approved Service (NMFS), National Oceanic and NOAA’s Northeast Cooperative information collection). Atmospheric Administration (NOAA), Research Program through the network Commerce. Affected Public: Business or other for- project GEARNET. In addition to testing profit organizations. ACTION: Notice; request for comments. the economic viability of using electric rod and reel gear to target pollock, and Estimated Number of Respondents: 2. SUMMARY: The Assistant Regional allow the vessels to temporarily retain Estimated Time per Response: Administrator for Sustainable Fisheries, undersized fish for data collection Applications, 2,000–4,000 hours (no Northeast Region, NMFS (Assistant purposes, the project may also applications are expected); license Regional Administrator), has made a investigate if the gear could be used as preliminary determination that an renewals, 250 hours; reports, 20 hours. an effective stock assessment tool exempted fishing permit application within closed areas. The study would Estimated Total Annual Burden contains all of the required information take place in the Western GOM Closure Hours: 290. and warrants further consideration. This Area, during November and December Estimated Total Annual Cost to permit would allow two commercial 2011, with two vessels planning to fish Public: $200 in recordkeeping/reporting fishing vessels to test the economic 10 days each, for a total of 20 research costs. viability of using electric rod and reel days. The exemptions are necessary gear to target pollock in the Western because groundfish vessels on IV. Request for Comments Gulf of Maine Closure Area and to commercial groundfish trips are temporarily retain undersized catch for Comments are invited on: (a) Whether prohibited from fishing in the Western measurement and data collection. The GOM Closure Area and from retaining the proposed collection of information study would be conducted by the undersized fish. Each vessel would use is necessary for the proper performance School for Marine Science and four electric rod and reels each day and of the functions of the agency, including Technology at the University of fish for approximately 8 hours, with an whether the information shall have Massachusetts, Dartmouth. additional 4 hours of steaming, for a practical utility; (b) the accuracy of the Regulations under the Magnuson- total trip of 12 hours. Fishing would agency’s estimate of the burden Stevens Fishery Conservation and primarily occur within the Western (including hours and cost) of the Management Act require publication of GOM Closure Area, with some effort proposed collection of information; (c) this notification to provide interested being conducted outside the area. ways to enhance the quality, utility, and parties the opportunity to comment on SMAST is requesting access to the clarity of the information to be applications for proposed exempted Western GOM Closure Area based on its collected; and (d) ways to minimize the fishing permits. belief that pollock is concentrated in burden of the collection of information DATES: Comments must be received on this area. on respondents, including through the or before November 4, 2011. A technician would be on board the use of automated collection techniques ADDRESSES: You may submit written vessel to measure fish caught (retained or other forms of information comments by any of the following and discarded), document fishing gear, technology. methods: bait, location, and fishing conditions to • E-mail: [email protected]. Include evaluate gear performance. Undersized Comments submitted in response to fish would be discarded. All Northeast this notice will be summarized and/or in the subject line ‘‘Comments on Rod and Reel Fishing in WGOM Closed Area multispecies of legal size would be included in the request for OMB landed, with all catch being attributed approval of this information collection; EFP.’’ • Mail: Patricia A. Kurkul, Regional to the sector vessel’s annual catch they also will become a matter of public Administrator, NMFS, NE Regional entitlement. Proceeds from the sales record. Office, 55 Great Republic Drive, would be retained by the vessels. In order to ensure that catch does not Dated: October 14, 2011. Gloucester, MA 01930. Mark the outside exceed the amount of targeted and of the envelope ‘‘Comments on SMAST Gwellnar Banks, bycatch species estimated by SMAST, a EFP.’’ Management Analyst, Office of the Chief trigger clause would be placed on the • Fax: (978) 281–9135. Information Officer. EFP. Based on reported landings and [FR Doc. 2011–27131 Filed 10–19–11; 8:45 am] FOR FURTHER INFORMATION CONTACT: discards, the EFP would be rescinded BILLING CODE 3510–08–P Brett Alger, Fisheries Management should catch (landings and discards) Specialist, 978–675–2153, exceed any of the following amounts [email protected]. (per vessel): Pollock: 6,000 lb (2,722 kg); SUPPLEMENTARY INFORMATION: The cod: 1,000 lb (454 kg); haddock: 1,000 School for Marine Science and lb (454 kg); American plaice: 100 lb Technology at the University of (45.4 kg); yellowtail flounder: 100 lb Massachusetts, Dartmouth (SMAST) (45.4 kg); witch flounder: 100 lb (45.4 submitted a complete application for an kg); winter flounder: 100 lb (45.4 kg);

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spiny dogfish: 1,000 lb (454 kg); smooth DARRP policy can be found at the most appropriate indirect cost dogfish: 200 lb (90.7 kg); thorny skate: DARRP web site at http://www.darrp. methodology and rates for FYs 1993 1,000 lb (454 kg); and winter skate: noaa.gov. This notice is a republication through 1999 was published on 1,000 lb (454 kg). of the notice published October 3, 2011 December 7, 2000 (65 FR 76611). The If approved, the applicant may (76 FR 61089) with corrections made to notice and report by R&M can also be request minor modifications and the table of indirect cost rates. found on the DARRP Web site at extensions to the EFP throughout the FOR FURTHER INFORMATION CONTACT: For http://www.darrp.noaa.gov. year. EFP modifications and extensions further information, contact LaTonya R&M continued its assessment of may be granted without further notice if Burgess at 301–713–4248, ext. 211, by DARRP’s indirect cost rate system and they are deemed essential to facilitate fax at 301–713–4389, or e-mail at structure for FYs 2000 and 2001. A completion of the proposed research [email protected]. second federal notice specifying the and have minimal impacts that do not SUPPLEMENTARY INFORMATION: The DARRP indirect rates for FYs 2000 and change the scope or impact of the mission of the DARRP is to restore 2001 was published on December 2, initially approved EFP request. Any natural resource injuries caused by 2002 (67 FR 71537). fishing activity conducted outside the releases of hazardous substances or oil In October 2002, DARRP hired the scope of the exempted fishing activity under the Comprehensive accounting firm of Cotton and Company would be prohibited. Environmental Response, LLP (Cotton) to review and certify The Assistant Regional Administrator DARRP costs incurred on cases for has made an initial determination that, Compensation, and Liability Act (CERCLA) (42 U.S.C. 9601 et seq.), the purposes of cost recovery and to based on a preliminary review of the develop indirect rates for FY 2002 and proposed subject research and the Oil Pollution Act of 1990 (OPA) (33 U.S.C. 2701 et seq.), and support subsequent years. As in the prior years, criteria provided in section 5.05a–c and Cotton concluded that the cost section 6.03c.3(a) of NAO 216–6, a restoration of physical injuries to National Marine Sanctuary resources accounting system and allocation Categorical Exclusion (CE) appears to be practices of the DARRP component justified for this EFP. In accordance under the National Marine Sanctuaries Act (NMSA) (16 U.S.C. 1431 et seq.). organizations are consistent with with NOA 216–6, a CE, or other Federal accounting requirements. appropriate NEPA document, would be The DARRP consists of three component organizations: the Office of Response Consistent with R&M’s previous completed prior to the issuance of the analyses, Cotton also determined that EFP. Further review and consultation and Restoration (ORR) within the National Ocean Service; the Restoration the most appropriate indirect allocation may be necessary before a final method continues to be the Direct Labor determination is made to issue the EFP. Center within the National Marine Fisheries Service; and the Office of the Cost Base for all three DARRP Authority: 16 U.S.C. 1801 et seq. General Counsel for Natural Resources component organizations. The Direct Dated: October 17, 2011. (GCNR). The DARRP conducts Natural Labor Cost Base is computed by Steven Thur, Resource Damage Assessments (NRDAs) allocating total indirect cost over the Acting Director, Office of Sustainable as a basis for recovering damages from sum of direct labor dollars, plus the Fisheries, National Marine Fisheries Service. responsible parties, and uses the funds application of NOAA’s leave surcharge [FR Doc. 2011–27211 Filed 10–19–11; 8:45 am] recovered to restore injured natural and benefits rates to direct labor. Direct BILLING CODE 3510–22–P resources. labor costs for contractors from I.M. Consistent with Federal accounting Systems Group (IMSG) were included in requirements, the DARRP is required to the direct labor base because Cotton DEPARTMENT OF COMMERCE account for and report the full costs of determined that these costs have the its programs and activities. Further, the same relationship to the indirect cost National Oceanic and Atmospheric DARRP is authorized by law to recover pool as NOAA direct labor costs. IMSG Administration reasonable costs of damage assessment provided on-site support to the DARRP and restoration activities under in the areas of injury assessment, Indirect Cost Rates for the Damage CERCLA, OPA, and the NMSA. Within natural resource economics, restoration Assessment, Remediation, and the constraints of these legal provisions planning and implementation, and Restoration Program for Fiscal Years and their regulatory applications, the policy analysis. IMSG continues to 2009 and 2010 DARRP has the discretion to develop provide on-site support to the DARRP. AGENCY: National Oceanic and indirect cost rates for its component Starting in FY 2010, contractors from Atmospheric Administration (NOAA), organizations and formulate policies on Genwest provide on-site support for cost Commerce. the recovery of indirect cost rates documentation. A third federal notice ACTION: Notice. subject to its requirements. specifying the DARRP indirect rates for FY 2002 was published on October 6, SUMMARY: The National Oceanic and The DARRP’s Indirect Cost Effort 2003 (68 FR 57672), a fourth notice for Atmospheric Administration’s In December 1998, the DARRP hired the FY 2003 indirect cost rates appeared (NOAA’s) Damage Assessment, the public accounting firm Rubino & on May 20, 2005 (70 FR 29280), and a Remediation, and Restoration Program McGeehin, Chartered (R&M) to: Evaluate fifth notice for the FY 2004 indirect cost (DARRP) is announcing new indirect the DARRP cost accounting system and rates was published on March 16, 2006 cost rates on the recovery of indirect allocation practices; recommend the (71 FR 13356). The notice for the FY costs for its component organizations appropriate indirect cost allocation 2005 indirect cost rates was published involved in natural resource damage methodology; and determine the on February 9, 2007 (72 FR 6221). The assessment and restoration activities for indirect cost rates for the three notice for the FY 2006 rates was fiscal years (FY) 2009 and 2010. The organizations that comprise the DARRP. published on June 3, 2008 (73 FR indirect cost rates for these fiscal years A Federal Register notice on R&M’s 31679). Finally, the notice for the FY and dates of implementation are effort, their assessment of the DARRP’s 2007 and FY 2008 rates was published provided in this notice. More cost accounting system and practice, on November 16, 2009 (74 FR 58948). information on these rates and the and their determination regarding the Cotton’s reports on these indirect rates

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can also be found on the DARRP Web development of the FY 2009 and FY recommended by Cotton for each of the site at http://www.darrp.noaa.gov. 2010 indirect cost rates. DARRP component organizations as Cotton reaffirmed that the Direct The DARRP’s Indirect Cost Rates and provided in the following table: Labor Cost Base is the most appropriate Policies indirect allocation method for the The DARRP will apply the indirect cost rates for FY 2009 and FY 2010 as

FY 2009 FY 2010 DARRP Component Indirect rate Indirect rate organization (percent) (percent)

Office of Response and Restoration (ORR) ...... 197.44 125.88 Restoration Center (RC) ...... 142.07 90.42 General Counsel for Natural Resources (GCNR) ...... 83.93 49.49

These rates are based on the Direct DEPARTMENT OF COMMERCE previously submitted verbal or written Labor Cost Base allocation methodology. statements. In general, each individual National Oceanic and Atmospheric The FY 2009 rates will be applied to or group making a verbal presentation Administration all damage assessment and restoration will be limited to a total time of five (5) case costs incurred between October 1, minutes. Individuals or groups planning National Climate Assessment and to make a verbal presentation should 2008 and September 30, 2009. The FY Development Advisory Committee 2010 rates will be applied to all damage contact the NCADAC DFO assessment and restoration case costs AGENCY: Office of Oceanic and ([email protected]) by incurred between October 1, 2009 and Atmospheric Research (OAR), National November 10, 2011 to schedule their September 30, 2010. DARRP will use Oceanic and Atmospheric presentation. Written comments should the FY 2010 indirect cost rates for future Administration (NOAA), Department of be received in the NCADAC DFO’s fiscal years, beginning with FY 2011, Commerce (DOC). Office by November 10, 2011 to provide until subsequent year-specific rates can ACTION: Notice of open meeting. sufficient time for NCADAC review. be developed. Written comments received by the SUMMARY: The National Climate NCADAC DFO after November 10, 2011 For cases that have settled and for Assessment and Development Advisory will be distributed to the NCADAC, but cost claims paid prior to the effective Committee (NCADAC) were established may not be reviewed prior to the date of the fiscal year in question, the by the Secretary of Commerce under the meeting date. DARRP will not re-open any resolved authority of the Global Change Research matters for the purpose of applying the Act of 1990 to synthesize and Special Accommodations: These revised rates in this policy for these summarize the science and information meetings are physically accessible to fiscal years. For cases not settled and pertaining to current and future impacts people with disabilities. Requests for cost claims not paid prior to the of climate. sign language interpretation or other effective date of the fiscal year in Time and Date: The meeting will be auxiliary aids should be directed to Dr. question, costs will be recalculated held November 16 from 9 a.m. to 5:30 Cynthia Decker (301–563–6162, using the revised rates in this policy for p.m. and November 17, 2011, from 9 [email protected]) by November these fiscal years. Where a responsible a.m. to 3 p.m. These times are subject 1, 2011. party has agreed to pay costs using to change. Please refer to the Web page http://www.nesdis.noaa.gov/NCADAC/ FOR FURTHER INFORMATION CONTACT: Dr. previous year’s indirect rates, but has index.html for changes and for the most Cynthia Decker Designated Federal not yet made the payment because the up-to-date meeting agenda. Official, National Climate Assessment settlement documents are not finalized, Place: The meeting will be held at the and Development Advisory Committee, the costs will not be recalculated. NOAA Earth System Research NOAA OAR, R/SAB, 1315 East-West The DARRP indirect cost rate policies Laboratory—David Skaggs Research Highway, Silver Spring, Maryland and procedures published in the Federal Center (DSRC), 325 Broadway, Boulder, 20910. (Phone: 301–734–1156, Fax: Register on December 7, 2000 (65 FR CO 80305–3337. Please check the Web 301–713–1459, E-mail: 76611), on December 2, 2002 (67 FR site http://www.nesdis.noaa.gov/ [email protected]; or visit the 71537), October 6, 2003 (68 FR 57672), NCADAC/index.html for confirmation NCADAC Web site at http:// May 20, 2005 (70 FR 29280), March 16, of the venue and for directions. www.nesdis.noaa.gov/NCADAC/ 2006 (71 FR 13356), February 9, 2007 Status: Seating will be available on a index.html. (72 FR 6221), June 3, 2008 (73 FR first come, first served basis. Members of the public must RSVP in order to Dated: October 14, 2011. 31679), and November 16, 2009 (74 FR Sharon L. Schroeder, 58948) remain in effect except as attend all or a portion of the meeting by Acting Chief Financial Officer/Chief updated by this notice. contacting the NCADAC DFO ([email protected]) by Administrative Officer, Office of Oceanic and Dated: October 3, 2011. November 1, 2011. The meeting will be Atmospheric Research, National Oceanic and David Westerholm, open to public participation with a 30 Atmospheric Administration. Director, Office of Response and Restoration. minute public comment period on [FR Doc. 2011–27113 Filed 10–19–11; 8:45 am] [FR Doc. 2011–26637 Filed 10–19–11; 8:45 am] November 16 at 5 p.m. (check Web site BILLING CODE 3510–KD–P to confirm time). The NCADAC expects BILLING CODE 3510–22–P that public statements presented at its meetings will not be repetitive of

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CORPORATION FOR NATIONAL AND (4) Electronically through the Type of Review: New. COMMUNITY SERVICE Corporation’s e-mail address system: Agency: Corporation for National and [email protected] or http:// Community Service. Proposed Information Collection; www.regulations.gov. Individuals who Title: Nonprofit Capacity Building Comment Request use a telecommunications device for the Program Progress Report. deaf (TTY–TDD) may call 1–800–833– OMB Number: None. AGENCY: Corporation for National and Agency Number: None. Community Service. 3722 between 8 a.m. and 8 p.m. Eastern Time, Monday through Friday. Affected Public: Current sponsoring ACTION: Notice. FOR FURTHER INFORMATION CONTACT: organizations and subsite organizations SUMMARY: The Corporation for National Jaime Renner, (612) 334–4085, or by e- and potential sponsoring organizations and Community Service (hereinafter the mail at [email protected]. and subsite organizations. Total Respondents: 10. ‘‘Corporation’’), as part of its continuing SUPPLEMENTARY INFORMATION: The Frequency: Semi-annually. effort to reduce paperwork and Corporation is particularly interested in Average Time per Response: Averages respondent burden, conducts a pre- comments that: six (6) hours. clearance consultation program to • Evaluate whether the proposed Estimated Total Burden Hours: 60 provide the general public and federal collection of information is necessary hours. agencies with an opportunity to for the proper performance of the Total Burden Cost (capital/startup): comment on proposed and/or functions of the Corporation, including None. continuing collections of information in whether the information will have Total Burden Cost (operating/ accordance with the Paperwork practical utility; maintenance): None. Reduction Act of 1995 (PRA95) (44 • Evaluate the accuracy of the Comments submitted in response to U.S.C. 3506(c)(2)(A)). This program agency’s estimate of the burden of the this notice will be summarized and/or helps to ensure that requested data can proposed collection of information, included in the request for Office of be provided in the desired format, including the validity of the Management and Budget approval of the reporting burden (time and financial methodology and assumptions used; information collection request; they will resources) is minimized, collection • Enhance the quality, utility, and also become a matter of public record. instruments are clearly understood, and clarity of the information to be the impact of collection requirement on collected; and Dated: October 12, 2011. respondents can be properly assessed. • Minimize the burden of the Bruce Cline, Currently, the Corporation is collection of information on those who Colorado State Program Director, Nonprofit soliciting comments concerning its are expected to respond, including the Capacity Building Program Officer. proposed Nonprofit Capacity Building use of appropriate automated, [FR Doc. 2011–27100 Filed 10–19–11; 8:45 am] Program Progress Report. The Progress electronic, mechanical, or other BILLING CODE 6050–$$–P Report consists of two parts: A Progress technological collection techniques or Report Narrative and a Performance other forms of information technology Measurement Reporting Workbook. The (e.g., permitting electronic submissions DEPARTMENT OF DEFENSE Progress Report is completed semi- of responses). annually by Nonprofit Capacity Office of the Secretary Building Grantees to summarize project Background accomplishments, challenges, resources The purpose of the Nonprofit Federal Advisory Committee; Defense generated, and progress toward Capacity Building Program is to increase Health Board (DHB) Meeting achieving project goals and objectives. the capacity of a small number of AGENCY: Department of Defense (DoD). Copies of the information collection intermediary grantees to provide request can be obtained by contacting specific assistance to improve the ACTION: Notice of meeting. the office listed in the addresses section sustainability of and expand services of this notice. SUMMARY: Pursuant to the Federal provided by small and midsize Advisory Committee Act of 1972 (5 DATES: Written comments must be nonprofits in communities facing U.S.C., Appendix as amended), the submitted to the individual and office resource hardship challenges. The Sunshine in the Government Act of listed in the ADDRESSES section by Progress Report is completed semi- 1976 (5 U.S.C. 552b, as amended), and December 19, 2011. annually by Nonprofit Capacity 41 CFR 102–3.150, and in accordance ADDRESSES: You may submit comments, Building Program Grantees to with section 10(a)(2) of Public Law, a identified by the title of the information summarize project accomplishments, Defense Health Board (DHB) meeting is collection activity, by any of the challenges, resources generated, and announced: following methods: progress toward achieving project goals DATES: (1) By mail sent to: Corporation for and objectives. National and Community Service, Current Action November 14, 2011 Minnesota State Office; Attention Jaime 9:30 a.m.–12 p.m. (Open Session). Renner, State Program Specialist, Suite This is a new information collection 12 p.m.–1 p.m. (Administrative 2405; 431 South 7th Street, request. The Corporation seeks input on Working Meeting). Minneapolis, MN 55415. the Progress Report which consists of 1 p.m.–5 p.m. (Open Session). (2) By hand delivery or by courier to two parts: a Progress Report Narrative the mail address given in paragraph (1) and a Performance Measurement ADDRESSES: Hilton Crystal City at above, between 9 a.m. and 4 p.m. Reporting Workbook. The Corporation is Washington/Reagan National Airport, Eastern Time, Monday through Friday, proposing to enhance data elements 2399 Jefferson Davis Highway, except Federal holidays. collected to better measure progress on Arlington, VA 22202. (3) By fax to: (612) 334–4084, whether the assistance being provided FOR FURTHER INFORMATION CONTACT: Ms. Attention Jaime Renner, State Program results in improved sustainability or Christine Bader, Director, Defense Specialist. expanded services. Health Board, 5111 Leesburg Pike, Suite

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810, Falls Church, Virginia 22041–3206, issues for review and discussion by the Agency, ATTN: DGA, 8725 John J. (703) 681–8448, Ext. 1215, Fax: (703) Defense Health Board. Kingman Road, Suite 1644, Fort Belvoir, 681–3317, [email protected]. VA 22060–6221, or by phone at Special Accommodations SUPPLEMENTARY INFORMATION: (703)767–5045. Additional information, including the If special accommodations are SUPPLEMENTARY INFORMATION: The agenda and electronic registration are required to attend (sign language, Defense Logistics Agency’s system of available at the DHB Web site, http:// wheelchair accessibility) please contact record notices subject to the Privacy Act www.health.mil/dhb/default.cfm. Ms. Lisa Jarrett at (703) 681–8448 ext. of 1974 (5 U.S.C. 552a), as amended, Anyone intending to attend is 1280 by November 1, 2011. have been published in the Federal encouraged to register to ensure that Dated: October 17, 2011. Register and are available from the adequate seating is available. Aaron Siegel, address in FOR FURTHER INFORMATION CONTACT. Purpose of the Meeting Alternate OSD Federal Register Liaison, Department of Defense. The specific changes to the record The purpose of the meeting is to [FR Doc. 2011–27202 Filed 10–19–11; 8:45 am] system being amended are set forth address and deliberate pending and new below followed by the notice, as BILLING CODE 5001–06–P issues before the Board. amended, published in its entirety. The Agenda proposed amendment is not within the DEPARTMENT OF DEFENSE purview of subsection (r) of the Privacy On November 14, 2011, the Board will Act of 1974 (5 U.S.C. 552a), as amended, receive briefings regarding military Office of the Secretary which requires the submission of new health needs and priorities from guest or altered systems reports. speakers and representatives of the [Docket ID: DOD–2011–OS–0114] Department of Defense. Dated: October 17, 2011. Pursuant to 5 U.S.C. 552b, as Privacy Act of 1974; System of Aaron Siegel, amended, and 41 CFR 102–3.140 Records Alternate OSD Federal Register Liaison Officer, Department of Defense. through 102–3.165 and subject to AGENCY: Defense Logistics Agency, availability of space, the DHB meeting Department of Defense. S180.10 on November 14, 2011 will be open to ACTION: Notice to amend a system of SYSTEM NAME: the public from 9:30 a.m. to 12 p.m. and records. 1 p.m. to 5 p.m. Congressional, Executive, and Written Statements SUMMARY: The Defense Logistics Agency Political Inquiry Records (August 7, is proposing to amend a system of 2009, 74 FR 39656). Any member of the public wishing to records notice in its existing inventory CHANGES: provide comments to the DHB may do of record systems subject to the Privacy so in accordance with 41 CFR 102– Act of 1974 (5 U.S.C. 552a), as amended. * * * * * 3.140(C) and section 10(a)(3) of the DATES: The proposed action will be ROUTINE USES OF RECORDS MAINTAINED IN THE Federal Advisory Committee Act, and effective without further notice on SYSTEM, INCLUDING CATEGORIES OF USERS AND the procedures described in this notice. November 21, 2011 unless comments THE PURPOSES OF SUCH USES: Individuals desiring to provide are received which would result in a Delete the last five words from the comments to the DHB may do so by contrary determination. second paragraph. submitting a written statement to the DHB Designated Federal Officer (DFO) ADDRESSES: You may submit comments, * * * * * identified by docket number and title, (see FOR FURTHER INFORMATION CONTACT). NOTIFICATION PROCEDURE: by any of the following methods: Written statements should address the Delete entry and replace with following details: the issue, discussion, * Federal Rulemaking Portal: http:// www.regulations.gov. ‘‘Individuals seeking to determine and a recommended course of action. whether information about themselves Supporting documentation may also be Follow the instructions for submitting comments. is contained in this system should included, as needed, to establish the address written inquiries to the DLA appropriate historical context and to * Mail: Federal Docket Management System Office, 4800 Mark Center Drive, FOIA/Privacy Act Office, Headquarters, provide any necessary background Defense Logistics Agency, ATTN: DGA, information. East Tower, 2nd Floor, Suite 02G09, Alexandria, VA 22350–3100. 8725 John J. Kingman Road, Suite 1644, If the written statement is not Fort Belvoir, VA 22060–6221. received at least 10 calendar days prior Instructions Individuals should provide their to the meeting, the DFO may choose to All submissions received must name, home address, representative’s postpone consideration of the statement name, and control number, if known.’’ until the next open meeting. include the agency name and docket The DFO will review all timely number for this Federal Register RECORD ACCESS PROCEDURES: submissions with the DHB President document. The general policy for Delete entry and replace with and ensure they are provided to comments and other submissions from ‘‘Individuals seeking access to members of the DHB before the meeting members of the public is to make these information about themselves contained that is subject to this notice. After submissions available for public in this system should address written reviewing the written comments, the viewing on the Internet at http:// inquiries to the DLA FOIA/Privacy Act Chairperson and the DFO may choose to www.regulations.gov as they are Office, Headquarters, Defense Logistics invite the submitter to orally present received without change, including any Agency, ATTN: DGA, 8725 John J. their issue during an open portion of personal identifiers or contact Kingman Road, Suite 1644, Fort Belvoir, this meeting or at a future meeting. The information. VA 22060–6221. DFO, in consultation with the DHB FOR FURTHER INFORMATION CONTACT: Ms. Individuals should provide their Chairperson, may allot time for Jody Sinkler, DLA FOIA/Privacy Act name, home address, representative’s members of the public to present their Office, Headquarters, Defense Logistics name, and control number, if known.’’

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CONTESTING RECORD PROCEDURES: ROUTINE USES OF RECORDS MAINTAINED IN THE Individuals should provide their SYSTEM, INCLUDING CATEGORIES OF USERS AND name, home address, representative’s Delete entry and replace with ‘‘The THE PURPOSES OF SUCH USES: DLA rules for accessing records, for name, and control number, if known. In addition to those disclosures contesting contents, and appealing generally permitted under 5 U.S.C. RECORD ACCESS PROCEDURES: initial agency determinations are 552a(b) of the Privacy Act of 1974, these Individuals seeking access to contained in 32 CFR part 323, or may records may specifically be disclosed information about themselves contained be obtained from the DLA FOIA/Privacy outside the DoD as a routine use in this system should address written Act Office, Headquarters, Defense pursuant to 5 U.S.C. 552a(b)(3) as inquiries to the DLA FOIA/Privacy Act Logistics Agency, ATTN: DGA, 8725 follows: Office, Headquarters, Defense Logistics John J. Kingman Road, Suite 1644, Fort Agency, ATTN: DGA, 8725 John J. Belvoir, VA 22060–6221.’’ Information is furnished to Members/ Staff of State and Federal Legislative Kingman Road, Suite 1644, Fort Belvoir, * * * * * and Executive Branches of Government VA 22060–6221. Individuals should provide their who wrote to DLA on behalf of the S180.10 name, home address, representative’s constituent and who use it to respond name, and control number, if known. SYSTEM NAME: to the constituent. To Federal and local government CONTESTING RECORD PROCEDURES: Congressional, Executive, and agencies having cognizance over or Political Inquiry Records. The DLA rules for accessing records, authority to act on the issues involved. for contesting contents, and appealing The DoD ‘‘Blanket Routine Uses’’ SYSTEM LOCATION: initial agency determinations are apply to this system of records. contained in 32 CFR part 323, or may Office of Legislative Affairs, be obtained from the DLA FOIA/Privacy POLICIES AND PRACTICES FOR STORING, Headquarters, Defense Logistics Agency, Act Office, Headquarters, Defense 8725 John J. Kingman Road, Suite 2545, RETRIEVING, ACCESSING, RETAINING, AND DISPOSING OF RECORDS IN THE SYSTEM: Logistics Agency, ATTN: DGA, 8725 Fort Belvoir, VA 22060–6221, and the John J. Kingman Road, Suite 1644, Fort DLA Primary Level Field Activities. STORAGE: Belvoir, VA 22060–6221. Mailing addresses for the DLA Primary Records are stored in paper and RECORD SOURCE CATEGORIES: Level Field Activities may be obtained electronic form. from the System manager. Information is provided by RETRIEVABILITY: constituent, the constituent’s CATEGORIES OF INDIVIDUALS COVERED BY THE Retrieved by constituent name, representative, and from agency files. SYSTEM: representative name, or control number. EXEMPTIONS CLAIMED FOR THE SYSTEM: Individuals, organizations, and other SAFEGUARDS: None. entities who have requested Members of Records are maintained in a secure, [FR Doc. 2011–27150 Filed 10–19–11; 8:45 am] State and Federal Legislative and BILLING CODE 5001–06–P Executive Branches of Government limited access, or monitored work area. make inquiries on their behalf. Physical entry by unauthorized persons is restricted by the use of locks, guards, DEPARTMENT OF DEFENSE CATEGORIES OF RECORDS IN THE SYSTEM: or administrative procedures. Access to personal information is restricted to Request for Public Comments on How Records contain representative’s those who require the records in the name, constituent’s name, details the Department of Defense Can performance of their official duties. Improve the Way It Procures Defense surrounding the issue being researched Access to computer records is further and control number. The records may Items and Defense Services in Support restricted to DL staff only. All personnel of Foreign Military Sales (FMS) also contain the constituent’s home whose official duties require access to Programs address, home telephone number, or the information are trained in the proper related personal information provided safeguarding and use of the information. AGENCY: Department of Defense (DoD). by the constituent/representative ACTION: Request for public comments. making the inquiry. RETENTION AND DISPOSAL: Records are destroyed after eight SUMMARY: Defense Federal Acquisition AUTHORITY FOR MAINTENANCE OF THE SYSTEM: years. Regulation Supplement (DFARS) subpart 225.73—Acquisition for Foreign 5 U.S.C. 301, Departmental SYSTEM MANAGER(S) AND ADDRESS: Military Sales (FMS) implements 22 Regulations; 10 U.S.C. 133, Under Director, Legislative Affairs, U.S.C. 2762 of the Arms Export Control Secretary of Defense for Acquisition, Headquarters, Defense Logistics Agency, Act (AECA) that authorizes DoD to enter Technology, and Logistics; and DOD 8725 John J. Kingman Road, Suite 2533, into contracts for resale to foreign Directive 5400.04, Provision of Fort Belvoir, VA 22060–6221, and the countries or international organizations. Information to Congress. DLA Primary Level Field Activity In a recent report signed by the Secretary of Defense titled ‘‘Security PURPOSE(S): Commanders. Cooperation Reform Phase 1’’, a Information is collected to reply to NOTIFICATION PROCEDURE: requirement directs the Office of the inquiries and to determine the need for Individuals seeking to determine Under Secretary of Defense for and course of action to be taken for whether information about themselves Acquisition, Technology and Logistics resolution. Information may be used by is contained in this system should (OUSD(AT&L)) to seek information from the DLA Director, Chief of Staff, DLA address written inquiries to the DLA industry on how to improve the FMS Senior Leadership and DLA Primary FOIA/Privacy Act Office, Headquarters, process. The report is available at http:// Level Field Activity Commanders and Defense Logistics Agency, ATTN: DGA, www.acq.osd.mil/dpap/cpic/ic/docs/ decision makers as a basis to institute 8725 John J. Kingman Road, Suite 1644, Signed_SCRTF_Report_Phase_1_-July% policy or procedural changes. Fort Belvoir, VA 22060–6221. 202011.pdf.

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DATES: Submission of Comments: 15, the contracting officer shall not DEPARTMENT OF DEFENSE Submit written comments to the address require the submission of cost or pricing shown below on or before December 2, data. The contracting officer should Department of the Air Force 2011. Comments received will be consult with the foreign government U.S. Air Force Scientific Advisory considered by DoD in the formation of through security assistance personnel to Board Notice of Meeting a recommendation to the Secretary of determine if adequate price competition Defense if a revision to the regulation or has occurred. In accordance with the AGENCY: US Air Force Scientific policy is necessary and appropriate. Presidential policy statement of April Advisory Board, Department of the Air ADDRESSES: Submit comments to: 16, 1990, DoD does not encourage, enter Force, DoD. Director, Defense Procurement and into, or commit U.S. firms to FMS offset ACTION: Meeting Cancellation Notice. Acquisition Policy, 3060 Defense arrangements. The decision whether to Pentagon, Washington, DC 20301–3060, engage in offsets, and the responsibility SUMMARY: Due to difficulties, beyond the or e-mail to [email protected]. for negotiating and implementing offset control of the U.S. Air Force Scientific FOR FURTHER INFORMATION CONTACT: Mr. arrangements, resides with the Advisory Board or its Designated Jeff Grover, telephone 703–697–9352. companies involved. Relating to offset Federal Officer, the Board must cancel SUPPLEMENTARY INFORMATION: The costs, a U.S. defense contractor may its October 13–14, 2011 meeting of the U.S. Air Force Scientific Advisory Foreign Military Sales (FMS) Program is recover all costs incurred for offset authorized under the Arms Export Board (76 FR 57026, September 15, agreements with a foreign government Control Act (AECA). The FMS program 2011). Since the Department of the Air or international organization if the LOA is an important instrument of U.S Force is unable to file a Federal Register foreign policy. It allows the United is financed wholly with customer cash notice cancelling the meeting within the States to provide defense articles and or repayable Foreign Military Financing 15-calendar day period the Advisory defense services to friendly countries (FMF) credits. The U.S. Government Committee Management Officer for the and international organizations in order assumes no obligation to satisfy or Department of Defense, pursuant to 41 to deter and defend against aggression, administer the offset requirement or to CFR 102–3.150(b), waives the 15- facilitate a common defense, address bear any of the associated costs. calendar day notification requirement. security issues of mutual strategic Typically, costs not authorized under The meeting was cancelled due to lack concern, and to strengthen the security FAR part 31 are not allowable in pricing of approval of the Fiscal Year 2012 of the United States. The sales FMS contracts. On November 22, 2002, Board membership. This meeting will agreement between the United States the Defense Federal Acquisition not be rescheduled. and a foreign country or international Regulation Supplement (DFARS) was FOR FURTHER INFORMATION CONTACT: organization is executed via a Letter of amended to increase FMS customer The United States Air Force Scientific Offer and Acceptance (LOA). Security participation and acquisition Advisory Board Executive Director and Assistance Management Manual, DoD transparency in DoD contracts awarded Designated Federal Officer, Lt Col 5105.38–M, found at http:// on behalf of FMS customers. DFARS Matthew E. Zuber, 240–612–5503, www.dsca.osd.mil/samm/, provides subpart 225.73 provides authorization United States Air Force Scientific guidance for the administration and for FMS customers to participate in Advisory Board, 1500 West Perimeter implementation of Security Assistance specifications development, delivery Road, Ste. #3300, Joint Base Andrews, and related activities. The articles and schedule planning, identification of MD 20762, services acquired via FMS sales are warranties and other contractual [email protected] procured through the Department of requirements unique to the customer, as Bao-Anh Trinh, Defense Acquisition System. In the well as the review of pricing needed to LOA, the Department of Defense (DoD) DAF, Air Force Federal Register Liaison make price-performance tradeoffs. This Officer. promises that when procuring for the DFARS change encourages customer [FR Doc. 2011–27140 Filed 10–19–11; 8:45 am] purchaser, DoD will, in general, employ participation in both the acquisition the same contract clauses, the same BILLING CODE 5001–10–P contract administration, and the same process and industry discussions. quality and audit inspection procedures Customers also are allowed to as would be used in DoD procurements. participate in the contract negotiation DEPARTMENT OF EDUCATION Pricing for FMS contracts typically use process within the limitations of DFARS Notice of Proposed Information the same principles used in pricing of subpart 225.73, to the degree authorized Collection Requests other defense contracts. However, the by the contracting officer (CO). This application of the pricing principles in section specifically protects against AGENCY: Department of Education. unauthorized release of proprietary data Federal Acquisition Regulation (FAR) ACTION: Comment request. parts 15 and 31 to an FMS contract may and improper influence on the result in prices that differ from other contracting process. SUMMARY: The Department of Education defense contract prices for the same (the Department), in accordance with Mary Overstreet, item. Direct costs associated with the Paperwork Reduction Act of 1995 meeting a foreign customer’s additional Editor, Defense Acquisition Regulations (PRA) (44 U.S.C. 3506(c)(2)(A)), or unique requirements are allowable System. provides the general public and Federal under such contracts. Indirect burden [FR Doc. 2011–27218 Filed 10–19–11; 8:45 am] agencies with an opportunity to rates applicable to such direct costs are BILLING CODE 5001–06–P comment on proposed and continuing permitted at the same rates applicable to collections of information. This helps acquisitions of like items purchased by the Department assess the impact of its DoD for its own use. If the foreign information collection requirements and government has conducted a minimize the reporting burden on the competition resulting in adequate price public and helps the public understand competition as identified in FAR part the Department’s information collection

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requirements and provide the requested Affected Public: Individuals or DEPARTMENT OF EDUCATION data in the desired format. The Acting households. Notice of Submission for OMB Review Director, Information Collection Total Estimated Number of Annual Clearance Division, Privacy, Information Responses: 48,888. AGENCY: Department of Education. and Records Management Services, Office of Management, Office of Total Estimated Annual Burden ACTION: Comment request. Hours: 24,830. Management, invites comments on the SUMMARY: The Director, Information proposed information collection Abstract: The High School Collection Clearance Division, Privacy, requests as required by the Paperwork Longitudinal Study of 2009 (HSLS:09) is Information and Records Management Reduction Act of 1995. a nationally representative, longitudinal Services, Office of Management, invites DATES: Interested persons are invited to study of more than 20,000 ninth graders comments on the submission for OMB submit comments on or before in 944 schools who will be followed review as required by the Paperwork December 19, 2011. through their secondary and Reduction Act of 1995 (Pub. L. 104–13). ADDRESSES: Comments regarding burden postsecondary years. The main study DATES: Interested persons are invited to and/or the collection activity students will be re-surveyed in 2012 submit comments on or before requirements should be electronically when most are high school 11th graders. November 21, 2011. mailed to [email protected] or The study focuses on understanding ADDRESSES: Written comments should mailed to U.S. Department of Education, students’ trajectories from the beginning be addressed to the Office of 400 Maryland Avenue, SW., LBJ, of high school into university or the Information and Regulatory Affairs, Washington, DC 20202–4537. Please workforce and beyond. What students Attention: Education Desk Officer, note that written comments received in decide to pursue when, why, and how Office of Management and Budget, 725 response to this notice will be are crucial questions for HSLS:09, 17th Street, NW., Room 10222, New considered public records. especially, but not solely, in regards to Executive Office Building, Washington, SUPPLEMENTARY INFORMATION: Section science, technology, engineering, and DC 20503, be faxed to (202) 395–5806 or 3506 of the Paperwork Reduction Act of math courses, majors, and careers. This e-mailed to 1995 (44 U.S.C. Chapter 35) requires study includes a new student [email protected] with a that Federal agencies provide interested assessment in algebraic skills, cc: to [email protected]. Please note parties an early opportunity to comment reasoning, and problem solving and, that written comments received in on information collection requests. The like past studies, will survey students, response to this notice will be Director, Information Collection considered public records. Clearance Division, Regulatory their parents, school administrators, and Information Management Services, school counselors. Students will be SUPPLEMENTARY INFORMATION: Section Office of Management, publishes this administered a questionnaire and an 3506 of the Paperwork Reduction Act of notice containing proposed information assessment instrument. This submission 1995 (44 U.S.C. chapter 35) requires that collection requests at the beginning of will ask for the clearance for a field test the Office of Management and Budget the Departmental review of the of the high school transcript collection (OMB) provide interested Federal information collection. The Department and college update of HSLS:2009 high agencies and the public an early of Education is especially interested in school students who were in 9th grade opportunity to comment on information public comment addressing the in the base year; second follow-up panel collection requests. The OMB is following issues: (1) Is this collection maintenance; and a 60-day waiver for particularly interested in comments necessary to the proper functions of the the full scale submission for these which: (1) Evaluate whether the Department; (2) will this information be activities. proposed collection of information is necessary for the proper performance of processed and used in a timely manner; Copies of the proposed information (3) is the estimate of burden accurate; the functions of the agency, including collection request may be accessed from whether the information will have (4) how might the Department enhance http://edicsweb.ed.gov, by selecting the the quality, utility, and clarity of the practical utility; (2) Evaluate the ‘‘Browse Pending Collections’’ link and information to be collected; and (5) how accuracy of the agency’s estimate of the by clicking on link number 4730. When might the Department minimize the burden of the proposed collection of you access the information collection, burden of this collection on the information, including the validity of respondents, including through the use click on ‘‘Download Attachments’’ to the methodology and assumptions used; of information technology. view. Written requests for information (3) Enhance the quality, utility, and should be addressed to U.S. Department clarity of the information to be Dated: October 17, 2011. of Education, 400 Maryland Avenue, collected; and (4) Minimize the burden Kate Mullan, SW., LBJ, Washington, DC 20202–4537. of the collection of information on those Acting Director, Information Collection Requests may also be electronically who are to respond, including through Clearance Division, Privacy, Information and mailed to [email protected] or faxed the use of appropriate automated, Records Management Services, Office of electronic, mechanical, or other Management. to 202–401–0920. Please specify the complete title of the information technological collection techniques or Institute of Education Sciences collection and OMB Control Number other forms of information technology. Type of Review: Revision. when making your request. Dated: October 14, 2011. Title of Collection: High School Individuals who use a Darrin King, Longitudinal Study of 2009 (HSLS:09) telecommunications device for the deaf Director, Information Collection Clearance High School Transcript Collection and (TDD) may call the Federal Information Division, Privacy, Information and Records Management Services, Office of Management. College Update Field Test and Second Relay Service (FIRS) at 1–800–877– Follow-up Panel Maintenance. 8339. Office of Elementary and Secondary OMB Control Number: 1850–0852. Education Agency Form Number(s): N/A. [FR Doc. 2011–27210 Filed 10–19–11; 8:45 am] Frequency of Responses: Annually. BILLING CODE 4000–01–P Type of Review: Extension.

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Title of Collection: Consolidated State Individuals who use a Dated: October 14, 2011. Application. telecommunications device for the deaf Darrin King, OMB Control Number: 1810–0576. (TDD) may call the Federal Information Director, Information Collection Clearance Agency Form Number(s): N/A. Relay Service (FIRS) at 1–800–877– Division, Privacy, Information and Records Frequency of Responses: On occasion; 8339. Management Services, Office of Management. annually. [FR Doc. 2011–27099 Filed 10–19–11; 8:45 am] Federal Student Aid Affected Public: Individuals or BILLING CODE 4000–01–P households. Type of Review: Revision. Total Estimated Number of Annual Title of Collection: Federal Family Responses: 30. DEPARTMENT OF EDUCATION Education Loan Program, William D. Total Estimated Annual Burden Ford Federal Direct Loan Program, and Hours: 2,400. Notice of Submission for OMB Review Federal Perkins Loan Program: School Closure and False Certification Loan Abstract: Title IX, Part C, Sections AGENCY: Department of Education. 9301–9306, of the Elementary and Discharge Applications. Secondary Education Act (ESEA), as ACTION: Comment request. OMB Control Number: 1845–0015. amended, authorizes the Secretary of SUMMARY: The Director, Information Agency Form Number(s): N/A. Education to provide States the option Collection Clearance Division, Privacy, Frequency of Responses: On occasion. of submitting consolidated applications Information and Records Management Affected Public: Individuals or to obtain funds for covered programs in Services, Office of Management, invites households. which the State participates. The comments on the submission for OMB Total Estimated Number of Annual purpose of consolidated applications as review as required by the Paperwork Responses: 29,543. defined in ESEA is to improve teaching Reduction Act of 1995 (Pub. L. 104–13). Total Estimated Annual Burden and learning by encouraging greater Hours: 14,774. cross-program coordination, planning, DATES: Interested persons are invited to Abstract: These forms serve as the and service delivery; to enhance submit comments on or before means by which eligible borrowers in program integration; and to provide November 21, 2011. the Federal Family Education Loan greater flexibility and less burden for ADDRESSES: Written comments should Program, the William D. Ford Federal State educational agencies. be addressed to the Office of Direct Loan Program, and the Federal The U.S. Department of Education Information and Regulatory Affairs, Perkins Loan Program apply for will use the information from the Attention: Education Desk Officer, discharge of a loan based on school consolidated State application as the Office of Management and Budget, 725 closure or false certification of loan basis for approving funding under the 17th Street, NW., Room 10222, New eligibility in accordance with federal covered ESEA, as amended programs (in Executive Office Building, Washington, regulations. The holders of the which the State participates). The DC 20503, be faxed to (202) 395–5806 or borrower’s loans use the information Department also will use the e-mailed to collected on these forms to determine performance targets, baseline data, and [email protected] with a whether a borrower meets the regulatory other related information in the cc: to [email protected]. Please note eligibility requirements for loan consolidated application to continue to that written comments received in discharge. assess the degree of progress States response to this notice will be make over time in achieving ESEA considered public records. Copies of the information collection goals. As with previous collections, the SUPPLEMENTARY INFORMATION: Section submission for OMB review may be information in this collection will allow 3506 of the Paperwork Reduction Act of accessed from the RegInfo.gov Web site the Department to continue to monitor 1995 (44 U.S.C. chapter 35) requires that at http://www.reginfo.gov/public/do/ effectiveness of the use of program the Office of Management and Budget PRAMain or from the Department’s Web funds, and provide grantees with (OMB) provide interested Federal site at http://edicsweb.ed.gov, by technical assistance. agencies and the public an early selecting the ‘‘Browse Pending Copies of the information collection opportunity to comment on information Collections’’ link and by clicking on submission for OMB review may be collection requests. The OMB is link number 4690. When you access the accessed from the RegInfo.gov Web site particularly interested in comments information collection, click on at http://www.reginfo.gov/public/do/ which: (1) Evaluate whether the ‘‘Download Attachments ’’ to view. PRAMain or from the Department’s Web proposed collection of information is Written requests for information should site at http://edicsweb.ed.gov, by necessary for the proper performance of be addressed to U.S. Department of selecting the ‘‘Browse Pending the functions of the agency, including Education, 400 Maryland Avenue, SW., Collections’’ link and by clicking on whether the information will have LBJ, Washington, DC 20202–4537. link number 4691. When you access the practical utility; (2) Evaluate the Requests may also be electronically information collection, click on accuracy of the agency’s estimate of the mailed to the Internet address ‘‘Download Attachments ’’ to view. burden of the proposed collection of [email protected] or faxed to 202– Written requests for information should information, including the validity of 401–0920. Please specify the complete be addressed to U.S. Department of the methodology and assumptions used; title of the information collection and Education, 400 Maryland Avenue, SW., (3) Enhance the quality, utility, and OMB Control Number when making LBJ, Washington, DC 20202–4537. clarity of the information to be your request. Requests may also be electronically collected; and (4) Minimize the burden Individuals who use a mailed to the Internet address of the collection of information on those telecommunications device for the deaf [email protected] or faxed to 202– who are to respond, including through (TDD) may call the Federal Information 401–0920. Please specify the complete the use of appropriate automated, Relay Service (FIRS) at 1–800–877– title of the information collection and electronic, mechanical, or other 8339. OMB Control Number when making technological collection techniques or [FR Doc. 2011–27090 Filed 10–19–11; 8:45 am] your request. other forms of information technology. BILLING CODE 4000–01–P

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DEPARTMENT OF EDUCATION burden of this collection on the you access the information collection, respondents, including through the use click on ‘‘Download Attachments’’ to Notice of Proposed Information of information technology. view. Written requests for information Collection Requests Dated: October 13, 2011. should be addressed to U.S. Department AGENCY: Department of Education. Darrin King, of Education, 400 Maryland Avenue, SW., LBJ, Washington, DC 20202–4537. ACTION: Comment request. Director, Information Collection Clearance Division, Privacy, Information and Records Requests may also be electronically SUMMARY: The Department of Education Management Services, Office of Management. mailed to [email protected] or faxed (the Department), in accordance with to 202–401–0920. Please specify the the Paperwork Reduction Act of 1995 Office of Elementary and Secondary complete title of the information (PRA) (44 U.S.C. 3506(c)(2)(A)), Education collection and OMB Control Number provides the general public and Federal Type of Review: Extension. when making your request. agencies with an opportunity to Title of Collection: 21st Century Individuals who use a comment on proposed and continuing Community Learning Centers Annual telecommunications device for the deaf collections of information. This helps Performance Report. (TDD) may call the Federal Information the Department assess the impact of its OMB Control Number: 1810–0668. Relay Service (FIRS) at 1–800–877– information collection requirements and Agency Form Number(s): N/A. 8339. minimize the reporting burden on the Frequency of Responses: Annually. [FR Doc. 2011–27086 Filed 10–19–11; 8:45 am] public and helps the public understand Affected Public: State, Local or Tribal BILLING CODE 4000–01–P the Department’s information collection Government. requirements and provide the requested Total Estimated Number of Annual data in the desired format. The Director, Responses: 1,400. DEPARTMENT OF ENERGY Information Collection Clearance Total Estimated Annual Burden Division, Privacy, Information and Hours: 36,400. Environmental Management Site- Records Management Services, Office of Abstract: The purpose of the 21st Specific Advisory Board, Oak Ridge Management, Office of Management, Century Community Learning Centers Reservation invites comments on the proposed program (21st CCLC) program, as AGENCY: Department of Energy. information collection requests as reauthorized under Title IV, Part B, of required by the Paperwork Reduction the No Child Left Behind Act of 2001, ACTION: Notice of open meeting. Act of 1995. 4201 et seq., (20 U.S. Code 7171 et seq.), SUMMARY: This notice announces a DATES: Interested persons are invited to is to provide expanded academic meeting of the Environmental submit comments on or before enrichment opportunities for children Management Site-Specific Advisory December 19, 2011. attending low-performing schools. To Board (EM SSAB), Oak Ridge ADDRESSES: Comments regarding burden reflect the changes in the authorization Reservation. The Federal Advisory and/or the collection activity and administration of the 21st CCLC Committee Act (Pub. L. 92–463, 86 Stat. requirements should be electronically program and to comply with its 770) requires that public notice of this mailed to [email protected] or reporting requirements, the U.S. meeting be announced in the Federal mailed to U.S. Department of Education, Department of Education (ED) is Register. 400 Maryland Avenue, SW., LBJ, requesting authorization for the Washington, DC 20202–4537. Please collection of data through Web-based, DATES: Wednesday, November 9, 2011, note that written comments received in data-collection modules, the Annual 6 p.m. response to this notice will be Performance Report, the Grantee Profile, ADDRESSES: DOE Information Center, considered public records. the Competition Overview, and the 475 Oak Ridge Turnpike, Oak Ridge, SUPPLEMENTARY INFORMATION: Section State Activities module, which Tennessee 37830. 3506 of the Paperwork Reduction Act of collectively will be housed in an FOR FURTHER INFORMATION CONTACT: 1995 (44 U.S.C. Chapter 35) requires application called the 21st CCLC Profile Melyssa P. Noe, Federal Coordinator, that Federal agencies provide interested and Performance Information Collection Department of Energy Oak Ridge parties an early opportunity to comment System. The data will continue to be Operations Office, P.O. Box 2001, EM– on information collection requests. The used to fulfill ED’s requirement under 90, Oak Ridge, TN 37831. Phone (865) Director, Information Collection the Government Performance and 241–3315; Fax (865) 576–0956 or e-mail: Clearance Division, Regulatory Results Act to report to Congress [email protected] or check the Web Information Management Services, annually on the implementation and site at http://www.oakridge.doe.gov/em/ Office of Management, publishes this progress of 21st CCLC projects and the ssab. notice containing proposed information use of state administrative and technical SUPPLEMENTARY INFORMATION: collection requests at the beginning of assistance funds allocated to the states Purpose of the Board: The purpose of the Departmental review of the to support the program. The data the Board is to make recommendations information collection. The Department collection will also provide State to DOE–EM and site management in the of Education is especially interested in Educational Agency (SEA) liaisons with areas of environmental restoration, public comment addressing the needed descriptive data about their waste management, and related following issues: (1) Is this collection grantees and allow SEA liaisons to activities. necessary to the proper functions of the conduct performance monitoring and Tentative Agenda: The main meeting Department; (2) will this information be identify areas of needed technical presentation will be on the Oak Ridge processed and used in a timely manner; assistance. National Laboratory Hot Cell Cleanup. (3) is the estimate of burden accurate; Copies of the proposed information Public Participation: The EM SSAB, (4) how might the Department enhance collection request may be accessed from Oak Ridge, welcomes the attendance of the quality, utility, and clarity of the http://edicsweb.ed.gov, by selecting the the public at its advisory committee information to be collected; and (5) how ‘‘Browse Pending Collections’’ link and meetings and will make every effort to might the Department minimize the by clicking on link number 4738. When accommodate persons with physical

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disabilities or special needs. If you Comment Date: 5 p.m. Eastern Time Applicants: City of Kinston, NC. require special accommodations due to on Wednesday, November 2, 2011. Description: City of Kinston at Dopaco a disability, please contact Melyssa P. Docket Numbers: ER11–4673–001. submits FERC Form 556—Notice of Noe at least seven days in advance of Applicants: Air Liquide Large Certification of Qualifying Facility the meeting at the phone number listed Industries U.S. LP. Status for a Small Power Production above. Written statements may be filed Description: Air Liquide Large Facility. with the Board either before or after the Industries U.S. LP submits tariff filing Filed Date: 10/12/2011. meeting. Individuals who wish to make per 35: MBR Tariff to be effective 10/12/ Accession Number: 20111012–5161. oral statements pertaining to the agenda 2011. Comment Date: None Applicable. item should contact Melyssa P. Noe at Filed Date: 10/12/2011. Docket Numbers: QF12–8–000. the address or telephone number listed Accession Number: 20111012–5126. Applicants: PowerSecure, Inc. above. Requests must be received five Comment Date: 5 p.m. Eastern Time Description: PowerSecure, Inc. for days prior to the meeting and reasonable on Wednesday, November 2, 2011. City of Washington, NC at Beaufort provision will be made to include the Docket Numbers: ER12–67–000. County Courthouse submits FERC Form presentation in the agenda. The Deputy Applicants: Northeast Energy 556—Notice of Certification of Designated Federal Officer is Associates, L.P. Qualifying Facility Status for a Small empowered to conduct the meeting in a Description: Northeast Energy Power Production Facility. fashion that will facilitate the orderly Associates, L.P. submits tariff filing per Filed Date: 10/12/2011. conduct of business. Individuals 35.13(a)(2)(iii: Northeast Energy Accession Number: 20111012–5172. wishing to make public comments will Associates, A Limited Partnership Comment Date: None Applicable. be provided a maximum of five minutes Revisions to MBR Tariff to be effective The filings are accessible in the to present their comments. 7/26/2010. Commission’s eLibrary system by Minutes: Minutes will be available by Filed Date: 10/12/2011. clicking on the links or querying the writing or calling Melyssa P. Noe at the Accession Number: 20111012–5158. docket number. address and phone number listed above. Comment Date: 5 p.m. Eastern Time Any person desiring to intervene or Minutes will also be available at the on Wednesday, November 2, 2011. protest in any of the above proceedings following Web site: http:// Docket Numbers: ER12–68–000. must file in accordance with Rules 211 www.oakridge.doe.gov/em/ssab/ Applicants: North Jersey Energy and 214 of the Commission’s minutes.htm. Associates, L.P. Regulations (18 CFR 385.211 and Issued at Washington, DC, on October 14, Description: North Jersey Energy 385.214) on or before 5 p.m. Eastern 2011. Associates, L.P. submits tariff filing per time on the specified comment date. LaTanya R. Butler, 35.13(a)(2)(iii: North Jersey Energy Protests may be considered, but Acting Deputy Committee Management Associates, A Limited Partnership to be intervention is necessary to become a Officer. effective 7/26/2010. party to the proceeding. eFiling is encouraged. More detailed [FR Doc. 2011–27156 Filed 10–19–11; 8:45 am] Filed Date: 10/12/2011. information relating to filing BILLING CODE 6450–01–P Accession Number: 20111012–5159. Comment Date: 5 p.m. Eastern Time requirements, interventions, protests, on Wednesday, November 2, 2011. service, and qualifying facilities filings DEPARTMENT OF ENERGY can be found at: http://www.ferc.gov/ Docket Numbers: ER12–69–000. docs-filing/efiling/filing-req.pdf. For Applicants: Pacific Gas and Electric Federal Energy Regulatory other information, call (866) 208–3676 Company. Commission (toll free). For TTY, call (202) 502–8659. Description: Pacific Gas and Electric Dated: October 13, 2011. Combined Notice of Filings #1 Company submits tariff filing per 35.13(a)(2)(iii: GMC Tariff Update 2012 Nathaniel J. Davis, Sr., Take notice that the Commission to be effective 1/1/2012. Deputy Secretary. received the following electric rate Filed Date: 10/12/2011. [FR Doc. 2011–27142 Filed 10–19–11; 8:45 am] filings: Accession Number: 20111012–5160. BILLING CODE 6717–01–P Docket Numbers: ER11–3494–003. Comment Date: 5 p.m. Eastern Time Applicants: Southwest Power Pool, on Wednesday, November 2, 2011. Inc. Take notice that the Commission DEPARTMENT OF ENERGY Description: Southwest Power Pool, received the following public utility Inc. submits tariff filing per 35: Second holding company filings: Federal Energy Regulatory Commission Compliance Filing—2198 Kansas Power Docket Numbers: PH12–2–000. Pool NITSA NOA to be effective 4/1/ Applicants: Government of Singapore [Docket Nos. ER10–1401–000, ER11–2256– 2011. Investment Corporation. 000, ER11–3149–000, ER11–3856–000, Filed Date: 10/12/2011. Description: FERC–65A Exemption ER11–4580–000] Accession Number: 20111012–5107. Comment Date: 5 p.m. Eastern Time Notification of Government of Singapore California Independent System on Wednesday, November 2, 2011. Investment Corporation (Ventures) Pte Operator Corporation; Notice of FERC Ltd. Staff Attendance Docket Numbers: ER11–4665–001. Filed Date: 10/12/2011. Applicants: North Branch Resources, Accession Number: 20111012–5185. LLC. The Federal Energy Regulatory Comment Date: 5 p.m. Eastern Time Description: North Branch Resources, Commission (Commission) hereby gives on Wednesday, November 2, 2011. LLC submits tariff filing per 35: notice that on the following dates Application for Designation of Category Take notice that the Commission members of its staff will participate in 1 Status to be effective 10/12/2011. received the following qualifying teleconferences and meetings to be Filed Date: 10/12/2011. facility filings: conducted by the California Accession Number: 20111012–5108. Docket Numbers: QF12–7–000. Independent System Operator (CAISO).

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The agenda and other documents for the available on the CAISO’s Web site, teleconferences and meetings are http://www.caiso.com.

October 18, 2011 ...... Renewables Integration Market and Product Review. October 19, 2011 ...... Settlements and Market Clearing User Group. Congestion Revenue Rights. 2012 Grid Management Charge. October 20, 2011 ...... Market Update. Generated Bids for Outages of Non Resource Specific. Resource Adequacy Resources. October 25, 2011 ...... Operation and Maintenance Cost Adder Review BPM Change Management. October 26, 2011 ...... Market Performance and Planning Forum. Settlements and Market Clearing User Group. Congestion Revenue Rights. October 27, 2011 ...... Board of Governors Meeting and Audit Committee. October 28, 2011 ...... Board of Governors Meeting and Audit Committee. October 31, 2011 ...... Transmission Planning and Generator Interconnection. Integration Draft Final Proposal.

Sponsored by the CAISO, the 20110926AEC, from Humboldt, NE, to general public and other Federal teleconferences and meetings are open Sidney, IA. agencies to take this opportunity to to all market participants, and staff’s DATES: The agency must receive comment on renewal of an existing attendance is part of the Commission’s comments on or before December 19, information collection, as required by ongoing outreach efforts. The 2011. the Paperwork Reduction Act of 1995 teleconferences and meetings may (44 U.S.C. chapter 35). Currently, the ADDRESSES: Federal Communications discuss matters at issue in the above Commission, 445 12th Street, SW., FDIC is soliciting comments on renewal captioned dockets. Washington, DC 20554. of the information collection described For further information, contact Saeed below. FOR FURTHER INFORMATION CONTACT: Farrokhpay at Tung Bui, 202–418–2700. DATES: Comments must be submitted on [email protected]; (916) 294– or before December 19, 2011. SUPPLEMENTARY INFORMATION: The full 0322 or Maury Kruth at ADDRESSES: Interested parties are [email protected], (916) 294–0275. text of these applications is available for inspection and copying during normal invited to submit written comments to Dated: October 14, 2011. business hours in the Commission’s the FDIC by any of the following Nathaniel J. Davis, Sr., Reference Center, 445 12th Street, SW., methods: • Deputy Secretary. Washington, DC 20554 or electronically http://www.FDIC.gov/regulations/ [FR Doc. 2011–27141 Filed 10–19–11; 8:45 am] via the Media Bureau’s Consolidated laws/federal/notices.html. • E-mail: [email protected]. BILLING CODE 6717–01–P Data Base System, http:// svartifoss2.fcc.gov/prod/cdbs/pubacc/ Include the name of the collection in the _ subject line of the message. prod/cdbs pa.htm. A copy of this • application may also be purchased from Mail: Gary A. Kuiper FEDERAL COMMUNICATIONS (202.898.3877), Counsel, Room F–1086, COMMISSION the Commission’s duplicating contractor, Best Copy and Printing, Inc., Federal Deposit Insurance Corporation, 550 17th Street, NW., Washington, DC Radio Broadcasting Services; AM or 445 12th Street, SW., Room CY–B402, Washington, DC 20554, telephone 20429. FM Proposals To Change the • Hand Delivery: Comments may be Community of License 1–800–378–3160 or http:// www.BCPIWEB.com. hand-delivered to the guard station at AGENCY: Federal Communications the rear of the 17th Street Building Federal Communications Commission. Commission. (located on F Street), on business days James D. Bradshaw, between 7 a.m. and 5 p.m. ACTION: Notice. Deputy Chief, Audio Division Media Bureau. All comments should refer to the SUMMARY: The following applicants filed [FR Doc. 2011–27107 Filed 10–19–11; 8:45 am] relevant OMB control number (3064– AM or FM proposals to change the BILLING CODE 6712–01–P 0022). A copy of the comments may also community of license: Eastern Sierra be submitted to the OMB desk officer for Broadcasting, Station KCWK, Facility ID the FDIC: Office of Information and 160324, BMP–20111004AED, from FEDERAL DEPOSIT INSURANCE Regulatory Affairs, Office of North Las Vegas, NV, to Laughlin, NV; CORPORATION Management and Budget, New Episcopo, Joseph A., Station NEW, Executive Office Building, Washington, Facility ID 189518, BNPH– Agency Information Collection DC 20503. 20110929AGK, from Rotan, TX, to Activities: Proposed Collection FOR FURTHER INFORMATION CONTACT: Gary Roscoe, TX; Everglades City Renewals; Comment Request A. Kuiper, at the FDIC address above. (3064–0022) Broadcasting Company, Inc., Station SUPPLEMENTARY INFORMATION: WBGY, Facility ID 47386, BPED– AGENCY: Federal Deposit Insurance Proposal to renew the following 20110928AIO, from Naples, FL, to Corporation (FDIC). currently approved collection of Everglades City, FL; Heeren, Wayne L., ACTION: Notice and request for comment. information: Station NEW, Facility ID 166079, Title: Uniform Application/Uniform BNPH–20060310AEF, from Burke, SD, SUMMARY: The FDIC, as part of its Termination for Municipal Securities to Wagner, SD; Kona Coast Radio, LLC, continuing effort to reduce paperwork Principal or Representative. Station KIMI, Facility ID 189501, BPH– and respondent burden, invites the OMB Number: 3064–0022.

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Form Number: MSD–4; MSD–5. on small community banks throughout FEDERAL ELECTION COMMISSION Frequency of Response: On occasion. the United States and the local Affected Public: Business or other communities they serve. Sunshine Act Notice financial institutions. DATES: Friday, November 4, 2011, from AGENCY: Federal Election Commission. Estimated Number of Respondents: 8:30 a.m. to 3 p.m. 75. FEDERAL REGISTER CITATION OF PREVIOUS ADDRESSES: Estimated Time per Response: 1 hour. The meeting will be held in ANNOUNCEMENT: 76 FR 64088 (October Total Annual Burden: 75 hours. the FDIC Board Room on the sixth floor 17, 2011). General Description of Collection: An of the FDIC Building located at 550 17th DATE AND TIME: Thursday, October 20, insured state nonmember bank which Street, NW., Washington, DC. 2011 at 10 a.m. serves as a municipal securities dealer FOR FURTHER INFORMATION CONTACT: PLACE: 999 E Street, NW., Washington, must file Form MSD–4 or MSD–5, as Requests for further information DC (Ninth Floor). applicable, to permit an employee to concerning the meeting may be directed STATUS: This meeting will be open to the become associated or to terminate the to Mr. Robert E. Feldman, Committee public. Management Officer of the FDIC, at association with the municipal CHANGES IN THE MEETING: The following (202) 898–7043. securities dealer. FDIC uses the form to item has been added to the agenda: ensure compliance with the professional SUPPLEMENTARY INFORMATION: Draft Final Rules and Explanation and requirements for municipal securities Agenda: The agenda will include a Justification for Standards of Conduct. dealers in accordance with the rules of discussion of current issues affecting Individuals who plan to attend and the Municipal Securities Rulemaking community banking. The agenda is require special assistance, such as sign Board. subject to change. Any changes to the language interpretation or other agenda will be announced at the Request for Comment reasonable accommodations, should beginning of the meeting. contact Shawn Woodhead Werth, Comments are invited on: (a) Whether Type of Meeting: The meeting will be Secretary and Clerk, at (202) 694–1040, the collection of information is open to the public, limited only by the at least 72 hours prior to the hearing necessary for the proper performance of space available on a first-come, first- date. the FDIC’s functions, including whether served basis. For security reasons, the information has practical utility; (b) members of the public will be subject to PERSON TO CONTACT FOR INFORMATION: the accuracy of the estimates of the security screening procedures and must Judith Ingram, Press Officer, Telephone: burden of the information collection, present a valid photo identification to (202) 694–1220. including the validity of the enter the building. The FDIC will Shawn Woodhead Werth, methodology and assumptions used; (c) provide attendees with auxiliary aids Secretary and Clerk of the Commission. ways to enhance the quality, utility, and (e.g., sign language interpretation) [FR Doc. 2011–27309 Filed 10–18–11; 4:15 pm] clarity of the information to be required for this meeting. Those BILLING CODE 6715–01–P collected; and (d) ways to minimize the attendees needing such assistance burden of the information collection on should call (703) 562–6067 (Voice or respondents, including through the use TTY) at least two days before the FEDERAL MARITIME COMMISSION of automated collection techniques or meeting to make necessary other forms of information technology. arrangements. Written statements may Ocean Transportation Intermediary All comments will become a matter of be filed with the committee before or License; Applicants public record. after the meeting. This Community Notice is hereby given that the Dated at Washington, DC, this 17th day of Banking Advisory Committee meeting October, 2011. will be Webcast live via the Internet at following applicants have filed with the Federal Maritime Commission an Federal Deposit Insurance Corporation. http://www.vodium.com/goto/fdic/ communitybanking.asp. This service is application for a license as a Non- Robert E. Feldman, Vessel-Operating Common Carrier Executive Secretary. free and available to anyone with the following systems requirements: http:// (NVO) and/or Ocean Freight Forwarder [FR Doc. 2011–27138 Filed 10–19–11; 8:45 am] www.vodium.com/home/sysreq.html. (OFF)-Ocean Transportation BILLING CODE 6714–01–P Adobe Flash Player is required to view Intermediary (OTI) pursuant to section these presentations. The latest version 19 of the Shipping Act of 1984 as of Adobe Flash Player can be amended (46 U.S.C. chapter 409 and 46 FEDERAL DEPOSIT INSURANCE CFR part 515). Notice is also hereby CORPORATION downloaded at http://www.adobe.com/ shockwave/download/download.cgi?P1_ given of the filing of applications to amend an existing OTI license or the FDIC Advisory Committee on Prod_Version=ShockwaveFlash. Qualifying Individual (QI) for a license. Community Banking; Notice of Meeting Installation questions or troubleshooting help can be found at the same link. For Interested persons may contact the AGENCY: Federal Deposit Insurance optimal viewing, a high speed internet Office of Transportation Intermediaries, Corporation (FDIC). connection is recommended. The Federal Maritime Commission, ACTION: Notice of open meeting. Community Banking meeting videos are Washington, DC 20573, by telephone at made available on-demand (202) 523–5843 or by e-mail at SUMMARY: In accordance with the approximately two weeks after the [email protected]. Federal Advisory Committee Act, notice event. AB Global Logistics Consulting Inc. is hereby given of a meeting of the FDIC (OFF), 1010 19th Street, #10, Santa Advisory Committee on Community Dated: October 17, 2011. Monica, CA 90403. Officer: Andrea Banking, which will be held in Robert E. Feldman, Bigi, President (Qualifying Washington, DC. The Advisory Committee Management Officer, Federal Individual), Application Type: Committee will provide advice and Deposit Insurance Corporation. Business Structure Change. recommendations on a broad range of [FR Doc. 2011–27151 Filed 10–19–11; 8:45 am] Alibaba Global Shipping Inc (NVO), policy issues that have particular impact BILLING CODE 6714–01–P 1260 57th Avenue, Oakland, CA

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94621. Officers: Gary Sachs, CFO Pres./Sec./Treas./CFO/VP (Qualifying FEDERAL MARITIME COMMISSION (Qualifying Individual); Ali Individual); Application Type: New Ismailzada, CEO/President, NVO License. Ocean Transportation Intermediary License; Rescission of Order of Application Type: New NVO License. J & S Infinity, Inc. (NVO), 226 2nd All Transport Export Inc (NVO & OFF), Revocation Street, #B, Palisades Park, NJ 07650. 4224 Shackleford Road, #3, Norcross, GA 30093. Officer: Valery Baranouski, Officers: Choong G. Jung, Vice Notice is hereby given that the Order President/Secretary (Qualifying President (Qualifying Individual); revoking the following license is being Individual), Application Type: New Sang W. Song, President/Secretary/ rescinded by the Federal Maritime NVO & OFF License. Treasurer, Application Type: New Commission pursuant to section 19 of Associated Global Systems, Inc. (NVO & NVO License. the Shipping Act of 1984 (46 U.S.C. Chapter 409) and the regulations of the OFF), 3333 New Hyde Park Road, JS Logistics, Inc. (NVO), 5116 Commission pertaining to the licensing #207, New Hyde Park, NY 11042. Buckwheat, Chino Hills, CA 91709. of Ocean Transportation Intermediaries, Officers: James N. Tucci, Chief Officers: Lee Wong, Secretary/ Executive Officer/Secretary 46 CFR Part 515. Treasurer/CFO (Qualifying License Number: 020445NF. (Qualifying Individual); Tanya Individual); Victor L. Sheng, Director/ Freeman, Director, Application Type: Name: Freight It, Inc. President/CEO, Application Type: Address: 11222 La Cienega Blvd., QI Change. Name Change. Broom U.S.A., Inc. (NVO & OFF), 2149 Suite 555, Inglewood, CA 90304. NW., 79th Avenue, Miami, FL 33122. Korea Express U.S.A. Inc. dba Korea Order Published: FR: 9/23/11 (Volume Officers: Julian A. Scattolini, Vice Express Lines (NVO & OFF), 11 76, No. 185, Pg. 59129). President/Director/Secretary Commerce Ct West, Cranbury, NJ Sandra L. Kusumoto, 08512. Officers: Tony S. Chon, (Qualifying Individual); Hector A. Director, Bureau of Certification and Espinoza, President, Application Assistant Secretary (Qualifying Licensing. Type: New NVO & OFF License. Individual); Sang G. Lee, President/ [FR Doc. 2011–27125 Filed 10–19–11; 8:45 am] Centro Marine Freight Forward, LLC CEO/Treasurer, Application Type: QI BILLING CODE 6730–01–P (OFF), 155 S. Kingsley Drive, Los Change. Angeles, CA 90004. Officers: Ana LDS Global Corp (NVO & OFF), 2 East Serrano, Managing Member Union Avenue, East Rutherford, NJ FEDERAL MARITIME COMMISSION (Qualifying Individual); Victor Ortiz, 07073. Officer: James M. Ryoo, Member Application Type: New OFF Ocean Transportation Intermediary President/Treasurer/Secretary License. License; Revocation Cargo Management Group Inc. dba CMG (Qualifying Individual); Application (NVO & OFF), 6124 NW., 74th Type: New NVO & OFF License. The Federal Maritime Commission Avenue, Miami, FL 33166. Officers: Rapidex USA LLC (NVO), 71 Veronica hereby gives notice that the following Cristian Afanador, Vice President Avenue, Suite 2, Somerset, NJ 08873. Ocean Transportation Intermediary (Qualifying Individual); Vivian Cobo- Officers: Mohamed Y. Ali, Manager licenses have been revoked pursuant to Afanador, President/Secretary/ (Qualifying Individual); Abdul S. section 19 of the Shipping Act of 1984 Treasurer/Dir., Application Type: Mohamed, Member, Application (46 U.S.C. Chapter 409) and the Name Change. Type: New NVO License. regulations of the Commission CR & J Logistics, Inc. (OFF), 8401 Lake pertaining to the licensing of Ocean Worth Road, Lake Worth, FL 33467. Speedier Shipping Inc. (NVO), 120 Transportation Intermediaries, 46 CFR Officers: Joseph G. Mazzarise, Vice Horace Harding Blvd., Great Neck, NY Part 515, effective on the corresponding President (Qualifying Individual); 11020. Officers: Kasinee date shown below: Ronald S. Penn, President, Thongprasert, President/Secretary/ License Number: 2160F. Application Type: New OFF License. Treasurer (Qualifying Individual); Name: Shirley De Sinclair dba Sincl- Earth Relocation Inc (NVO & OFF), 239 Application Type: New NVO License. Air Maritime Service. Washington Street, #404, Jersey City, Straight Line Logistics, LLC (NVO & Address: 2336 Stranahan Drive, NJ 07302. Officers: Samir Shah, Vice OFF), 2250 NW 96th Avenue, Suite Alhambra, CA 90803. President Operations/Secretary 209, Doral, FL 33172. Officers: Carlos Date Revoked: September 19, 2011. (Qualifying Individual); Falguni Patel, H. Ortiz, Managing Member/Director, Reason: Failed to maintain a valid President/Treasurer, Application (Qualifying Individual); Felice G. bond. Type: New NVO & OFF License. Snider, Manager/Director, License Number: 2391F. H S H K, Corp. (NVO & OFF), 19 Name: Leonel Silva dba Best Plymouth Road, Staten Island, NY Application Type: New NVO & OFF License. Forwarders. 10314. Officer: Hanan W. Seif, Address: 411 North Oak Street, Thuan Loi Shipping (NVO), 7771 President/VP/Secretary/Treasurer Inglewood, CA 90302. Garvey Avenue, #D, Rosemead, CA (Qualifying Individual); Application Date Revoked: September 22, 2011. Type: Add NVO License. 91770. Officer: Stacy Duong, CEO/ Reason: Failed to maintain a valid Interlog USA, Inc. (NVO), 2818A Secretary/CFO (Qualifying bond. Anthony Lane S., Minneapolis, MN Individual); Application Type: New License Number: 2442F. 55418. Officers: Brent A. Koughan, NVO License. Secretary/Treasurer (Qualifying Name: Williams International, Inc. Individual); David K. Canfield, Dated: October 14, 2011. Address: 3443 Rivers Avenue, President, Application Type: QI Rachel E. Dickon, Charleston, SC 29405. Change. Assistant Secretary. Date Revoked: September 24, 2011. Inter-Trade Liner Shipping Co., Inc. [FR Doc. 2011–27124 Filed 10–19–11; 8:45 am] Reason: Failed to maintain a valid bond. (NVO), 2196 Signal Place, San Pedro, BILLING CODE 6730–01–P CA 90731. Officer: Kyung H. Oh, Dir./ License Number: 3242F.

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Name: H.L.M. Intertrans, Corp. License Number: 022686N. comments should identify themselves Address: 8355 N.W. 74th Street, Name: Razak Logistics, Inc. and any relevant organizational Miami, FL 33166. Address: 28451 Ficus Court, Murrieta, affiliations. Date Revoked: September 10, 2011. CA 92563. Reason: Failed to maintain a valid Date Revoked: September 9, 2011. FOR FURTHER INFORMATION CONTACT: bond. Reason: Failed to maintain a valid Donald T Oellerich (202) 690–7409, License Number: 003874NF. bond. [email protected]. Note: Although the meeting is open to the public, Name: World Project Services Sandra L. Kusumoto, International, Inc. procedures governing security Director, Bureau of Certification and Address: 650 East North Sam Houston Licensing. procedures and the entrance to Federal Parkway, Suite 231, Houston, TX 77060. buildings may change without notice. [FR Doc. 2011–27123 Filed 10–19–11; 8:45 am] Date Revoked: September 17, 2011. Those wishing to attend the meeting BILLING CODE 6730–01–P Reason: Failed to maintain valid must call or e-mail Dr. Oellerich by bonds. Monday November 7, 2011, so that their License Number: 4646NF. name may be put on a list of expected Name: Choiceone Logistics, Inc. DEPARTMENT OF HEALTH AND HUMAN SERVICES attendees and forwarded to the security Address: 10025 NW 116th Way, officers at HHS Headquarters. Medley, FL 33178. Office of the Assistant Secretary for Date Revoked: September 19, 2011. SUPPLEMENTARY INFORMATION: Topics of Planning and Evaluation; Medicare Reason: Failed to maintain valid the Meeting: The Panel is specifically Program; Meeting of the Technical bonds. charged with discussing and possibly Advisory Panel on Medicare Trustee making recommendations to the License Number: 018784N. Reports Name: Champion Cargo Services, Medicare Trustees on how the Trustees LLC. AGENCY: Assistant Secretary for might more accurately project health Address: 9523 Jamacha Blvd., Spring Planning and Evaluation, HHS. spending in the United States. The Valley, CA 91977. ACTION: Notice of meeting. discussion is expected to focus on Date Revoked: September 22, 2011. highly technical aspects of estimation Reason: Failed to maintain a valid SUMMARY: This notice announces public involving economics and actuarial bond. meetings of the Technical Advisory science. Panelists are not restricted, License Number: 019041N. Panel on Medicare Trustee Reports however, in the topics that they choose Name: Grupo Delpa Corp. (Panel). Notice of these meetings is to discuss. Address: 7970 NW 56th Street, given under the Federal Advisory Miami, FL 33166. Committee Act (5 U.S.C. App. 2, section Procedure and Agenda Date Revoked: August 30, 2011. 10(a)(1) and (a)(2)). The Panel will Reason: Failed to maintain a valid discuss the long range (75 year) This meeting is open to the public. bond. projection methods and assumptions in The Panel will likely hear presentations by panel members and HHS staff License Number: 020832F. projecting Medicare health expenditures Name: Orca Int’l Freight Forwarders and projecting National Health regarding long range projection methods Inc. Expenditures and may make and assumptions. After any Address: 6993 NW 50th Street, recommendations to the Medicare presentations, the Panel will deliberate Miami, FL 33166. Trustees on how the Trustees might openly on the topic. Interested persons Date Revoked: September 14, 2011. more accurately estimate health may observe the deliberations, but the Reason: Failed to maintain a valid spending in the long run. The Panel’s Panel will not hear public comments bond. discussion is expected to be very during this time. The Panel will also License Number: 020727N. technical in nature and will focus on the allow an open public session for any Name: Grand Power Express actuarial and economic assumptions attendee to address issues specific to the International (USA) Corp. and methods by which Trustees might topic. more accurately project health Address: 654 North Spring Street, Los Authority: 42 U.S.C. 217a; Section 222 of Angeles, CA 90012. spending. Although panelists are not limited in the topics they may discuss, the Public Health Services Act, as amended. Date Revoked: September 10, 2011. The panel is governed by provisions of the Panel is not expected to discuss or Reason: Failed to maintain a valid Public Law 92–463, as amended (5 U.S.C. recommend changes in current or future bond. Appendix 2), which sets forth standards for Medicare provider payment rates or License Number: 021370NF. the formation and use of advisory coverage policy. Name: Encargo Export Corporation committees. dba Encargo Lines dba Encargo DATES: Meeting Date: November 9, 2011, Logistics. 9:15 a.m. to 5 p.m. Sherry Glied, Address: 10800 NW 103 Street, Suite ADDRESSES: The meeting will be held at Assistant Secretary for Planning and 5–E, Miami, FL 33178. HHS headquarters at 200 Independence Evaluation. Date Revoked: September 17, 2011. Ave., SW., Washington, DC., 20201, [FR Doc. 2011–27106 Filed 10–19–11; 8:45 am] Reason: Failed to maintain valid Room 443E. BILLING CODE P bonds. Comments: The meeting will allocate License Number: 021659N. time on the agenda to hear public Name: Alto Air Freight, Inc. comments at the end of the meeting. In Address: 145 Hook Creek Blvd., Bldg. lieu of oral comments, formal written B–6–A, Valley Stream, NY 11581. comments may be submitted for the Date Revoked: September 21, 2011. record to Donald T. Oellerich, OASPE, Reason: Failed to maintain a valid 200 Independence Ave., SW., 20201, bond. Room 405F. Those submitting written

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DEPARTMENT OF HEALTH AND II. Under Part A, Chapter AR, Office and Human Services (the Secretary)) to HUMAN SERVICES of the National Coordinator for Health use Medicare claims data to evaluate the Information Technology, Section AR.10 performance of providers of services Office of the Secretary Organization, Paragraph C, ‘‘Office of and suppliers on measures of quality, Economic Analysis, Evaluation and efficiency, effectiveness, and resource Statement of Organization, Functions, Modeling (ARB),’’ delete the first use; and who agrees to meet the and Delegations of Authority; Office of sentence in its entirety and replace with requirements regarding the transparency the National Coordinator for Health the following: ‘‘The Office of Economic of their methods and their use and Information Technology Analysis, Evaluation and Modeling is protection of Medicare data as the headed by a Director.’’ Secretary may specify, if CMS: ACTION: Notice. III. Delegation of Authority. Pending a. Determines that the use or further delegation, directives or orders disclosure does not violate legal SUMMARY: The Office of the National by the Secretary or by the National limitations under which the record was Coordinator for Health Information Coordinator for Health Information provided, collected, or obtained; and Technology has reorganized its office in Technology, all delegations and b. Secures a written statement order to more effectively meet the redelegations of authority made to attesting to the information recipient’s mission outlined by The Health officials and employees of affected understanding of and willingness to Information Technology for Economic organizational components will abide by these provisions. Every and Clinical Health (HITECH) Act, part continue in them or their successors Qualified Entity receiving data must of the American Recovery and pending further redelegations, provided have an agreement with CMS in the Reinvestment Act of 2009 (ARRA). The they are consistent with this form of an Information Exchange reorganization adds the position of reorganization. Agreement or contract with all security Principal Deputy. and privacy requirements included. A Authority: 44 U.S.C. 3101. FOR FURTHER INFORMATION CONTACT: Sam Data Use Agreement (DUA) (CMS Form Shellenberger, Office of the National Dated: October 13, 2011. 0235) must be completed by the person Coordinator, Office of the Secretary, 200 Kathleen Sebelius, receiving CMS data in accordance with Independence Ave., SW., Washington, Secretary. current CMS policies. DC 20201, 202–690–7151. [FR Doc. 2011–27116 Filed 10–19–11; 8:45 am] This routine use fulfills the requirement in section 1174(e) of the SUPPLEMENTARY INFORMATION: Part A, BILLING CODE 4150–45–P Social Security Act (42 U.S.C. 1395kk Office of the Secretary, Statement of (e)) to make standardized extracts of Organization, Functions and DEPARTMENT OF HEALTH AND claims data under Medicare Parts A, B, Delegations of Authority for the HUMAN SERVICES and D available to a Qualified Entity Department of Health and Human (QE), recognized by the Secretary to Services, Chapter AR, Office of the Centers for Medicare & Medicaid make evaluations of provider/supplier National Coordinator for Health Services performance in accordance with that Information Technology (ONC), as section, and that agrees to meet specific amended at 74 FR 62785–62786, dated Privacy Act of 1974; Report of a New requirements regarding the transparency December 1, 2009, as corrected at 75 FR Routine Use for Selected CMS System of their methods and their use and 49494, dated August 13, 2010, and as of Records protection of Medicare data. The IDR, last amended at 76 FR 6795, dated National Claims History (NCH), CCDR, February 8, 2011 is amended as follows: AGENCY: Department of Health and Human Services (HHS), Centers for and Part D data will provide QEs, a I. Under Part A, Chapter AR, Office of Medicare & Medicaid Services (CMS). broader, longitudinal, national the National Coordinator for Health perspective of the performance of Information Technology, Section AR.10 ACTION: Notice of a new routine use for selected CMS system of records. Medicare providers/suppliers for use in Organization, insert Office of the authorized QE projects that could Principal Deputy as item B as follows SUMMARY: In accordance with the ultimately improve the care provided to and renumber items B through F requirements of the Privacy Act of 1974, Medicare beneficiaries and the policy accordingly: CMS is adding a new routine use to that governs the care. B. Office of the Principal Deputy disclose information to Qualified (ARA1): The Office of the Principal Entities (QEs) for selected Centers for CMS Systems of Records To Be Deputy works with and reports directly Medicare & Medicaid Services (CMS) Modified by This Routine Use to the National Coordinator and will be systems of records. Section 10332 of the This new routine use, when responsible for day-to-day operations, Patient Protection and Affordable Care published, will be added to the decision making and staff management Act (ACA) adds a new subsection to compatible systems of records used to of ONC. The Principal Deputy will Section 1874 of the Social Security Act, disclose Medicare claims information oversee the activities of four offices requiring that the Secretary establish a and numbered as the next consecutive within ONC: Office of the Deputy process to allow for the use of number in the order of published National Coordinator for Programs and standardized extracts of Medicare Parts routine uses for the following systems of Policy; Office of the Deputy National A, B, and D claims data by QEs to records notices: Coordinator for Operations; Office of evaluate and report on the performance 1. ‘‘National Claims History (NCH),’’ Economic Analysis, Evaluation and of providers of services and suppliers on System No. 09–70–0558, last published Modeling; and, Office of the Chief measures of quality, efficiency, at 71 FR 67137 (November 20, 2006). Scientist. One of the current ONC effectiveness, and resource use. The primary purpose of this system is offices, the Office of the Chief Privacy to collect and maintain billing and Officer, is a position mandated by the New Routine Use for Qualified Entities utilization data on Medicare American Recovery and Reinvestment 1. To assist a public or private entity beneficiaries enrolled in hospital Act of 2009, and will continue to report that is qualified (as determined by the insurance (Part A) or medical insurance to the National Coordinator. Secretary of the Department of Health (Part B) of the Medicare program for

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statistical and research purposes related FOR FURTHER INFORMATION CONTACT: Medicaid Services (CMS), (Federal to evaluating and studying the operation Chris Haffer, Ph.D., Program Manager, Register, Vol. 70, No. 249, pp. 77160– and effectiveness of the Medicare Data Development and Services Group, 77161, dated December 29, 2005; Vol. program. Center for Strategic Planning, Centers 75, No. 56, pp. 14176—14178, dated 2. ‘‘Medicare Drug Data Processing for Medicare and Medicaid Services, March 24, 2010; and Vol. 76, No. 144, System (DDPS),’’ System No. 09–70– 7500 Security Boulevard, Mail-stop: pp. 44933–44934, dated July 27, 2011) 0553, last published at 73 FR 30943 C3–24–07, Baltimore, MD 21244–1850. are amended to: (1) Realign the survey (May 29, 2008). The primary purpose of Office: 410–786–8764, Facsimile: (410) and certification function from the this system is to collect, maintain, and 786–5515, E-mail address: Center for Medicaid, CHIP and Survey process information on all Medicare [email protected]. & Certification to the Office of Clinical covered, and as many non-covered drug SUPPLEMENTARY INFORMATION: The Standards and Quality (OCSQ) and to events as possible, for people with statute defines QEs as public or private change the organizational title for the Medicare who have enrolled into a entities that are determined by the Center for Medicaid, CHIP and Survey Medicare Part D plan. Secretary to be qualified to use & Certification to the Center for 3. ‘‘Medicare Integrated Data Medicare claims data to make such Medicaid and CHIP Services (CMCS), Repository (IDR),’’ System No. 09–70– evaluations of provider/supplier and (2) realign the governmental 0571, published at 71 FR 74915 performance, and that agree to meet relations function from the Office of (December 13, 2006). The primary specific requirements regarding the Legislation (OL) to CMCS. Part F, purpose of this system is to establish an transparency of their methods and their Sections FC.10 (Organization) and FC.20 enterprise resource that provides one use and protection of Medicare data. (Functions) is revised as follows: integrated view of all CMS data to The statute requires that Medicare • Section FC. 10 (Organization): administer the Medicare and Medicaid claims extracts be combined with other Office of the Administrator (FC) programs. claims data, although the statute is not Office of Equal Opportunity and Civil 4. ‘‘Chronic Condition Data specific on what, or how much, other Rights (FCA) Repository (CCDR),’’ System No. 09–70– claims data should be combined with Office of Legislation (FCC) 0573, published at 71 FR 54495 Medicare claims data. The statute Office of the Actuary (FCE) (September 15, 2006). The purpose of requires that the only use of such data Office of Strategic Operations and this system is to collect and maintain a and the derived performance Regulatory Affairs (FCF) person-level view of identifiable data to information about providers and Office of Clinical Standards and Quality establish a data repository to study suppliers be in reports in an aggregate (FCG) chronically ill Medicare beneficiaries. form, released and made available to the Center for Medicare (FCH) This system utilizes data extraction public, after first making such reports Center for Medicaid and CHIP Services tools to support accessing data by available to any identified provider or (FCJ) chronic conditions and processes supplier and affording an opportunity to Center for Strategic Planning (FCK) complex customized research data appeal and correct errors. The statute Center for Program Integrity (FCL) requests related to chronic illnesses. also instructs the Secretary to take such Chief Operating Officer (FCM) DATES: The Centers for Medicare & actions as she deems necessary to Office of Minority Health (FCN) Medicaid Services (CMS) invites protect the identity of individual Center for Medicare and Medicaid interested parties to submit written beneficiaries, and authorizes her to Innovation (FCP) comments on the proposed system until establish additional requirements that Federal Coordinated Health Care Office November 16, 2011. As required by the she may specify for QEs to meet, such (FCQ) Privacy Act (5 U.S.C. 552a(r)), CMS on as ensuring the security of data. The Center for Consumer Information and October 17, 2011 sent a report of a new Medicare claims extracts are to be made Insurance Oversight (FCR) system of records to the Committee on available to QEs at a fee equal to the cost Office of Public Engagement (FCS) Homeland Security and Governmental of making such data available (the fees Office of Communications (FCT) Affairs of the Senate, the Committee on will be deposited into the Part B Trust • Section FC.20 (Functions): Oversight and Government Reform of Fund). the House of Representatives, and the Dated: October 12, 2011. Center for Medicaid and CHIP Services (FCJ) Office of Information and Regulatory Michelle Snyder, Affairs of the Office of Management and Deputy Chief Operating Officer, Centers for • Serves as CMS’ focal point for the Budget (OMB). The proposed action Medicare & Medicaid Services. formulation, coordination, integration, described in this notice is effective on [FR Doc. 2011–27149 Filed 10–19–11; 8:45 am] implementation, and evaluation of all November 26, 2011, unless CMS BILLING CODE 4120–03–P national program policies and receives comments which result in a operations relating to the Medicaid and republication of the notice. Children’s Health Insurance Program ADDRESSES: The public should address DEPARTMENT OF HEALTH AND (CHIP). comments to: CMS Privacy Officer, HUMAN SERVICES • In partnership with States, Division of Information Security & evaluates the success of State agencies Privacy Management, Enterprise Centers for Medicare & Medicaid in carrying out their responsibilities for Architecture and Strategy Group, Office Services effective State program administration of Information Services, CMS, Room and beneficiary protection, and, as Statement of Organization, Functions, N1–24–08, 7500 Security Boulevard, necessary, assists States in correcting and Delegations of Authority Baltimore, Maryland 21244–1850. problems and improving the quality of Comments received will be available for Part F of the Statement of their operations. review at this location, by appointment, Organization, Functions, and • Identifies and proposes during regular business hours, Monday Delegations of Authority for the modifications to Medicaid and CHIP through Friday from 9 a.m.–3 p.m., Department of Health and Human program measures, regulations, laws Eastern Time zone. Services, Centers for Medicare & and policies to reflect changes or trends

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in the health care industry, program beneficiaries except for demonstration Office of Legislation (FCC) objectives, and the needs of Medicaid projects residing in other components. • Provides leadership and executive beneficiaries. Collaborates with OL on • Assures that CMS’ quality-related direction within CMS for legislative the development and advancement of activities (survey and certification, planning to address the new legislative initiatives and technical assistance, beneficiary Administration’s agenda. improvements. information, payment policies and • Tracks, evaluates and develops • Serves as CMS’ lead for provider/plan incentives) are fully and provisions of annual legislative management, oversight, budget and effectively integrated. Carries out the proposals for Medicare, Medicaid, CHIP, performance issues relating to Medicaid, Health Care Quality Improvement private health insurance programs, CHIP, and the related interactions with Program for the Medicare, Medicaid, CLIA, Health Insurance Portability and the States. and CLIA programs. • Coordinates with the Center for Accountability Act and related statutes Program Integrity on the identification • Oversees the planning, policy, affecting health care financing, health of program vulnerabilities and coordination and implementation of the insurance, quality, and access in concert implementation of strategies to survey, certification and enforcement with CMS components, the Department eliminate fraud, waste, and abuse. programs for all Medicare and Medicaid and the Office of Management and • In conjunction with the Office of providers and suppliers, and for Budget. • Public Engagement, oversees all CMS laboratories under the auspices of CLIA. Advances the legislative policy process through analysis, review and interactions and collaboration relating • Serves as CMS’ lead for development of health care initiatives to Medicaid and CHIP with management, oversight, budget, and and issues. beneficiaries, States and territories and performance issues relating to the • Develops the long-range legislative key stakeholders (e.g., health facilities survey and certification program and plans for CMS in collaboration with the and other health care providers, other the related interactions with the States. Federal government entities, local CMS Centers, Offices, and the Chief • Leads in the specification and governments) and communication and Operating Officer (COO). operational refinement of an integrated • dissemination of policies, guidance and Participates with other CMS CMS quality information system, which materials to same to understand their components in the development of CMS includes tools for measuring the perspectives, support their efforts, and policy, including implementing coordination of care between health care to drive best practices for beneficiaries, regulations and administrative actions. settings; analyzes data supplied by that • in States and throughout the health care Manages pro-actively CMS’ system to identify opportunities to industry. response in times of heightened • Develops and implements a improve care and assess success of congressional oversight of CMS in comprehensive strategic plan, objectives improvement interventions. collaboration with the Centers, Offices, and measures to carry out CMS’ • Develops requirements of and COO. Manages, coordinates and Medicaid and CHIP mission and goals participation for providers and plans in develops policies for responding to and position the organization to meet the Medicare, Medicaid, and CLIA congressional inquiries. • future challenges with the Medicaid and programs. Revises requirements based Coordinates activities with the CHIP programs. on statutory change and input from Office of the Assistant Secretary for other components. Legislation (ASL) and serves as the Office of Clinical Standards and • ASL’s principal contact point on Quality (FCG) Operates the Quality Improvement Organization and End-Stage Renal legislative and congressional relations. • • Serves as the focal point for all Disease Network program in In collaboration with CMS Centers, quality, clinical, medical science issues, conjunction with Regional Offices, Offices, and the COO, provides survey and certification, and policies for providing policies and procedures, technical assistance, consultation and CMS’ programs. Provides leadership contract design, program coordination, information services to congressional and coordination for the development and leadership in selected projects. committees and individual members of Congress on the Medicare, Medicaid, and implementation of a cohesive, CMS- • wide approach to measuring and Identifies, prioritizes and develops CHIP, and private health insurance promoting quality and leads CMS’ content for clinical and health related programs, new CMS initiatives, and priority-setting process for clinical aspects of CMS’ Consumer Information pertinent legislation. quality improvement. Coordinates Strategy; collaborates with other • In collaboration with the CMS quality-related activities with outside components to develop comparative Centers, Offices, and COO, provides organizations. Monitors quality of provider and plan performance technical, analytical, advisory, and Medicare, Medicaid, and the Clinical information for consumer choices. information services to CMS’ Laboratory and Improvement • Prepares the scientific, clinical, and components, the Department, the White Amendments (CLIA). Evaluates the procedural basis for coverage of new House, OMB, other government success of interventions. and established technologies and agencies, private organizations and the • Identifies and develops best services and provides coverage general public on CMS legislation. practices and techniques in quality recommendations to the CMS • Tracks and reports on legislation improvement; implementation of these Administrator. Coordinates activities of relating to CMS programs and maintains techniques will be overseen by CMS’ Technology Advisory Committee legislative reference library. appropriate components. Develops and and maintains liaison with other • Coordinates CMS’ participation in collaborates on demonstration projects departmental components regarding the congressional hearings, including to test and promote quality safety and effectiveness of technologies preparation of testimony and briefing measurement and improvement. and services; prepares the scientific and materials, and covers all other • Develops, tests, evaluates, adopts clinical basis for, and recommends congressional hearings on matters of and supports performance measurement approaches to, quality-related medical interest to CMS except Appropriations systems (i.e., quality measures) to review activities of carriers and Committee hearings specifically on the evaluate care provided to CMS payment policies. appropriation budget.

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Authority: 44 U.S.C. 3101. the Division of Drug Information (HFD– from both regulatory and industry Dated: October 13, 2011. 240), Center for Drug Evaluation and representatives. FDA also seeks input Michelle Snyder, Research, Food and Drug from consumer representatives and Administration, 10903 New Hampshire others. ICH is concerned with Deputy Chief Operating Officer, Centers for Medicare & Medicaid Services. Ave., Bldg. 51, rm. 2201, Silver Spring, harmonization of technical MD 20993–0002, or the Office of requirements for the registration of [FR Doc. 2011–27169 Filed 10–19–11; 8:45 am] Communication, Outreach and pharmaceutical products among three BILLING CODE 4120–01–P Development (HFM–40), Center for regions: The European Union, Japan, Biologics Evaluation and Research and the United States. The six ICH DEPARTMENT OF HEALTH AND (CBER), Food and Drug Administration, sponsors are the European Commission; HUMAN SERVICES 1401 Rockville Pike, Rockville, MD the European Federation of 20852–1448. Send one self-addressed Pharmaceutical Industries Associations; Food and Drug Administration adhesive label to assist the office in the Japanese Ministry of Health, Labor, processing your requests. The draft and Welfare; the Japanese [Docket No. FDA–2011–D–0720] documents may also be obtained by Pharmaceutical Manufacturers Association; the Centers for Drug International Conference on mail by calling CBER at 1–800–835– Evaluation and Research and Biologics Harmonisation; E2B(R3) Electronic 4709 or 301–827–1800. See the Evaluation and Research, FDA; and the Transmission of Individual Case Safety SUPPLEMENTARY INFORMATION section for Pharmaceutical Research and Reports; Draft Guidance on electronic access to the draft documents. Submit electronic comments on the Manufacturers of America. The ICH Implementation; Data Elements and draft documents to http:// Secretariat, which coordinates the Message Specification; Appendix on www.regulations.gov. Submit written preparation of documentation, is Backwards and Forwards comments to the Division of Dockets provided by the International Compatibility; Availability Management (HFA–305), Food and Drug Federation of Pharmaceutical AGENCY: Food and Drug Administration, Administration, 5630 Fishers Lane, rm. Manufacturers Associations (IFPMA). HHS. 1061, Rockville, MD 20852. The ICH Steering Committee includes representatives from each of the ICH ACTION: Notice. FOR FURTHER INFORMATION CONTACT: Regarding the guidance: sponsors and the IFPMA, as well as SUMMARY: The Food and Drug Krishna K. Chary, Center for Drug observers from the World Health Administration (FDA) is announcing the Evaluation and Research, Food and Organization, Health Canada, and the availability of a draft guidance entitled Drug Administration, 8201 Corporate European Free Trade Area. In June and July 2011, the ICH ‘‘E2B(R3) Electronic Transmission of Dr., suite 540, Landover, MD 20785, Steering Committee agreed that a draft Individual Case Safety Reports (ICSRs): 240–487–7377, fax: 301–459–2285, e- guidance entitled ‘‘E2B(R3) Electronic Implementation Guide—Data Elements mail: [email protected]; or and Message Specification’’ (the draft Deborah F. Yaplee, Center for Biologics Transmission of Individual Case Safety E2B(R3) implementation guidance) and Evaluation and Research (HFM–25), Reports (ICSRs): Implementation an appendix to the draft guidance Food and Drug Administration, 1401 Guide—Data Elements and Message entitled ‘‘ICSRs: Appendix to the Rockville Pike, Rockville, MD 20852, Specification’’ and a draft appendix Implementation Guide—Backwards and 301–827–3288, fax: 301–827–9434, e- entitled ‘‘ICSRs: Appendix to the Implementation Guide—Backwards and Forwards Compatibility’’ (the draft BFC mail: [email protected]. appendix). The draft E2B(R3) Forwards Compatibility’’ should be Regarding the ICH: made available for public comment. The implementation guidance and draft BFC Michelle Limoli, Office of International appendix were prepared under the documents are the product of the Programs, Food and Drug E2B(R3) Expert Working Group of the auspices of the International Conference Administration, 10903 New on Harmonisation of Technical ICH. Comments about these documents Hampshire Ave., Bldg. 31, rm. 3506, will be considered by FDA and the Requirements for Registration of Silver Spring, MD 20993, 301–796– Pharmaceuticals for Human Use (ICH). E2B(R3) Expert Working Group. 4600. The key intention of the draft E2B(R3) The draft E2B(R3) implementation implementation guidance is to revise guidance is intended to revise the SUPPLEMENTARY INFORMATION: the standards for submission of ICSRs standards for submission of ICSRs and I. Background and improve the inherent quality of the improve the inherent quality of the data, In recent years, many important data, enabling improved handling and enabling improved handling and initiatives have been undertaken by analysis of ICSRs. The draft E2B(R3) analysis of ICSR reports. The draft BFC regulatory authorities and industry implementation guidance provides appendix describes the relationship associations to promote international support for the implementation of between data elements from the 2001 harmonization of regulatory software tools for creating, editing, ICH E2B guidance and draft E2B(R3) requirements. FDA has participated in sending, and receiving electronic ICSR implementation guidance. many meetings designed to enhance messages. The draft E2B(R3) DATES: Although you can comment on harmonization and is committed to implementation guidance provides any guidance at any time (see 21 CFR seeking scientifically based harmonized instruction for how pharmaceutical 10.115(g)(5)), to ensure that the Agency technical procedures for pharmaceutical industries and regulatory authorities considers your comment on these draft development. One of the goals of should use Part 2 of the International documents before it begins work on the harmonization is to identify and then Organization for Standardization (ISO) final versions of the documents, submit reduce differences in technical ICSR standard to construct messages for either electronic or written comments requirements for drug development exchanging pharmacovigilance on the draft documents by January 18, among regulatory Agencies. information among themselves in ICH 2011. The ICH was organized to provide an regions, and in other countries adopting ADDRESSES: Submit written requests for opportunity for tripartite harmonization ICH guidelines. The draft BFC appendix single copies of the draft documents to initiatives to be developed with input describes the relationship between data

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elements from E2B(R2) and E2B(R3) and DEPARTMENT OF HEALTH AND Oceans Canada, to conduct a is intended to assist reporters and HUMAN SERVICES quantitative food safety risk assessment recipients in implementing systems on norovirus in bivalve molluscan with special focus on the Food and Drug Administration shellfish, specifically, oysters, clams, recommendations for converting back [Docket No. FDA–2011–N–0002] and mussels. FDA, on behalf of the and forth between E2B(R2) and E2B(R3) collaborative team, is requesting ICSR reports. The draft E2B(R3) General and Plastic Surgery Devices submission of comments and scientific implementation guidance and draft BFC Panel of the Medical Devices Advisory data and information that would assist appendix are being issued as a package Committee: Notice of Postponement of in the development of the risk assessment. that includes schema files and Meeting DATES: Submit either electronic or additional technical information. AGENCY: Food and Drug Administration, written comments and scientific data The draft E2B(R3) implementation HHS. and information by January 18, 2012. guidance and BFC appendix are being ACTION: Notice. ADDRESSES: Submit electronic issued consistent with FDA’s good SUMMARY: comments and scientific data and guidance practices regulation (21 CFR The Food and Drug Administration (FDA) is postponing the information to http:// 10.115). The documents, when meeting of the General and Plastic www.regulations.gov. Submit written finalized, will represent the Agency’s Surgery Devices Panel of the Medical comments and scientific data and current thinking on this topic. The Devices Advisory Committee scheduled information to the Division of Dockets documents do not create or confer any for December 1, 2011. The meeting was Management (HFA–305), Food and Drug rights for or on any person and do not announced in the Federal Register of Administration, 5630 Fishers Lane, Rm. operate to bind FDA or the public. An Friday, October 7, 2011 (76 FR 62419). 1061, Rockville, MD 20852. alternative approach may be used if The meeting is postponed so that FDA FOR FURTHER INFORMATION CONTACT: Jane such approach satisfies the can review and consider additional M. Van Doren, Center for Food Safety requirements of the applicable statutes information that was submitted. A and Applied Nutrition (HFS—005), and regulations. future meeting date will be announced Food and Drug Administration, 5100 II. Comments in the Federal Register. Paint Branch Pkwy., College Park, MD FOR FURTHER INFORMATION CONTACT: 20740, 240–402–2927. Interested persons may submit to the Avena Russell, Center for Devices and SUPPLEMENTARY INFORMATION: Division of Dockets Management (see Radiological Health, Food and Drug I. Background ADDRESSES) either electronic or written Administration, 10903 New Hampshire comments regarding these documents. It Ave., Bldg. 66, rm. 1535, Silver Spring, Noroviruses constitute a genus of is only necessary to send one set of MD 20993–0002, 301–796–3805, e-mail: genetically diverse, single-stranded comments. It is no longer necessary to [email protected], or FDA ribonucleic acid (RNA) viruses send two copies of mailed comments. Advisory Committee Information Line, belonging to the family Caliciviridae Identify comments with the docket 1–800–741–8138 (301–443–0572 in the (Ref. 1). Noroviruses cause millions of cases of acute gastroenteritis in the number found in brackets in the Washington, DC area). Please call the United States and thousands of cases in heading of this document. Received Information Line for up-to-date information on this meeting. Canada annually (Refs. 2 to 4). The comments may be seen in the Division viruses can be transmitted through Dated: October 14, 2011. of Dockets Management between 9 a.m. consumption of norovirus-contaminated and 4 p.m., Monday through Friday. Jill Hartzler Warner, food or water, through person-to-person Acting Associate Commissioner for Special III. Electronic Access contact, or through contact with Medical Programs. contaminated surfaces (Refs. 1 and 5). Persons with access to the Internet [FR Doc. 2011–27209 Filed 10–19–11; 8:45 am] Most norovirus outbreaks attributed to may obtain the documents at http:// BILLING CODE 4160–01–P bivalve molluscan shellfish www.regulations.gov, http:// consumption have been traced to www.fda.gov/Drugs/Guidance contamination during growth and DEPARTMENT OF HEALTH AND harvest (Refs. 1 and 6). Bivalve ComplianceRegulatoryInformation/ HUMAN SERVICES Guidances/default.htm, or http:// molluscan shellfish are typically grown www.fda.gov/BiologicsBloodVaccines/ Food and Drug Administration in estuaries, which may contain GuidanceComplianceRegulatory norovirus-contaminated human fecal [Docket No. FDA–2011–N–0731] Information/Guidances/default.htm. material from municipal wastewater outfalls, combined sewer overflow, or Dated: October 17, 2011. Risk Assessment on Norovirus in non-point sources of pollution Leslie Kux, Bivalve Molluscan Shellfish: Request including human waste discharged from for Comments and for Scientific Data Acting Assistant Commissioner for Policy. marine vessels (Refs. 6 to 8). Under and Information [FR Doc. 2011–27147 Filed 10–19–11; 8:45 am] some conditions, bivalve molluscan BILLING CODE 4160–01–P AGENCY: Food and Drug Administration, shellfish bioaccumulate waste HHS. contaminants (Ref. 9), thereby ACTION: Notice; request for comments increasing the contaminant level in the and for scientific data and information. bivalve molluscan shellfish relative to that in the water. SUMMARY: The Food and Drug Both the United States and Canada Administration (FDA) is undertaking a have developed detailed guidelines, in collaboration with Health Canada, the collaboration with their respective Canadian Food Inspection Agency, federal, state or provincial, tribal, and Environment Canada, and Fisheries and industry partners, to help ensure

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shellfish food safety. The requirements design and development of the risk as a function of type of treatment, water described in these documents (Refs. 10 assessment. Data that include temperature, and season. Data should and 11) reflect a risk-based approach to measurements of norovirus or enteric include the date and time of the reduce levels of indicator organisms, viral surrogate should identify the measurement, volume rate of flow, including total and fecal coliforms, methods of analysis and detection, weather, size of the community served, thereby decreasing the probability of virus/surrogate and genotype detected, and the presence of norovirus outbreaks pathogenic contamination of shellfish. and recovery rate, if available (e.g., in the population at the time of FDA, in collaboration with Health analysis of single oyster diverticulum measurement (if known). FDA Canada, the Canadian Food Inspection using real-time reverse transcription specifically requests comparisons of Agency, Environment Canada, and quantitative polymerase chain reaction norovirus or enteric viral surrogate Fisheries and Oceans Canada (the joint (RT-qPCR) for norovirus GII with 80% loads in raw wastewater and WWT U.S.-Canada risk assessment team), is recovery). Areas of particular interest effluent obtained during the same time planning to conduct a quantitative risk include epidemiology of norovirus period and from the same facility; assessment that can be used to evaluate illness, pre-harvest preventive practice 3. Experimental data and models the impact of preventive practices and and controls, post-harvest preventive describing dilution of WWT effluent in controls on the risk of human norovirus practices and controls, food preparation the estuary (e.g., water exchange rate illness associated with consumption of and consumption practices, and the and tidal flush volume) for a bivalve molluscan shellfish. The risk relationship between norovirus dose representative estuary or estuaries in assessment will focus on norovirus and adverse health effects. general. Information should include contamination of bivalve molluscan details on calculations used within the shellfish arising from growth, harvest, A. Epidemiology of Norovirus Illness model; and post-harvest processing. This risk We request data and information 4. Experimental data and models assessment will focus on oysters, clams, about the following aspects of the describing norovirus or enteric viral and mussels. The principal objectives of epidemiology of norovirus illness: surrogate loss processes that may occur this risk assessment are to: 1. Patterns of transmission of in an estuary, including inactivation by • Evaluate the relative impact of norovirus in different settings, such as ultraviolet radiation or sunlight, selected factors (e.g., size of the in a community, a nursing facility, or a association with particulate followed by community contributing to the household; sedimentation, and predation by marine municipal wastewater catchment, 2. Proportion of norovirus illness due organisms. Data submitted should wastewater treatment, water to person-to-person transmission, food include experimental conditions and temperature in bivalve molluscan consumption, and bivalve molluscan ranges (e.g., water temperature, water shellfish growing and harvest areas, shellfish consumption; salinity, season, and estuary water harvest season, post-harvest processes, 3. Proportion and determinants of exchange rate); food production practices, and individual resistance to norovirus 5. Concentration of norovirus or consumption patterns) on the risk of infection; enteric viral surrogates in sediments, human norovirus illness associated with 4. Underreporting rate for norovirus events that cause re-suspension of the consumption of bivalve molluscan illnesses arising from consumption of sediment, and data describing the shellfish; norovirus-contaminated food in United relationship between nearby sediment • Assess the impact on the level of States or Canada; and and the concentration of norovirus or risk of specified control measures 5. Models describing the transmission enteric viral surrogates in bivalve currently used to mitigate risks from of norovirus in a population. molluscan shellfish. Data submitted norovirus contamination of bivalve should include information about the B. Preventive Practices and Controls and molluscan shellfish growing waters sediment sampled (e.g., depth, Other Factors Influencing Bivalve including those recommended by temperature, water salinity, season) and Molluscan Shellfish Contamination National Shellfish Sanitation Program shellfish sampled (e.g., nutrient Levels (NSSP) and Canadian Shellfish availability, growth substrate, water Sanitation Program (CSSP); We request data and information temperature, water salinity, season, • Identify additional preventive about the following aspects of species, and animal variance), if practices and controls that could be preventive practices and controls and applicable; implemented in the future; and other factors influencing bivalve 6. Characteristics of sites where • Inform the development of a Food molluscan shellfish contamination stratification of WWT effluent discharge Safety Objective (Ref. 12) for norovirus levels: in the water column occurs (e.g., contamination in bivalve molluscan 1. Prevalence of different types of temperature, salinity, depth, surface shellfish and/or a Performance treatment in municipal wastewater winds, storm activity, local Objective (Ref. 12) for bivalve molluscan treatment (WWT) facilities in the United hydrodynamics, and outfall design) and shellfish growth and harvest waters. States and Canada, their relative size the impact of these characteristics on Contamination arising from (population served), and their location norovirus or enteric viral surrogate transmission of norovirus from infected relative to bivalve molluscan shellfish concentrations in bivalve molluscan or ill food workers in food growing/harvest areas. Data submitted shellfish growing/harvest areas (e.g., manufacturing or retail establishments should also include information about plume movement and mixing); to bivalve molluscan shellfish is outside treatment process(es) (e.g., 7. Norovirus or enteric viral surrogate the scope of this risk assessment. sequence,timing, and/or concentration loads from marine vessel discharge, of bacteria/viral reducing agent) and combined sewer overflow, or other II. Request for Comments, Scientific effluent flow (volumerates of flow sporadic events that might contaminate Data, and Information observed in the facility and the factors bivalve molluscan shellfish growing/ FDA, on behalf of the joint U.S.- that influence the rate); harvest areas; Canada risk assessment team, is 2. Norovirus or enteric viral surrogate 8. Uptake rate of norovirus or enteric requesting comments, scientific data, loads in raw wastewater and treated viral surrogates by bivalve molluscan and information to be considered in the effluent from municipal WWT facilities shellfish and determinations of the

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bioaccumulation factor (BAF). Data and treatments preferentially serve different concentration of norovirus or enteric information should include a postmarkets (e.g., raw/cooked); viral surrogates in bivalve molluscan description of the impacts of pathogen 4. Experimental data and models that shellfish, by species. Data submitted particle association, concentration of the describe the impact of wet storage, should include food preparation and pathogen in the water surrounding the relaying, and depuration on the cooking parameters and ranges (e.g., bivalve molluscan shellfish, nutrient concentration of norovirus or enteric temperature and time); and availability, growth substrate, water viral surrogate in bivalve molluscan 5. Prevalence distribution of temperature, water salinity, season, shellfish. Data submitted should specify norovirus or enteric viral surrogate in species, and animal variance on this rate process and experimental conditions bivalve molluscan shellfish, by species, and the BAF. Data submitted should including parameter ranges (e.g., at the point of consumption as a specify the experimental conditions process time, water temperature, water function of season, region and during which uptake was measured salinity, nutrient availability, growth preparation technique. (e.g., batch feeding, flow-through substrate, species, and season) as well as feeding, or natural environmental animal variance; E. Relationship Between Norovirus Dose conditions); 5. Proportion of bivalve molluscan and Adverse Human Health Effects 9. Inactivation rate of norovirus or shellfish, by species, that undergo high We request data and information enteric viral surrogates within bivalve hydrostatic pressure (HHP), mild heat, about the following aspects of the molluscan shellfish, including the irradiation, freezing, or other relationship between norovirus dose impacts of nutrient availability, growth postharvest processes. Data are also and adverse human health effects substrate, water temperature, water requested to determine whether bivalve including: salinity, season, species, and animal molluscan shellfish undergoing these 1. Human or animal studies that variance on this rate. Data submitted different treatments preferentially serve describe the relationship between should specify the experimental different postmarkets (e.g., raw/cooked); norovirus dose and the probability and conditions during which inactivation 6. Protocols/conditions and parameter severity of human illness; was measured (e.g., batch, flow-through, ranges for HHP, mild heat, irradiation, 2. Human norovirus outbreak data or natural environmental conditions); freezing, or other postharvest processes that describe the relationship between 10. Elimination rate of norovirus or as applied to bivalve molluscan norovirus dose and the probability and enteric viral surrogates from bivalve shellfish by the shellfish industry; and severity of human illness; and molluscan shellfish including the 7. Experimental data and models that 3. Epidemiological and mechanistic impacts of nutrient availability, growth describe the impact of HHP, mild heat, data identifying/describing different substrate, water temperature, water irradiation, freezing, or other post- rates of illness or health outcomes for salinity, season, species, and animal harvest processes on the concentration particular populations (e.g., vulnerable/ variance on this rate. Data submitted of norovirus or enteric viral surrogate in susceptible populations and resistant should specify the experimental bivalve molluscan shellfish. Data populations) exposed to norovirus. conditions during which elimination submitted should specify the processing was measured (e.g., batch, flow-through, and experimental conditions, parameter III. Comments ranges (e.g., time, pressure and or natural environmental conditions); Interested persons may submit to the temperature), species, and animal and Division of Dockets Management (see 11. Models that specifically address variance. ADDRESSES) either electronic or written uptake, inactivation and elimination of D. Preventive Practice and Controls and comments and scientific data and norovirus or enteric viral surrogates by Other Factors Influencing Bivalve information regarding this document. It bivalve molluscan shellfish. Molluscan Shellfish Contamination is only necessary to send one set of C. Post-Harvest Preventive Practice and Levels During Food Preparation and comments and scientific data and Controls and Other Factors Influencing Bivalve Molluscan Shellfish information. It is no longer necessary to Bivalve Molluscan Shellfish Consumption Data send two copies of mailed comments Contamination Levels We request data and information and scientific data and information. We request data and information about the following aspects of Identify comments and scientific data about the following aspects of post- preventive practice and controls and and information with the docket harvest preventive practice and controls other factors influencing bivalve number found in brackets in the and other factors influencing bivalve molluscan shellfish contamination heading of this document. Received molluscan shellfish contamination levels during food preparation and comments and scientific data and levels: bivalve molluscan shellfish information may be seen in the Division 1. Regional and seasonal landings of consumption: of Dockets Management between 9 a.m. bivalve molluscan shellfish species in 1. Proportion of bivalve molluscan and 4 p.m., Monday through Friday. the United States and Canada; shellfish, by species, eaten raw and IV. References 2. Prevalence and concentration of cooked, including method of cooking norovirus or enteric viral surrogates in (e.g., steaming, frying, or baking); The following references have been bivalve molluscan shellfish at the time 2. Distribution of bivalve molluscan placed on display in the Division of of harvest, classified by species, shellfish meal sizes, categorized by Dockets Management (see ADDRESSES) location, and seasonal landing; species, with regard to season, region, and may be seen by interested persons 3. Proportion of bivalve molluscan and preparation technique; between 9 a.m. and 4 p.m., Monday shellfish, by species, that undergo wet 3. Distribution of temperatures and through Friday. (FDA has verified the storage, relaying and depuration and the times associated with cooking methods Web site addresses, but we are not conditions (e.g., times and (e.g., steaming, frying, or baking) for responsible for any subsequent changes temperatures) of these practices as bivalve molluscan shellfish, by species; to the Web sites after this document applied by the shellfish industry. Data 4. Experimental data and models publishes in the Federal Register.) are also requested to determine whether describing the impact of food 1. Centers for Disease Control and shellfish undergoing these different preparation technique on the Prevention, Norovirus Technical Fact

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Sheet, http://www.cdc.gov/ncidod/dvrd/ Standards Program, Codex Alimentarius DEPARTMENT OF HEALTH AND revb/gastro/norovirus-factsheet.htm. Commission Procedural Manual, 20th HUMAN SERVICES 2. Centers for Disease Control and ed. 113, 2011, ftp://ftp.fao.org/codex/ Prevention, Norovirus: Surveillance, Publications/ProcManuals/Manual_20e. National Institutes of Health Disease Burden, and Disease Reduction pdf. Activities, http://www.cdc.gov/ncidod/ Center for Scientific Review; Notice of dvrd/revb/gastro/norovirus-surv- Dated: October 14, 2011. Closed Meetings Leslie Kux, disease-burden.htm. Pursuant to section 10(d) of the 3. National Microbiology Laboratory Acting Assistant Commissioner for Policy. Federal Advisory Committee Act, as and Public Health Agency of Canada, [FR Doc. 2011–27101 Filed 10–19–11; 8:45 am] amended (5 U.S.C. App.), notice is National Enteric Surveillance Program, BILLING CODE 4160–01–P hereby given of the following meetings. ‘‘Annual Summary of Laboratory The meetings will be closed to the Surveillance Data for Enteric Pathogens public in accordance with the in Canada,’’ 2009. DEPARTMENT OF HEALTH AND provisions set forth in sections 4. Majowicz, S.E., V.L. Edge, A. Fazil, HUMAN SERVICES 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., et al., ‘‘Estimating the Under-Reporting as amended. The grant applications and Rate for Infectious Gastrointestinal National Institutes of Health the discussions could disclose Illness in Ontario,’’ Canadian Journal of confidential trade secrets or commercial Public Health, vol. 96, pp. 178–181, National Institute on Aging property such as patentable material, 2005. and personal information concerning 5. Gerba, C.P. and D. Kayed, ACTION: Notice of Closed Meeting. individuals associated with the grant ‘‘Caliciviruses: A Major Cause of applications, the disclosure of which Foodborne Illness,’’ Journal of Food Pursuant to section 10(d) of the would constitute a clearly unwarranted Science, vol. 68, pp. 1136–1142, 2003. 6. Kohn, M.A., T.A. Farley, T. Ando, Federal Advisory Committee Act, as invasion of personal privacy. et al., ‘‘An Outbreak of Norwalk Virus amended (5 U.S.C. App.), notice is Name of Committee: Center for Scientific Gastroenteritis Associated With Eating hereby given of the following meeting. Review Special Emphasis Panel, Oysters: Implications for Maintaining The meeting will be closed to the Collaborative: PAR 09–153 R01s for Clinical Safe Oyster Beds,’’ Journal of the public in accordance with the and Services Studies of Mental Disorders, AIDS and Alcohol Use Disorders. American Medical Association, vol. 273, provisions set forth in sections Date: November 9, 2011. pp. 466–471, 1995. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Time: 9 a.m. to 10 a.m. 7. Shieh, Y.C., R.S. Baric, J.W. Woods, as amended. The grant applications and Agenda: To review and evaluate grant et al., ‘‘Molecular Surveillance of the discussions could disclose applications. Enterovirus and Norwalk-Like Virus in confidential trade secrets or commercial Place: Marriott Wardman Park Washington, Oysters Relocated to a Municipal- property such as patentable material, DC Hotel, 2660 Woodley Road, NW., Washington, DC 20008. Sewage-Impacted Gulf Estuary,’’ and personal information concerning Applied and Environmental Contact Person: Mark P Rubert, Ph.D., individuals associated with the grant Scientific Review Officer, Center for Microbiology, vol. 69, pp. 7130–7136, applications, the disclosure of which 2003. Scientific Review, National Institutes of Health, 6701 Rockledge Drive, Room 5218, 8. J.A. Lowther, K. Henshilwood, and would constitute a clearly unwarranted invasion of personal privacy. MSC 7852, Bethesda, MD 20892, 301–435– D.N. Lees, ‘‘Determination of Norovirus 1775, [email protected]. Name of Committee: National Institute on Contamination in Oysters From Two Name of Committee: Center for Scientific Commercial Harvesting Areas Over an Aging Special Emphasis Panel; Mechanisms Review Special Emphasis Panel, Small Extended Period, Using of Osteoporosis II. Business: HIV/AIDS Innovative Research Semiquantitative Real-Time Reverse Date: November 15, 2011. Applications. Transcription PCR,’’ Journal of Food Time: 12 p.m. to 4 p.m. Date: November 9, 2011. Protection, vol. 71, pp. 1427–1433, Agenda: To review and evaluate grant Time: 10 a.m. to 1 p.m. 2008. applications. Agenda: To review and evaluate grant 9. Burkhardt, W., III and K. Calci, Place: National Institute on Aging, applications. ‘‘Selective Accumulation May Account Gateway Building, 7201 Wisconsin Avenue, Place: Marriott Wardman Park Washington, for Shellfish-Associated Viral Illness,’’ Suite 2C212, Bethesda, MD 20892 DC Hotel. 2660 Woodley Road, NW., (Telephone Conference Call). Washington, DC 20008. Applied Environmental Microbiology, Contact Person: Mark P. Rubert, Ph.D., Contact Person: Alexander Parsadanian, vol. 66, pp. 1375–1378, 2000. Scientific Review Officer, Center for PhD, Scientific Review Officer, National 10. National Shellfish Sanitation Scientific Review, National Institutes of Program (NSSP) Guide for the Control of Institute on Aging, Gateway Building 2C/212, Health, 6701 Rockledge Drive, Room 5218, Molluscan Shellfish 2009 Revision, 7201 Wisconsin Avenue, Bethesda, MD MSC 7852, Bethesda, MD 20892, 301–435– http://www.fda.gov/Food/FoodSafety/ 20892, 301–496–9666, 1775, [email protected]. Product-SpecificInformation/Seafood/ [email protected]. Name of Committee: AIDS and Related FederalStatePrograms/ (Catalogue of Federal Domestic Assistance Research Integrated Review Group, AIDS NationalShellfishSanitationProgram/ Program Nos. 93.866, Aging Research, Molecular and Cellular Biology Study ucm046353.htm. National Institutes of Health, HHS) Section. Date: November 21, 2011. 11. Canadian Shellfish Sanitation Dated: October 14, 2011. Program (CSSP) Manual of Operations, Time: 8 a.m. to 5 p.m. http://www.inspection.gc.ca/english/ Jennifer S. Spaeth, Agenda: To review and evaluate grant applications. Ritz Carlton Hotel, 1150 22nd fssa/fispoi/man/cssppccsm/shemolalle. Director, Office of Federal Advisory Committee Policy. Street, NW., Washington, DC 20037. pdf. Contact Person: Kenneth A. Roebuck, 12. Joint Food and Agriculture [FR Doc. 2011–27180 Filed 10–19–11; 8:45 am] Ph.D., Scientific Review Officer, Center for Organization of the United Nations/ BILLING CODE 4140–01–P Scientific Review, National Institutes of World Health Organization Food Health, 6701 Rockledge Drive, Room 5214,

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MSC 7852, Bethesda, MD 20892, (301) 435– The meeting will be closed to the DEPARTMENT OF HEALTH AND 1166, [email protected]. public as indicated below in accordance HUMAN SERVICES Name of Committee: AIDS and Related with the provisions set forth in section Research Integrated Review Group, AIDS 552b(c)(6), Title 5 U.S.C., as amended National Institutes of Health Immunology and Pathogenesis Study for the review, discussion, and Section. evaluation of individual intramural National Institute of Allergy and Date: November 21, 2011. programs and projects conducted by the Infectious Diseases; Notice of Closed Time: 8 a.m. to 6 p.m. Meeting Agenda: To review and evaluate grant National Human Genome Research applications. Institute, including consideration of Pursuant to section 10(d) of the Place: Ritz Carlton Hotel, 1150 22nd Street, personnel qualifications and Federal Advisory Committee Act, as NW., Washington, DC 20037. performance, and the competence of amended (5 U.S.C. App.), notice is Contact Person: Shiv A. Prasad, Ph.D., individual investigators, the disclosure hereby given of the following meeting. Scientific Review Officer, Center for of which would constitute a clearly The meeting will be closed to the Scientific Review, National Institutes of unwarranted invasion of personal public in accordance with the Health, 6701 Rockledge Drive, Room 5220, privacy. MSC 7852, Bethesda, MD 20892, 301–443– provisions set forth in sections 5779, [email protected]. Name of Committee: Board of Scientific 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Name of Committee: Center for Scientific Counselors, National Human Genome as amended. The grant applications and Review Special Emphasis Panel, Academic Research Institute. the discussions could disclose Research Enhancement AREA Grant Date: November 14–16, 2011. confidential trade secrets or commercial Applications. Open: November 14, 2011, 5:45 p.m. to property such as patentable material, Date: November 21–22, 2011. 7:30 p.m. and personal information concerning Date: 9 a.m. to 5 p.m. Agenda: Updates from the Director and individuals associated with the grant Agenda: To review and evaluate grant Scientific Director. Place: Legacy Hotel and Meeting Center, applications, the disclosure of which applications. would constitute a clearly unwarranted Place: National Institutes of Health, 6701 1775 Rockville Pike, Salon II, Rockville, MD Rockledge Drive, Bethesda, MD 20892 20852. invasion of personal privacy. (Virtual Meeting). Closed: November 14, 2011, 7:30 p.m. to 11 Name of Committee: Microbiology, Contact Person: Elena Smirnova, Ph.D., p.m. Infectious Diseases and AIDS Initial Review Scientific Review Officer, Center for Agenda: To review and evaluate personal Group, Acquired Immunodeficiency Scientific Review, National Institutes of qualifications and performance, and Syndrome Research Review Committee. Health, 6701 Rockledge Drive, Room 5187, competence of individual investigators. Date: November 15, 2011. MSC 7840, Bethesda, MD 20892, 301–435– Place: Legacy Hotel and Meeting Center, Time: 10 a.m. to 4 p.m. 1236, [email protected]. 1775 Rockville Pike, Rockville, MD 20852. Agenda: To review and evaluate grant Closed: November 15, 2011, 8 a.m. to 6 (Catalogue of Federal Domestic Assistance applications. p.m. Program Nos. 93.306, Comparative Medicine; Place: National Institutes of Health, 6700B Agenda: To review and evaluate personal 93.333, Clinical Research, 93.306, 93.333, Rockledge Drive, Bethesda, MD 20817, qualifications and performance, and 93.337, 93.393–93.396, 93.837–93.844, (Telephone Conference Call). competence of individual investigators. 93.846–93.878, 93.892, 93.893, National Contact Person: Sujata Vijh, PhD, Scientific Place: National Human Genome Research Institutes of Health, HHS) Review Officer, Scientific Review Program, Institute, 5635 Fishers Lane, Bethesda, MD DEA/NIAID/NIH, 6700B Rockledge Drive, Dated: October 14, 2011. 20892. MSC 7616, Bethesda, MD 20892–7616, 301– Jennifer S. Spaeth, Closed: November 16, 2011, 8 a.m. to 3:30 594–0985, [email protected]. Director, Office of Federal Advisory p.m. (Catalogue of Federal Domestic Assistance Committee Policy. Agenda: To review and evaluate personal Program Nos. 93.855, Allergy, Immunology, qualifications and performance, and and Transplantation Research; 93.856, [FR Doc. 2011–27224 Filed 10–19–11; 8:45 am] competence of individual investigators. BILLING CODE 4140–01–P Microbiology and Infectious Diseases Place: National Human Genome Research Research, National Institutes of Health, HHS) Institute, 5635 Fishers Lane, Bethesda, MD 20892. Dated: October 14, 2011. DEPARTMENT OF HEALTH AND Contact Person: Claire Kelso, Intramural Jennifer S. Spaeth, HUMAN SERVICES Program Specialist, Division of Intramural Director, Office of Federal Advisory Research, Office of the Scientific Director, Committee Policy. National Institutes of Health National Human Genome Research Institute, 50 South Drive, Building 50, Room 5222, [FR Doc. 2011–27241 Filed 10–19–11; 8:45 am] National Human Genome Research Bethesda, MD 20892–8002. 301 435–5802. BILLING CODE 4140–01–P Institute; Notice of Meeting [email protected]. Any interested person may file written Pursuant to section 10(d) of the comments with the committee by forwarding DEPARTMENT OF HEALTH AND Federal Advisory Committee Act, as the statement to the Contact Person listed on HUMAN SERVICES amended (5 U.S.C. App.), notice is this notice. The statement should include the hereby given of a meeting of the Board name, address, telephone number and when National Institutes of Health of Scientific Counselors, National applicable, the business or professional National Human Genome Research Human Genome Research Institute. affiliation of the interested person. Institute; Notice of Closed Meetings The meeting will be open to the (Catalogue of Federal Domestic Assistance Program Nos. 93.172, Human Genome public as indicated below, with Research, National Institutes of Health, HHS) Pursuant to section 10(d) of the attendance limited to space available. Federal Advisory Committee Act, as Individuals who plan to attend and Dated: October 14, 2011. amended (5 U.S.C. App.), notice is need special assistance, such as sign Jennifer S. Spaeth, hereby given of the following meetings. language interpretation or other Director, Office of Federal Advisory The meetings will be closed to the reasonable accommodations, should Committee Policy. public in accordance with the notify the Contact Person listed below [FR Doc. 2011–27178 Filed 10–19–11; 8:45 am] provisions set forth in sections in advance of the meeting. BILLING CODE 4140–01–P 552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,

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as amended. The grant applications and notify the Contact Person listed below DEPARTMENT OF HOMELAND the discussions could disclose in advance of the meeting. SECURITY confidential trade secrets or commercial Name of Committee: Office of AIDS Coast Guard property such as patentable material, Research Advisory Council. and personal information concerning Date: November 10, 2011. [Docket No. USCG–2011–0979] individuals associated with the grant Time: 8:30 a.m. to 5 p.m. applications, the disclosure of which Agenda The theme of the Office of AIDS Commercial Fishing Safety Advisory would constitute a clearly unwarranted Research Advisory Council (OARAC) Committee; Meeting invasion of personal privacy. meeting will be ‘‘AIDS Research in MSM: AGENCY: Coast Guard, DHS. Name of Committee: National Human Opportunities and Challenges.’’ The meeting Genome Research Institute Special Emphasis will focus on: the evolving HIV/AIDS ACTION: Notice of Federal Advisory Panel; Genomic Resource Grants (U41) SEP. epidemic in the U.S. and internationally; HIV Committee meeting. Date: November 15, 2011. prevention research in MSM; behavioral SUMMARY: Time: 1 p.m. to 5 p.m. research in MSM; engaging MSM in vaccine The Commercial Fishing Agenda To review and evaluate grant clinical trials; the development of Safety Advisory Committee (CFSAC) applications. microbicides; treatment research issues for will meet in Seattle, Washington to Place: NHGRI 5635/3rd Floor Conf. Room, discuss various issues relating to safety 5635 Fishers Lane, Rockville, MD 20852. MSM; and research on prevention and treatment of comorbidities and clinical in the commercial fishing industry. This Contact Person: Rudy O. Pozzatti, Ph.D., meeting will be open to the public. Scientific Review Officer, Scientific Review complications among MSM. An update will Branch, National Human Genome Research be provided on the latest changes made to the DATES: The Committee will meet on Institute, 5635 Fishers Lane, Suite 4076, MSC federal treatment and prevention guidelines November 14, 2011, from 9 a.m. to 5 9306, Rockville, MD 20852, (301) 402–0838, by the OARAC Working Groups responsible p.m., and on November 15–16, 2011, [email protected]. for the guidelines. from 8:30 a.m. to 5 p.m. This meeting Name of Committee: National Human Place: National Institutes of Health, 5635 may close early if all business is Genome Research Institute Special Emphasis Fishers Lane, Terrace Level, Rockville, MD finished. Written material and requests Panel; eMERGE Committee. 20852. to make oral presentations should reach Date: November 28, 2011. Contact Person: Robert Eisinger, PhD, the Coast Guard on or before November Time: 1 p.m. to 3 p.m. Executive Secretary, Director of Scientific 4, 2011. Agenda To review and evaluate grant and Program Operations, Therapeutics applications. ADDRESSES: The Committee will meet at Coordinating Committee, Office of Aids Place: NHGRI Twinbrook Conference the Henry M. Jackson Federal Building Room (4th floor), 5635 Fishers Lane, Research, 5635 Fishers Lane, MSC 9310, (Room 440), 915 2nd Ave, Seattle, Rockville, MD 20852 (Telephone Conference Suite 400, Rockville, MD 20852, (301) 496– Washington 98174. Call). 0357, [email protected]. For information on facilities or Contact Person: Rudy O. Pozzatti, PhD, Any interested person may file written services for individuals with disabilities Scientific Review Officer, Scientific Review comments with the committee by forwarding or to request special assistance at the Branch, National Human Genome Research the statement to the Contact Person listed on meeting, contact the person listed in the Institute, 5635 Fishers Lane, Suite 4076, MSC this notice. The statement should include the FOR FURTHER INFORMATION CONTACT 9306, Rockville, MD 20852, (301) 402–0838, name, address, telephone number and when section, as soon as possible. [email protected]. applicable, the business or professional To facilitate public participation, we (Catalogue of Federal Domestic Assistance affiliation of the interested person. are inviting public comment on the Program Nos. 93.172, Human Genome Information is also available on the issues to be considered by the Research, National Institutes of Health, HHS) Institute’s/Center’s home page: http://www. Dated: October 14, 2011. oar.nih.gov, where an agenda and any committee as listed in the ‘‘Agenda’’ section below. You may submit written Jennifer S. Spaeth, additional information for the meeting will be posted when available. comments no later than November 4, Director, Office of Federal Advisory 2011, and they must be identified by Committee Policy. (Catalogue of Federal Domestic Assistance docket number [USCG–2011–0979] [FR Doc. 2011–27177 Filed 10–19–11; 8:45 am] Program Nos. 93.14, Intramural Research using one of the following methods: Training Award; 93.22, Clinical Research BILLING CODE 4140–01–P • Federal eRulemaking Portal: http:// Loan Repayment Program for Individuals www.regulations.gov. Follow the from Disadvantaged Backgrounds; 93.232, instructions for submitting comments. DEPARTMENT OF HEALTH AND Loan Repayment Program for Research • Mail: Docket Management Facility HUMAN SERVICES Generally; 93.39, Academic Research Enhancement Award; 93.936, NIH Acquired (M–30), U.S. Department of National Institutes of Health Immunodeficiency Syndrome Research Loan Transportation, West Building Ground Repayment Program; 93.187, Undergraduate Floor, Room W12–140, 1200 New Jersey Office of the Director, National Scholarship Program for Individuals from Avenue, SE., Washington, DC 20590– Institutes of Health; Notice of Meeting Disadvantaged Backgrounds, National 0001. We encourage use of electronic Institutes of Health, HHS) submissions because security screening Pursuant to section 10(a) of the may delay delivery of mail. Federal Advisory Committee Act, as Dated: October 14, 2011. • Fax: (202) 493–2251 amended (5 U.S.C. App.), notice is Jennifer S. Spaeth, • Hand Delivery: Same as mail hereby given of a meeting of the Office Director, Office of Federal Advisory address above, between 9 a.m. and 5 of AIDS Research Advisory Council. Committee Policy. p.m., Monday through Friday, except The meeting will be open to the [FR Doc. 2011–27223 Filed 10–19–11; 8:45 am] Federal Holidays. The telephone public, with attendance limited to space BILLING CODE 4140–01–P number is 202–366–9329. available. Individuals who plan to Instructions: All submissions received attend and need special assistance, such must include the words ‘‘Department of as sign language interpretation or other Homeland Security’’ and docket number reasonable accommodations, should [USCG–2011–0979]. All submissions

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received will be posted without added or deleted by the Coast Guard request for comment is being made alteration at http://www.regulations.gov, Authorization Act of 2010. pursuant to the Paperwork Reduction including any personal information (2) Status of Commercial Fishing Act of 1995 (Pub. L. 104–13). provided. Anyone can search the Vessel Safety Rulemaking. DATES: Written comments should be electronic form of comments received (3) Commercial Fishing Vessel Safety received on or before December 19, into any of our dockets by the name of District Coordinators reports on 2011, to be assured of consideration. the individual submitting the comment activities and initiatives. ADDRESSES: Direct all written comments (or signing the comment, if submitted (4) Industry Representatives updates to U.S. Customs and Border Protection, on behalf of an association, business, including safety and survival Attn: Tracey Denning, Regulations and labor union, etc.) You may review a equipment, and class rules for fishing Rulings, Office of International Trade, Privacy Act notice regarding our public vessels. 799 9th Street, NW., 5th Floor, dockets in the January 17, 2008 issue of (5) Presentation on fatality rates by Washington, DC 20229–1177. the Federal Register (73 FR 3316). regions and fisheries and update on FOR FURTHER INFORMATION CONTACT: Docket: Any background information safety related projects such as wearing Requests for additional information or presentations available prior to the of Personal Floatation Device (PFD) should be directed to Tracey Denning, meeting will be published in the docket. when working on deck by the National U.S. Customs and Border Protection, For access to the docket to read Institute for Occupational Safety and Regulations and Rulings, Office of background documents or submissions Health. received by the CFSAC, go to http:// (6) Presentation on safety standards International Trade, 799 9th Street, www.regulations.gov., insert ‘‘USCG– by the National Oceanic and NW., 5th Floor, Washington, DC 20229– 2011–0979’’ in the ‘‘Keyword’’ box, and Atmospheric Administration, National 1177, at 202–325–0265. then click ‘‘Search’’. Marine Fisheries Service. SUPPLEMENTARY INFORMATION: CBP Public comments may be taken by the Days 2 and 3 of the meeting will be invites the general public and other DFO throughout themeetings. primarily dedicated to subcommittee Federal agencies to comment on Additionally, a public presentation/ sessions and reports on these topics: proposed and/or continuing information comment period will be held during the USCG communications and outreach to collections pursuant to the Paperwork meetings on November 14–16, 2011, the fishing industry; risk management Reduction Act of 1995 (Pub. L. 104–13). from 4 p.m. to 5 p.m. Speakers are for vessel owners, operators, and crews; The comments should address: (a) requested to limit their comments to 5 operator competency training Whether the collection of information is minutes. Please note that the public requirements; vessel construction necessary for the proper performance of comment period will end following the standards and alternate safety the functions of the agency, including last call for comments. Contact the compliance program requirements; whether the information shall have individual listed below to register as a safety and survival equipment practical utility; (b) the accuracy of the speaker. requirements, inspections, and testing; agency’s estimates of the burden of the FOR FURTHER INFORMATION CONTACT: Mr. mandatory safety examinations and collection of information; (c) ways to Jack Kemerer, Alternate Designated certificates of compliance; and safety enhance the quality, utility, and clarity Federal Official (ADFO) of CFSAC, program strategies, future plans, and of the information to be collected; (d) Commandant (CG–5433), U.S. Coast long range goals. ways to minimize the burden including Guard Headquarters, 2100 Second the use of automated collection Dated: October 14, 2011. Street, SW., Stop 7581, Washington, DC techniques or the use of other forms of 20593–7581; telephone 202–372–1249, Paul F. Thomas, information technology; and (e) the fax 202–372–1917, email: Captain, U.S. Coast Guard, Acting Director, annual costs burden to respondents or [email protected]. If you have Prevention Policy. record keepers from the collection of any questions on viewing or submitting [FR Doc. 2011–27127 Filed 10–19–11; 8:45 am] information (a total capital/startup costs material to the docket, call Renee V. BILLING CODE 9110–04–P and operations and maintenance costs). Wright, Program Manager, Docket The comments that are submitted will Operations, telephone 202–366–9826. be summarized and included in the CBP DEPARTMENT OF HOMELAND SUPPLEMENTARY INFORMATION: Notice of request for Office of Management and SECURITY this meeting is given under the Federal Budget (OMB) approval. All comments will become a matter of public record. Advisory Committee Act, 5 U.S.C. App. U.S. Customs and Border Protection (Pub. L. 92–463). The CFSAC is In this document CBP is soliciting authorized by 46 U.S.C. 4508 and the Agency Information Collection comments concerning the following Committee’s purpose is to provide Activities: Small Vessel Reporting information collection: advice and recommendations to the U.S. System Title: Small Vessel Reporting System. Coast Guard and the Department of OMB Number: Will be assigned upon Homeland Security on matters relating AGENCY: U.S. Customs and Border approval. to the safety of commercial fishing Protection (CBP), Department of Form Number: None. industry vessels. Homeland Security. Abstract: CBP proposes to establish a ACTION: 60-Day Notice and request for collection of information for the Small Agenda comments; Establishment of a new Vessel Reporting System (SVRS), which The CFSAC will meet to review, collection of information. is a pilot program to allow certain discuss and formulate recommendations participants using small pleasure boats on the following topics contained in this SUMMARY: As part of its continuing effort to report their arrival telephonically agenda: to reduce paperwork and respondent instead of having to appear in person for Day 1 of the meeting and, if necessary, burden, CBP invites the general public inspection by a CBP officer each time the morning of Day 2 will include the and other Federal agencies to comment they enter the United States. In some following reports and presentations: on an information collection cases, a participant may also be asked to (1) Review of Commercial Fishing requirement concerning the Small report to CBP for an in person Vessel Safety Requirements amended, Vessel Reporting System (SVRS). This inspection upon arrival. Participants

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may be U.S. citizens, U.S. lawful Current Actions: CBP proposes to DEPARTMENT OF HOMELAND permanent residents, Canadian citizens, establish a new collection of SECURITY and permanent residents of Canada who information. are nationals of Visa Waiver Program Type of Review: Approval of a new U.S. Customs and Border Protection countries listed in 8 CFR 217.2(a). In collection. addition, participants of one or more Affected Public: Individuals. Notice of Cancellation of Customs trusted traveler pilot programs and Estimated Number of Respondents: Broker Licenses current Canadian Border Boater Landing 10,000. Permit (CBP Form I–68) holders may Estimated Number of Responses per AGENCY: U.S. Customs and Border also participate in SVRS. Respondent: 4. Protection, U.S. Department of Estimated Total Annual Responses: In order to register for the SVRS pilot Homeland Security. program, participants enter data via the 40,000. Estimated Time per Response: 30 SVRS Web site which collects ACTION: General notice. minutes. information such as biographical Estimated Total Annual Burden information and vessel information. SUMMARY: Pursuant to section 641 of the Hours: 20,000. Participants will go through the in Tariff Act of 1930, as amended, (19 person CBP inspection process during Dated: October 17, 2011. U.S.C. 1641) and the U.S. Customs and SVRS registration, and in some cases, Tracey Denning, Border Protection regulations (19 CFR upon arrival in the United States. SVRS Agency Clearance Officer, U.S. Customs and 111.51), the following Customs broker is authorized by 8 U.S.C. 1103, 8 U.S.C. Border Protection. licenses and all associated permits are 1225, 8 CFR 235.1, 19 U.S.C. 1433, 19 [FR Doc. 2011–27153 Filed 10–19–11; 8:45 am] cancelled without prejudice. U.S.C. 1498, and 19 CFR 4.2. BILLING CODE 9111–14–P

Name License No. Issuing port

Gwin Customs Consulting, Inc ...... 23512 Seattle Compass Customs Brokerage, Inc ...... 16272 Houston Delaware Valley Floral Group, Inc ...... 21225 Miami Deborah L. Butler ...... 10964 Houston Neutral Customs Broker, Inc...... 13905 Los Angeles

Dated: October 11, 2011. ADDRESSES: Brenda Tapia, Division of information with your comments to Richard DiNucci, Management Authority, U.S. Fish and allow us to authenticate any scientific or Acting Assistant Commissioner, Office of Wildlife Service, 4401 North Fairfax commercial data you include. International Trade. Drive, Room 212, Arlington, VA 22203; The comments and recommendations [FR Doc. 2011–27152 Filed 10–19–11; 8:45 am] fax (703) 358–2280; or e-mail that will be most useful and likely to BILLING CODE 9111–14–P [email protected]. influence agency decisions are: (1) FOR FURTHER INFORMATION CONTACT: Those supported by quantitative Brenda Tapia, (703) 358–2104 information or studies; and (2) Those that include citations to, and analyses DEPARTMENT OF THE INTERIOR (telephone); (703) 358–2280 (fax); [email protected] (e-mail). of, the applicable laws and regulations. We will not consider or include in our Fish and Wildlife Service SUPPLEMENTARY INFORMATION: administrative record comments we [FWS–R9–IA–2011–N208; 96300–1671– I. Public Comment Procedures receive after the close of the comment period (see DATES) or comments 0000–P5] A. How do I request copies of delivered to an address other than those applications or comment on submitted Endangered Species; Receipt of listed above (see ADDRESSES). applications? Applications for Permit Send your request for copies of B. May I review comments submitted by AGENCY: Fish and Wildlife Service, applications or comments and materials others? Interior. concerning any of the applications to Comments, including names and ACTION: Notice of receipt of applications the contact listed under ADDRESSES. street addresses of respondents, will be for permit. Please include the Federal Register available for public review at the notice publication date, the PRT- address listed under ADDRESSES. The SUMMARY: We, the U.S. Fish and number, and the name of the applicant public may review documents and other Wildlife Service, invite the public to in your request or submission. We will information applicants have sent in comment on the following applications not consider requests or comments sent support of the application unless our to conduct certain activities with to an e-mail or address not listed under allowing viewing would violate the endangered species. With some ADDRESSES. If you provide an e-mail Privacy Act or Freedom of Information exceptions, the Endangered Species Act address in your request for copies of Act. Before including your address, (ESA) prohibits activities with listed applications, we will attempt to respond phone number, e-mail address, or other species unless a Federal permit is issued to your request electronically. personal identifying information in your that allows such activities. The ESA Please make your requests or comment, you should be aware that requires that we invite public comment comments as specific as possible. Please your entire comment—including your before issuing these permits. confine your comments to issues for personal identifying information—may DATES: We must receive comments or which we seek comments in this notice, be made publicly available at any time. requests for documents on or before and explain the basis for your While you can ask us in your comment November 21, 2011. comments. Include sufficient to withhold your personal identifying

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information from public review, we purpose of enhancement of the survival SUMMARY: We, the U.S. Fish and cannot guarantee that we will be able to of the species. Wildlife Service (Service), have issued do so. the following permits to conduct certain Guy Gorney, Manhattan, IL; PRT– activities with endangered species, 54826A II. Background marine mammals, or both. We issue To help us carry out our conservation Joseph Hand, DelRay Beach, FL; PRT– these permits under the Endangered responsibilities for affected species, 54893A Species Act (ESA) and Marine Mammal section 10(a)(1)(A) of the Endangered James Combs, Peoria, AZ; PRT–52516A Protection Act (MMPA). ADDRESSES: Species Act of 1973, as amended (16 Kenneth Cypress, Ochopee, FL; PRT– Brenda Tapia, Division of U.S.C. 1531 et seq.), requires that we 56285A Management Authority, U.S. Fish and invite public comment before final Wildlife Service, 4401 North Fairfax action on these permit applications. Michael Rush, Nashua, NH; PRT– Drive, Room 212, Arlington, VA 22203; 56284A fax (703) 358–2280; or e-mail III. Permit Applications [email protected]. Brenda Tapia, A. Endangered Species Program Analyst/Data Administrator, Branch FOR FURTHER INFORMATION CONTACT: Applicant: Dallas World Aquarium of Permits, Division of Management Brenda Tapia, (703) 358–2104 Corporation, Dallas, TX; PRT–43310A Authority. (telephone); (703) 358–2280 (fax); [FR Doc. 2011–27111 Filed 10–19–11; 8:45 am] [email protected] (e-mail). The applicant requests a permit to BILLING CODE 4310–55–P SUPPLEMENTARY INFORMATION: On the import 2.2 live, captive-bred horned dates below, as authorized by the guan (Oreophasis derbianus) from provisions of the ESA (16 U.S.C. 1531 Mexico for the purposes of DEPARTMENT OF THE INTERIOR et seq.), as amended, and/or the MMPA, enhancement of the survival of the as amended (16 U.S.C. 1361 et seq.), we species. Fish and Wildlife Service issued requested permits subject to Multiple Applicants [FWS–R9–IA–2011–N217; 96300–1671– certain conditions set forth therein. For 0000–P5] each permit for an endangered species, The following applicants each request we found that (1) The application was a permit to import the sport-hunted Endangered Species; Marine filed in good faith, (2) The granted trophy of one male bontebok Mammals; Issuance of Permits permit would not operate to the (Damaliscus pygargus pygargus) culled AGENCY: Fish and Wildlife Service, disadvantage of the endangered species, from a captive herd maintained under Interior. and (3) The granted permit would be the management program of the consistent with the purposes and policy ACTION: Notice of issuance of permits. Republic of South Africa, for the set forth in section 2 of the ESA.

ENDANGERED SPECIES

Permit number Applicant Receipt of application Federal Register notice Permit issuance date

28295A ...... Rosamond Gifford Zoo at Burnet Park ...... 76 FR 14985; March 18, 2011 ...... October 7, 2011. 47165A ...... James Kelly ...... 76 FR 48880; August 9, 2011 ...... September 26, 2011. 49806A ...... Robert Oswald ...... 76 FR 52965; August 26, 2011 ...... September 26, 2011. 45900A ...... Stephen Pasquan ...... 76 FR 48880; August 26, 2011 ...... September 26, 2011. 48778A ...... Rulon Anderson ...... 76 FR 54480; September 1, 2011 ...... October 5, 2011.

MARINE MAMMALS

Permit number Applicant Receipt of application Federal Register notice Permit issuance date

166346 ...... Matson’s Laboratory ...... 76 FR 35464; June 17, 2011 ...... October 5, 2011. 31164A ...... Wild Horizons, Ltd...... 76 FR 10623; February 25, 2011 ...... October 5, 2011.

Availability of Documents party who submits a written request for DEPARTMENT OF THE INTERIOR a copy of such documents to: Documents and other information Bureau of Indian Affairs submitted with these applications are Brenda Tapia, available for review, subject to the Program Analyst/Data Administrator, Branch Indian Gaming requirements of the Privacy Act and of Permits, Division of Management Freedom of Information Act, by any Authority. AGENCY: Bureau of Indian Affairs, [FR Doc. 2011–27104 Filed 10–19–11; 8:45 am] Interior. BILLING CODE 4310–55–P ACTION: Notice of Approved Tribal— State Class III Gaming Compact.

SUMMARY: This notice publishes an Approval of the Gaming Compact between the Confederated Tribes of the

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Warm Springs Reservation of Oregon DEPARTMENT OF THE INTERIOR High Plains District Office. The BLM and the State of Oregon. approves Alternative 2, which is the Bureau of Land Management DATES: Effective Date: October 20, 2011. preferred alternative for this LBA in the Wright Area Coal Final EIS. Under FOR FURTHER INFORMATION CONTACT: [LLWYP00000–L51100000–GA0000– LVEMK09CK370; WYW173408] Alternative 2, the BLM will offer the Paula L. Hart, Director, Office of Indian North Porcupine Coal LBA area, as Gaming, Office of the Deputy Assistant Notice of Availability of the Record of modified by the BLM for lease. The Secretary—Policy and Economic Decision for the Wright Area North modified LBA area includes Development, Washington, DC 20240, Porcupine Coal Lease-by-Application approximately 6,364 acres. The BLM (202) 219–4066. and Environmental Impact Statement, estimates that it contains approximately SUPPLEMENTARY INFORMATION: Under Wyoming 721,154,828 tons of mineable Federal section 11 of the Indian Gaming coal reserves under the selected Regulatory Act of 1988 (IGRA) Public AGENCY: Bureau of Land Management, configuration. The BLM will announce Law 100–497, 25 U.S.C. 2710, the Interior. a competitive coal lease sale in the Secretary of the Interior shall publish in ACTION: Notice of availability. Federal Register at a later date. The the Federal Register notice of approved Environmental Protection Agency Tribal—State compacts for the purpose SUMMARY: In accordance with the published a Federal Register notice of engaging in Class III gaming activities National Environmental Policy Act of announcing the Final EIS was publicly on Indian lands. This Compact amends 1969, as amended, the Bureau of Land available on July 30, 2010 (75 FR the 2005 Amended and Restated Tribal- Management (BLM) announces the 44951). State Government-to-Government availability of the Record of Decision This decision is subject to appeal to Compact for Regulation of Class III (ROD) for the North Porcupine Coal the Interior Board of Land Appeals Gaming on the Warm Springs Lease-by-Application (LBA) included in (IBLA), as provided in 43 CFR part 4, Reservation (‘‘2005 Compact’’ or ‘‘Kah- the Wright Area Coal Lease within thirty (30) days from the date of Nee-Ta compact’’), approved on May 20, Applications Environmental Impact publication of this NOA in the Federal 2005. The following is a list of the Statement (EIS). Register. The ROD contains instructions changes: ADDRESSES: The document is available for filing an appeal with the IBLA. electronically on the following Web site: 1. Addresses relocation of Class Donald A. Simpson, Gaming on the Reservation from the http://www.blm.gov/wy/st/en/info/ State Director. Tribe’s Kah-Nee-Ta Resort facility to a NEPA/HighPlains/Wright-Coal.html. temporary facility on U.S. Highway 26 Paper copies of the ROD are also [FR Doc. 2011–27043 Filed 10–19–11; 8:45 am] in the Warm Springs community. See available at the following BLM office BILLING CODE 4310–22–P Section 3.M. (definitions) and Section locations: • Bureau of Land Management, 4.C. (gaming location). DEPARTMENT OF THE INTERIOR 2. Increases the number of approved Wyoming State Office, 5353 VLT’s from 400 to 700. See, Section 4.D. Yellowstone Road, Cheyenne, Bureau of Land Management The compact also deletes the ‘‘one Wyoming, 82009; and • player at a time’’ provision of the Bureau of Land Management, [LLWYD01000–2011–L13110000–EJ0000– LXSI016K0000] definition of ‘‘Video Lottery Terminal,’’ Wyoming High Plains District Office, 2987 Prospector Drive, Casper, thereby allowing for multi-player VLT’s. Notice of Meetings of the Pinedale Wyoming, 82604. Section 3EE. The compact also provides Anticline Working Group, Wyoming a methodology for counting multi-player FOR FURTHER INFORMATION CONTACT: Ms. VLT’s. Section 4D. Kathy Muller Ogle, Coal Program AGENCY: Bureau of Land Management, 3. Adds disclaimer regarding any Coordinator, at 307–775–6206, or Ms. Interior. impact of the 2011 Amended and Sarah Bucklin, EIS Project Manager, at ACTION: Notice. Restated Compact on the Cascade Locks 307–261–7541. Ms. Ogle’s office is SUMMARY: In accordance with the casino ‘‘two-part’’ determination. See located at the BLM Wyoming State Office, 5353 Yellowstone Road, Federal Land Policy and Management Section 4.C.3. Act (1976) and the Federal Advisory 4. Revises ‘‘Health and Safety Cheyenne, Wyoming 82009. Ms. Bucklin’s office is located at the BLM Committee Act (1972), the U.S. Standards’’ section to be consistent with Department of the Interior, Bureau of Cascade Locks compact (dated High Plains District Office, 2987 Prospector Drive, Casper, Wyoming Land Management (BLM) Pinedale November 2010) and other Oregon Anticline Working Group (PAWG) will compacts. See Section 12.A. 82604. Persons who use a telecommunications device for the deaf hold a series of meetings in Pinedale, 5. Revises ‘‘Traffic Standards’’ section Wyoming. All PAWG meetings are open providing for access improvements and (TDD) may call the Federal Information Relay Service (FIRS) at 1–800–877–8339 to the public. consultations with Oregon Department DATES: The PAWG will meet on the of Transportation. See Section 12.B. to contact the above individual during normal business hours. The FIRS is following dates: February 7, 2012, May 6. Revises and updates regulatory available 24 hours a day, 7 days a week, 22 and 23, 2012, and August 7 and 8, provisions to be consistent with Cascade to leave a message or question with the 2012, beginning at 9 a.m. MST at the Locks compact and other current above individual. You will receive a Bureau of Land Management (BLM) Oregon compacts. See Section 7, 8, 9, 10 reply during normal business hours. Pinedale Field Office. and 11. SUPPLEMENTARY INFORMATION: The ROD ADDRESSES: BLM Pinedale Field Office, Dated: October 14, 2011. covered by this Notice of Availability is 1625 West Pine Street, Pinedale, Larry Echo Hawk, for the North Porcupine Coal Tract and Wyoming. Assistant Secretary—Indian Affairs. addresses leasing Federal coal in FOR FURTHER INFORMATION CONTACT: [FR Doc. 2011–27233 Filed 10–19–11; 8:45 am] Campbell County, Wyoming, Shelley Gregory, BLM Pinedale Field BILLING CODE 4310–4N–P administered by the BLM Wyoming Office, 1625 West Pine Street, PO Box

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768, Pinedale WY 82941; 307–315– Office of the Secretary, U.S. 2009). The Commission granted that 0612; [email protected]. Persons who International Trade Commission, 500 E motion. 75 FR 18,548 (Apr. 12, 2010). use a telecommunications device for the Street, SW., Washington, DC 20436, Also on December 22, 2009, Amgen deaf (TDD), may call the Federal telephone (202) 205–2000. General moved the Commission to terminate this Information Relay Service (FIRS) at 1– information concerning the Commission investigation by entry of an exclusion 800–877–8339 to contact the above may also be obtained by accessing its order based on preclusion caused by the individual during normal business Internet server at http://www.usitc.gov. district court judgment. Addendum to hours. The FIRS is available 24 hours a The public record for this investigation August 24, 2009 Stipulation (Dec. 22, day, 7 days a week, to leave a message may be viewed on the Commission’s 2009). Two Amgen motions regarding or question with the above individual. electronic docket (EDIS) at http:// claim 7 of the ’349 patent followed. By You will receive a reply during normal edis.usitc.gov. Hearing-impaired notice on April 6, 2010, the Commission business hours. persons are advised that information on sought clarification from the parties SUPPLEMENTARY INFORMATION: The this matter can be obtained by about, among other things, the effect of PAWG was established by the contacting the Commission’s TDD the stipulated district court judgment on Environmental Impact Statement (EIS) terminal on (202) 205–1810. this investigation. 75 FR 18,548 (Apr. Record of Decision (ROD) for the PAPA SUPPLEMENTARY INFORMATION: This 12, 2010). on July 27, 2000 and carried forward investigation was instituted on May 12, On March 11, 2011, the Commission with the release of the ROD for the 2006, based on a complaint filed by PAPA Supplemental EIS on September issued an order to show cause why the Amgen Inc. (‘‘Amgen’’) of Thousand investigation should not be terminated 12, 2008. Oaks, California. 71 FR 27,742 (May 12, The PAWG is a Federal Advisory in view of the parties’ settlement. In 2006). The complaint alleged a violation response, Amgen and Roche declined to Committee Act (FACA) chartered group of section 337 of the Tariff Act of 1930 which develops recommendations and pursue their request for an exclusion (19 U.S.C. 1337) in the importation into order and instead requested the provides advice to the BLM on the United States, sale for importation, mitigation, monitoring, and adaptive issuance of a consent order. In support or sale within the United States after of their proposed consent order, Amgen management issues as oil and gas importation of certain products and development in the PAPA proceeds. and Roche stated that ‘‘the Commission pharmaceutical compositions has previously terminated investigations Additional information about the PAWG containing recombinant human can be found at: http://www.blm.gov/ when there is both a settlement _ erythropoietin by reason of infringement agreement and an executed consent wy/st/en/field offices/pinedale/ of various claims of six United States pawg.html. order stipulation.’’ Joint Response of patents: U.S. Patent Nos. 5,441,868; Complainant and Respondents to the Mary E. Trautner, 5,547,933 (‘‘the ’933 patent’’); 5,618,698 Commission’s Order to Show Cause and Acting State Director. (‘‘the ’698 patent’’); 5,621,080 (‘‘the ’080 Request for Termination on the Basis of [FR Doc. 2011–27148 Filed 10–19–11; 8:45 am] patent’’); 5,756,349; and 5,955,422. The a Consent Order 2–3 (Apr. 21, 2011) complaint named Roche Holding Ltd. of BILLING CODE 4310–22–P (‘‘Joint Response’’) (citing Notices, Basel, Switzerland, F. Hoffman-La Certain Digital Multimeters and Roche Ltd. of Basel, Switzerland, Roche Products with Multimeter Functionality, Diagnostics GmbH of Mannheim, Inv. No. 337–TA–588 (May 31, 2007 and INTERNATIONAL TRADE Germany, and Hoffman La Roche Inc. of COMMISSION July 3, 2007)). In a corrected response Nutley, New Jersey (collectively, that the Commission hereby grants leave ‘‘Roche’’) as respondents. [Investigation No. 337–TA–568] to file, the Commission investigative After separate remands by the Court Certain Products and Pharmaceutical attorney did not object to the issuance of Appeals for the Federal Circuit of this of a consent order. Compositions Containing investigation and a parallel civil action As will be discussed further in an Recombinant Human Erythropoetin; involving many of the same patents accompanying opinion, the facts of the Termination of Investigation on the asserted in this investigation, on 588 investigation are readily Basis of Settlement December 18, 2009, the private parties distinguished from the facts here. executed a settlement agreement that AGENCY: U.S. International Trade Amgen and Roche have offered no basis, allows Roche to begin selling accused Commission. in law or policy, to support the products in the United States in mid- ACTION: Notice. Commission’s issuance of a consent 2014. Form 10–K, Amgen Inc., at 8 (Mar. order under the unusual facts of this SUMMARY: 1, 2010); see also Settlement Agreement Notice is hereby given that investigation. Nor is the Commission the U.S. International Trade (Dec. 18, 2009). On December 21, 2009, Amgen and Roche submitted a proposed itself aware of any such basis. Commission has determined to Accordingly, the Commission terminate the above-captioned consent order to the district court in that terminates this investigation on the investigation on the basis of settlement parallel civil action, and on December basis of the settlement agreement between the private parties. 22, 2009, the district court entered judgment. between the private parties. 19 U.S.C. FOR FURTHER INFORMATION CONTACT: 1337(c); 19 CFR 210.21(b), 210.41. Sidney A. Rosenzweig, Office of the On December 22, 2009, Amgen moved General Counsel, U.S. International to withdraw certain patent claims from The authority for the Commission’s Trade Commission, 500 E Street, SW., this investigation that had not been determination is contained in section Washington, DC 20436, telephone (202) asserted in the district court. 337 of the Tariff Act of 1930, as 708–2532. Copies of non-confidential Unopposed Compl’t Amgen Inc.’s Mot. amended (19 U.S.C. 1337), and in Part documents filed in connection with this to Terminate Investigation as to Claims 210 of the Commission’s Rules of investigation are or will be available for 4, 5 and 11 of the ’933 Patent, Claims Practice and Procedure (19 CFR part inspection during official business 4 and 6 of the ’080 Patent, and Claims 210). hours (8:45 a.m. to 5:15 p.m.) in the 4 and 5 of the ’698 Patent (Dec. 22, Issued: October 14, 2011.

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By order of the Commission. November 9, the meeting will start at Signed at Washington, DC this 14th day of James R. Holbein, 9 a.m. and conclude at approximately 4 October, 2011. Secretary to the Commission. p.m., with a break for lunch, in Room Michael L. Davis, [FR Doc. 2011–27167 Filed 10–19–11; 8:45 am] S–2508 at the same address. The Deputy Assistant Secretary, Employee BILLING CODE 7020–02–P purpose of the open meeting is for the Benefits Security Administration. Advisory Council members to finalize [FR Doc. 2011–27064 Filed 10–19–11; 8:45 am] the recommendations they will present BILLING CODE 4510–29–P DEPARTMENT OF JUSTICE to the Secretary. At the November 9 afternoon session, the Council members Foreign Claims Settlement will receive an update from the DEPARTMENT OF LABOR Commission Assistant Secretary of Labor for the Employment and Training [F.C.S.C. Meeting and Hearing Notice No. Employee Benefits Security 11–11] Administration (EBSA) and present Administration their recommendations. Sunshine Act Meeting The Council recommendations will be [TA–W–80,297] on the following issues: (1) Current The Foreign Claims Settlement Steiff North America, Lincoln, RI; Challenges and Best Practices for ERISA Commission, pursuant to its regulations Notice of Affirmative Determination (45 CFR 503.25) and the Government in Compliance for 403(b) Plan Sponsors; Regarding Application for the Sunshine Act (5 U.S.C. 552b), (2) Hedge Funds and Private Equity Reconsideration hereby gives notice in regard to the Investments; and, (3) Privacy and scheduling of open meetings as follows: Security Issues Affecting Employee By application received September Friday, October 28, 2011 Benefit Plans (other than health care 26, 2011, a worker requested plans). Descriptions of these topics are 10 a.m. Oral hearing on objection to administrative reconsideration of the available on the Advisory Council page negative determination regarding Commission’s Proposed Decision in of the EBSA web site, at http:// Claim No. LIB–II–016 workers’ eligibility to apply for Trade www.dol.gov/ebsa/aboutebsa/ Adjustment Assistance (TAA) 11 a.m. Issuance of Proposed erisa_advisory_council.html. Decisions in claims against Libya applicable to workers and former Status: Open. Organizations or members of the workers Steiff North America, Lincoln, All meetings are held at the Foreign public wishing to submit a written Rhode Island (Steiff North America). Claims Settlement Commission, 600 E statement may do so by submitting 30 The negative determination was issued Street, NW., Washington, DC. Requests copies on or before November 1, 2011 to on September 13, 2011. The for information, or advance notices of Larry Good, Executive Secretary, ERISA Department’s Notice of Determination intention to observe an open meeting, Advisory Council, U.S. Department of was published in the Federal Register may be directed to: Judith H. Lock, Labor, Suite N–5623, 200 Constitution on October 5, 2011 (76 FR 61743). The Executive Officer, Foreign Claims Avenue NW., Washington, DC 20210. workers of Steiff North America, Settlement Commission, 600 E Street, Statements also may be submitted as e- Lincoln, Rhode Island, are engaged in NW., Suite 6002, Washington, DC mail attachments in text or pdf format activities related to the supply of 20579. Telephone: (202) 616–6975. transmitted to [email protected]. It is distribution and sales of plush toys. requested that statements not be Jaleh F. Barrett, The negative determination was based included in the body of the e-mail. Chief Counsel. on the Department’s findings that Steiff Statements deemed relevant by the North America does not produce an [FR Doc. 2011–27321 Filed 10–18–11; 4:15 pm] Advisory Council and received on or BILLING CODE 4410–BA–P article within the meaning of Section before November 1, 2011 will be 222(a) or Section 222(b) of the Trade Act included in the record of the meeting of 1974, as amended. and available in the EBSA Public DEPARTMENT OF LABOR Disclosure room. Do not include any In the request for reconsideration, the personally identifiable information petitioner asserts that subject firm Employee Benefits Security produces ‘‘plush toys, clothing, wooden Administration (such as name, address, or other contact information) or confidential business toys, and other children related items.’’ 159th Meeting of the Advisory Council information that you do not want The Department has carefully on Employee Welfare and Pension publicly disclosed. reviewed the petitioner’s request for Benefit Plans; Notice of Meeting Individuals or representatives of reconsideration and the existing record, and has determined that the Department Pursuant to the authority contained in organizations wishing to address the Advisory Council should send their will conduct further investigation to Section 512 of the Employee Retirement determine if the petitioning workers Income Security Act of 1974 (ERISA), 29 requests to the Executive Secretary at meet the eligibility requirements of the U.S.C. 1142, the 159th open meeting of one of the addresses provided above or Trade Act of 1974, as amended. the Advisory Council on Employee call (202) 693–8668. Oral presentations Welfare and Pension Benefit Plans (also will be limited to ten minutes, time Conclusion known as the ERISA Advisory Council) permitting, but an extended statement will be held on November 8–9, 2011. may be submitted for the record. After careful review of the The meeting will take place in C–5515 Individuals with disabilities who need application, I conclude that the claim is Room 1–A, U.S. Department of Labor, special accommodations should contact of sufficient weight to justify 200 Constitution Avenue NW., the Executive Secretary by November 1. reconsideration of the U.S. Department Washington, DC 20210 on November 8, of Labor’s prior decision. The from 1 p.m. to approximately 5 p.m. On application is, therefore, granted.

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Signed at Washington, DC, this 5th day of Signed at Washington, DC, this 3rd day of The amended notice applicable to October, 2011. October, 2011. TA–W–73,805 is hereby issued as Del Min Amy Chen, Del Min Amy Chen, follows: Certifying Officer, Office of Trade Adjustment Certifying Officer, Office of Trade Adjustment All workers of Henkel Corporation, Assistance. Assistance. currently known as Henkel Electronic [FR Doc. 2011–27163 Filed 10–19–11; 8:45 am] [FR Doc. 2011–27158 Filed 10–19–11; 8:45 am] Materials, LLC, Electronic Adhesives, BILLING CODE 4510–FN–P BILLING CODE 4510–FN–P Division, including on-site leased workers from Aerotek Professional Services, Billerica, Massachusetts, who became totally or DEPARTMENT OF LABOR DEPARTMENT OF LABOR partially separated from employment on or after March 23, 2009 through July 12, 2012, Employment and Training Employment and Training and all workers in the group threatened with Administration Administration total or partial separation from employment on the date of certification through two years from the date of certification, are eligible to [TA–W–80,430] [TA–W–73,805] apply for adjustment assistance under Chapter 2 of Title II of the Trade Act of 1974, Product Dynamics LTD, Levittown, PA; Henkel Corporation, Currently Known as amended. Notice of Affirmative Determination as Henkel Electronic Materials, LLC, Regarding Application for Electronic Adhesives Division, Signed at Washington, DC this 5th day of October 2011. Reconsideration Including On-Site Leased Workers from Aerotek Professional Services, Del Min Amy Chen, By application dated September 28, Billerica, MA; Amended Certification Certifying Officer, Office of Trade Adjustment 2011, a petitioner requested Regarding Eligibility To Apply for Assistance. administrative reconsideration of the Worker Adjustment Assistance [FR Doc. 2011–27160 Filed 10–19–11; 8:45 am] negative determination regarding BILLING CODE 4510–FN–P workers’ eligibility to apply for Trade In accordance with Section 223 of the Adjustment Assistance (TAA) Trade Act of 1974, as amended (‘‘Act’’), applicable to workers and former 19 U.S.C. 2273, the Department of Labor DEPARTMENT OF LABOR workers of Product Dynamics, LTD, issued a Certification of Eligibility to Levittown, Pennsylvania (Product Apply for Worker Adjustment Employment and Training Dynamics). The negative determination Assistance on July 12, 2010, applicable Administration was issued on September 14, 2011. The to workers of Henkel Corporation, [TA–W–71,725] Department’s Notice of Determination Electronic Adhesives Division, will soon be published in the Federal including on-site leased workers from Caterpillar, Inc., Large Power Systems Register. Aerotek Professional Services, Billerica, Division, Including On-Site Leased The negative determination was based Massachusetts. The notice was Workers From Gray Interplant on the Department’s findings that the published in the Federal Register on Systems, Inc, ATS, URS, River City, subject firm did not produce an article. August 2, 2010 (75 FR 45163). GCA, Lozier, Obrien Bros., HK, FCA Further, the investigation revealed that At the request of the State agency, the and Clifton Gunderson, Mossville, IL; the subject firm is not a Supplier or Department reviewed the certification Amended Certification Regarding Downstream Producer to a firm that for workers of the subject firm. The Eligibility To Apply for Worker employed a group of workers who workers supply new product Adjustment Assistance received a certification of eligibility development and other support under Section 222(a) of the Act, 19 functions related to the production of In accordance with Section 223 of the U.S.C. 2272(a). electrical materials. Trade Act of 1974, as amended (‘‘Act’’), In the request for reconsideration, the Information shows that on January 1, 19 U.S.C. 2273, the Department of Labor petitioner alleges that workers at 2011, Henkel Corporation created a new issued a Certification of Eligibility to Product Dynamics are engaged in legal entity applicable to only the Apply for Worker Adjustment activities related to the production of Canton, Massachusetts location to Assistance on November 2, 2009, toy prototypes (stating that workers combine the legacy Henkel Electronic applicable to Caterpillar, Inc., Large ‘‘machine, fabricate and sculpt various Materials business and The National Power Systems Division, Mossville, items to create prototype models, Starch Electronic Materials business Illinois. The workers produce on- samples and patterns.’’) following a company purchase in April highway and off-highway diesel engines The Department has carefully 2008. Workers separated from for commercial trucks. The notice was reviewed the petitioner’s request for employment at the Billerica, published in the Federal Register on reconsideration and the existing record, Massachusetts location of Henkel January 25, 2010 (75 FR 3935). and has determined that the Department Corporation, Electronic Adhesives At the request of the petitioners, the will conduct further investigation to Division had their wages reported under Department reviewed the certification determine if the petitioning workers a separate unemployment insurance (UI) for workers of the subject firm. The meet the eligibility requirements of the tax account under the name Henkel company reports that workers leased Trade Act of 1974, as amended. Electronic Materials, LLC. from Gray Interplant Systems, Inc., ATS, Accordingly, the Department is URS, River City, GCA, Lozier, Obrien Conclusion amending this certification to properly Bros., HK, FCA, and Clifton Gunderson After careful review of the reflect this matter. were employed on-site at the Mossville, application, I conclude that the claim is The intent of the Department’s Illinois location of Caterpillar, Inc., of sufficient weight to justify certification is to include all workers of Large Power Systems Division. The reconsideration of the U.S. Department the subject firm who were adversely Department has determined that these of Labor’s prior decision. The affected as a secondary service supplier workers were sufficiently under the application is, therefore, granted. directly to a TAA certified firm. control of Caterpillar, Inc., Large Power

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Systems Division, Mossville, Illinois to Commercial Staffing, San Diego, The amended notice applicable to be included in this certification. California (subject firm). The TA–W–80,158 is hereby issued as Based on these findings, the Department’s Notice was published in follows: Department is amending this the Federal Register on August 18, 2011 All workers of Flextronics International certification to include workers leased (76 FR 51433). USA, Inc., FlexMedical Division, including from Gray Interplant Systems, Inc., ATS, Workers at Flextronics International on-site leased workers from Aerotek URS, River City, GCA, Lozier, Obrien USA, Inc., FlexMedical Division, San Commercial Staffing, San Diego, California Bros., HK, FCA, and Clifton Gunderson Diego, California, are engaged in activity (TA–W–80,158), who became totally or working on-site at the Mossville, Illinois related to the production of disposable partially separated from employment on or location of Caterpillar, Inc., Large Power medical devices. after May 3, 2010, through July 29, 2013, are Systems Division. New information provided by eligible to apply for adjustment assistance The amended notice applicable to Flextronics International USA, Inc. under Section 223 of the Trade Act of 1974, TA–W–71,725 is hereby issued as revealed that workers of the and are also eligible to apply for alternative trade adjustment assistance under Section follows: Infrastructure Division, Foothill Ranch, 246 of the Trade Act of 1974 as amended. California location (TA–W–80,158) ‘‘All workers of Caterpillar, Inc., Large AND Power Systems Division, including on-site provided procurement support services leased workers from Gray Interplant Systems, for the production of disposable medical All workers of Flextronics International Inc., ATS, URS, River City, GCA, Lozier, devices at the FlexMedical Division, USA, Inc., Infrastructure Division, Foothill Obrien Bros., HK, FCA, and Clifton San Diego, California location (TA–W– Ranch, California (TA–W–80,158A), who Gunderson, Mossville, Illinois, who became 80,158). Both locations experienced became totally or partially separated from totally or partially separated from worker separations due to a shift in employment on or after May 3, 2010, through employment on or after July 6, 2008, through July 29, 2013, are eligible to apply for November 2, 2011, and all workers in the production of disposable medical adjustment assistance under Section 223 of group threatened with total or partial devices (or like or directly competitive separation from employment on the date of articles) by Flextronics International the Trade Act of 1974, as amended; and I certification through two years from the date USA, Inc. to Mexico. further determine that all workers of of certification, are eligible to apply for In accordance with Section 246 the Flextronics International USA, Inc., adjustment assistance under Chapter 2 of Infrastructure Division, Foothill Ranch, Trade Act of 1974, as amended (‘‘Act’’), California (TA–W–80,158A), are denied Title II of the Trade Act of 1974, as 26 U.S.C. 2813, the Department herein amended.’’ eligibility to apply for alternative trade presents the results of its investigation adjustment assistance under Section 246 of Signed at Washington, DC this 4th day of regarding certification of eligibility to the Trade Act of 1974, as amended. October 2011. apply for ATAA for older workers, Signed at Washington, DC this 4th day of Michael W. Jaffe, applicable to workers of Flextronics October, 2011. Certifying Officer, Office of Trade Adjustment International USA, Inc., Infrastructure Del Min Amy Chen, Assistance. Division, Foothill Ranch, California Certifying Officer, Office of Trade Adjustment [FR Doc. 2011–27159 Filed 10–19–11; 8:45 am] (TA–W–80,158A) Assistance. BILLING CODE P The group eligibility requirements for workers of a firm under Section 246 [FR Doc. 2011–27161 Filed 10–19–11; 8:45 am] (a)(3)(A)(ii) of the Trade Act are satisfied BILLING CODE 4510–FN–P DEPARTMENT OF LABOR if the following criteria are met: (I) Whether a significant number of DEPARTMENT OF LABOR Employment and Training workers in the workers’ firm are 50 Administration years of age or older; Employment and Training [TA–W–80,158; TA–W–80,158A] (II) Whether the workers in the Administration workers’ firm possess skills that are not Amended Certification Regarding easily transferable; and Notice of Determinations Regarding Eligibility To Apply for Worker (III) The competitive conditions Eligibility To Apply for Worker Adjustment Assistance and Alternative within the workers’ industry (i.e., Adjustment Assistance and Alternative Trade Adjustment Assistance; conditions within the industry are Trade Adjustment Assistance FLEXTRONICS International USA, adverse). INC.,FLEXMEDICAL Division, Including The Department has determined that In accordance with Section 223 of the On-Site Leased Workers From criterion (I) has not been met for the Trade Act of 1974, as amended (19 AEROTEK Commerical Staffing, San workers covered by TA–W–80,158A. U.S.C. 2273) the Department of Labor Diego, CA; FLEXTRONICS A significant number of workers at herein presents summaries of International USA, Inc., Infrastructure Flextronics International USA, Inc., determinations regarding eligibility to Division, Foothill Ranch, CA Infrastructure Division, Foothill Ranch, apply for trade adjustment assistance for California is not 50 years of age or older. workers (TA–W) number and alternative In accordance with Section 223 of the Based on these findings, the trade adjustment assistance (ATAA) by Trade Act of 1974 (19 U.S.C. 2273), and Department is amending the TAA (TA–W) number issued during the Section 246 of the Trade Act of 1974 (26 certification to include workers of the period of September 26, 2011 through U.S.C. 2813), as amended, the Infrastructure Division of Flextronics September 30, 2011. Department of Labor (Department) International USA, Inc., Foothill Ranch, In order for an affirmative issued a certification of eligibility to California (TA–W–80,158A). The determination to be made for workers of apply for Trade Adjustment Assistance certification does not include a a primary firm and a certification issued (TAA) and Alternative Trade certification of eligibility to apply for regarding eligibility to apply for worker Adjustment Assistance (ATAA) on July ATAA, applicable to workers covered adjustment assistance, each of the group 29, 2011, applicable to former workers by TA–W–80,158A. The worker group at eligibility requirements of Section of Flextronics International USA, Inc., the Foothill Ranch, California facility 222(a) of the Act must be met. FlexMedical Division, including on-site does not include on-site leased workers I. Section (a)(2)(A) all of the following leased workers from Aerotek from temporary agencies. must be satisfied:

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A. a significant number or proportion such supply or production is related to TA–W–80,351; Neapco Components, of the workers in such workers’ firm, or the article that was the basis for such LLC, Pottstown, PA: October 21, an appropriate subdivision of the firm, certification; and 2011 have become totally or partially (3) either— TA–W–80,396 GE Oil & Gas Operations separated, or are threatened to become (A) the workers’ firm is a supplier and LLC, Oshkosh, WI: August 26, 2010 totally or partially separated; the component parts it supplied for the TA–W–80,437; Stylecraft Services LLC, B. the sales or production, or both, of firm (or subdivision) described in Milford, IA: August 27, 2011 such firm or subdivision have decreased paragraph (2) accounted for at least 20 The following certifications have been absolutely; and percent of the production or sales of the issued. The requirements of Section C. increased imports of articles like or workers’ firm; or 222(a)(2)(B) (shift in production) and directly competitive with articles (B) a loss or business by the workers’ Section 246(a)(3)(A)(ii) of the Trade Act produced by such firm or subdivision firm with the firm (or subdivision) have been met. have contributed importantly to such described in paragraph (2) contributed workers’ separation or threat of importantly to the workers’ separation TA–W–80,270; Avery Dennison, Sayre, separation and to the decline in sales or or threat of separation. PA: July 7, 2011 production of such firm or subdivision; In order for the Division of Trade TA–W–80,312; Nilar, Inc., Centennial, or Adjustment Assistance to issue a CO: July 22, 2010 II. Section (a)(2)(B) both of the certification of eligibility to apply for TA–W–80,406; SC Johnson Home following must be satisfied: Alternative Trade Adjustment Storage, LLC, Fresno, CA: August A. a significant number or proportion Assistance (ATAA) for older workers, 31, 2010 of the workers in such workers’ firm, or the group eligibility requirements of TA–W–80,436; Ornamental Mouldings, an appropriate subdivision of the firm, Section 246(a)(3)(A)(ii) of the Trade Act LLC, Archdale, NC: September 6, have become totally or partially must be met. 2010 separated, or are threatened to become 1. Whether a significant number of totally or partially separated; workers in the workers’ firm are 50 Negative Determinations for Alternative B. there has been a shift in production years of age or older. Trade Adjustment Assistance by such workers’ firm or subdivision to 2. Whether the workers in the In the following cases, it has been a foreign country of articles like or workers’ firm possess skills that are not determined that the requirements of directly competitive with articles which easily transferable. 246(a)(3)(A)(ii) have not been met for are produced by such firm or 3. The competitive conditions within the reasons specified. subdivision; and the workers’ industry (i.e., conditions The Department has determined that C. One of the following must be within the industry are adverse). criterion (3) of Section 246 has not been satisfied: Affirmative Determinations for Worker met. Competition conditions within the 1. the country to which the workers’ workers’ industry are not adverse. firm has shifted production of the Adjustment Assistance articles is a party to a free trade TA–W–80,335; Linear Motion, LLC, The following certifications have been Saginaw, MI agreement with the United States; issued. The date following the company 2. the country to which the workers’ name and location of each Negative Determinations for Worker firm has shifted production of the determination references the impact Adjustment Assistance and Alternative articles to a beneficiary country under date for all workers of such Trade Adjustment Assistance the Andean Trade Preference Act, determination. In the following cases, the African Growth and Opportunity Act, or The following certifications have been investigation revealed that the eligibility the Caribbean Basin Economic Recovery issued. The requirements of Section criteria for worker adjustment assistance Act; or 222(a)(2)(B) (shift in production) of the have not been met for the reasons 3. there has been or is likely to be an Trade Act have been met. increase in imports of articles that are specified. TA–W–80,335; Linear Motion, LLC, Because the workers of the firm are like or directly competitive with articles Saginaw, MI: July 21, 2010 not eligible to apply for TAA, the which are or were produced by such workers cannot be certified eligible for firm or subdivision. Affirmative Determinations for Worker Also, in order for an affirmative Adjustment Assistance and Alternative ATAA. The investigation revealed that determination to be made for Trade Adjustment Assistance criteria (a)(2)(A)(I.A.) and (a)(2)(B)(II.A.) secondarily affected workers of a firm The following certifications have been (employment decline) have not been and a certification issued regarding issued. The date following the company met. eligibility to apply for worker name and location of each adjustment assistance, each of the group TA–W–80,431; Covidien, Argyle, NY determination references the impact The investigation revealed that eligibility requirements of Section date for all workers of such 222(b) of the Act must be met. criteria (a)(2)(A)(I.B.) (Sales or determination. production, or both, did not decline) (1) significant number or proportion The following certifications have been of the workers in the workers’ firm or and (a)(2)(B)(II.B.) (shift in production issued. The requirements of Section to a foreign country) have not been met. an appropriate subdivision of the firm 222(a)(2)(A) (increased imports) and have become totally or partially TA–W–80,395; Simpson Lumber Section 246(a)(3)(A)(ii) of the Trade Act Company, LLC, Shelton, WA separated, or are threatened to become have been met. totally or partially separated; The investigation revealed that (2) the workers’ firm (or subdivision) TA–W–80,168; Morbark, Inc., Mt. criteria (a)(2)(A)(I.C.) (increased is a supplier or downstream producer to Pleasant, MI: May 9, 2010 imports) and (a)(2)(B)(II.B.) (shift in a firm (or subdivision) that employed a TA–W–80,267; Henkel Corp., Canton, production to a foreign country) have group of workers who received a MA: September 18, 2011 not been met. certification of eligibility to apply for TA–W–80,267A; Henkel Corp., City of TA–W–80,275; Pfizer Therapeutic trade adjustment assistance benefits and Industry, CA: September 18, 2011 Research, Groton, CT

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TA–W–80,315; Marlette Homes, Inc., because the petitioner has requested of the Trade Act of 1974 (‘‘the Act’’) and Lewistown, PA that the petition be withdrawn. are identified in the Appendix to this TA–W–80,316; PreMedia Global, Inc., TA–W–80,419; Centurion Medical notice. Upon receipt of these petitions, York, PA Products, Jeannette, PA the Director of the Division of Trade TA–W–80,362; RockTenn, Williamsport, Insert T1 Adjustment Assistance, Employment PA The following determinations and Training Administration, has TA–W–80,403; Capgemini America, terminating investigations were issued instituted investigations pursuant to Inc., Irving, TX because the petitioning groups of Section 221(a) of the Act. The workers’ firm does not produce workers are covered by active certifications. Consequently, further The purpose of each of the an article as required for certification investigations is to determine whether under Section 222 of the Trade Act of investigation in these cases would serve the workers are eligible to apply for 1974. no purpose since the petitioning group of workers cannot be covered by more adjustment assistance under Title II, TA–W–80,125; Shine Electronics Co., Chapter 2, of the Act. The investigations Inc., Long Island City, NY than one certification at a time. TA–W–80,016; World Color Mt. Morris will further relate, as appropriate, to the TA–W–80,265; MWH Americas, Inc., determination of the date on which total Broomfield, CO II, LLC, Mt. Morris, IL or partial separations began or TA–W–80,372; Walgreens Company, TA–W–80,377; Symantec Corp., Mountain View, CA threatened to begin and the subdivision Deerfield, IL of the firm involved. TA–W–80,398; Simpson Lumber TA–W–80,387; Quad Graphics, Inc., Company, LLC, Shelton, WA Depew, NY The petitioners or any other persons TA–W–80,412; Moneygram Payment I hereby certify that the aforementioned showing a substantial interest in the Systems, Inc., Lakewood, CO determinations were issued during the period subject matter of the investigations may of September 26, 2011 through September 30, request a public hearing, provided such TA–W–80,420; MGM Transport, Lenoir, 2011. Copies of these determinations may be NC request is filed in writing with the requested under the Freedom of Information Director, Office of Trade Adjustment TA–W–80,420A; MGM Transport, Act. Requests may be submitted by fax, Martinsville, VA courier services, or mail to FOIA Disclosure Assistance, at the TA–W–80,420B; MGM Transport, High Officer, Office of Trade Adjustment Interested persons are invited to Point NC Assistance (ETA), U.S. Department of Labor, submit written comments regarding the 200 Constitution Avenue, NW., Washington, subject matter of the investigations to TA–W–80,420C; Caldwell Freight Lines, DC 20210 or [email protected]. These High Point, NC determinations also are available on the the Director, Office of Trade Adjustment TA–W–80,420D; Caldwell Freight Lines, Department’s Web site at http:// Assistance, at the address shown below, Martinsville, VA www.doleta.gov/tradeact under the not later than October 31, 2011. TA–W–80,420E; Caldwell Freight Lines, searchable listing of determinations. The petitions filed in this case are Pontotoc, MS Dated: October 7, 2011. available for inspection at the Office of TA–W–80,420F; Caldwell Freight Lines, Michael W. Jaffe, the Director, Office of Trade Adjustment Lenoir, NC Certifying Officer, Office of Trade Adjustment Assistance, Employment and Training TA–W–80,420G; Caldwell Freight Lines, Assistance. Administration, U.S. Department of Newton, NC [FR Doc. 2011–27165 Filed 10–19–11; 8:45 am] Labor, Room N–5428, 200 Constitution TA–W–80,440; Bank of America, BILLING CODE 4510–FN–P Avenue, NW., Washington, DC 20210. Scranton, PA Signed at Washington, DC, this 7th day of October 2011. Determinations Terminating DEPARTMENT OF LABOR Investigations of Petitions For Worker Michael W. Jaffe, Adjustment Assistance Employment and Training Certifying Officer, Office of Trade Adjustment Administration Assistance. After notice of the petitions was published in the Federal Register and Investigations Regarding Certifications on the Department’s Web site, as of Eligibility To Apply for Worker required by Section 221 of the Act (19 Adjustment Assistance and Alternative U.S.C. 2271), the Department initiated Trade Adjustment Assistance investigations of these petitions. The following determinations Petitions have been filed with the terminating investigations were issued Secretary of Labor under Section 221(a)

APPENDIX [26 TAA petitions instituted between 9/26/11 and 9/30/11]

Date of Date of TA–W Subject firm (petitioners) Location institution petition

80460 ...... Briggs & Stratton Poplar Bluff Facility (Company) ...... Poplar Bluff, MO ...... 09/26/11 09/22/11 80461 ...... Wilson Sporting Goods Company (Company) ...... Sparta, TN ...... 09/26/11 09/23/11 80462 ...... Tradewins LLC (Company) ...... Woodinville, WA ...... 09/26/11 09/23/11 80463 ...... Clow Water Systems (State/One-Stop) ...... Coshocton, OH ...... 09/26/11 09/23/11 80464 ...... Brunswick Bowling & Billiards (Corp) (State/One-Stop) ...... Bristol, WI ...... 09/26/11 09/23/11 80465 ...... JDS Uniphase (State/One-Stop) ...... Santa Rosa, CA ...... 09/26/11 09/23/11 80466 ...... InterMetro Industries Corporation-Coatesville Facility (Company) ...... Coatesville, PA ...... 09/26/11 09/23/11 80467 ...... Covad (DBA MegaPath/Formerly Speakeasy) (State/One-Stop) ...... Seattle, WA ...... 09/26/11 09/23/11 80468 ...... Worthington Steel (formerly MISA Metals, Inc.) (Union) ...... Middletown, OH ...... 09/26/11 09/26/11

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APPENDIX—Continued [26 TAA petitions instituted between 9/26/11 and 9/30/11]

Date of Date of TA–W Subject firm (petitioners) Location institution petition

80469 ...... CEVA Logistics—Project HCL (State/One-Stop) ...... Houston, TX ...... 09/27/11 09/13/11 80470 ...... Precision Valve, SC—Plant 2 (State/One-Stop) ...... Greenville, SC ...... 09/27/11 09/26/11 80471 ...... Precision Valve, SC—Plant 1 (State/One-Stop) ...... Travelers Rest, SC ...... 09/27/11 09/26/11 80472 ...... Tiger Drylac USA Inc. (Company) ...... Reading, PA ...... 09/27/11 09/26/11 80473 ...... Reading Powder Coatings Inc. (Company) ...... Reading, PA ...... 09/27/11 09/26/11 80474 ...... Simonton Windows (State/One-Stop) ...... McAlester, OK ...... 09/27/11 09/26/11 80475 ...... Fairlane Division VRTX, Inc. (Company) ...... New York, NY ...... 09/27/11 09/26/11 80476 ...... Wells Fargo Bank N/A (Workers) ...... Bethlehem, PA ...... 09/28/11 09/27/11 80477 ...... Allstate Insurance Co. (State/One-Stop) ...... Northbrook, IL ...... 09/28/11 09/27/11 80478 ...... Skip’s Cutting, Inc. (Workers) ...... Ephrata, PA ...... 09/28/11 09/27/11 80479 ...... Excelsior Services Group (Company) ...... Dallas, TX ...... 09/29/11 09/28/11 80480 ...... Elsevier, Inc (Company) ...... San Diego, CA ...... 09/30/11 09/28/11 80481 ...... Kyowa America Corporation (State/One-Stop) ...... Westminster, CA ...... 09/30/11 09/29/11 80482 ...... Weather Shield Mfg Inc. (Workers) ...... Park Falls, WI ...... 09/30/11 09/10/11 80483 ...... American Apparel (State/One-Stop) ...... Garden Grove, CA ...... 09/30/11 09/29/11 80484 ...... Cummins Filtration (Company) ...... Lake Mills, IA ...... 09/30/11 09/27/11 80485 ...... R. R. Donnelley—Bloomsburg (Union) ...... Bloomsburg, PA ...... 09/30/11 09/27/11

[FR Doc. 2011–27166 Filed 10–19–11; 8:45 am] Criterion (1) has not been met because Conclusion BILLING CODE 4510–FN–P Baby Bliss did not employ a worker After review of the application and group during the relevant time period. investigative findings, I conclude that A worker group means that the firm there has been no error or DEPARTMENT OF LABOR must have at least three full-time misinterpretation of the law or of the workers during the year preceding the facts which would justify Employment and Training TAA petition date. Baby Bliss did not Administration reconsideration of the Department of meet this threshold level. Further, the Labor’s prior decision. Accordingly, the criteria set forth in 29 CFR 90.16(e) was application is denied. [TA–W–80,350] not met. Signed at Washington, DC, this 4th day of Baby Bliss, Inc., Middleville, MI; Notice In the request for reconsideration, the October, 2011. petitioner stated that he was ‘‘the only of Negative Determination Regarding Del Min Amy Chen, officer/employee who possessed the Application for Reconsideration Certifying Officer, Office of Trade Adjustment information to file this petition’’ and Assistance. By application received September asserted that he did not file a petition earlier because he was out of the [FR Doc. 2011–27164 Filed 10–19–11; 8:45 am] 26, 2011, a company official requested BILLING CODE 4510–FN–P administrative reconsideration of the country from November 2004 through negative determination regarding February 2008, then incarcerated from workers’ eligibility to apply for Trade February 2008 through March 2011. DEPARTMENT OF LABOR Adjustment Assistance (TAA) Pursuant to 29 CFR 90.18(c), applicable to workers and former administrative reconsideration may be Employment and Training workers Baby Bliss, Inc., Middleville, granted under the following Administration Michigan (Baby Bliss). The circumstances: [TA–W–80,219] determination was issued on September (1) If it appears on the basis of facts 2, 2011. The Department’s Notice of not previously considered that the determination was published in the Beacon Medical Services, LLC, Aurora, determination complained of was CO; Notice of Negative Determination Federal Register on September 19, 2011 erroneous; (76 FR 58046). The workers of Baby Regarding Application for Bliss were engaged in activities related (2) if it appears that the determination Reconsideration to the production of children’s clothing. complained of was based on a mistake in the determination of facts not By application received July 25, 2011, The petition (dated August 8, 2011) previously considered; or a worker requested administrative stated that ‘‘Pleasant Company has been reconsideration of the negative a customer of ours since 1985. New (3) if in the opinion of the Certifying determination regarding workers’ owners (Mattel) took over that company Officer, a misinterpretation of facts or of eligibility to apply for Trade Adjustment and proceeded to all of the apparel and the law justified reconsideration of the Assistance (TAA) applicable to workers other production to a foreign country decision. and former workers of Beacon Medical (China).’’ After careful review of the request for Services, LLC, Aurora, Colorado The negative determination was based reconsideration, previously submitted (Beacon Medical Services). The negative on the Department’s findings that Baby materials, the applicable statute, and determination was issued on June 22, Bliss did not employ a certifiable relevant regulation, the Department 2011. The Department’s Notice of worker group during the period under determines that there is no new Determination was published in the investigation within the meaning of information, mistake in fact, or Federal Register on July 8, 2011 (76 FR Section 222(a) or Section 222(b) of the misinterpretation of the facts or of the 40401). The workers of Beacon Medical Act. law. Services are engaged in activities related

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to the supply of third party medical materials, the applicable statute, and Labor, Occupational Safety and Health billing and coding services. relevant regulation, the Department Administration, Room N–2625, 200 The petition filed on behalf of determines that there is no new Constitution Avenue, NW., Washington, ‘‘medical coders’’ at Beacon Medical information, mistake in fact, or DC 20210. Deliveries (hand, express Services, LLC, Aurora, Colorado, states misinterpretation of the facts or of the mail, messenger, and courier service) that ‘‘our jobs were outsourced to law. are accepted during the Department of India.’’ Labor’s and Docket Office’s normal Conclusion The negative determination was based business hours, 8:15 a.m. to 4:45 p.m., on the Department’s findings that After review of the application and e.t. Beacon Medical Services does not investigative findings, I conclude that Instructions: All submissions must produce an article within the meaning there has been no error or include the Agency name and OSHA of Section 222(a) or Section 222(b) of misinterpretation of the law or of the docket number (OSHA–2011–0186) for the Act. In order to be considered facts which would justify the Information Collection Request eligible to apply for adjustment reconsideration of the Department of (ICR). All comments, including any assistance under Section 223 of the Labor’s prior decision. Accordingly, the personal information you provide, are Trade Act of 1974, the worker group application is denied. placed in the public docket without seeking certification (or on whose behalf Signed at Washington, DC, this 4th day of change, and may be made available certification is being sought) must work October, 2011. online at http://www.regulations.gov. for a ‘‘firm’’ or appropriate subdivision Del Min Amy Chen, For further information on submitting that produces an article. comments see the ‘‘Public Pursuant to 29 CFR 90.18(c), Certifying Officer, Office of Trade Adjustment Assistance. Participation’’ heading in the section of administrative reconsideration may be [FR Doc. 2011–27162 Filed 10–19–11; 8:45 am] this notice titled SUPPLEMENTARY granted under the following INFORMATION. BILLING CODE 4510–FN–P circumstances: Docket: To read or download (1) If it appears on the basis of facts comments or other material in the not previously considered that the DEPARTMENT OF LABOR docket, go to http://www.regulations.gov determination complained of was or the OSHA Docket Office at the erroneous; Occupational Safety and Health address above. All documents in the (2) If it appears that the determination Administration docket (including this Federal Register complained of was based on a mistake notice) are listed in the http://www. [Docket No. OSHA–2011–0186] in the determination of facts not regulations.gov index; however, some previously considered; or information (e.g., copyrighted material) (3) If in the opinion of the Certifying Inorganic Arsenic Standard; Extension of the Office of Management and is not publicly available to read or Officer, a misinterpretation of facts or of download through the Web site. All the law justified reconsideration of the Budget’s (OMB) Approval of Information Collection (Paperwork) submissions, including copyrighted decision. material, are available for inspection After the Trade Act of 2009 expired in Requirements and copying at the OSHA Docket Office. February 2011, petitions for TAA were AGENCY: Occupational Safety and Health You also may contact Theda Kenney at instituted under the Trade Adjustment Administration (OSHA), Labor. the address below to obtain a copy of Assistance Reform Act of 2002 (Trade the ICR. Act of 2002). Therefore, the statute ACTION: Request for public comments. applicable to TA–W–80,219 is the Trade FOR FURTHER INFORMATION CONTACT: SUMMARY: OSHA solicits public Theda Kenney, Directorate of Standards Act of 2002. The applicable regulation comments concerning its proposal to is codified in 29 CFR Part 90, Subpart and Guidance, OSHA, U.S. Department extend the Office of Management and of Labor, Room N–3609, 200 B. Budget’s (OMB) approval of the Section 222 of the Trade Act of 2002 Constitution Avenue, NW., Washington, information collection requirements DC 20210; telephone (202) 693–2222. establishes the worker group eligibility specified in the Inorganic Arsenic SUPPLEMENTARY INFORMATION: requirements. The requirements include Standard (29 CFR part 1910.1018). either ‘‘imports of articles like or I. Background directly competitive with articles DATES: Comments must be submitted produced by such firm or subdivision (postmarked, sent, or received) by The Department of Labor, as part of its have increased’’ or ‘‘a shift in December 19, 2011. continuing effort to reduce paperwork production by such workers’ firm or ADDRESSES: and respondent (i.e., employer) burden, subdivision to a foreign country of Electronically: You may submit conducts a preclearance consultation articles like or directly competitive with comments and attachments program to provide the public with an articles which are produced by such electronically at http://www.regulations. opportunity to comment on proposed firm or subdivision.’’ gov, which is the Federal eRulemaking and continuing information collection In the request for reconsideration, the Portal. Follow the instructions online requirements in accordance with the petitioner asserts that Beacon Medical for submitting comments. Paperwork Reduction Act of 1995 (44 Services ‘‘sent our jobs OVESEAS TO Facsimile: If your comments, U.S.C. 3506(c)(2)(A)). This program INDIA.’’ including attachments, are not longer ensures that information is in the A shift in the supply of services (or than 10 pages, you may fax them to the desired format, reporting burden (time like or directly competitive services) by OSHA Docket Office at (202) 693–1648. and costs) is minimal, collection Beacon Medical Services to a foreign Mail, hand delivery, express mail, instruments are clearly understood, and country is not a basis for certification messenger, or courier service: When OSHA’s estimate of the information under the criteria set forth by the Trade using this method, you must submit collection burden is accurate. The Act of 2002. your comments and attachments to the Occupational Safety and Health Act of After careful review of the request for OSHA Docket Office, Docket No. 1970 (the OSH Act) (29 U.S.C. 651 et reconsideration, previously submitted OSHA–2011–0186, U.S. Department of seq.) authorizes information collection

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by employers as necessary or Frequency: On occasion; quarterly; assistance in using the Internet to locate appropriate for enforcement of the OSH semi-annually; annually. docket submissions. Act or for developing information Total Responses: 1,936. V. Authority and Signature regarding the causes and prevention of Average Time per Response: Varies occupational injuries, illnesses, and from five minutes (.08 hour) for a David Michaels, Ph.D., M.P.H., accidents (29 U.S.C. 657). The OSH Act secretary to prepare and post each Assistant Secretary of Labor for also requires that OSHA obtain such notification to eight hours for a Occupational Safety and Health, information with minimum burden supervisor to update each compliance directed the preparation of this notice. upon employers, especially those plan. The authority for this notice is the operating small businesses, and to Estimated Total Burden Hours: 637. Paperwork Reduction Act of 1995 (44 reduce to the maximum extent feasible Estimated Cost (Operation and U.S.C. 3506 et seq.) and Secretary of unnecessary duplication of efforts in Maintenance): $54,197 Labor’s Order No. 4–2010 (75 FR obtaining information (29 U.S.C. 657). IV. Public Participation—Submission of 55355). The information collection Comments on This Notice and Internet Signed at Washington, DC, on October 17, requirements in the Inorganic Arsenic Access to Comments and Submissions 2011. Standard provide protection for workers You may submit comments in David Michaels, from the adverse health effects response to this document as follows: Assistant Secretary of Labor for Occupational associated with exposure to inorganic (1) Electronically at http:// Safety and Health. arsenic. The Inorganic Arsenic Standard www.regulations.gov, which is the [FR Doc. 2011–27181 Filed 10–19–11; 8:45 am] requires employers to: monitor workers’ Federal eRulemaking Portal; (2) by BILLING CODE 4510–26–P exposure to inorganic arsenic; monitor facsimile; or (3) by hard copy. All worker health; develop and maintain comments, attachments, and other worker exposure monitoring and material must identify the Agency name NATIONAL ARCHIVES AND RECORDS medical records; establish and and the OSHA docket number for this ADMINISTRATION implement written compliance ICR (Docket No. OSHA–2011–0186). programs; and provide workers with You may supplement electronic Advisory Committee on the Electronic information about their exposures and submissions by uploading document Records Archives (ACERA) the health effects of exposure to files electronically. If you wish to mail AGENCY: National Archives and Records inorganic arsenic. additional materials in reference to an Administration. II. Special Issues for Comment electronic or facsimile submission, you ACTION: Notice of meeting. OSHA has a particular interest in must submit them to the OSHA Docket comments on the following issues: Office (see the section of this notice SUMMARY: In accordance with the • Whether the proposed information titled ADDRESSES). The additional Federal Advisory Committee Act, as collection requirements are necessary materials must clearly identify your amended (5 U.S.C. Appendix 2), the for the proper performance of the electronic comments by your name, National Archives and Records Agency’s functions, including whether date, and docket number so the Agency Administration (NARA) announces a the information is useful; can attach them to your comments. meeting of the Advisory Committee on • The accuracy of OSHA’s estimate of Because of security procedures, the the Electronic Records Archives the burden (time and costs) of the use of regular mail may cause a (ACERA). The committee serves as a information collection requirements, significant delay in the receipt of deliberative body to advise the Archivist including the validity of the comments. For information about of the United States, on technical, methodology and assumptions used; security procedures concerning the mission, and service issues related to • The quality, utility, and clarity of delivery of materials by hand, express the Electronic Records Archives (ERA). the information collected; and delivery, messenger, or courier service, This includes, but is not limited to, • Ways to minimize the burden on please contact the OSHA Docket Office advising and making recommendations employers who must comply; for at (202) 693–2350, (TTY (877) 889– to the Archivist on issues related to the example, by using automated or other 5627). development, implementation and use Comments and submissions are technological information collection of the ERA system. This meeting will be posted without change at http:// and transmission techniques. open to the public. However, due to www.regulations.gov. Therefore, OSHA space limitations and access procedures, III. Proposed Actions cautions commenters about submitting the name and telephone number of personal information such as social The Agency is requesting an individuals planning to attend must be security numbers and dates of birth. adjustment in the number of burden submitted to the Electronic Records Although all submissions are listed in hours from 385 to 637 due to an Archives Program at era.program the http://www.regulations.gov index, increase in the number of @nara.gov. This meeting will be some information (e.g., copyrighted establishments from three to five. The recorded for transcription purposes. cost burden also increased from $31,165 material) is not publicly available to read or download through this Web site. DATES: The meeting will be held on to $54,197 due primarily to the increase November 2, 2011, 8:30 a.m.–4:45 p.m. in the cost of medical examinations and All submissions, including copyrighted ADDRESSES: chest x-rays from $196 to $210. material, are available for inspection The Washington Room, 700 Type of Review: Extension of a and copying at the OSHA Docket Office. Pennsylvania Avenue, NW., currently approved collection. Information on using the http:// Washington, DC 20408–0001. Title: Inorganic Arsenic Standard (29 www.regulations.gov Web site to submit FOR FURTHER INFORMATION CONTACT: CFR 1910.1018). comments and access the docket is Kimberly Scates, Information Services, OMB Number: 1218–0104. available at the Web site’s ‘‘User Tips’’ National Archives and Records Affected Public: Business or other for- link. Contact the OSHA Docket Office Administration, 8601 Adelphi Road, profits. for information about materials not College Park, Maryland 20740; (301) Number of Respondents: 5. available through the Web site, and for 837–3176.

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SUPPLEMENTARY INFORMATION: Foundation on major goals and policies necessary for the proper performance of pertaining to Social, Behavioral and the functions of the agency, including Agenda Economic Sciences Directorate programs and whether the information has practical • Opening Remarks. activities. utility; (b) the accuracy of the RRB’s • Approval of Minutes. Agenda estimate of the burden of the collection • Transition Update. Thursday, November 3, 2011 of the information; (c) ways to enhance • Activities Reports. the quality, utility, and clarity of the • Agency Experience With ERA. Updates and discussions on continuing information to be collected; and (d) activities • Subcommittee Break Out. ways to minimize the burden related to • • Budget priorities for FY 2012 Subcommittee Reports. • the collection of information on • Adjournment. New Staff • New Directions in the Directorate for respondents, including the use of Dated: October 13, 2011. Education and Human Resources automated collection techniques or Mary Ann Hadyka, • Interdisciplinary Training in SBE Science other forms of information technology. Committee Management Officer. Friday, November 4, 2011 1. Title and purpose of information collection: Evidence for Application of [FR Doc. 2011–27085 Filed 10–19–11; 8:45 am] Discussion With NSF Director and Deputy BILLING CODE 7515–01–P Director Overall Minimum: OMB 3220–0083. Under Section 3(f)(3) of the Railroad Overview and Discussion • Retirement Act (RRA), the total monthly NATIONAL SCIENCE FOUNDATION National Center for Science and benefits payable to a railroad employee Engineering Statistics (NCSES) Update • Strategic Plan for the Division of and his/her family are guaranteed to be Advisory Committee for Social, Behavioral and Cognitive Science no less than the amount which would Behavioral and Economic Sciences; • SBE–Supported Surveys and Infrastructure be payable if the employee’s railroad Notice of Meeting • Future membership of the Advisory service had been covered by the Social Committee Security Act. This is referred to as the In accordance with Federal Advisory Social Security Overall Minimum Committee Act (Pub. L. 92–463, as Dated: October 17, 2011. Guarantee, which is prescribed in 20 amended), the National Science Susanne Bolton, CFR part 229. To administer this Foundation announces the following Committee Management Officer. provision, the Railroad Retirement meeting: [FR Doc. 2011–27143 Filed 10–19–11; 8:45 am] Board (RRB) requires information about Name: Advisory Committee for Social, BILLING CODE 7555–01–P a retired employee’s spouse and Behavioral and Economic Sciences (#1171) child(ren) who would not be eligible for Date/Time: November 3, 2011; 1 p.m. to benefits under the RRA but would be 5:30 p.m. November 4, 2011; 8:45 a.m. to 4 RAILROAD RETIREMENT BOARD p.m. eligible for benefits under the Social Security Act if the employee’s railroad Place: National Science Foundation, 4201 Proposed Collection; Comment service had been covered by that Act. Wilson Boulevard, Stafford II, Room 595, Request Arlington, VA 22230. The RRB obtains the required Type of Meeting: Open. Summary: In accordance with the information by the use of Forms G–319, Contact Person: Ms. Lisa Jones, Office of requirement of Section 3506(c)(2)(A) of Statement Regarding Family and the Assistant Director, Directorate for Social, the Paperwork Reduction Act of 1995 Earnings for Special Guaranty Behavioral and Economic Sciences, National which provides opportunity for public Computation, and G–320, Student Science Foundation, 4201 Wilson Boulevard, Questionnaire for Special Guaranty Room 905, Arlington, Virginia 22230, 703– comment on new or revised data 292–8700. collections, the Railroad Retirement Computation. One response is required Summary of Minutes: May be obtained Board (RRB) will publish periodic of each respondent. Completion is from contact person listed above. summaries of proposed data collections. required to obtain or retain benefits. The Purpose of Meeting: To provide advice and Comments are invited on: (a) Whether RRB proposes no changes to Form G– recommendations to the National Science the proposed information collection is 319 or Form G–320.

ESTIMATE OF ANNUAL RESPONDENT BURDEN [The estimated annual respondent burden is as follows]

Annual Time Burden Form No. responses (Minutes) (Hours)

G–319 (completed by the employee): With assistance ...... 5 26 2 Without assistance ...... 330 55 302 G–319 (completed by spouse): With assistance ...... 5 30 3 Without assistance ...... 15 60 15 G–320: (Age 18 at Special Guaranty Begin Date or Special Guaranty Age 18 Attainments) ...... 150 15 37 (Student Monitoring done in Sept, March and at end of school year) ...... 50 15 12

2. Title and purpose of information Annuitant’s Work and Earnings; OMB employee’s retirement annuity or an collection: Request to Non-Railroad 3220–0107. annuity paid to the spouse of a railroad Employer for Information About Under Section 2 of the Railroad employee is subject to work deductions Retirement Act (RRA), a railroad in the Tier II component of the annuity

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and any employee supplemental subject to work deductions under Information About Annuitant’s Work annuity for any month in which the Section 2(f)(1) of the RRA for earnings and Earnings, to obtain the information annuitant works for a Last Pre- from any non-railroad employer that are needed to determine if a work Retirement Non-Railroad Employer over the annual exempt amount. The deduction should be applied because an (LPE). The LPE is defined as the last regulations pertaining to non-payment annuitant worked in non-railroad person, company, or institution, other of annuities by reason of work and LPE employment after the annuity beginning than a railroad employer, that employed are contained in 20 CFR 230.1 and date. One response is requested of each an employee or spouse annuitant. In 230.2. respondent. Completion is voluntary. addition, the employee, spouse, or The RRB utilizes Form RL–231–F, The RRB proposes no changes to Form divorced spouse Tier I annuity benefit is Request to Non-Railroad Employer for RL–231–F.

ESTIMATE OF ANNUAL RESPONDENT BURDEN [The estimated annual respondent burden is as follows]

Annual Time Burden Form No. responses (Minutes) (Hours)

RL–231–F ...... 300 30 150

Additional Information or Comments: Rule 15c1–6 states that any broker- Exchange Commission, c/o Remi Pavlik- To request more information or to dealer trying to sell to or buy from a Simon, 6432 General Green Way, obtain a copy of the information customer a security in a primary or Alexandria, VA 22312 or send an e-mail collection justification, forms, and/or secondary distribution in which the to: [email protected]. supporting material, contact Charles broker-dealer is participating or is Dated: October 13, 2011. Mierzwa, the RRB Clearance Officer, at otherwise financially interested must Elizabeth M. Murphy, (312) 751–3363 or Charles.Mierzwa@ give the customer written notification of Secretary. RRB.GOV. Comments regarding the the broker-dealer’s participation or information collection should be interest at or before completion of the [FR Doc. 2011–27094 Filed 10–19–11; 8:45 am] addressed to Patricia Henaghan, transaction. The Commission estimates BILLING CODE 8011–01–P Railroad Retirement Board, 844 North that 481 respondents collect information annually under Rule 15c1–6 and that Rush Street, Chicago, Illinois 60611– SECURITIES AND EXCHANGE each respondent would spend 2092 or e-mailed to Patricia.Henaghan@ COMMISSION RRB.GOV. Written comments should be approximately 10 hours annually received within 60 days of this notice. complying with the collection of Proposed Collection; Comment information requirement (approximately Request Charles Mierzwa, 4,810 hours in aggregate). Clearance Officer. Written comments are invited on: (a) Upon Written Request, Copies [FR Doc. 2011–27120 Filed 10–19–11; 8:45 am] Whether the proposed collection of Available From: U.S. Securities and BILLING CODE 7905–01–P information is necessary for the proper Exchange Commission, Office of performance of the functions of the Investor Education and Advocacy, Commission, including whether the Washington, DC 20549–0213. SECURITIES AND EXCHANGE information shall have practical utility; Extension: Rule 15c1–7, SEC File No. COMMISSION (b) the accuracy of the Commission’s 270–146, OMB Control No. 3235–0134. estimates of the burden of the proposed Notice is hereby given that pursuant Proposed Collection; Comment collection of information; (c) ways to to the Paperwork Reduction Act of 1995 Request enhance the quality, utility, and clarity (44 U.S.C. 3501 et seq.), the Securities of the information to be collected; and and Exchange Commission Upon Written Request, Copies (d) ways to minimize the burden of the (‘‘Commission’’) is soliciting comments Available From: U.S. Securities and collection of information on on the existing collection of information Exchange Commission, Office of respondents, including through the use provided for in Rule 15c1–7 (17 CFR Investor Education and Advocacy, of automated collection techniques or 240.15c1–7) under the Securities Washington, DC 20549–0213. other forms of information technology. Exchange Act of 1934 (15 U.S.C. 78a et Extension: Rule 15c1–6; SEC File No. Consideration will be given to seq.) (‘‘Exchange Act’’). The 270–423; OMB Control No.3235–0472. comments and suggestions submitted in Commission plans to submit this Notice is hereby given that pursuant writing within 60 days of this existing collection of information to the to the Paperwork Reduction Act of 1995 publication. Office of Management and Budget for (44 U.S.C. 3501 et seq.), the Securities The Commission may not conduct or extension and approval. and Exchange Commission sponsor a collection of information Rule 15c1–7 states that any act of a (‘‘Commission’’) is soliciting comments unless it displays a currently valid broker-dealer designed to effect on the existing collection of information control number. No person shall be securities transactions with or for a provided for in Rule 15c1–6 (17 CFR subject to any penalty for failing to customer account over which the 240.15c1–6) under the Securities comply with a collection of information broker-dealer (directly or through an Exchange Act of 1934 (15 U.S.C. 78a et subject to the PRA that does not display agent or employee) has discretion will seq.) (‘‘Exchange Act’’). The a valid Office of Management and be considered a fraudulent, Commission plans to submit this Budget (OMB) control number. manipulative, or deceptive practice existing collection of information to the Please direct your written comments under the federal securities laws, unless Office of Management and Budget to: Thomas Bayer, Director/Chief a record is made of the transaction (‘‘OMB’’) for extension and approval. Information Officer, Securities and immediately by the broker-dealer. The

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record must include (a) the name of the Extension: Rule 15c2–7, SEC File No. spend a total of .0125 hours per year to customer, (b) the name, amount, and 270–420, OMB Control No. 3235–0479. comply with the requirements of Rule price of the security, and (c) the date Notice is hereby given that pursuant 15c2–7 (1 notice (x) 45 seconds/notice). and time when such transaction took to the Paperwork Reduction Act of 1995 Consideration will be given to place. (44 U.S.C. 3501 et seq.) the Securities comments and suggestions submitted in The Commission estimates that 481 and Exchange Commission writing within 60 days of this respondents collect information related (‘‘Commission’’) is soliciting comments publication. to approximately 400,000 transactions on the collection of information The Commission may not conduct or annually under Rule 15c1–7 and that summarized below. The Commission sponsor a collection of information each respondent would spend plans to submit this existing collection unless it displays a currently valid approximately 5 minutes on the of information to the Office of control number. No person shall be collection of information for each Management and Budget for extension subject to any penalty for failing to transaction, for approximately 33,333 and approval. comply with a collection of information aggregate hours per year (approximately Rule 15c2–7 places disclosure subject to the PRA that does not display 69 hours per respondent). requirements on broker-dealers who a valid Office of Management and Written comments are invited on: (a) have correspondent relationships, or Budget (OMB) control number. Whether the proposed collection of agreements identified in the rule, with Please direct your written comments information is necessary for the proper other broker-dealers. Whenever any to: Thomas Bayer, Director/Chief performance of the functions of the such broker-dealer enters a quotation for Information Officer, Securities and Commission, including whether the a security through an inter-dealer Exchange Commission, c/o Remi Pavlik- information shall have practical utility; quotation system, Rule 15c2–7 requires Simon, 6432 General Green Way, (b) the accuracy of the Commission’s the broker-dealer to disclose these Alexandria, Virginia 22312 or send an e- estimates of the burden of the proposed relationships and agreements in the mail to: [email protected]. collection of information; (c) ways to manner required by the rule. The inter- Dated: October 13, 2011. enhance the quality, utility, and clarity dealer quotation system must also be Elizabeth M. Murphy, of the information to be collected; and able to make these disclosures public in (d) ways to minimize the burden of the association with the quotation the Secretary. collection of information on broker-dealer is making. [FR Doc. 2011–27096 Filed 10–19–11; 8:45 am] respondents, including through the use When Rule 15c2–7 was adopted in BILLING CODE 8011–01–P of automated collection techniques or 1964, the information it requires was other forms of information technology. necessary for execution of the Consideration will be given to Commission’s mandate under the SECURITIES AND EXCHANGE comments and suggestions submitted in Securities Exchange Act of 1934 to COMMISSION prevent fraudulent, manipulative and writing within 60 days of this Proposed Collection; Comment deceptive acts by broker-dealers. In the publication. Request The Commission may not conduct or absence of the information collection sponsor a collection of information required under Rule 15c2–7, investors Upon Written Request, Copies unless it displays a currently valid and broker-dealers would have been Available From: U.S. Securities and control number. No person shall be unable to accurately determine the Exchange Commission, Office of subject to any penalty for failing to market depth of, and demand for, Investor Education and Advocacy, comply with a collection of information securities in an inter-dealer quotation Washington, DC 20549–0213. subject to the PRA that does not display system. Extension: Rule 24b–1; OMB Control a valid Office of Management and There are approximately 4,810 broker- No. 3235–0194; SEC File No. 270–205. Budget (OMB) control number. dealers registered with the Commission. Notice is hereby given that pursuant Please direct your written comments Any of these broker-dealers could be to the Paperwork Reduction Act of 1995 to: Thomas Bayer, Director/Chief potential respondents for Rule 15c2–7, (44 U.S.C. 3501 et seq.), the Securities Information Officer, Securities and so the Commission is using that figure and Exchange Commission Exchange Commission, c/o Remi Pavlik- to represent the number of respondents. (‘‘Commission’’) is soliciting comments Simon, 6432 General Green Way, Rule 15c2–7 applies only to quotations on the collection of information Alexandria, VA 22312 or send an e-mail entered into an inter-dealer quotation summarized below. The Commission to: [email protected]. system, such as the OTC Bulletin Board plans to submit this existing collection (‘‘OTCBB’’), or OTC Link (formerly, Dated: October 13, 2011. of information to the Office of ‘‘Pink Sheets’’), operated by OTC Management and Budget for extension Elizabeth M. Murphy, Markets Group Inc. (‘‘OTC Link’’). and approval, Rule 24b–1 (17 CFR Secretary. According to representatives of both 240.24b–1)—Documents to be Kept [FR Doc. 2011–27095 Filed 10–19–11; 8:45 am] OTC Link and the OTCBB, neither Public by Exchanges BILLING CODE 8011–01–P entity has recently received, or Rule 24b–1 under the Securities anticipates receiving any Rule 15c2–7 Exchange Act of 1934 (15 U.S.C. 78a et notices. However, because such notices seq.) requires a national securities SECURITIES AND EXCHANGE could be made, the Commission exchange to keep and make available for COMMISSION estimates that one filing is made public inspection a copy of its Proposed Collection; Comment annually pursuant to Rule 15c2–7. registration statement and exhibits filed Request Based on prior industry reports, the with the Commission, along with any Commission estimates that the average amendments thereto. Upon Written Request, Copies time required to enter a disclosure There are 15 national securities Available From: Securities and pursuant to the rule is .75 minutes, or exchanges that spend approximately Exchange Commission, Office of 45 seconds. The Commission sees no one half hour each complying with this Investor Education and Advocacy, reason to change this estimate. We rule, for an aggregate total compliance Washington, DC 20549–0213. estimate that impacted respondents burden of 7.5 hours per year. The staff

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estimates that the average cost per the Office of Management and Budget Dated: October 13, 2011. respondent is $65.18 per year, (‘‘OMB’’) for extension and approval. Elizabeth M. Murphy, calculated as the costs of copying Rule 19d–2 under the Exchange Act Secretary. ($13.97) plus storage ($51.21), resulting prescribes the form and content of [FR Doc. 2011–27097 Filed 10–19–11; 8:45 am] in a total cost of compliance for the applications to the Commission by BILLING CODE 8011–01–P respondents of $977.70. persons desiring stays of final Written comments are invited on: (a) disciplinary sanctions and summary SECURITIES AND EXCHANGE Whether the proposed collection of action of self-regulatory organizations COMMISSION information is necessary for the proper (‘‘SROs’’) for which the Commission is performance of the functions of the the appropriate regulatory agency. agency, including whether the Proposed Collection; Comment information shall have practical utility; It is estimated that approximately Request (b) the accuracy of the Commission’s fifteen respondents will utilize this Upon Written Request, Copies Available estimate of the burden of the proposed application procedure annually, with a From: U.S. Securities and Exchange collection of information; (c) ways to total burden of 45 hours, based upon Commission, Office of Investor enhance the quality, utility, and clarity past submissions. The staff estimates Education and Advocacy, of the information to be collected; and that the average number of hours Washington, DC 20549–0213. necessary to comply with the (d) ways to minimize the burden of the Extension: collection of information on requirements of Rule 19d–2 is 3 hours. Rule 11a1–1(T); OMB Control No. 3235– respondents, including through the use Based on the most recent available 0478; SEC File No. 270–428. of automated collection techniques or information, the Commission staff Notice is hereby given that pursuant other forms of information technology. estimates that the cost to respondents of to the Paperwork Reduction Act of 1995 Consideration will be given to complying with the requirements of (44 U.S.C. 3501 et seq.), the Securities comments and suggestions submitted in Rule 19d–2 is $876 per response. and Exchange Commission writing within 60 days of this Therefore, the Commission staff (‘‘Commission’’) is soliciting comments publication. estimates that the total annual reporting on the collection of information Comments should be directed to cost per respondent is $876 (1 response/ summarized below. The Commission Thomas Bayer, Director/Chief respondent/year × $876 cost/response), plans to submit this existing collection Information Officer, Securities and for a total annual related cost to all of information to the Office of Exchange Commission, c/o Remi Pavlik- respondents of $13,140 ($876 cost/ Management and Budget for extension Simon, 6432 General Green Way, respondent × 15 respondents). and approval for Rule 11a1–1(T)— Alexandria, VA 22312 or send an e-mail Written comments are invited on: (a) Transactions Yielding Priority, Parity, to: [email protected]. Whether the proposed collection of and Precedence. On January 27, 1976, the Commission October 14, 2011. information is necessary for the proper adopted Rule 11a1–1(T)—Transactions Elizabeth M. Murphy, performance of the functions of the Yielding Priority, Parity, and Secretary. agency, including whether the Precedence (17 CFR 240.11a1–1(T)) [FR Doc. 2011–27098 Filed 10–19–11; 8:45 am] information will have practical utility; under the Securities Exchange Act of BILLING CODE 8011–01–P (b) the accuracy of the agency’s estimate 1934 (15 U.S.C. 78 et seq.) (‘‘Exchange of the burden of the collection of Act’’), to exempt certain transactions of information; (c) ways to enhance the exchange members for their own SECURITIES AND EXCHANGE quality, utility, and clarity of the accounts that would otherwise be COMMISSION information collected; and (d) ways to prohibited under Section 11(a) of the minimize the burden of the collection of Proposed Collection; Comment Exchange Act. The rule provides that a information on respondents, including Request member’s proprietary order may be through the use of automated collection executed on the exchange of which the Upon Written Request, Copies Available techniques or other forms of information trader is a member, if, among other From: Securities and Exchange technology. Consideration will be given things: (1) The member discloses that a Commission, Office of Investor to comments and suggestions submitted bid or offer for its account is for its Education and Advocacy, in writing within 60 days of this account to any member with whom Washington, DC 20549–0213. publication. such bid or offer is placed or to whom The Commission may not conduct or it is communicated; (2) any such Extension: member through whom that bid or offer Rule 19d–2; OMB Control No. 3235–0205; sponsor a collection of information SEC File No. 270–204. unless it displays a currently valid is communicated discloses to others control number. No person shall be participating in effecting the order that Notice is hereby given that pursuant subject to any penalty for failing to it is for the account of a member; and to the Paperwork Reduction Act of 1995 comply with a collection of information (3) immediately before executing the (44 U.S.C. 3501 et seq.) the Securities subject to the PRA that does not display order, a member (other than a specialist and Exchange Commission a valid Office of Management and in such security) presenting any order (‘‘Commission’’) is soliciting comments for the account of a member on the Budget control number. on the existing collection of information exchange clearly announces or provided for in Rule 19d–2— Please direct your written comments otherwise indicates to the specialist and Applications for Stays of Final to: Thomas Bayer, Director/Chief to other members then present that he Disciplinary Sanction (17 CFR 240.19d– Information Officer, Securities and is presenting an order for the account of 2) under the Securities Exchange Act of Exchange Commission, c/o Remi Pavlik- a member. 1934 (15 U.S.C. 78a et seq.) (‘‘Exchange Simon, 6432 General Green Way, Without these requirements, it would Act’’). The Commission plans to submit Alexandria, VA 22312 or send an e-mail not be possible for the Commission to this existing collection of information to to: [email protected]. monitor its mandate under the Exchange

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Act to promote fair and orderly markets SECURITIES AND EXCHANGE attorneys report evidence of violations and ensure that exchange members COMMISSION to others within the issuer, including have, as the principle purpose of their the Chief Legal Officer, the Chief exchange memberships, the conduct of Proposed Collection; Comment Executive Officer, and, where necessary, a public securities business. Request the directors. In addition, officers and directors investigate evidence of There are approximately 763 Upon Written Request, Copies Available violations and report within the issuer From: Securities and Exchange respondents that require an aggregate the results of the investigation and the Commission, Office of Investor total of 22 hours to comply with this remedial steps they have taken or rule. Each of these approximately 763 Education and Advocacy, sanctions they have imposed. Except as respondents makes an estimated 20 Washington, DC 20549–0213. discussed below, we therefore believe Reports of Evidence of: annual responses, for an aggregate of that the reporting requirements imposed SEC File No. 270–514, OMB Control 15,260 responses per year. Each by the rule are ‘‘usual and customary’’ No. 3235–0572. response takes approximately 5 seconds activities that do not add to the burden to complete. Thus, the total compliance Material Violations that would be imposed by the collection × burden per year is 22 hours (15,260 5 Notice is hereby given that pursuant of information. Certain aspects of the collection of seconds/60 seconds per minute/60 to the Paperwork Reduction Act (PRA) information, however, may impose a minutes per hour = 22 hours). The of 1995, 44 U.S.C. Sections 3501–3520, burden. For an issuer to establish a approximate cost per hour is $282, the Securities and Exchange QLCC, the QLCC must adopt written resulting in a total cost of compliance Commission (‘‘Commission’’) is procedures for the confidential receipt, for the annual burden of $6,204 (22 soliciting comments on the collection of hours @ $282). retention, and consideration of any information summarized below. The report of evidence of a material Written comments are invited on: (a) Commission plans to submit the violation. We estimate for purposes of Whether the proposed collection of existing collection of information to the the PRA that there are approximately information is necessary for the proper Office of Management and Budget for 16,517 issuers that are subject to the performance of the functions of the extension. rules.1 Of these, we estimate that agency, including whether the On February 6, 2003, the Commission approximately 3.8%, or 637, have information will have practical utility; published final rules, effective August 5, established or will establish a QLCC.2 (b) the accuracy of the agency’s estimate 2003, entitled ‘‘Standards of Establishing the written procedures Professional Conduct for Attorneys of the burden of the collection of required by the rule should not impose Appearing and Practicing Before the information; (c) ways to enhance the a significant burden. We assume that an Commission in the Representation of an quality, utility, and clarity of the issuer would incur a greater burden in Issuer’’ (17 CFR 205.1–205.7). The information collected; and (d) ways to the year that it first establishes the information collection embedded in the procedures than in subsequent years, in minimize the burden of the collection of rules is necessary to implement the information on respondents, including which the burden would be incurred in Standards of Professional Conduct for updating, reviewing, or modifying the through the use of automated collection Attorneys prescribed by the rule and techniques or other forms of information procedures. For purposes of the PRA, required by Section 307 of the Sarbanes- we assume that an issuer would spend technology. Consideration will be given Oxley Act of 2002 (15 U.S.C. 7245). The to comments and suggestions submitted 6 hours every three-year period on the rules impose an ‘‘up-the-ladder’’ procedures. This would result in an in writing within 60 days of this reporting requirement when attorneys average burden of 2 hours per year. publication. appearing and practicing before the Thus, we estimate for purposes of the The Commission may not conduct or Commission become aware of evidence PRA that the total annual burden sponsor a collection of information of a material violation by the issuer or imposed by the collection of unless it displays a currently valid any officer, director, employee, or agent information would be 1,274 hours. control number. No person shall be of the issuer. An issuer may choose to Assuming half of the burden hours will subject to any penalty for failing to establish a qualified legal compliance be incurred by outside counsel at a rate comply with a collection of information committee (‘‘QLCC’’) as an alternative of $500 per hour would result in a cost procedure for reporting evidence of a subject to the PRA that does not display of $318,500. material violation. In the rare cases in a valid Office of Management and The estimate of average burden hours which a majority of a QLCC has Budget (OMB) control number. is made solely for the purposes of the concluded that an issuer did not act Paperwork Reduction Act, and is not Please direct your written comments appropriately, the information may be to: Thomas Bayer, Director/Chief communicated to the Commission. The 1 This estimate is based, in part, on the total Information Officer, Securities and collection of information is, therefore, number of operating companies that filed annual Exchange Commission, c/o Remi Pavlik- an important component of the reports on Form 10–K, Form 20–F, or Form 40–F, Simon, 6432 General Green Way, Commission’s program to discourage during the 2011 fiscal year and an estimate of the average number of issuers that may have a Alexandria, Virginia 22312 or send an e- violations of the Federal securities laws registration statement filed under the Securities Act mail to: [email protected]. and promote ethical behavior of pending with the Commission at any time (14,000). attorneys appearing and practicing In addition, we estimate that approximately 2,517 October 14, 2011. before the Commission. investment companies currently file periodic Elizabeth M. Murphy, reports on Form N–SAR. The respondents to this collection of 2 We base this estimate on the number of issuers Secretary. information are attorneys who appear who have reported in filings with the Commission [FR Doc. 2011–27093 Filed 10–19–11; 8:45 am] and practice before the Commission that they have created QLCCs. Indications are that BILLING CODE 8011–01–P and, in certain cases, the issuer, and/or the 2005 estimate of the percentage of issuers that would establish QLCCs (10%) was high. Our officers, directors and committees of the adjusted estimate in the percentage of QLCCs issuer. We believe that, in providing (3.8%) results in a reduced burden estimate as quality representation to issuers, compared to the previously-approved collection.

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derived from a comprehensive or even publishing this Notice and Order to CME notes that it has also submitted a representative survey or study. An solicit comments on the proposed rule the proposed rule changes that are the agency may not conduct or sponsor, and change from interested persons and to subject of this filing to its primary a person is not required to respond to, approve the proposed rule change on an regulator, the Commodity Futures a collection of information unless it accelerated basis. Trading Commission (‘‘CFTC’’). The text displays a currently valid OMB control of the CME rule proposed amendments I. Self-Regulatory Organization’s number. is attached to CME’s filing of proposed Statement of Terms of Substance of the Written comments are requested on: rule change as Exhibit 5, with additions Proposed Rule Change (a) Whether the collection of underlined and deletions in brackets. information is necessary for the proper The proposed rule changes amend CME believes the proposed rule performance of the functions of the current CME rules to expand its interest changes are consistent with the Commission, including whether the rate swaps offering to include interest requirements of the Exchange Act information has practical utility; (b) the rate swaps denominated in certain including Section 17A of the Exchange accuracy of the Commission’s estimate additional currencies and rate options Act because they involve clearing of of the burden[s] of the collection of and to clarify certain registration swaps and thus relate solely to the information; (c) ways to enhance the requirements for clearing interest rate CME’s swaps clearing activities quality, utility, and clarity of the swap products. CME is also at the same pursuant to its registration as a information collected; and (d) ways to time amending its Manual of Operation derivatives clearing organization under minimize the burden of the collection of for CME Cleared Interest Rate Swaps to the Commodity Exchange Act (‘‘CEA’’) information on respondents, including reflect the new denominations and rate and do not significantly affect any through the use of automated collection options. The text of the proposed rule securities clearing operations of the techniques or other forms of information change is available at the CME’s Web clearing agency or any related rights or technology. Consideration will be given site at http://www.cmegroup.com, at the obligations of the clearing agency or to comments and suggestions submitted principal office of CME, and at the persons using such service. CME further in writing within 60 days of this Commission’s Public Reference Room. notes that the policies of the CEA with publication. respect to clearing are comparable to a Please direct your written comments II. Self-Regulatory Organization’s number of the policies underlying the to Thomas Bayer, Director/Chief Statement of Purpose of, and Statutory Exchange Act, such as promoting Information Officer, Securities and Basis for, the Proposed Rule Change market transparency for over-the- Exchange Commission, c/o Remi Pavlik- In its filing with the Commission, counter derivatives markets, promoting Simon, 6432 General Green Way, CME included statements concerning the prompt and accurate clearance of Alexandria, Virginia 22312; or send an the purpose and basis for the proposed transactions and protecting investors e-mail to: [email protected]. rule change and discussed any and the public interest. The proposed Dated: October 13, 2011. comments it received on the proposed rule changes accomplish those objectives by offering investors clearing Elizabeth M. Murphy, rule change. The text of these statements for an expanded range of interest rate Secretary. may be examined at the places specified in Item IV below. CME has prepared swap products. [FR Doc. 2011–27092 Filed 10–19–11; 8:45 am] summaries, set forth in sections A, B, BILLING CODE 8011–01–P B. Self-Regulatory Organization’s and C below, of the most significant Statement on Burden on Competition aspects of such statements. CME does not believe that the SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s proposed rule change will have any COMMISSION Statement of Purpose of, and Statutory impact, or impose any burden, on [Release No. 34–65577; File No. SR–CME– Basis for, the Proposed Rule Change competition. 2011–10] CME currently offers clearing services C. Self-Regulatory Organization’s for certain interest rate swap products. Self-Regulatory Organizations; Statement on Comments on the These proposed rule changes are Chicago Mercantile Exchange, Inc.; Proposed Rule Change Received From intended to expand the listing of Notice of Filing and Order Granting Members, Participants, or Others interest rate swaps denominated in Accelerated Approval of Proposed CME has not solicited, and does not certain additional currencies and rate Rule Change To Amend Its Rules intend to solicit, comments regarding options. CME expects to accept euro Relating to Interest Rate Swaps this proposed rule change. CME has not denominated interest rate swaps Clearing received any unsolicited written referencing Euribor for clearing on or comments from interested parties. October 14, 2011. around October 17, 2011. Great British Pursuant to Section 19(b)(1) of the Pound, Japanese Yen, Canadian Dollar III. Solicitation of Comments Securities Exchange Act of 1934 and Swiss Franc denominated interest Interested persons are invited to (‘‘Act’’),1 and Rule 19b–4 thereunder,2 rate swaps and related interbank rates submit written data, views and notice is hereby given that on October are expected to be accepted for clearing arguments concerning the foregoing, 7, 2011, Chicago Mercantile Exchange prior to the end of the year. including whether the proposed rule Inc. (‘‘CME’’) filed with the Securities Additionally, CME Rule 90005 is being change is consistent with the Act. and Exchange Commission amended to clarify certain registration Comments may be submitted by any of (‘‘Commission’’) the proposed rule requirements for clearing interest rate the following methods: change described in Items I and II swap products. Electronic Comments below, which items have been prepared To accommodate the changes, CME primarily by CME. The Commission is has also included changes to its Manual • Electronic comments may be of Operations for CME Cleared Interest submitted by using the Commission’s 1 15 U.S.C. 78s(b)(1). Rate Swaps to reflect the new Internet comment form (http:// 2 17 CFR 240.19b–4. denominations and rate options. www.sec.gov/rules/sro.shtml), or send

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an e-mail to [email protected]. and regulations thereunder applicable to SECURITIES AND EXCHANGE Please include File No. SR–CME–2011– CME. Specifically, the Commission COMMISSION 10 on the subject line. finds that the proposed rule change is [Release No. 34–65576; File No. SR–Phlx– Paper Comments consistent with Section 17A(b)(3)(F) of 2011–133] • the Act which requires, among other Paper comments should be sent in things, that the rules of a clearing Self-Regulatory Organizations; triplicate to Elizabeth M. Murphy, agency be designed to promote the NASDAQ OMX PHLX LLC; Notice of Secretary, Securities and Exchange prompt and accurate clearance and Filing and Immediate Effectiveness of Commission, 100 F Street, NE., Proposed Rule Change Relating To the Washington, DC, 20549–1090. settlement of derivative agreements, contracts, and transactions because it RSQT Fee All submissions should refer to File Number SR–CME–2011–10. This file should allow CME to enhance its October 14, 2011. number should be included on the services in clearing interest rate swaps, Pursuant to Section 19(b)(1) of the subject line if e-mail is used. To help the thereby promoting the prompt and Securities Exchange Act of 1934 Commission process and review your accurate clearance and settlement of (‘‘Act’’),1 and Rule 19b–4 thereunder,2 comments more efficiently, please use derivative agreements, contracts, and notice is hereby given that on October only one method. The Commission will transactions.5 3, 2011, NASDAQ OMX PHLX LLC post all comments on the Commission’s The Commission finds good cause for (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Internet Web site (http://www.sec.gov/ accelerating approval because: (i) The Securities and Exchange Commission rules/sro.shtml). Copies of the proposed rule change does not (‘‘SEC’’ or ‘‘Commission’’) the proposed submission, all subsequent significantly affect any securities rule change as described in Items I, II, amendments, all written statements clearing operations of the clearing and III, below, which Items have been with respect to the proposed rule agency (whether in existence or prepared by the Exchange. The change that are filed with the contemplated by its rules) or any related Commission is publishing this notice to Commission, and all written rights or obligations of the clearing solicit comments on the proposed rule communications relating to the agency or persons using such service; change from interested persons. proposed rule change between the (ii) CME has indicated that not I. Self-Regulatory Organization’s Commission and any person, other than providing accelerated approval would Statement of the Terms of Substance of those that may be withheld from the the Proposed Rule Change public in accordance with the have a significant impact on the swap provisions of 5 U.S.C. 552, will be clearing business of CME as a The Exchange proposes to amend the available for Web site viewing and designated clearing organization; and Remote Streaming Quote Trader printing in the Commission’s Public (iii) the activity relating to the non- (‘‘RSQT’’) 3 Fee in Section VI of the Reference Room, 100 F Street, NE., security clearing operations of the Exchange’s Fee Schedule entitled Washington, DC 20549 on official clearing agency for which the clearing ‘‘Access Service, Cancellation, business days between the hours of 10 agency is seeking approval is subject to Membership, Regulatory and Other a.m. and 3 p.m. Copies of such filing regulation by another regulator. Fees.’’ While changes to the Fee Schedule also will be available for inspection and V. Conclusion copying at the principal office of CME. pursuant to this proposal are effective All comments received will be posted It Is Therefore Ordered, pursuant to upon filing, the Exchange has designated these changes to be operative without change; the Commission does Section 19(b)(2) 6 of the Act, that the not edit personal identifying on November 1, 2011. proposed rule change (SR–CME–2011– The text of the proposed rule change information from submissions. You 10) is approved on an accelerated basis. should submit only information that is available on the Exchange’s Web site you wish to make available publicly. All For the Commission by the Division of at http://nasdaqtrader.com/ submissions should refer to File Trading and Markets, pursuant to delegated micro.aspx?id=PHLXfilings, at the 7 Number SR–CME–2011–10 and should authority. principal office of the Exchange, on the be submitted on or before November 10, Elizabeth M. Murphy, Commission’s Web site at http:// 2011. Secretary. www.sec.gov/ and at the Commission’s Public Reference Room. IV. Commission’s Findings and Order [FR Doc. 2011–27201 Filed 10–19–11; 8:45 am] Granting Accelerated Approval of BILLING CODE 8011–01–P II. Self-Regulatory Organization’s Proposed Rule Change Statement of the Purpose of, and Statutory Basis for, the Proposed Rule 3 Section 19(b) of the Act directs the Change Commission to approve a proposed rule change of a self-regulatory organization In its filing with the Commission, the if it finds that such proposed rule Exchange included statements change is consistent with the concerning the purpose of and basis for requirements of the Act and the rules 1 and regulations thereunder applicable to 15 U.S.C. 78s(b)(1). 2 17 CFR 240.19b–4. such organization. The Commission 3 A Registered Options Trader (‘‘ROT’’) includes finds that the proposed rule change is a Streaming Quote Trader (‘‘SQT’’), a Remote consistent with the requirements of the Streaming Quote Trader (‘‘RSQT’’) and a Non-SQT Act, in particular the requirements of ROT, which by definition is neither a SQT or a Section 17A of the Act,4 and the rules proposed rule’s impact on efficiency, competition, RSQT. A ROT is defined in Exchange Rule 1014(b) and capital formation. 15 U.S.C. 78c(f). as a regular member or a foreign currency options participant of the Exchange located on the trading 5 15 U.S.C. 78q–1(b)(3)(F). 3 15 U.S.C. 78s(b). floor who has received permission from the 4 15 U.S.C. 78q–1. In approving this proposed 6 15 U.S.C. 78s(b)(2). Exchange to trade in options for his own account. rule change, the Commission has considered the 7 17 CFR 200.30–3(a)(12). See Exchange Rule 1014 (b)(i) and (ii).

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the proposed rule change and discussed A. Self-Regulatory Organization’s received permission from the Exchange any comments it received on the Statement of the Purpose of, and the to generate and submit option proposed rule change. The text of these Statutory Basis for, the Proposed Rule quotations electronically in options to statements may be examined at the Change which such RSQT has been assigned.4 places specified in Item IV below. The 1. Purpose An RSQT may only submit such Exchange has prepared summaries, set quotations electronically from off the The Exchange proposes to amend the forth in sections A, B, and C below, of floor of the Exchange.5 An RSQT shall RSQT Fee in Section VI of the the most significant aspects of such not submit option quotations in eligible Exchange’s Fee Schedule, entitled options to which such RSQT is assigned statements. ‘‘Access Service, Cancellation, to the extent that the RSQT is also Membership, Regulatory and Other approved as a Remote Specialist in the Fees,’’ in order to simplify its RSQT Fee 6 and automate its billing of this fee. same options. An RSQT is an ROT that is a member Currently, the Exchange assesses its or member organization with no RSQT Fee in seven categories as physical trading floor presence who has follows:

RSQT Category I ...... $1700.00 per calendar month. RSQT is Eligible to trade: • 1 issue selected from the top 5 national volume leaders. • 1 issue selected from the 6th to 10th national volume leaders. • 3 issues selected from the 11th to 25th national volume leaders. • 4 issues selected from the 26th to 50th national volume leaders. • 1 index issue. • 190 other issues. RSQT Category II ...... $3200.00 per calendar month. RSQT is Eligible to trade: • 2 issues selected from the top 5 national volume leaders. • 2 issues selected from the 6th to 10th national volume leaders. • 6 issues selected from the 11th to 25th national volume leaders. • 8 issues selected from the 26th to 50th national volume leaders. • 2 index issues. • 380 other issues. RSQT Category III ...... $4700.00 per calendar month. RSQT is Eligible to trade: • 3 issues selected from the top 5 national volume leaders. • 3 issues selected from the 6th to 10th national volume leaders. • 9 issues selected from the 11th to 25th national volume leaders. • 12 issues selected from the 26th to 50th national volume leaders. • 3 index issues. • 570 other issues. RSQT Category IV ...... $6200.00 per calendar month. RSQT is Eligible to trade: • 4 issues selected from the top 5 national volume leaders. • 4 issues selected from the 6th to 10th national volume leaders. • 12 issues selected from the 11th to 25th national volume leaders. • 16 issues selected from the 26th to 50th national volume leaders. • 5 index issues. • 759 other issues. RSQT Category V ...... $7700.00 per calendar month. RSQT is Eligible to trade: • 5 issues selected from the top 5 national volume leaders. • 5 issues selected from the 6th to 10th national volume leaders. • 15 issues selected from the 11th to 25th national volume leaders. • 20 issues selected from the 26th to 50th national volume leaders. • 7 index issues. • 948 other issues. RSQT Category VI ...... $9200.00 per calendar month. RSQT is Eligible to trade: • 5 issues selected from the top 5 national volume leaders. • 5 issues selected from the 6th to 10th national volume leaders. • 15 issues selected from the 11th to 25th national volume leaders. • 25 issues selected from the 26th to 50th national volume leaders. • 9 index issues. • 1141 other issues. RSQT Category VII ...... $10,700.00 per calendar month. RSQT is eligible to trade all equity option and index option issues.

4 A qualified RSQT may function as a Remote an RSQT shall submit quotations as a specialist, of options in which he is assigned or approved as Specialist upon Exchange approval. SQT, RSQT or non-SQT ROT in options in which a Remote Specialist. 5 See Exchange Rule 1014(b)(ii)(B). No person such affiliated RSQT is assigned. An RSQT may 6 See Exchange Rules 1014(b) and 507 for who is either directly or indirectly affiliated with only trade in a market making capacity in classes qualifications relating to assignments.

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Currently, each RSQT is assessed an aforementioned national volume qualified to trade at any time during a RSQT Fee based on the number and grouping and in a greater number of particular calendar month.8 type of option issues (as described index options. Accordingly, in order to The Exchange proposes to eliminate above) in which an RSQT is assigned. submit electronic quotations from off the current RSQT Fee and instead adopt The national volume leader calculations the floor of the Exchange in all options a new RSQT Fee based solely on the are performed by the Exchange.7 Each traded on the Exchange, an RSQT would number of options assigned to a additional category is a progressively be required to pay fees applicable to a particular RSQT. The Exchange higher fee for an RSQT to submit Category VII RSQT. The RSQT Fee is proposes to adopt the following quotations from off the floor of the assessed based on the highest RSQT monthly RSQT Fee based on the Exchange in a progressively greater category level in which the RSQT was corresponding number of option class number of options in each assignments:9

Number of option class assignments RSQT fee

Less than 100 classes ...... $5,000 per month. More than 100 classes and less than 999 classes ...... $8,000 per month. 1000 or more classes ...... $11,000 per month.

In calculating the RSQT Fee, the enable RSQTs to easily determine the B. Self-Regulatory Organization’s Exchange will calculate the number of amount of option class assignments and Statement on Burden on Competition option class assignments for equity therefore the RSQT Fee on a monthly options including exchange-traded basis without the need for a more The Exchange does not believe that funds (‘‘ETFs’’), exchange-traded notes comprehensive calculation. The the proposed rule change will impose (‘‘ETNs’’) 10 and HOLDRS.11 The Exchange believes that this revised form any burden on competition not Exchange will not include and therefore of calculating the RSQT Fee will be necessary or appropriate in furtherance not assess a fee for currencies or indexes more transparent to members, create a of the purposes of the Act. in calculating the number of option simple calculation of the fee based C. Self-Regulatory Organization’s class assignments. solely on the number of option class Statement on Comments on the While changes to the Fee Schedule assignments and allow for ease of Proposed Rule Change Received From pursuant to this proposal are effective automation of this fee. Members, Participants, or Others upon filing, the Exchange has The Exchange believes that the designated these changes to be operative proposed RSQT Fee is equitable and not No written comments were either on November 1, 2011. unfairly discriminatory because the solicited or received. 2. Statutory Basis proposed fee is more representative of III. Date of Effectiveness of the The Exchange believes that its system usage by RSQTs and costs to the Proposed Rule Change and Timing for proposal to amend its Fee Schedule is Exchange. While several factors Commission Action consistent with Section 6(b) of the Act 12 determine a particular RSQT’s Fee in in general, and furthers the objectives of any given month, a comparison of the The foregoing rule change has become Section 6(b)(4) of the Act 13 in current RSQT Fee and the proposal effective pursuant to Section particular, in that it is an equitable which is based solely on option 19(b)(3)(A)(ii) of the Act.14 At any time allocation of reasonable fees and other assignments is not a fair determination within 60 days of the filing of the charges among Exchange members and of the impact of this fee proposal. The proposed rule change, the Commission other persons using its facilities. Exchange believes that a majority of summarily may temporarily suspend The Exchange believes that the RSQTs will experience an increase or such rule change if it appears to the proposed amendments to the RSQT Fee decrease in the RSQT Fee of Commission that such action is are reasonable because the Exchange is approximately $300–$1800 a month necessary or appropriate in the public creating a simple method for calculating based on this proposal. The Exchange interest, for the protection of investors, the RSQT Fee. The proposal will has not increased this fee since it was or otherwise in furtherance of the calculate the RSQT Fee on the number established in 2005 and believes that the purposes of the Act. If the Commission of option assignments as compared to proposed fee is a fair representation of takes such action, the Commission shall the national volume for equity options the Exchange’s technology costs and the institute proceedings to determine and options overlying Exchange-Traded increased amount of system usage whether the proposed rule should be Fund Shares. This new calculation will attributable to each RSQT. approved or disapproved.

7 The Exchange calculates the national volume for 8 For example, if an RSQT is eligible to trade at underlying securities, commodities, currencies, equity options and options overlying Exchange- any time in a given calendar month as a Category derivative instruments or market indexes of the Traded Fund Shares every six months, effective I RSQT, and sometime during that calendar month foregoing. Index-Linked Securities are the non- from January 1 through June 30, and again from July becomes qualified and eligible to trade as a convertible debt of an issuer that have a term of at 1 through December 31. The January–June national Category II RSQT, the RSQT will be assessed the least one (1) year but not greater than thirty (30) fee applicable to a Category II RSQT, regardless of volume rankings are based on the total national years. Despite the fact that Index-Linked Securities when such RSQT became eligible to trade at the volume for a particular option traded during the are linked to an underlying index, each trade as a Category II level, and regardless of whether or not, single, exchange-listed security. Accordingly, rules previous month of October, as determined by The during that calendar month, the RSQT resumed pertaining to the listing and trading of standard Options Clearing Corporation (‘‘OCC’’); the July– eligibility as a Category I RSQT. equity options apply to Index-Linked Securities. December national volume rankings will be based 9 For purposes of this filing, the term ‘‘issues’’ and 11 on the total national volume for a particular option ‘‘classes’’ have the same meaning. HOLDRS are Holding Company Depository Receipts. traded during the previous month of May, as 10 ETNs are also known as ‘‘Index-Linked 12 determined by the OCC. See Securities Exchange Securities,’’ which are designed for investors who 15 U.S.C. 78f(b). Act Release No. 51428 (March 24, 2005), 70 FR desire to participate in a specific market segment 13 15 U.S.C. 78f(b)(4). 16325 (March 30, 2005) (SR–Phlx–2005–12). by providing exposure to one or more identifiable 14 15 U.S.C. 78s(b)(3)(A)(ii).

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IV. Solicitation of Comments For the Commission, by the Division of the proposed rule change and discussed Trading and Markets, pursuant to delegated any comments it received on the Interested persons are invited to authority.15 proposed rule change. The text of these submit written data, views, and Elizabeth M. Murphy, statements may be examined at the arguments concerning the foregoing, Secretary. places specified in Item IV below. The including whether the proposed rule [FR Doc. 2011–27200 Filed 10–19–11; 8:45 am] Exchange has prepared summaries, set change is consistent with the Act. BILLING CODE 8011–01–P forth in sections A, B, and C below, of Comments may be submitted by any of the most significant aspects of such the following methods: statements. SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s Electronic Comments COMMISSION Statement of the Purpose of, and the • Use the Commission’s Internet [Release No. 34–65574; File No. SR–Phlx– Statutory Basis for, the Proposed Rule comment form (http://www.sec.gov/ 2011–134] Change rules/sro.shtml); or Self-Regulatory Organizations; 1. Purpose • Send an e-mail to rule- NASDAQ OMX PHLX LLC; Notice of The purpose of the proposed rule [email protected]. Please include File Filing and Immediate Effectiveness of change is to: (i) Amend the applicability No. SR–Phlx–2011–133 on the subject Proposed Rule Change Relating To the of the Permit Fee for members and line. Permit Fee and the Inactive Nominee member organizations transacting an Paper Comments Fee options business; and (ii) amend the Inactive Nominee Fee. The Exchange October 14, 2011. • Send paper comments in triplicate desires to automate its billing processes Pursuant to Section 19(b)(1) of the to Elizabeth M. Murphy, Secretary, further and therefore proposes to require Securities Exchange Act of 1934 Securities and Exchange Commission, members and member organizations to (‘‘Act’’),1 and Rule 19b–4 thereunder,2 100 F Street, NE., Washington, DC transact business using an assigned Phlx notice is hereby given that on October 20549–1090. house account. In addition, the 3, 2011, NASDAQ OMX PHLX LLC Exchange proposes to allow affiliated All submissions should refer to File No. (‘‘Phlx’’ or ‘‘Exchange’’) filed with the member organizations the opportunity Securities and Exchange Commission SR–Phlx–2011–133. This file number to benefit from each other’s transactions (‘‘SEC’’ or ‘‘Commission’’) the proposed should be included on the subject line for purposes of assessing the Permit Fee. rule change as described in Items I, II, if e-mail is used. To help the Also, the Exchange proposes to increase and III, below, which Items have been Commission process and review your the Inactive Nominee Fee from $500 prepared by the Exchange. The comments more efficiently, please use each six months to $100 a month for the Commission is publishing this notice to only one method. The Commission will applicable six month period. Assessing solicit comments on the proposed rule post all comments on the Commission’s the Inactive Nominee Fee on a monthly change from interested persons. Internet Web site (http://www.sec.gov/ basis enables member organizations the rules/sro.shtml). Copies of the I. Self-Regulatory Organization’s ability to terminate an Inactive Nominee submission, all subsequent Statement of the Terms of Substance of prior to the six month period and avoid amendments, all written statements the Proposed Rule Change paying the $100 for the remaining with respect to the proposed rule The Exchange proposes to amend the months. change that are filed with the applicability of the Permit Fee and also Permit Fee Commission, and all written proposes to amend the Inactive communications relating to the Currently, the Exchange assesses a Nominee Fee. Permit Fee of $1,100 for members and proposed rule change between the While changes to the Fee Schedule Commission and any person, other than member organizations who transact pursuant to this proposal are effective business on the Exchange and $7,500 for those that may be withheld from the upon filing, the Exchange has members and member organizations public in accordance with the designated these changes to be operative who do not transact business on the provisions of 5 U.S.C. 552, will be on November 1, 2011. Exchange. Further, the $7,500 Permit The text of the proposed rule change available for Web site viewing and Fee is assessed only if that member is is available on the Exchange’s Web site printing in the Commission’s Public (i) not a PSX 3 Only Participant; or (ii) at http://nasdaqtrader.com/ Reference Room, 100 F Street, NE., not engaged in an options business at micro.aspx?id=PHLXfilings, at the Washington, DC 20549, on official Phlx in a particular month.4 business days between the hours of 10 principal office of the Exchange, on the The Exchange proposes two a.m. and 3 p.m. Copies of such filing Commission’s Web site at http:// amendments to the eligibility of the also will be available for inspection and www.sec.gov/ and at the Commission’s copying at the principal office of the Public Reference Room. 3 PSX is the Exchange’s cash equities market Exchange. All comments received will II. Self-Regulatory Organization’s electronic trading platform. 4 be posted without change; the A member or member organization will pay an Statement of the Purpose of, and additional permit fee for each sponsored options Commission does not edit personal Statutory Basis for, the Proposed Rule participant. See Exchange Rule 1094 titled identifying information from Change Sponsored Participants. A Sponsored Participant submissions. You should submit only may obtain authorized access to the Exchange only In its filing with the Commission, the if such access is authorized in advance by one or information that you wish to make Exchange included statements more Sponsoring Member Organizations. Sponsored available publicly. All submissions concerning the purpose of and basis for Participants must enter into and maintain should refer to File No. SR–Phlx–2011– participant agreements with one or more Sponsoring Member Organizations establishing a 133 and should be submitted on or 15 17 CFR 200.30–3(a)(12). proper relationship(s) and account(s) through before November 10, 2011. 1 15 U.S.C. 78s(b)(1). which the Sponsored Participant may trade on the 2 17 CFR 240.19b–4. Exchange.

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$1,100 Permit Fee for those members to pay a Permit Fee of $1,100 each as reaffirmation of the inactive nominee transacting an options business. First, long as one member has options trading status for the applicable six month the Exchange proposes to require that activity recorded under their assigned period. The proposal will allow member transaction(s) executed on the Exchange Phlx house account number. The organizations to discontinue payment of be transacted in a Phlx house account proposed amendments to the Permit Fee the Inactive Nominee Fee in the next assigned to the member or member do not apply to members solely engaged full month after notice of termination of organization by the Exchange. The in an equities business on PSX. the inactive nominee status as the fee Exchange will use the member’s house will be assessed per month. The Inactive Nominee Fee account in its automated billing process member organization is therefore to confirm a member’s options trading Currently, the Exchange assesses a required to provide the Exchange notice activity for purposes of assessing them member organization an Inactive of its intent to terminate an inactive a Permit Fee. Currently members utilize Nominee Fee of $500 for each of its nominee before the end of the month in house accounts as well as other inactive nominees 7 for a six month order to avoid an assessment of the $100 accounts, such as accounts in the name period, as provided for in Exchange fee in the following month. For of the member’s clearing firm, to Rule 925.8 The member organization is example, if on January 1, 2012 a transact their options business. The required to pay a fee for the privilege of member organization designated an Exchange assesses members the $1,100 maintaining the inactive nominee status individual as an inactive nominee, Permit Fee today for transacting of an individual.9 An inactive pursuant to Exchange Rule 925, and business in any of these accounts. This nominee’s status terminates after six subsequently notified the Exchange on proposal will require members to months unless it has been reaffirmed in April 19, 2012 that the member transact business in a house account in writing by the member organization or organization desired to terminate the order for the Exchange to identify the is terminated sooner.10 An inactive inactive nominee, the member member’s eligibility for the $1,100 nominee is assessed the $500 fee every organization would not be assessed the Permit Fee.5 The Exchange’s automated time the status is reaffirmed.11 $100 Inactive Nominee Fee in May and billing process will utilize the house The Exchange proposes to increase June 2012 for that inactive nominee. account to determine the appropriate the Inactive Nominee Fee from $500 to The Exchange will not however Permit Fee to be assessed each member. $600 for the six month period described retroactively reimburse any fees, but Members will be notified in advance in in Exchange Rule 925 and assess the rather would allow a member the form of an Options Trader Alert of member organization an Inactive organization to terminate the remaining the necessity to obtain a Phlx house Nominee Fee of $100 per month for the full months. account if they are not currently applicable six month period as opposed While changes to the Fee Schedule assigned such an account.6 Members to $500 upon notification or pursuant to this proposal are effective will need to obtain such an account upon filing, the Exchange has 7 An inactive nominee is also assessed the designated these changes to be operative prior to November 1, 2011. The Application and Initiation Fees when such person Exchange intends to provide its applies to be an inactive nominee. Such fees are on November 1, 2011. members ample notice to obtain such an reassessed if there is a lapse in the inactive 2. Statutory Basis account. nominee’s membership status. However, an inactive Second, the Exchange is proposing to nominee would not be assessed the Application and The Exchange believes that its Initiation Fees if such inactive nominee applied for amend the applicability of the $1,100 proposal to amend its Fee Schedule is membership without a lapse in that individual’s 12 Permit Fee for members and member association with a particular member organization. consistent with Section 6(b) of the Act organizations transacting an options See Securities Exchange Act Release No. 63780 in general, and furthers the objectives of business by permitting a member (January 26, 2011), 76 FR 5846 (February 2, 2011) Section 6(b)(4) of the Act 13 in (SR–Phlx–2011–07). See also By-Law Article XII, particular, in that it is an equitable organization under common ownership Section 12 10. with another member organization, 8 Pursuant to Exchange Rule 925, a member allocation of reasonable fees and other which transacts at least one options organization may designate an individual as an charges among Exchange members and trade in an assigned Phlx house inactive nominee. To be eligible to be an inactive other persons using its facilities. account, to be eligible for the $1,100 nominee an individual must be approved as eligible The Exchange believes that its to hold a permit in accordance with the Exchange’s proposal to require members transacting Permit Fee. For purposes of this Permit By-Laws and Rules. An inactive nominee has no Fee, ‘‘common ownership’’ is defined as rights and privileges of a permit holder until the an options business to transact orders at least 75% common ownership inactive nominee becomes an effective permit using an assigned Phlx house account is between member organizations. In other holder and all applicable Exchange fees are paid. reasonable because the Exchange is See Exchange Rule 925. transitioning permit billing to an words the transactions of member 9 See Securities Exchange Act Release No. 39851 organizations under common ownership (April 10, 1998), 63 FR 19282 (April 17, 1998) (SR– automated billing process for its Permit will be viewed together in assessing the Phlx–97–35) (a rule change which subjected Fees and this information will be Permit Fee. Each member organization inactive nominees to the membership application utilized to more accurately ascertain if process, including fees, including a fee for the a member is transacting an options under common ownership will continue privilege of maintaining an inactive nominee status). business in a particular month. 5 The Exchange will require at least one 10 See By-Law Article XII, Section 12–10. The Exchange believes that its transaction occur in an assigned Phlx house 11 An inactive nominee is also assessed the proposal to allow member organizations account in order for the Exchange’s automated Application and Initiation Fees when such person under common ownership to be billing system to identify that member’s eligibility applies to be an inactive nominee. Such fees are assessed a $1,100 Permit Fee for for the $1,100 Permit Fee. If the member determines reassessed if there is a lapse in the inactive transacting an options business on the to transact some transactions in a non-Phlx house nominee’s membership status. However, an inactive account, that will not impact the member’s nominee would not be assessed the Application and Exchange, as long as one of the member eligibility for the $1,100 Permit Fee as long as one Initiation Fees if such inactive nominee applied for organizations transacted an options trade was transacted in the assigned Phlx house membership without a lapse in that individual’s trade in an assigned Phlx house account. association with a particular member organization. account, is reasonable because the 6 The Exchange’s Membership Department See Securities Exchange Act Release No. 63780 assigns Phlx house accounts to members and (January 26, 2011), 76 FR 5846 (February 2, 2011) member organizations upon request. There is no fee (SR–Phlx–2011–07). See also By-Law Article XII, 12 15 U.S.C. 78f(b). to obtain a Phlx house account. Section 12–10. 13 15 U.S.C. 78f(b)(4).

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Exchange believes that viewing and assessing those fees on member only one method. The Commission will commonly owned members together for organizations. post all comments on the Commission’s purposes of billing the Permit Fee will Internet Web site (http://www.sec.gov/ B. Self-Regulatory Organization’s provide an opportunity for an entity that rules/sro.shtml). Copies of the Statement on Burden on Competition has multiple operations to maintain submission, all subsequent reasonable expenses while maintaining The Exchange does not believe that amendments, all written statements multiple permits for various member the proposed rule change will impose with respect to the proposed rule organizations. any burden on competition not change that are filed with the The Exchange believes that it is necessary or appropriate in furtherance Commission, and all written equitable and not unfairly of the purposes of the Act. communications relating to the discriminatory to require members C. Self-Regulatory Organization’s proposed rule change between the transacting an options business to Commission and any person, other than Statement on Comments on the transact orders using an assigned Phlx those that may be withheld from the Proposed Rule Change Received From house account, because the Exchange is public in accordance with the Members, Participants, or Others requiring all option members to utilize provisions of 5 U.S.C. 552, will be this process in order to increase the No written comments were either available for Web site viewing and efficiency of identifying a member’s solicited or received. printing in the Commission’s Public eligibility for the $1,100 Permit Fee. III. Date of Effectiveness of the Reference Room, 100 F Street, NE., This will allow the Exchange to readily Proposed Rule Change and Timing for Washington, DC 20549, on official determine a member’s level of activity Commission Action business days between the hours of 10 in a particular month. a.m. and 3 p.m. Copies of such filing The Exchange believes that it is The foregoing rule change has become also will be available for inspection and equitable and not unfairly effective pursuant to Section copying at the principal office of the discriminatory to consider together 19(b)(3)(A)(ii) of the Act.14 At any time Exchange. All comments received will those transactions of member within 60 days of the filing of the be posted without change; the organizations under common ownership proposed rule change, the Commission Commission does not edit personal for purposes of assessing the Permit Fee summarily may temporarily suspend identifying information from because the Exchange will uniformly such rule change if it appears to the submissions. You should submit only calculate the Permit Fee in this manner Commission that such action is information that you wish to make for all applicable member organizations necessary or appropriate in the public available publicly. All submissions under common ownership. Each interest, for the protection of investors, should refer to File No. SR–Phlx–2011– member organization will continue to be or otherwise in furtherance of the 134 and should be submitted on or assessed a Permit Fee of $1,100 in the purposes of the Act. If the Commission before November 10, 2011. event that a member organization under takes such action, the Commission shall For the Commission, by the Division of common ownership transacts one institute proceedings to determine Trading and Markets, pursuant to delegated options transaction in an assigned Phlx whether the proposed rule should be authority.15 house account each month. The approved or disapproved. Elizabeth M. Murphy, Exchange believes that a member Secretary. organization that has multiple IV. Solicitation of Comments operations should not incur greater Interested persons are invited to [FR Doc. 2011–27199 Filed 10–19–11; 8:45 am] expenses merely because it determined submit written data, views, and BILLING CODE 8011–01–P to conduct its business under separate arguments concerning the foregoing, legal structures. In addition, those including whether the proposed rule SECURITIES AND EXCHANGE members that are not under common change is consistent with the Act. COMMISSION ownership with another member can Comments may be submitted by any of still qualify for the $1,100 Permit Fee by the following methods: [Release No. 34–65567; File No. SR– executing at least one trade in their NYSEArca–2011–72] Electronic Comments assigned Phlx house account. The Exchange believes that increasing • Use the Commission’s Internet Self-Regulatory Organizations; NYSE the Inactive Nominee Fee from $500 to comment form (http://www.sec.gov/ Arca, Inc.; Notice of Filing of Proposed $600 is reasonable because the rules/sro.shtml); or Rule Change Relating to a Corporate Exchange incurs administrative costs • Send an e-mail to rule-comments@ Transaction in Which Its Indirect with respect to its administration of sec.gov. Please include File No. SR– Parent, NYSE Euronext, Will Become a inactive nominees. The Exchange Phlx–2011–134 on the subject line. Wholly Owned Subsidiary of Alpha Beta Netherlands Holding N.V. believes that its proposal to assess the Paper Comments Inactive Fee on a monthly basis ($100 • October 14, 2011. per month) is also reasonable because it Send paper comments in triplicate Pursuant to Section 19(b)(1) 1 of the will allow member organizations to to Elizabeth M. Murphy, Secretary, Securities Exchange Act of 1934 (the discontinue payment of the Inactive Securities and Exchange Commission, ‘‘Exchange Act’’), and Rule 19b–4 Nominee Fee in the next full month 100 F Street, NE., Washington, DC thereunder,2 notice is hereby given that after notice of termination of the 20549–1090. on October 12, 2011, NYSE Arca, Inc. inactive nominee status as the fee will All submissions should refer to File No. (the ‘‘NYSE Arca’’) filed with the be assessed per month. SR–Phlx–2011–134. This file number Securities and Exchange Commission The Exchange believes that the should be included on the subject line (the ‘‘Commission’’) the proposed rule amendments to the Inactive Nominee if e-mail is used. To help the change as described in Items I and II Fee are equitable and not unfairly Commission process and review your discriminatory because these fee comments more efficiently, please use 15 17 CFR 200.30–3(a)(12). amendments will be uniformly applied 1 15 U.S.C. 78s(b)(1). in calculating Inactive Nominee Fees 14 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b–4.

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below, which Items have been prepared EDGX, a ‘‘DB Exchange’’ and a ‘‘DB U.S. any matter.5 NYSE Euronext is required substantially by NYSE Arca. The Regulated Subsidiary’’ and together, the to disregard votes which are in excess Commission is publishing this notice to ‘‘DB Exchanges’’ and the ‘‘DB U.S. of the voting restriction and to solicit comments on the proposed rule Regulated Subsidiaries’’). The DB repurchase NYSE Euronext shares that change from interested persons. Exchanges will be separately filing a are held in excess of the ownership proposed rule change in connection I. Self-Regulatory Organization’s restriction. The NYSE Euronext Statement of the Terms of Substance of with the Combination. Certificate and the Amended and the Proposed Rule Change If the Combination is completed, the Restated Bylaws of NYSE Euronext (the businesses of NYSE Euronext and ‘‘NYSE Euronext Bylaws’’) provide that A. Overview of the Proposed Deutsche Bo¨rse, including the NYSE the board of directors of NYSE Euronext Combination U.S. Regulated Subsidiaries and the DB may waive these voting and ownership NYSE Arca, a Delaware corporation, U.S. Regulated Subsidiaries (together, restrictions if it makes certain registered national securities exchange the ‘‘U.S. Regulated Subsidiaries’’ and determinations and resolves to and self-regulatory organization, is each, a ‘‘U.S. Regulated Subsidiary’’), expressly permit the voting and submitting this rule filing (the will be held under a single, publicly ownership that is subject to such ‘‘Proposed Rule Change’’) to the traded holding company organized restrictions, and such resolutions have Commission in connection with the under the laws of the Netherlands been filed with, and approved by, the proposed business combination (the (‘‘Holdco’’).3 The Proposed Rule Commission under Section 19(b) of the ‘‘Combination’’) of NYSE Euronext, a Change, if approved by the Commission, Exchange Act 6 and filed with, and Delaware corporation, and Deutsche will not be operative until the approved by, each European Regulator Bo¨rse AG, an Aktiengesellschaft consummation of the Combination. (as defined in the NYSE Euronext organized under the laws of the Federal B. Summary of Proposed Rule Change Certificate) having appropriate Republic of Germany (‘‘Deutsche 7 Bo¨rse’’). jurisdiction and authority. Acting NYSE Euronext owns 100% of the NYSE Arca is proposing that, pursuant to this waiver provision, the equity interest of NYSE Group, Inc., a pursuant to the Combination, its board of directors of NYSE Euronext has Delaware corporation (‘‘NYSE Group’’), indirect parent, NYSE Euronext, will adopted the resolutions set forth in which in turn directly or indirectly become a wholly owned subsidiary of Exhibit 5A (the ‘‘NYSE Euronext owns (1) 100% of the equity interest of Holdco. In addition, NYSE Arca is Resolutions’’) in order to permit Holdco three registered national securities proposing that, in connection with the to own and vote 100% of the exchanges and self-regulatory Combination, the Commission approve outstanding common stock of NYSE organizations (together, the ‘‘NYSE certain amendments to the Euronext as of and after the Exchanges’’)—NYSE Arca, New York organizational and other governance Combination. NYSE Arca is requesting Stock Exchange, LLC (‘‘Exchange’’) and documents of Holdco, NYSE Euronext, approval by the Commission of the NYSE Amex LLC (‘‘NYSE Amex’’)—and NYSE Group and certain of the NYSE NYSE Euronext Resolutions in order to (2) 100% of the equity interest of NYSE U.S. Regulated Subsidiaries as well as allow the Combination to take place. Market, Inc. (‘‘NYSE Market’’), NYSE certain rules of the Exchange, NYSE 4 • Proposed Amendments to Voting Regulation, Inc. (‘‘NYSE Regulation’’), Amex and NYSE Arca Equities. The Proposed Rule Change is summarized as and Ownership Restrictions of NYSE NYSE Arca L.L.C. (‘‘NYSE Arca LLC’’) Euronext. Because NYSE Euronext and NYSE Arca Equities, Inc. (‘‘NYSE follows: would become a wholly owned Arca Equities’’) (the NYSE Exchanges, • Proposed Approval of Waiver of subsidiary of Holdco as a result of the together with NYSE Market, NYSE Ownership and Voting Restrictions of Combination, NYSE Arca is proposing Regulation, NYSE Arca LLC and NYSE NYSE Euronext. The Amended and to amend the voting and ownership Arca Equities, the ‘‘NYSE U.S. Restated Certificate of Incorporation of restrictions in the NYSE Euronext Regulated Subsidiaries’’ and each, a NYSE Euronext (the ‘‘NYSE Euronext Certificate to be consistent with the ‘‘NYSE U.S. Regulated Subsidiary’’). Certificate’’) currently restricts any The Exchange and NYSE Amex will be person, either alone or together with its analogous provisions in the Second separately filing a proposed rule change related persons, from being entitled to Amended and Restated Certificate of in connection with the Combination vote or cause the voting of shares to the Incorporation of NYSE Group (the that will be substantially the same as the extent that such shares represent in the ‘‘NYSE Group Certificate’’): (1) First, the Proposed Rule Change. aggregate more than 10% of the NYSE Euronext Certificate would be Deutsche Bo¨rse indirectly owns 50% outstanding votes entitled to be cast on amended to provide that all of the of the equity interest of International any matter or beneficially owning shares issued and outstanding shares of NYSE Securities Exchange Holdings, Inc. (‘‘ISE of stock of NYSE Euronext representing Euronext will be held by Holdco, and Holdings’’), which in turn holds 100% in the aggregate more than 20% of the that Holdco may not transfer or assign of the equity interest of International outstanding votes entitled to be cast on any shares without approval by the Securities Exchange, LLC (‘‘ISE’’), a Commission under the Exchange Act registered national securities exchange 3 Holdco is currently named ‘‘Alpha Beta and the relevant European Regulators and self-regulatory organization. ISE Netherlands Holding N.V.,’’ but it is expected that under the applicable European Holdings also holds 31.54% of the Holdco will be renamed prior to the completion of Exchange Regulations (as defined in the equity interest of Direct Edge Holdings, the Combination to a name agreed between NYSE Euronext and Deutsche Bo¨rse. LLC (‘‘Direct Edge Holdings’’), which in 4 Proposed amendments to the governance 5 See Amended and Restated Certificate of turn indirectly holds 100% of the equity documents and rules of the Exchange and/or NYSE Incorporation of NYSE Euronext, Article V Sections interest of two registered national Amex are included in this Proposed Rule Change, 1 & 2. securities exchanges and self-regulatory and the text of those proposed amendments are 6 15 U.S.C. 78s(b). attached as exhibits to this Proposed Rule Change, 7 See Amended and Restated Certificate of organizations—EDGA Exchange, Inc. because they are part of the overall set of changes Incorporation of NYSE Euronext, Article V Sections (‘‘EDGA’’) and EDGX Exchange, Inc. proposed by the NYSE Exchanges to be made in 1 & 2, and Amended and Restated Bylaws of NYSE (‘‘EDGX’’) (each of ISE, EDGA and connection with the Combination. Euronext, Section 10.12.

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NYSE Euronext Certificate); 8 and (2) pursuant to the Trust Agreement, dated owned subsidiary; (2) conform certain second, the NYSE Euronext Certificate as of April 4, 2007, by and among NYSE provisions to analogous provisions of would be amended to provide that the Euronext, NYSE Group and the other the organizational documents of NYSE voting and ownership restrictions parties thereto, do not hold 100% of the Group, which will likewise be an contained therein would only apply in outstanding stock of NYSE Group, no indirect wholly owned subsidiary of the event that Holdco does not own all person, either alone or together with its Holdco following completion of the of the issued and outstanding shares of related persons, may be entitled to vote Combination; and (3) make certain NYSE Euronext and only for so long as or cause the voting of shares to the clarification and technical edits (for NYSE Euronext directly or indirectly extent that such shares represent in the example, to conform the use of defined controls any U.S. Regulated Subsidiary aggregate more than 10% of the terms and other provisions, and to or any European Market Subsidiary (as outstanding votes entitled to be cast on update cross-references to sections, such terms are defined in the NYSE any matter or beneficially own shares of consistent with the other amendments Euronext Certificate).9 In addition, the stock of NYSE Group representing in the to the NYSE Euronext Certificate and voting and ownership restrictions in the aggregate more than 20% of the the NYSE Euronext Bylaws set forth in NYSE Euronext Certificate would be outstanding votes entitled to be cast on this Proposed Rule Change). In addition, amended to (a) Change the 10% any matter.11 NYSE Group is required to the current Independence Policy of the threshold for the voting restriction to a disregard votes which are in excess of NYSE Euronext board of directors 20% threshold; (b) change the 20% the voting restriction and to repurchase would cease to be in effect. threshold for the ownership restriction NYSE Group shares which are held in • Proposed Amendments to Board to a 40% restriction (except that a 20% excess of the ownership restriction.12 Composition Requirements for the ownership restriction would continue to Under the Proposed Rule Change, the Exchange, NYSE Amex, NYSE Market apply to any person who is, or with voting and ownership restrictions in the and NYSE Regulation. Under the respect to whom a related person is, (A) NYSE Group Certificate would be Proposed Rule Change, certain A Member of the Exchange, as defined amended to (1) Change the 10% provisions of the Third Amended and in the NYSE Euronext Certificate (a threshold for the voting restriction to a Restated Operating Agreement, dated as ‘‘NYSE Member’’), (B) a Member of 20% threshold; (2) change the 20% of April 1, 2009, of the Exchange (the NYSE Amex as defined in the current threshold for the ownership restriction ‘‘Exchange Operating Agreement’’) NYSE Euronext Bylaws (including any to a 40% restriction (except that a 20% relating to the composition of the person who is a related person of such ownership restriction would continue to Exchange’s board of directors would be member, an ‘‘Amex Member’’), (C) an apply to any person who is, or with amended, including to provide that the ETP Holder of NYSE Arca Equities, as respect to whom a related person is, a independent directors of the Exchange defined in the NYSE Euronext NYSE Member, an Amex Member, an would perform certain functions Certificate (an ‘‘ETP Holder’’), or (D) an ETP Holder or an OTP Holder or OTP currently allocated to the NYSE OTP Holder or OTP Firm of NYSE Arca, Firm); (3) provide that the ownership Euronext nominating and governance as defined in the NYSE Euronext and voting limitations would apply only committee and that the Exchange’s Certificate (an ‘‘OTP Holder’’ and ‘‘OTP for so long as NYSE Group directly or board of directors would have its own Firm,’’ respectively)); (c) add the indirectly controls any Regulated director independence policy, instead of provision, which is currently in the Subsidiary (as defined in the NYSE referring to the director independence NYSE Euronext Bylaws, that requires Group Certificate); and (4) expand the policy of NYSE Euronext. Substantially the board of directors of NYSE Euronext definition of ‘‘Related Persons’’ the same revisions would be made to to make certain determinations relating regarding Amex Members so that it is the analogous provisions of the to NYSE Amex in order to waive the consistent with the language in the Amended and Restated Operating voting and ownership restrictions to the NYSE Rules, which language will be Agreement of NYSE Amex,13 the NYSE Euronext Certificate, and delete incorporated in the NYSE Euronext Amended and Restated Bylaws of NYSE this provision from the NYSE Euronext Certificate pursuant to this Proposed Market 14 and the Third Amended and 15 Bylaws; (d) update the names of certain Rule Change. Restated Bylaws of NYSE Regulation. • • European regulatory entities in the Proposed Amendments to Certain Proposed Amendments to the NYSE definition of ‘‘European Regulator’’ (as Public-Company-Related and Other Group Certificate and NYSE Group currently defined in the NYSE Euronext Provisions of NYSE Euronext Bylaws. Under the Proposed Rule Certificate and the NYSE Euronext Organizational and Corporate Change, the NYSE Group Certificate and Bylaws); and (e) expand the definition Governance Documents. Under the the NYSE Group Bylaws would be of ‘‘Related Persons’’ to address Amex Proposed Rule Change, in light of the amended in order to (1) Conform certain Members in a manner that is fact that NYSE Euronext would become provisions to analogous provisions of substantively consistent with provisions a wholly owned subsidiary of Holdco the organizational documents of NYSE Euronext, which will likewise be a currently located in the NYSE Rules. following completion of the • Proposed Amendments to Voting Combination, the NYSE Euronext wholly owned subsidiary of Holdco and Ownership Restrictions of NYSE Certificate and the NYSE Euronext following completion of the Group. The NYSE Group Certificate Bylaws would be amended to (1) Combination; and (2) make certain currently provides that, if NYSE Simplify and provide for a more clarification and technical edits (for Euronext and the trust 10 established efficient governance and capital example, to conform the use of defined structure that is appropriate for a wholly terms and other provisions to be 8 The analogous provision in the NYSE Group consistent with the other amendments Certificate is Section 4(a) of Article IV. Holdco Nominating, Governance and Corporate to the NYSE Group Certificate and the 9 The analogous provision in the NYSE Group Responsibility Committee. Certificate is Section 4(b) of Article IV. 11 See Second Amended and Restated Certificate 13 See Amended and Restated Operating 10 No changes are being proposed to the current of Incorporation of NYSE Group, Inc., Article IV Agreement of NYSE Amex LLC, Section 2.03(a). Delaware trust and stichting for ‘‘regulatory Section 4(b)(1) & (2). 14 See Amended and Restated Bylaws of NYSE overspill’’ matters, except that references to the 12 See Second Amended and Restated Certificate Market, Inc., Article III Section 1. Nominating and Governance Committee of NYSE of Incorporation of NYSE Group, Inc., Article IV 15 See Third Amended and Restated Bylaws of Euronext would be replaced with references to the Sections 4(b)(1)(A) & 4(b)(2)(D). NYSE Regulation, Inc., Article III Section 1.

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NYSE Group Bylaws set forth in this control over Holdco shares entitling the whose principal place of business and Proposed Rule Change). holder thereof to cast more than 20% of residence is outside the United States, • Proposed Amendments to the the then outstanding votes entitled to be will be deemed to irrevocably submit to Exchange Rules, NYSE Amex Rules and cast on a matter or beneficially owning the jurisdiction of the U.S. federal NYSE Arca Equities Rules. Under the Holdco shares representing more than courts and the Commission for the Proposed Rule Change, certain technical 40% of the outstanding votes entitled to purposes of any suit, action or amendments would be made to the rules be cast on a matter (except that a 20% proceeding pursuant to the U.S. federal of the Exchange (the ‘‘Exchange Rules’’) ownership restriction would apply to securities laws and the rules or to (1) Replace references therein to any person who is a NYSE Member, an regulations thereunder, arising out of, or ‘‘NYSE Euronext’’ with references to Amex Member, an ETP Holder, an OTP relating to, the activities of the U.S. Holdco; and (2) delete the definitions of Holder or OTP Firm, a Member (as such Regulated Subsidiaries. In addition, the ‘‘member’’ and ‘‘member organization’’ term is defined in Section 3(a)(3)(A) of Holdco Articles would provide that so relating to NYSE Amex which are set the Exchange Act) of ISE (an ‘‘ISE long as Holdco directly or indirectly forth in Rule 2 for purposes of Section Member’’), or a member of EDGA or controls any U.S. Regulated Subsidiary, 1(L) of Article 5 of the NYSE Euronext EDGX (as such terms are defined in the the directors, officers and employees Certificate, because the Proposed Rule rules of EDGA and EDGX, respectively, will be deemed to be directors, officers Change will revise the NYSE Euronext an ‘‘EDGA Member’’ and ‘‘EDGX and employees of such U.S. Regulated Certificate to include analogous Member,’’ respectively)). The Holdco Subsidiaries for purposes of, and subject language relating to NYSE Amex Articles would provide that Holdco will to oversight pursuant to, the Exchange Members. In addition, certain technical be required to disregard any votes Act. The Holdco Articles would provide amendments would be made to the rules purported to be cast in excess of the that Holdco will take reasonable steps of NYSE Amex (the ‘‘NYSE Amex voting restriction. In the event that any necessary to cause its officers, directors Rules’’) and to the rules of NYSE Arca such person(s) exceeds the ownership and employees, prior to accepting a Equities (the ‘‘NYSE Arca Equities restriction, it will be required to offer for position as an officer, director or Rules’’) to replace references therein to sale and transfer the number of Holdco employee, as applicable, to agree and ‘‘NYSE Euronext’’ with references to shares required to comply with the consent in writing to the applicability to Holdco. ownership restriction, and the rights to them of these jurisdictional and The text of the proposed amended vote, attend general meetings of Holdco oversight provisions with respect to NYSE Euronext Certificate, NYSE shareholders and receive dividends or their activities related to any U.S. Euronext Bylaws, NYSE Group other distributions attached to shares Regulated Subsidiary. Furthermore, the Certificate, NYSE Group Bylaws, held in excess of the 40% threshold (or Holdco Articles would provide that no Exchange Operating Agreement, 20% threshold, if applicable) will be person may be a director of Holdco Amended and Restated Operating suspended for so long as such threshold unless he or she has agreed and Agreement of NYSE Amex, Amended is exceeded. If such person(s) fails to consented in writing to the applicability and Restated Bylaws of NYSE Market, comply with the transfer obligation to him or her of these jurisdictional and Third Amended and Restated Bylaws of within two weeks, then the Holdco oversight provisions with respect to his NYSE Regulation, Exchange Rules, form Articles would provide that Holdco will or her activities related to any U.S. of Director Independence Policy for be irrevocably authorized to take actions Regulated Subsidiary. Holdco would certain NYSE U.S. Regulated on behalf of such person(s) in order to sign an irrevocable agreement and Subsidiaries, NYSE Amex Rules and cause it to comply with such consent for the benefit of each U.S. NYSE Arca Equities Rules are attached obligations. Consistent with the current Regulated Subsidiary that it will comply to the Proposed Rule Change as Exhibits NYSE Euronext Certificate, the Holdco with these provisions of the Holdco 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, board of directors may waive the voting Articles. 5P and 5Q, respectively. and ownership restrictions if it makes • Under the Proposed Rule Change, Books and Records. The Holdco certain determinations (which will be Holdco would take appropriate steps to Articles would provide that for so long subject to the same requirements which incorporate voting and ownership as Holdco directly or indirectly controls are currently required to be made by the restrictions, requirements relating to any U.S. Regulated Subsidiary, the board of directors of NYSE Euronext submission to jurisdiction, access to books, records and premises of Holdco and ISE Holdings in order to waive the books and records and other will be deemed to be the books, records voting and ownership restrictions in the requirements related to its control of the and premises of such U.S. Regulated current NYSE Euronext Certificate and U.S. Regulated Subsidiaries. Subsidiaries for purposes of, and subject the Certificate of Incorporation of ISE Specifically, the Articles of Association to oversight pursuant to, the Exchange Holdings (the ‘‘ISE Certificate’’), as of Holdco in effect as of the completion Act, and that Holdco’s books and applicable) and resolves to expressly of the Combination (the ‘‘Holdco records will at all times be made permit the voting and ownership that is Articles’’) would contain provisions 16 available for inspection and copying by subject to such restrictions, and such to incorporate these concepts with the Commission, and by any U.S. resolutions have been filed with, and respect to itself, as well as its directors, Regulated Subsidiary to the extent they approved by, the Commission under officers, employees and agents (as are related to the activities of such U.S. Section 19(b) of the Exchange Act and applicable): Regulated Subsidiary or any other U.S. filed with, and approved by, the • Voting and Ownership Restrictions Regulated Subsidiary over which such relevant European Regulators having in the Holdco Articles. The Holdco U.S. Regulated Subsidiary has appropriate jurisdiction and authority. Articles would contain voting and regulatory authority or oversight. In • ownership restrictions that will restrict Jurisdiction. The Holdco Articles addition, Holdco’s books and records any person, either alone or together with will provide that Holdco and its related to the U.S. Regulated its related persons, from having voting directors, and to the extent they are Subsidiaries will be maintained within involved in the activities of the U.S. the United States, except that to the 16 The text of the proposed Holdco Articles is Regulated Subsidiaries, (x) Holdco’s extent that books and records may relate attached to the Proposed Rule Change as Exhibit 5L. officers, and (y) those of its employees to both European subsidiaries and U.S.

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Regulated Subsidiaries, Holdco may ‘‘Holdco Independence Policy’’), which leader in derivatives and risk maintain such books and records either would be substantially similar to the management and the premier global in the home jurisdiction of one or more current Independence Policy of the venue for capital raising, with a truly European subsidiaries or in the United NYSE Euronext board of directors, global franchise and presence in many States. except for certain changes described in of the world’s financial centers • Amendments to Holdco Articles. this Proposed Rule Change. including New York, London, Frankfurt, The Holdco Articles would provide that The text of the Proposed Rule Change Paris and Luxembourg. This global before any amendment to the Holdco is available at NYSE Arca, the presence should facilitate providing Articles may be effectuated by execution Commission’s Public Reference Room, world-class services to global and local of a notarial deed of amendment, such and on the Web site of NYSE Euronext customers worldwide. amendment would need to be submitted (http://www.nyse.com). The text of Other than as described herein, to the board of directors of each U.S. Exhibits 5A through 5Q of the Proposed Holdco and the NYSE Exchanges will Regulated Subsidiary and, if so Rule Change are also available on NYSE not make any changes to the regulated determined by any such board, would Euronext’s Web site and on the activities of the NYSE U.S. Regulated need to be filed with, or filed with and Commission’s Web site (http:// Subsidiaries in connection with the approved by, the Commission before www.sec.gov/rules/sro.shtml). Combination, and, other than as such amendment may become effective. Other than as described herein and set described in the separate proposed rule • Additional Matters. The Holdco forth in the attached Exhibits 5A changes filed by each of the DB Articles would include provisions through 5Q, NYSE Arca will continue to Exchanges in connection with the regarding cooperation with the conduct its regulated activities in the Combination, Holdco and the DB Commission and the U.S. Regulated manner currently conducted and will Exchanges will not make any changes to Subsidiaries, compliance with U.S. not make any changes to its regulated the regulated activities of the DB U.S. federal securities laws, confidentiality activities in connection with the Regulated Subsidiaries in connection of information regarding the U.S. Combination. If NYSE Arca determines with the Combination. If Holdco Regulated Subsidiaries’ self-regulatory to make any such changes, it will seek determines to make any such changes to function, preservation of the approval of the Commission. the regulated activities of any U.S. independence of the U.S. Regulated Regulated Subsidiary, it will seek the Subsidiaries’ self-regulatory function, II. Self-Regulatory Organization’s approval of the Commission. The and directors’ consideration of the effect Statement of the Purpose of, and Proposed Rule Change, if approved by of Holdco’s actions on the U.S. Statutory Basis for, the Proposed Rule the Commission, will not be operative Regulated Subsidiaries’ ability to carry Change until the consummation of the out their respective responsibilities In its filing with the Commission, Combination. under the Exchange Act. In addition, the NYSE Arca has included statements The Combination will occur pursuant Holdco Articles would provide that concerning the purpose of, and basis for, to the terms of the Business Holdco will take reasonable steps the Proposed Rule Change. The text of Combination Agreement, dated as of necessary to cause its officers, directors these statements may be examined at February 15, 2011, as amended by and employees, prior to accepting a the places specified in Item IV below. Amendment No. 1 dated as of May 2, position as an officer, director or NYSE Arca has prepared summaries, set 2011 and by Amendment No. 2 dated as employee, as applicable, of Holdco to forth in Sections A, B and C below, of of June 16, 2011 (as it may be further agree and consent in writing to the the most significant aspects of such amended from time to time, the applicability to them of these provisions statements. ‘‘Combination Agreement’’), by and of the Holdco Articles with respect to among NYSE Euronext, Deutsche Bo¨rse, their activities related to any U.S. A. Purpose [sic] Holdco and Pomme Merger Corporation, Regulated Subsidiary. The Holdco The purpose of this rule filing is to a Delaware corporation and newly Articles would also provide that no adopt the rules necessary to permit formed wholly owned subsidiary of person may be a director of Holdco NYSE Euronext to effect the Holdco (‘‘Merger Sub’’). Subject to the unless he or she has agreed and Combination and to amend certain terms and conditions set forth in the consented in writing to the applicability provisions of the organizational and Combination Agreement and in to him or her of these provisions with other governance documents of NYSE compliance with applicable law, Holdco respect to his or her activities related to Euronext, NYSE Group and certain of has conducted a public exchange offer any U.S. Regulated Subsidiary. Holdco the NYSE U.S. Regulated Subsidiaries, (the ‘‘Exchange Offer’’), in which will sign an irrevocable agreement and including certain Exchange Rules, NYSE shareholders of Deutsche Bo¨rse have consent for the benefit of each U.S. Amex Rules and NYSE Arca Equities been afforded the opportunity to tender Regulated Subsidiary 17 that it will Rules. each share of Deutsche Bo¨rse for one comply with these provisions of the ordinary share of Holdco (each, a Holdco Articles.18 1. Overview of the Combination ‘‘Holdco Share’’). In addition, Holdco would adopt a NYSE Arca is submitting this Immediately after the time that Director Independence Policy in the Proposed Rule Change to the Holdco accepts for exchange, and form attached hereto as Exhibit 5N (the Commission in connection with the exchanges, the Deutsche Bo¨rse shares Combination of NYSE Euronext and that are validly tendered and not 17 The form of Holdco’s agreement and consent is Deutsche Bo¨rse. The Combination will withdrawn in the Exchange Offer, attached as Exhibit 5M to this Proposed Rule create a holding company, Holdco, Merger Sub will merge with and into Change. which will hold the businesses of NYSE NYSE Euronext, as a result of which 18 The Holdco Articles will also set forth certain restrictions and requirements relating to Holdco’s Euronext and Deutsche Bo¨rse. NYSE Euronext will become a wholly European subsidiaries and applicable European Following the Combination, each of owned subsidiary of Holdco (the regulatory matters, which will be substantially NYSE Euronext and Deutsche Bo¨rse will ‘‘Merger’’). In the Merger, each consistent with the analogous restrictions and requirements applicable with respect to Holdco’s be a separate subsidiary of Holdco. outstanding share of NYSE Euronext U.S. Regulated Subsidiaries and U.S. regulatory Holdco expects the Combination will common stock will be converted into matters. create a group that will be both a world the right to receive 0.47 of a fully paid

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and non-assessable Holdco Share. NYSE holds (1) 100% of the equity interest of Financiers), the French Prudential Euronext’s obligation to complete the NYSE Group (which, in turn, directly or Supervisory Authority (Autorite´ de Merger is subject to the completion of indirectly holds 100% of the equity Controˆ le Prudentiel), the Netherlands the Exchange Offer and the acquisition interests of the NYSE U.S. Regulated Authority for the Financial Markets by Holdco of all of the Deutsche Bo¨rse Subsidiaries) and (2) 100% of the equity (Autoriteit Financie¨le Markten), the shares validly tendered and not interest of Euronext N.V. (which, in Belgian Financial Services and Markets withdrawn in the Exchange Offer. The turn, directly or indirectly holds 100% Authority (Autorite´ des Services et completion of the Exchange Offer (and, of the equity interests of trading markets Marche´s Financiers), the Portuguese therefore, the completion of the Merger) in Belgium, France, the Netherlands, Securities Market Commission is subject to the satisfaction of a number Portugal and the United Kingdom). (Comissa˜ o do Mercado de Valores of conditions, including that Deutsche Holdco will also hold a majority of the Mobilia´ rios—CMVM) and the U.K. Bo¨rse shares representing at least 75% equity interests in Deutsche Bo¨rse, Financial Services Authority (FSA). of the Deutsche Bo¨rse shares which indirectly holds 50% of the Other than certain modifications outstanding, on a fully diluted basis, equity interest of ISE Holdings (which, described herein, the current corporate must be validly tendered and not in turn, holds (1) 100% of the equity structure, governance and self- withdrawn in the Exchange Offer, and interest of ISE and (2) 31.54% of the regulatory independence and separation that holders of a majority of the equity interest of Direct Edge Holdings). of each NYSE U.S. Regulated Subsidiary outstanding shares of NYSE Euronext Direct Edge Holdings indirectly holds will be preserved. Specifically, after the shall have adopted the Combination 100% of the equity interest of EDGA Combination, NYSE Group’s businesses Agreement. Both of these conditions and EDGX. Holdco intends to list its and assets will continue to be structured have been satisfied. ordinary shares on the New York Stock as follows: Following the completion of the Exchange, the Frankfurt Stock Exchange • The Exchange will remain a direct Exchange Offer, and depending on the and Euronext Paris. The Holdco Group wholly owned subsidiary of NYSE percentage of Deutsche Bo¨rse shares will have dual headquarters in Frankfurt Group and an indirectly wholly owned acquired by Holdco in the Exchange and New York. subsidiary of NYSE Euronext. Offer, Deutsche Bo¨rse and Holdco After the Combination, NYSE Group • NYSE Market will remain a wholly intend to complete a post-completion will continue to be directly wholly owned subsidiary of the Exchange and reorganization pursuant to which owned by NYSE Euronext and will will continue to conduct the Exchange’s Holdco will enter into a domination continue to directly or indirectly own business. agreement, or a combination of a the three NYSE Exchanges—the • NYSE Regulation will remain a domination agreement and a profit and Exchange, NYSE Arca and NYSE wholly owned subsidiary of the loss transfer agreement, pursuant to Amex—which provide marketplaces Exchange and continue to perform, and/ which the remaining shareholders of where investors buy and sell listed or oversee the performance of, Deutsche Bo¨rse will have limited rights, companies’ common stock and other regulatory responsibilities of the including a limited ability to participate securities as well as equity options and Exchange pursuant to a delegation in the profits of Deutsche Bo¨rse. securities traded on the basis of unlisted agreement with the Exchange and Holdco expects the Combination will trading privileges. NYSE Regulation, regulatory functions of NYSE Arca and create a group that will be both a world Inc., an indirect not-for-profit subsidiary NYSE Amex pursuant to services leader in derivatives and risk of NYSE Group, oversees FINRA’s agreements with them.19 management and the premier global performance of certain market • Archipelago Holdings, Inc., a venue for capital raising, with a truly surveillance and enforcement functions Delaware corporation (‘‘Arca global franchise and presence in many for NYSE Euronext’s U.S. securities Holdings’’), will remain a wholly owned of the world’s financial centers exchanges, enforces listed company subsidiary of NYSE Group and indirect including New York, London, Frankfurt, compliance with applicable standards, wholly owned subsidiary of NYSE Paris and Luxembourg. This global and oversees regulatory policy Euronext. presence should facilitate providing determinations, rule interpretation and • NYSE Arca Holdings, Inc., a world-class services to global and local regulation related rule development. Delaware corporation (‘‘NYSE Arca customers worldwide. Following the In Europe, NYSE Euronext, Deutsche Holdings’’), and NYSE Arca, L.L.C., a Combination, Holdco and its Bo¨rse and their respective subsidiaries Delaware limited liability company subsidiaries (together, the ‘‘Holdco own several European exchanges, (‘‘NYSE Arca LLC’’), will remain wholly Group’’) expect to serve as a benchmark including trading operations on owned subsidiaries of Arca Holdings. regulatory model, facilitating regulated and non-regulated markets for • NYSE Arca will remain a wholly transparency and harmonization of cash products in Germany, France, owned subsidiary of NYSE Arca capital markets globally, while Belgium, the Netherlands, and Portugal Holdings. continuing to operate all national and derivatives in the United Kingdom • NYSE Arca Equities, a Delaware exchanges under local regulatory and in the five above-mentioned corporation, will remain a wholly frameworks and their respective brand locations. As a result, the activities of owned subsidiary of NYSE Arca. names. the NYSE Euronext and Deutsche Bo¨rse • NYSE Amex will remain a direct European markets are or may be subject wholly owned subsidiary of NYSE 2. Overview of the Holdco Group to the jurisdiction and authority of a Following the Combination Group and an indirectly wholly owned number of European regulators, subsidiary of NYSE Euronext. Following the Combination, Holdco including the German Federal Financial • The Combination will have no will be a for-profit, publicly traded Supervisory Authority (Bundesanstalt effect on the ability of any party to trade corporation formed under the laws of ¨ fur Finanzdienstleistungsaufsicht), the securities on the Exchange, NYSE Arca the Netherlands and will act as the Hessian Exchange Supervisory or NYSE Amex. holding company for the businesses of Authority, the Dutch Minister of ¨ NYSE Euronext and Deutsche Borse. Finance, the French Minister of the 19 Certain regulatory functions have been Holdco will hold all of the equity Economy, the French Financial Market allocated to, and/or are otherwise performed by, interests in NYSE Euronext, which Authority (Autorite´ des Marche´s FINRA.

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Similarly, Deutsche Bo¨rse and its Restriction’’).22 If any person, either adopt any resolution pursuant to the subsidiaries, and NYSE Euronext and its alone or together with its related foregoing clause (2) unless it has subsidiaries, will continue to conduct persons, owns shares of NYSE Euronext determined that the exercise of such their regulated activities in the same in excess of the NYSE Euronext voting rights (or the entering into of a manner as they are currently conducted, Ownership Restriction, then such voting agreement) or ownership, as with any changes subject to the relevant person and its related persons are applicable: approvals of their respective European obligated to sell promptly, and NYSE • Will not impair the ability of any regulators and, in the case of the U.S. Euronext is obligated to purchase NYSE U.S. Regulated Subsidiary, NYSE Regulated Subsidiaries, with any promptly, at a price equal to the par Euronext or NYSE Group (if and to the changes subject to the approval of the value of such shares and to the extent extent that NYSE Group continues to Commission. funds are legally available for such exist as a separate entity) to discharge Holdco acknowledges that to the purchase, the number of shares of NYSE their respective responsibilities under extent it becomes aware of possible Euronext necessary so that such person, the Exchange Act and the rules and violations of the rules of the Exchange, together with its related persons, will regulations thereunder; NYSE Arca or NYSE Amex, it will be beneficially own shares of NYSE • Will not impair the ability of any of responsible for referring such possible Euronext representing in the aggregate the European Market Subsidiaries (as violations to each such exchange, no more than 20% of the then defined in the NYSE Euronext Bylaws) respectively. In addition, Holdco will outstanding votes entitled to be cast on of NYSE Euronext or Euronext (to the become a party to the agreement among any matter, after taking into account that extent that Euronext continues to exist NYSE Euronext, NYSE Group, the such repurchased shares will become as a separate entity) to discharge their Exchange, NYSE Market and NYSE treasury shares and will no longer be respective responsibilities under the Regulation to provide for adequate deemed to be outstanding.23 European Exchange Regulations (as funding for NYSE Regulation. The NYSE Euronext Voting defined in the NYSE Euronext Bylaws); Restriction and the NYSE Euronext • 3. Proposed Approval of Waiver of Is otherwise in the best interest of Ownership Restriction are applicable to Voting and Ownership Restrictions of NYSE Euronext, its stockholders, the each person unless and until (1) Such NYSE Euronext NYSE U.S. Regulated Subsidiaries and person has delivered a notice in writing the European Market Subsidiaries, and Article V of the current NYSE to the board of directors of NYSE will not impair the Commission’s ability Euronext Certificate provides that (1) No Euronext, not less than 45 days (or such to enforce the Exchange Act or the person, either alone or together with its shorter period as the board of directors European Regulators’ ability to enforce ‘‘related persons’’ (as defined in the of NYSE Euronext expressly permits) the European Exchange Regulations; NYSE Euronext Certificate), may be prior to any vote or, in the case of the • For so long as NYSE Euronext entitled to vote or cause the voting of NYSE Euronext Ownership Restriction, directly or indirectly controls the shares of NYSE Euronext beneficially prior to the acquisition of any shares of Exchange or NYSE Market, neither such owned by such person or its related NYSE Euronext that would cause such person nor any of its related persons is persons, in person or by proxy or person, either alone or together with its a NYSE Member; through any voting agreement or other related persons, to exceed the NYSE • For so long as NYSE Euronext arrangement, to the extent that such Euronext Ownership Restriction, of directly or indirectly controls NYSE shares represent in the aggregate more such person’s intention, either alone or Amex, neither such person nor any of than 10% of the then outstanding votes together with its related persons, to vote its related persons is an Amex Member; entitled to be cast on such matter; and or cause the voting of shares of NYSE • For so long as NYSE Euronext (2) no person, either alone or together Euronext stock beneficially owned by directly or indirectly controls NYSE with its related persons, may acquire the such person or its related persons in Arca, NYSE Arca Equities or any facility ability to vote more than 10% of the excess of the NYSE Euronext Voting of NYSE Arca, neither such person nor then outstanding votes entitled to be Restriction or, in the case of the NYSE cast on any such matter by virtue of any of its related persons is an ETP Euronext Ownership Restriction, of Holder, an OTP Holder or an OTP Firm; agreements or arrangements entered into such person’s intention, either alone or with other persons to refrain from and together with its related persons, to • Neither such person nor any of its voting shares of stock of NYSE Euronext acquire such ownership; (2) the board of (the ‘‘NYSE Euronext Voting related persons is a U.S. Disqualified directors of NYSE Euronext has resolved Person or a European Disqualified Restriction’’).20 NYSE Euronext must to expressly permit such voting or disregard any votes purposed to be cast Person (as such terms are defined in the ownership, as applicable; (3) such 25 in excess of the NYSE Euronext Voting NYSE Euronext Certificate). resolution has been filed with, and In order to allow Holdco to wholly Restriction.21 approved by, the Commission under own and vote all of the outstanding In addition, the NYSE Euronext Section 19(b) of the Exchange Act 24 and common stock of NYSE Euronext upon Certificate provides that no person, has become effective thereunder; and (4) consummation of the Combination, either alone or together with its related such resolution has been filed with, and Holdco has delivered written notice to persons, may at any time beneficially approved by, each European Regulator the board of directors of NYSE Euronext own shares of NYSE Euronext having appropriate jurisdiction and pursuant to the procedures set forth in representing in the aggregate more than authority. Subject to its fiduciary duties the NYSE Euronext Certificate 20% of the then outstanding votes under applicable law, the NYSE requesting approval of its voting and entitled to be cast on any matter (the Euronext board of directors may not ‘‘NYSE Euronext Ownership ownership of NYSE Euronext shares in excess of the NYSE Euronext Voting 22 See Amended and Restated Certificate of 20 See Amended and Restated Certificate of Incorporation of NYSE Euronext, Article V Section Restriction and the NYSE Euronext Incorporation of NYSE Euronext, Article V Section 2. 1. 23 See Amended and Restated Certificate of 25 See Amended and Restated Certificate of 21 See Amended and Restated Certificate of Incorporation of NYSE Euronext, Article V Section Incorporation of NYSE Euronext, Article V Sections Incorporation of NYSE Euronext, Article V Section 2(D). 1(B), 1(C), 2(B) and 2(C), and Amended and 1(A). 24 15 U.S.C. 78s(b). Restated Bylaws of NYSE Euronext, Section 10.12.

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Ownership Restriction. Among other The NYSE Euronext board of directors as well as the related waiver provisions things, in this notice, Holdco also determined that ownership of set forth therein, would remain in effect, represented to the board of directors of NYSE Euronext by Holdco is in the best except that they would be modified in NYSE Euronext that neither it, nor any interests of NYSE Euronext, its certain respects as described herein.27 of its related persons, is (1) A ‘‘member’’ shareholders and the NYSE U.S. or ‘‘member organization’’ of the Regulated Subsidiaries. With respect to Voting and Ownership Restrictions in Exchange; (2) a ‘‘member’’ of NYSE the interests of the NYSE U.S. Regulated Holdco Articles Amex; (3) an ETP Holder; (4) an OTP Subsidiaries, the board of directors of Under the Proposed Rule Change, the Holder or an OTP Firm; or (5) a U.S. NYSE Euronext has noted, among other Holdco Articles would provide that no Disqualified Person or a European things, its expectation that the person, either alone or together with its Disqualified Person. Combination would over time create related persons, will be entitled to vote At a meeting duly convened on substantial incremental efficiency and or cause the voting of a number of September 15, 2011, the board of growth opportunities and that the shares of Holdco, in person or by proxy directors of NYSE Euronext adopted the Holdco Group is expected to be a leader or through any voting agreement or NYSE Euronext Resolutions to permit in a diverse set of large and growing Holdco, either alone or with its related businesses, including derivatives, other arrangement, which represent in persons, to exceed the NYSE Euronext listings, cash equities, post-trade the aggregate (1) More than 20% of the Ownership Restriction and the NYSE settlement and asset servicing, market then outstanding votes entitled to be Euronext Voting Restriction. In adopting data and technology servicing. cast on such matter; or (2) more than such resolutions, the board of directors In addition, neither Holdco, nor any 20% of the then outstanding votes of NYSE Euronext made the necessary of its related persons, is (1) A NYSE entitled to be cast on any such matter determinations set forth above and Member; (2) an Amex Member; (3) an by virtue of agreements or arrangements approved the submission of this ETP Holder, an OTP Holder or an OTP entered into with other persons to Proposed Rule Change to the Firm; or (4) a U.S. Disqualified Person refrain from voting shares of Holdco (the Commission. The NYSE U.S. Regulated or a European Disqualified Person. ‘‘Holdco Voting Restriction’’).28 The Subsidiaries will continue to operate An extract with the relevant Holdco Articles would provide that and regulate their markets and members provisions of the NYSE Euronext Holdco will be required to disregard any exactly as they have done prior to the Resolutions is attached as Exhibit 5A to votes purported to be cast in excess of Combination. Except as set forth in this the Proposed Rule Change and can be the Holdco Voting Restriction. Proposed Rule Change, Holdco is not found on NYSE Euronext’s Web site and In addition, the Holdco Articles proposing any amendments to their the Commission’s Web site. would provide that any person who, trading or regulatory rules. NYSE Arca hereby requests that the either alone or together with its related With respect to the ability of the Commission approve the NYSE persons, beneficially owns Holdco Commission to enforce the Exchange Euronext Resolutions and allow Holdco, shares which represent in the aggregate Act as it applies to the NYSE U.S. either alone or with its related persons, more than 40% of the outstanding votes Regulated Subsidiaries after the to own and vote all of the outstanding entitled to be cast on any matter (except Combination, the NYSE U.S. Regulated common stock of NYSE Euronext upon that a 20% restriction would apply to Subsidiaries will operate in the same and following the consummation of the any person who is a NYSE Member, an Combination. manner following the Combination as Amex Member, an ETP Holder, an OTP 26 they operate today. Thus, the 4. Proposed Amendments to Ownership Holder, an OTP Firm, an ISE Member, Commission will continue to have and Voting Restrictions After the an EDGA Member or an EDGX Member) plenary regulatory authority over the Combination (the ‘‘Holdco Ownership Restriction’’), NYSE U.S. Regulated Subsidiaries, as is Overview will be obligated to offer for sale and to the case currently with these entities. As transfer a number of Holdco shares described in the following sections of NYSE Arca is proposing that, effective necessary so that such person, together this filing, NYSE Arca is proposing a as of the completion of the with its related persons, beneficially series of amendments to the NYSE Combination, the Holdco Articles would owns a number of Holdco shares that Euronext Certificate, the NYSE Euronext contain voting and ownership complies with the Holdco Ownership Bylaws, the NYSE Group Certificate and restrictions that restrict any person, Restriction (the ‘‘Holdco Transfer the NYSE Group Bylaws, as well as either alone or together with its related Obligation’’).29 If such person(s) fails to certain provisions of the Holdco persons, from having voting control over comply with the Holdco Transfer Articles, that will create an ownership Holdco shares entitling the holder Obligation within two weeks, Holdco structure that will provide the thereof to cast more than 20% of the will be irrevocably authorized to act on Commission with appropriate oversight votes entitled to be cast on any matter behalf of such person(s) in order to tools to ensure that the Commission will or beneficially owning Holdco shares have the ability to enforce the Exchange representing more than 40% of the Act with respect to each U.S. Regulated 27 As described in the proposed rule change filed outstanding votes that may be cast on by each of the DB Exchanges, the current voting and Subsidiary, its direct and indirect parent any matter (except that a 20% ownership restrictions contained in the certificate entities and its directors, officers, ownership restriction would apply to of incorporation of ISE Holdings, as well as the employees and agents to the extent they any person who is a NYSE Member, an related provisions contained in the amended and are involved in the activities of such restated bylaws of U.S. Exchange Holdings and the Amex Member, an ETP Holder, an OTP board resolutions of Deutsche Bo¨rse, Eurex U.S. Regulated Subsidiary. Holder, an OTP Firm, an ISE Member, Frankfurt AG and other indirect parent entities of an EDGA Member or an EDGX Member). ISE, would remain in effect. The DB Trust would 26 NYSE Arca has been informed by Deutsche In addition, NYSE Arca is proposing also remain unaltered and would continue to have Bo¨rse that the DB U.S. Regulated Subsidiaries are that, effective as of the Combination, the rights to enforce these restrictions. also expected to operate in the same manner 28 See Form of Deed of Amendment to Holdco following the Combination as they operate today. voting and ownership restrictions Articles of Association, Article 34.1. This is addressed in the separate proposed rule currently in the NYSE Euronext 29 See Form of Deed of Amendment to Holdco change filed by each of the DB Exchanges. Certificate and NYSE Euronext Bylaws, Articles of Association, Articles 35.1 and 35.4.

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ensure compliance with the Holdco waive the voting and ownership repurchased shares will become Transfer Obligation.30 restrictions in the NYSE Euronext treasury shares and will no longer be Furthermore, the Holdco Articles Certificate and the ISE Holdings deemed to be outstanding. would provide that in the event any Certificate, respectively.34 The NYSE Group Voting Restriction person, either alone or together with its and the NYSE Group Ownership related persons, exceeds the Holdco Amendments to NYSE Group Voting and Ownership Restrictions Restriction apply to each person unless Ownership Restriction (any such and until (1) Such person has delivered person(s), a ‘‘Non-Compliant Owner’’), The voting restrictions contained in a notice in writing to the board of the Non-Compliant Owner would cease the current NYSE Group Certificate directors of NYSE Group, not less than to have certain rights to the extent that provide that, if such restrictions apply, 45 days (or such shorter period as the its shareholding exceeds the Holdco (1) No person, either alone or together board of directors of NYSE Group Ownership Restriction. Specifically, the with its related persons (as defined in expressly permits) prior to any vote or, Non-Compliant Owner’s rights to vote, the NYSE Group Certificate), may be in the case of the NYSE Group to attend general meetings of Holdco entitled to vote or cause the voting of Ownership Restriction, prior to the shareholders and to receive dividends shares of stock of NYSE Group acquisition of any shares of NYSE or other distributions attached to such beneficially owned by such person or its Group that would cause such person, shares in excess of the Holdco related persons, in person or by proxy either alone or together with its related Ownership Restriction would be or through any voting agreement or persons, to exceed the NYSE Group suspended for so long as the Holdco other arrangement, to the extent that Ownership Restriction, of such person’s 31 Ownership Restriction is exceeded. such shares represent in the aggregate intention, either alone or together with Pursuant to Section 2:87a of the Dutch more than 10% of the then outstanding its related persons, to vote or cause the Civil Code, the Non-Compliant Owner votes entitled to be cast on such matter; voting of shares of NYSE Group stock may request that an independent expert and (2) no person, either alone or beneficially owned by such person or its be appointed to determine the value of together with its related persons, may related persons in excess of the NYSE acquire the ability to vote more than the Holdco shares, but such expert will Group Voting Restriction or, in the case 10% of the then outstanding votes have discretion to determine that the of the NYSE Group Ownership entitled to be cast on any such matter value of the shares is equal to the price Restriction, of such person’s intention, received for the shares by the Non- by virtue of agreements or arrangements either alone or together with its related Compliant Owner on any stock entered into with other persons to persons, to acquire such ownership; (2) exchange where the Holdco shares are refrain from voting shares of stock of the board of directors of NYSE Group listed.32 NYSE Group (the ‘‘NYSE Group Voting has resolved to expressly permit such The voting and ownership restrictions Restriction’’).35 NYSE Group must voting or ownership, as applicable; and will apply to each person unless it (1) disregard any votes purported to be cast (3) such resolution has been filed with, Delivers to the Holdco board of directors in excess of the NYSE Group Voting a written notice of its intention to Restriction. and approved by, the Commission acquire voting power or ownership in In addition, the ownership under Section 19(b) of the Exchange 36 excess of the relevant limitation, and restrictions contained in the current Act and has become effective such notice is delivered at least 45 days NYSE Group Certificate provide that, if thereunder. Subject to its fiduciary (or such shorter period as the Holdco such restrictions apply, no person, duties under applicable law, the NYSE board of directors expressly consents to) either alone or together with its related Group board of directors may not adopt prior to acquiring Holdco shares in persons, may at any time own any resolution pursuant to the foregoing excess of the Holdco Voting Restriction beneficially shares of NYSE Group clause (2) unless the board has made or Holdco Ownership Restriction; (2) representing in the aggregate more than certain determinations which are obtains a written confirmation from the 20% of the then outstanding votes substantially similar to the Holdco board of directors that the board entitled to be cast on any matter (the determinations required to be made by has expressly resolved to permit such ‘‘NYSE Group Ownership Restriction’’). the NYSE Euronext board of directors in voting or ownership; and (3) such If any person, either alone or together connection with a waiver of the NYSE resolution has been filed with, and with its related persons, owns shares of Euronext Voting Limitation and/or the approved by, the Commission under NYSE Group in excess of the NYSE NYSE Euronext Ownership Limitation Section 19(b) of the Exchange Act and Group Ownership Restriction, then such (as described above). filed with, and approved by, the person and its related persons are Under the Proposed Rule Change, the relevant European regulators having obligated to sell promptly, and NYSE NYSE Group Certificate would be appropriate jurisdiction and authority.33 Group is obligated to purchase amended, effective as of the The Holdco board of directors may promptly, at a price equal to the par Combination, to (1) Change the 10% waive the Holdco Voting Restriction and value of such shares and to the extent threshold for the NYSE Group Voting Holdco Ownership Restriction if it funds are legally available for such Restriction to a 20% threshold; and (2) makes certain determinations, which purchase, the number of shares of NYSE change the 20% threshold for the NYSE will be consistent with the Group necessary so that such person, Group Ownership Restriction to a 40% determinations currently required to be together with its related persons, will restriction (except that a 20% restriction made by the board of directors of NYSE beneficially own shares of NYSE Group would continue to apply to any person Euronext and ISE Holdings in order to representing in the aggregate no more who is a NYSE Member, an Amex than 20% of the then outstanding votes Member, an ETP Holder, an OTP Holder 30 See Form of Deed of Amendment to Holdco entitled to be cast on any matter, after or an OTP Firm). These percentage Articles of Association, Article 35.7. taking into account that such thresholds are consistent with those 31 See Form of Deed of Amendment to Holdco applicable to ISE Holdings and other Articles of Association, Article 35.6. 34 See Form of Deed of Amendment to Holdco regulated exchanges and have been 32 See Form of Deed of Amendment to Holdco Articles of Association, Articles 34.3 and 35.3. approved on several occasions by the Articles of Association, Article 35.5. 35 See Second Amended and Restated Certificate 33 See Form of Deed of Amendment to Holdco of Incorporation of NYSE Group, Inc., Article IV Articles of Association, Articles 34.2 and 35.2. Section 4(b). 36 15 U.S.C. 78s(b).

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Commission.37 The NYSE Group European Exchange Regulations (as Subsidiaries, (x) Holdco’s officers, and Certificate would also be updated to defined in the NYSE Euronext (y) those of its employees whose provide that the NYSE Group Voting Certificate); 38 and (2) the NYSE principal place of business and Restriction and the NYSE Group Euronext Certificate would be amended residence is outside the United States, Ownership Restriction would apply to provide that the NYSE Euronext would be deemed to irrevocably submit only for so long as NYSE Group directly Voting Restriction and NYSE Euronext to the jurisdiction of the U.S. federal or indirectly controls any Regulated Ownership Restriction contained courts and the Commission for the Subsidiary (as defined in the NYSE therein would only apply in the event purposes of any suit, action or Group Certificate). that Holdco does not own all of the proceeding pursuant to the U.S. federal Under the Proposed Rule Change, the issued and outstanding shares of NYSE securities laws, and the rules and definition of ‘‘Related Persons’’ would Euronext.39 In addition, the NYSE regulations thereunder, commenced or be expanded to provide that (1) In the Euronext Certificate would be amended initiated by the Commission arising out case of a person that is a ‘‘member’’ (as to (a) change the 10% threshold for the of, or relating to, the activities of the defined in Section 3(a)(3)(A)(i) of the NYSE Euronext Voting Restriction to a U.S. Regulated Subsidiaries.41 The Exchange Act) of NYSE Amex, such 20% threshold; (b) change the 20% Holdco Articles would also provide person’s ‘‘Related Persons’’ would threshold for the NYSE Euronext that, with respect to any such suit, include the ‘‘member’’ (as defined in Ownership Restriction to a 40% action, or proceeding brought by the Section 3(a)(3)(A)(iv) of the Exchange restriction (except that a 20% Commission, Holdco and its directors, Act, in addition to Sections 3(a)(3)(A)(ii) ownership restriction would continue to officers and employees would (1) Be and 3(a)(3)(A)(iii) of the Exchange Act apply to any person who is a NYSE deemed to agree that NYSE Group may which are currently referenced in this Member, an Amex Member, an ETP serve as U.S. agent for purposes of provision of the NYSE Group Holder, an OTP Holder or an OTP Firm); service of process in such suit, action, Certificate) with which such person is (c) provide that the NYSE Euronext or proceeding relating to NYSE Group or associated; and (2) in the case of any Voting Restriction and NYSE Euronext any of its subsidiaries, and ISE Holdings person that is a ‘‘member’’ (as defined Ownership Restriction contained may serve as the U.S. agent for in Section 3(a)(3)(A)(iv) of the Exchange therein would only apply only for so proceedings relating to ISE Holdings or Act, in addition to Sections 3(a)(3)(A)(ii) long as NYSE Euronext directly or any of its subsidiaries; and (2) be and 3(a)(3)(A)(iii) of the Exchange Act indirectly controls any U.S. Regulated deemed to waive, and agree not to assert which are currently referenced in this Subsidiary or any European Market by way of motion, as a defense or provision of the NYSE Group Subsidiary (as such terms are defined in otherwise, in any such suit, action, or Certificate) of NYSE Amex, such the NYSE Euronext Certificate); (d) add proceeding, any claims that it or they person’s ‘‘Related Persons’’ would the provision, which is currently in the are not personally subject to the include any ‘‘member’’ (as defined in NYSE Euronext Bylaws, that requires jurisdiction of the Commission, that the Section 3(a)(3)(A)(i) of the Exchange the board of directors of NYSE Euronext suit, action, or proceeding is an Act) that is associated with such person. to make certain determinations relating inconvenient forum or that the venue of These provisions are substantively to NYSE Amex in order to waive the the suit, action, or proceeding is consistent with language in the NYSE voting and ownership restrictions in the improper, or that the subject matter Rules, which language would be deleted NYSE Euronext Certificate, and delete thereof may not be enforced in or by the 42 under the Proposed Rule Change. this provision from the NYSE Euronext U.S. federal courts or the Commission. In addition, the Holdco Articles Bylaws; (e) update the names of certain Amendments to NYSE Euronext Voting would provide that, so long as Holdco European regulatory entities in the and Ownership Restrictions directly or indirectly controls any U.S. definition of ‘‘European Regulator’’; and Under the Proposed Rule Change, the Regulated Subsidiary, the directors, (f) expand the definition of ‘‘Related NYSE Euronext Certificate would be officers and employees of Holdco will Persons’’ to address Amex Members in amended, effective as of the be deemed to be directors, officers and a manner that is substantively Combination, to be consistent with the employees of such U.S. Regulated consistent with language currently NYSE Group Certificate in the following Subsidiaries for purposes of, and subject located in the NYSE Rules, as described respects: (1) First, the NYSE Euronext to oversight pursuant to, the Exchange above. Certificate would be amended to Act.43 provide that all of the issued and 5. Additional Matters To Be Addressed The Holdco Articles would provide outstanding shares of NYSE Euronext in the Holdco Articles 40 that Holdco will take reasonable steps will be held by Holdco, and that Holdco necessary to cause its directors, officers Jurisdiction Over Individuals may not transfer or assign any shares and employees, prior to accepting a without approval by the Commission Under the Proposed Rule Change, the position as an officer, director or under the Exchange Act and the Holdco Articles would provide that employee, as applicable, of Holdco to relevant European Regulators (as Holdco and its directors, and to the agree and consent in writing to the defined in the NYSE Euronext extent that they are involved in the applicability to them of these Certificate) under the applicable activities of the U.S. Regulated jurisdictional and oversight provisions with respect to their activities related to 37 See, e.g., SEC Release No. 34–49718 (May 17, 38 The analogous provision in the NYSE Group any U.S. Regulated Subsidiary.44 The 2004) (File No. SR–PCX–2004–08), 69 FR 29611 Certificate is Section 4(a) of Article IV. Holdco Articles would also provide that (approval of rule change proposed by the Pacific 39 The analogous provision in the NYSE Group no person may be a director of Holdco Exchange, Inc.); SEC Release No. 34–49098 (January Certificate is Section 4(b) of Article IV. 16, 2004) (File No. SR–PHLX–2003–73), 69 FR 3974 40 The Holdco Articles will also set forth certain (approval of rule change proposed by the restrictions and requirements relating to Holdco’s 41 See Form of Deed of Amendment to Holdco Philadelphia Stock Exchange, Inc.); and SEC European subsidiaries and applicable European Articles of Association, Article 3.2(c). Release No. 34–50170 (August 9, 2004) (File No. regulatory matters, which will be substantially 42 See id. SR–PCX–2004–56), 69 FR 50419 (approval of rule consistent with the analogous restrictions and 43 See Form of Deed of Amendment to Holdco change proposed by the Pacific Exchange, Inc. requirements applicable with respect to Holdco’s Articles of Association, Article 3.2(f). relating to initial public offering of parent of U.S. Regulated Subsidiaries and U.S. regulatory 44 See Form of Deed of Amendment to Holdco Archipelago Exchange, L.L.C.). matters. Articles of Association, Article 3.2(m).

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unless he or she has agreed and regulations thereunder, and will any U.S. Regulated Subsidiary, Holdco consented in writing to the applicability cooperate with the Commission and and its directors, officers and employees to him or her of these jurisdictional and with the U.S. Regulated Subsidiaries will give due regard to the preservation oversight provisions with respect to his pursuant to and to the extent of their of the independence of the self- or her activities related to any U.S. respective regulatory authority.51 In regulatory function of such U.S. Regulated Subsidiary.45 Furthermore, addition, Holdco would be required to Regulated Subsidiary and to its Holdco would sign an irrevocable take reasonable steps necessary to cause obligations to investors and the general agreement and consent for the benefit of its agents to cooperate with the public, and will not take any actions each U.S. Regulated Subsidiary 46 that it Commission and, where applicable, the that would interfere with the will comply with these provisions in the U.S. Regulated Subsidiaries pursuant to effectuation of any decisions by the Holdco Articles. their regulatory authority.52 The Holdco board of directors or managers of such NYSE Arca anticipates that the Articles would also provide that, in U.S. Regulated Subsidiary relating to its functions and activities of each U.S. discharging his or her responsibilities as regulatory responsibilities (including Regulated Subsidiary generally will be a member of the Holdco board of enforcement and disciplinary matters) carried out by the officers and directors directors or as an officer or employee of or that would interfere with the ability of such U.S. Regulated Subsidiary, each Holdco, each such director, officer or of such U.S. Regulated Subsidiary to of whom the Commission has direct employee will (a) Comply with the U.S. carry out its responsibilities under the authority over pursuant to Section federal securities laws and the rules and Exchange Act.56 19(h)(4) of the Exchange Act.47 regulations thereunder; (b) cooperate Finally, the Holdco Articles would provide that each director of Holdco Access to Books and Records with the Commission; and (c) cooperate with the U.S. Regulated Subsidiaries would, in discharging his or her Under the Proposed Rule Change, the pursuant to and to the extent of their responsibilities, to the fullest extent Holdco Articles would provide that for regulatory authority (but this provision permitted by applicable law, take into so long as Holdco directly or indirectly will not create any duty owed by any consideration the effect that Holdco’s controls any U.S. Regulated Subsidiary, director, officer or employee of Holdco actions would have on the ability of (a) the books, records and premises of to any person to consider, or afford any the U.S. Regulated Subsidiaries to carry Holdco will be deemed to be the books, particular weight to, any such matters or out their responsibilities under the records and premises of such U.S. to limit his or her consideration to such Exchange Act; and (b) the U.S. Regulated Subsidiaries for purposes of, matters).53 Regulated Subsidiaries, NYSE Group, and subject to oversight pursuant to, the The Holdco Articles would also ISE Holdings and Holdco to (1) Engage Exchange Act.48 In addition, the Holdco provide that all confidential information in conduct that fosters and does not Articles would provide that Holdco’s that comes into the possession of interfere with the ability of the U.S. books and records will at all times be Holdco pertaining to the self-regulatory Regulated Subsidiaries, NYSE Group, made available for inspection and function of any U.S. Regulated ISE Holdings and Holdco to prevent copying by the Commission, and any Subsidiary will (a) not be made fraudulent and manipulative acts and U.S. Regulated Subsidiary to the extent available to any persons other than to practices in the securities markets; (2) they are related to the activities of such those officers, directors, employees and promote just and equitable principles of U.S. Regulated Subsidiary or any other agents of Holdco that have a reasonable trade in the securities markets; (3) foster U.S. Regulated Subsidiary over which need to know the contents thereof; (b) cooperation and coordination with such U.S. Regulated Subsidiary has be retained in confidence by Holdco and persons engaged in regulating, clearing, regulatory authority or oversight.49 In the officers, directors, employees and settling, processing information with addition, Holdco’s books and records agents of Holdco; and (c) not be used for respect to, and facilitating transactions related to the U.S. Regulated any commercial purposes.54 In addition, in securities; (4) remove impediments to Subsidiaries will be maintained within the Holdco Articles would provide that and perfect the mechanisms of a free the United States, except that to the these obligations regarding such and open market in securities and a U.S. extent that books and records may relate confidential information will not be national securities market system; and to both European subsidiaries and U.S. interpreted so as to limit or impede (i) (5) in general, protect investors and the Regulated Subsidiaries, Holdco may The rights of the Commission or the public interest.57 This requirement maintain such books and records either relevant U.S. Regulated Subsidiary to would not, however, create any duty in the home jurisdiction of one or more have access to and examine such owed by any director, officer or European subsidiaries or in the United confidential information pursuant to the employee of Holdco to any person to States.50 U.S. federal securities laws and the consider, or afford any particular weight Additional Matters rules and regulations thereunder; or (ii) to, any of the foregoing matters or to the ability of any officers, directors, limit his or her consideration to such Under the Proposed Rule Change, the employees or agents of Holdco to matters.58 Holdco Articles would provide that disclose such confidential information In addition, the Holdco Articles Holdco will comply with the U.S. to the Commission or any U.S. would provide that Holdco will take federal securities laws and the rules and Regulated Subsidiary.55 reasonable steps necessary to cause its Additionally, the Holdco Articles officers, directors and employees, prior 45 See Form of Deed of Amendment to Holdco would provide that, for so long as to accepting a position as an officer, Articles of Association, Article 14.11. 46 The form of Holdco’s agreement and consent is Holdco directly or indirectly controls director or employee, as applicable, of attached as Exhibit 5M to this Proposed Rule Holdco to agree and consent in writing Change. 51 See Form of Deed of Amendment to Holdco to the applicability to them of these 47 15 U.S.C. 78s(h)(4). Articles of Association, Article 3.2(a). 48 See Form of Deed of Amendment to Holdco 52 See id. 56 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(f). 53 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(i). 49 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(l). 57 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(e). 54 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(k). 50 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(h). 58 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(g). 55 See id. Articles of Association, Article 3.2(k).

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provisions of the Holdco Articles with Holdco Director Independence Policy the NYSE U.S. Regulated Subsidiaries, it respect to their activities related to any Under the Proposed Rule Change, will be subject to various corporate 59 U.S. Regulated Subsidiary. The Holdco would adopt the Holdco governance and regulatory obligations Holdco Articles would also provide that Independence Policy in the form that will be addressed by means of no person may be a director of Holdco attached hereto as Exhibit 5N, which ownership and voting limitations on its unless he or she has agreed and would be substantially similar to the shareholders, commitments to provide consented in writing to the applicability current Independence Policy of the access to its books and records and to to him or her of these provisions with NYSE Euronext board of directors, submit to the jurisdiction of the respect to his or her activities related to except that (1) A majority (as opposed Commission, director qualification any U.S. Regulated Subsidiary.60 to 75%) of the board of Holdco would requirements and other undertakings Holdco would also sign an irrevocable be required to be independent; (2) that are addressed in the Proposed Rule agreement and consent for the benefit of executive officers of listed companies Change and will be formalized in the Holdco Articles and undertakings of each U.S. Regulated Subsidiary that it would no longer be prohibited from Holdco to its U.S. Regulated will comply with provisions in the being considered independent for Subsidiaries. NYSE Arca submits that Holdco Articles regarding (1) purposes of the Holdco board; (3) the some of these undertakings call for in- Cooperation with the Commission and ‘‘additional independence depth industry knowledge and expertise such U.S. Regulated Subsidiaries; (2) requirements’’ at the end of the current on the Holdco board, such as the compliance with U.S. federal securities Independence Policy of NYSE Euronext, requirement that Holdco’s directors take laws; (3) inspection and copying of which provide that executive officers of into consideration the effect that Holdco’s books, records and premises; foreign private issuers, executive Holdco’s actions would have on the (4) Holdco’s books, records, premises, officers of NYSE Euronext and directors ability of its U.S. Regulated Subsidiaries of affiliates of member organizations officers, directors and employees being to (i) Foster cooperation and must together comprise no more than a deemed to be those of U.S. Regulated coordination with persons engaging in minority of the total board, would be Subsidiaries; (5) maintenance of books regulating, clearing, settling and eliminated; (4) references to certain and records in the United States; (6) processing information with respect to, European regulatory authorities would confidentiality of information regarding and facilitating transactions in the U.S. Regulated Subsidiaries’ self- be updated, because their names have securities, and (ii) remove impediments regulatory function; (7) preservation of changed; (5) references to NYSE to and perfect the mechanisms of a free the independence of the self-regulatory Alternext, Inc. would refer instead to and open market in securities and a U.S. function of the U.S. Regulated NYSE Amex, because of this entity’s national securities market system. Subsidiaries; and (8) taking reasonable name change; (6) footnote 2 of the In addition, NYSE Arca believes that steps to cause Holdco’s officers, current Independence Policy of NYSE the per se disqualification of listed directors and employees to consent to Euronext would be deleted because the company executives from being deemed the applicability to them of the Holdco Holdco Independence Policy would not independent should not be applicable to Articles. The form of Holdco’s be applicable to NYSE Regulation, Inc., Holdco. The per se disqualification was agreement and consent is attached as the Exchange, NYSE Amex or NYSE initially adopted by the New York Stock Exhibit 5M to this Proposed Rule Market, which would have their own Exchange, Inc. in early 2005 in the Change. director independence policy in the context of its unique circumstances and form attached to this Proposed Rule Amendments to the Holdco Articles history and its management structure Change as Exhibit 5K; and (7) references and board composition at that time.61 Under the Proposed Rule Change, the to the independence standards and NYSE Arca submits that those Holdco Articles would provide that, criteria in the Dutch Corporate circumstances are no longer applicable before any amendment to or repeal of Governance Code would be added, and, following the proposed any provision of the Holdco Articles because such standards and criteria will combination of NYSE Euronext and may become effectuated by means of a apply to Holdco, a Dutch company, and Deutsche Bo¨rse, the disqualification of notarial deed of amendment, the same will supplement (rather than supersede listed company executives would will be submitted to the board of or limit) the other independence impede rather than facilitate Holdco’s directors of each U.S. Regulated standards and criteria set forth in the efforts to ensure a qualified and Subsidiary (or the boards of directors of Holdco Independence Policy. balanced board composition and NYSE Arca believes that a majority their successors) and if any or all of promote various other important independence standard is appropriate to such boards of directors determine that corporate governance objectives, such as ensure that Holdco’s board as a whole the same must be filed with, or filed ensuring appropriate expertise and consists of individuals with with and approved by, the Commission experience on its board, as well as independent, objective perspectives, before the same may be effective under representation of the interests of a while at the same time affording Holdco Section 19 of the Exchange Act and the diverse range of market constituencies sufficient flexibility to include persons rules promulgated thereunder, then the and local European and U.S. interests. A with expertise and qualifications that same will not be effective until filed per se disqualification would narrow will contribute meaningfully to the with, or filed with and approved by, the the pool of potential Holdco director board’s performance of its oversight Commission, as the case may be. These candidates and arbitrarily eliminate function. The importance of allowing requirements would also apply to any from consideration a large number of highly qualified individuals to serve on action by Holdco that would have the highly qualified, experienced the board is underscored by the fact that effect of amending or repealing any individuals who have proven track Holdco will serve as the holding provision of the Holdco Articles. records as business leaders. In addition, company for a complex, global business because the listed companies of the U.S. with highly specialized operations and 59 See Form of Deed of Amendment to Holdco regulatory functions. Although Holdco Articles of Association, Article 3.2(m). 61 See Securities Exchange Act Release No. 34– 60 See Form of Deed of Amendment to Holdco has unique responsibilities and 51217 (February 16, 2005) (File No. SR–NYSE– Articles of Association, Article 14.11. functions as the holding company for 2004–54), 70 FR 9688.

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Regulated Subsidiaries tend to be U.S. could not in any event constitute more widely held and actively traded domestic companies, this requirement than a minority of the Holdco board. shares; 62 could disproportionately restrict the • The restrictions on transfers of 6. Proposed Amendments to Certain eligibility of persons affiliated with U.S. NYSE Euronext shares contained in Public-Company-Related and Other Section 4 of Article IV of the NYSE companies as compared to non-U.S. Provisions of NYSE Euronext Euronext Certificate have now expired companies to serve on the board of Organizational and Corporate in accordance with their terms and Holdco. Under the Holdco Governance Documents Independence Policy, the Holdco board would accordingly be deleted; would still need to assess whether a Pursuant to the Combination, NYSE • Sections 2(A) and 2(B) of Article VI listed company executive meets the Euronext will merge with Merger Sub, a of the NYSE Euronext Certificate, and various independence criteria, wholly owned subsidiary of Holdco. Section 2.2 of the NYSE Euronext including whether he or she has any NYSE Euronext, as the surviving Bylaws, would be amended to allow ‘‘material relationship’’ with Holdco corporation in the Merger, will become shareholders to call special meetings of and its subsidiaries. a wholly owned subsidiary of Holdco. shareholders and to postpone such Furthermore, NYSE Euronext believes Following the Merger, the current meetings, in order to give Holdco that the objectivity of board members is organizational documents of NYSE additional flexibility to take actions in adequately protected by the various Euronext will remain in effect, except its capacity as the sole shareholder of other independence criteria in the that NYSE Arca is proposing that, in NYSE Euronext following completion of addition to the aforementioned proposed Holdco Independence Policy, the Combination; revisions relating to voting and • such as the requirement that Section 6 of Article VI of the NYSE ownership limitations, certain independent directors may not be or Euronext Certificate, and Section 3.6 of provisions will be amended to reflect have been within the last year, and may the NYSE Euronext Bylaws (which the fact that, after the Combination, not have an immediate family member would be renumbered as Section 3.5), NYSE Euronext will be an intermediate who is or within the last year was, a would be amended to allow holding company and will no longer be member of the Exchange, NYSE Arca or shareholders to fill board vacancies in a public company traded on the NYSE Amex. In addition, if and to the order to give Holdco additional Exchange, and the registration of its extent that a matter concerning a listed flexibility to take actions in its capacity capital stock under Section 12 of the company whose executive is a Holdco as the sole shareholder of NYSE Exchange Act will be terminated upon Euronext following completion of the director were ever to come before the application to the Commission. As a Holdco board for consideration, such Combination; result, NYSE Euronext will no longer be • Section 1 of Article VIII of the director would be required to be recused subject to the Exchange’s listing from acting on such matter pursuant to NYSE Euronext Certificate, and Section standards or to the corporate governance 2.11 of the NYSE Euronext Bylaws the Holdco board’s conflicts of interest requirements applicable to publicly policy. (which would be renumbered as Section traded companies. As summarized 2.9), would be amended to allow Finally, the current Independence below, the following revisions to the shareholders to take actions without a Policy of NYSE Euronext provides that NYSE Euronext Certificate and NYSE meeting and without prior notice if the sum of (a) executive officers of Euronext Bylaws are proposed in order written consents are signed by the foreign private issuers, (b) executive to (1) Simplify and provide for a more minimum number of votes that would officers of NYSE Euronext and (c) efficient governance and capital be required to approve the action at a directors of affiliates of ‘‘members’’ (as structure that is appropriate for a wholly meeting, in order to give Holdco defined in Sections 3(a)(A)(3)(ii), owned subsidiary; (2) conform certain additional flexibility to take actions in 3(a)(A)(3)(iii) and 3(a)(A)(3)(iv) of the provisions to analogous provisions of its capacity as the sole shareholder of Exchange Act) of NYSE, NYSE Arca or the organizational documents of NYSE NYSE Euronext following completion of NYSE Amex, may not constitute more Group, which will likewise be an the Combination, and the reference at than a minority of the total number of indirect wholly owned subsidiary of the end of Section 3.5 of the NYSE directors of NYSE Euronext. The Holdco following completion of the Euronext Bylaws to a special meeting of purpose of this requirement is to ensure Combination; and (3) make certain shareholders would be deleted because that, although executives of listed clarification and technical edits (for the NYSE Euronext shareholder may act companies who are foreign private example, to conform the use of defined by written consent to fill board issuers are not disqualified from serving terms and other provisions, and to vacancies; on the board, such executives may not, update cross-references to sections, to • The supermajority shareholder vote together with NYSE Euronext executives reflect the other amendments to the requirements pursuant to Article X to and directors of affiliates of members, NYSE Euronext Certificate and the constitute more than a minority of the NYSE Euronext Bylaws set forth in this 62 Effective as of the time that NYSE Euronext board. In light of NYSE Arca’s proposal Proposed Rule Change): merges with Pomme Merger Corporation, the to eliminate the disqualification of • The NYSE Euronext Certificate Second Amended and Restated Certificate of listed company executives from the would be revised to provide that the Incorporation of NYSE Euronext (as the surviving corporation in the merger) will provide that Holdco Independence Policy, this registered office and agent of NYSE 800,000,000 shares of common stock will be requirement would serve no purpose Euronext in Delaware will be the authorized and 100 shares of preferred stock will because the exception to such Corporation Trust Company, which is be authorized. All of the outstanding shares of disqualification for foreign private the registered agent of other subsidiaries NYSE Euronext will be held by Alpha Beta issuer executives would also be of NYSE Euronext; Netherlands Holding N.V. Promptly thereafter, (1) • NYSE Euronext will conduct a reverse stock split eliminated. NYSE Arca further notes The number of authorized shares of so that Alpha Beta Netherlands Holding N.V. will that under the proposed Holdco NYSE Euronext common stock and hold a substantially reduced number of NYSE Independence Policy, executives of preferred stock will be reduced to 1,000 Euronext shares (e.g., 1,000 common shares), and and 100, respectively, because it would (2) the Second Amended and Restated Certificate of Holdco and directors of affiliates of Incorporation of NYSE Euronext will accordingly be exchange members would not be no longer be necessary for NYSE amended to reduce the total number of authorized deemed independent and, accordingly, Euronext to have a large number of shares of common stock to 1,000.

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amend or repeal certain provisions of serve any purpose after NYSE Euronext of directors and the chief executive the NYSE Euronext Certificate would be becomes wholly owned by a single officer or the deputy chief executive eliminated and replaced with a majority shareholder; officer, in light of the fact that there are vote requirement, because a • Section 3.1 of the NYSE Euronext not expected to be any independent, supermajority vote requirement would Bylaws would be amended to clarify non-executive directors of NYSE no longer serve any purpose after NYSE that the right of the NYSE Euronext Euronext and in order to simplify the Euronext becomes wholly owned by a board of directors to fix and change the governance requirements for NYSE single shareholder and a majority voting number of directors on such board is Euronext as a wholly owned subsidiary standard is consistent with the standard subject to any rights of holders of any of Holdco; generally applicable for actions by preferred stock to elect additional • Certain aspects of the shareholders under the Delaware directors, in order to make this indemnification and expense General Corporation Law and for actions provision consistent with Section 2 of advancement provisions in Section 10.6 by the parent entity of other wholly Article IV of the NYSE Euronext of the NYSE Euronext Bylaws, including owned subsidiaries of NYSE Euronext Certificate, which provides that the terms of any insurance policy such as NYSE Group; preferred stock may be issued which maintained by NYSE Euronext, would • Section 2.3 of the NYSE Euronext may have voting rights; • be simplified in light of the fact that Bylaws would be amended to clarify Sections 3.2(B) and 4.4 of the NYSE there are not expected to be any that notice of shareholder meetings is Euronext Bylaws would be amended to independent, non-executive directors of not required if waived in accordance add ‘‘if any’’ after the references therein NYSE Euronext, and, therefore, a more with Section 10.3 of the NYSE Euronext to the Nominating and Governance streamlined process for indemnification Bylaws; Committee, because NYSE Euronext • claims is appropriate; The requirement in Section 2.6 of would become a wholly owned • The supermajority shareholder vote the NYSE Euronext Bylaws for the subsidiary of Holdco and, as such, may requirements in Section 10.10(B) of the appointment of an inspector of elections not have a Nominating and Governance NYSE Euronext Bylaws would be for shareholders meetings would be Committee; changed to a majority vote requirement, deleted, because the requirement for an • The requirement in Section 3.4 of because a supermajority vote inspector of elections pursuant to the NYSE Euronext Bylaws that at least requirement would no longer serve any Section 231 of the Delaware General 75% of the board must be independent purpose after NYSE Euronext becomes Corporation Law would no longer apply would be deleted, because NYSE wholly owned by a single shareholder to NYSE Euronext after completion of Euronext would be a wholly owned and a majority voting standard is the Combination; 63 subsidiary of Holdco after completion of consistent with the standard generally • The requirement in Section 2.7 the Combination and, therefore, it may applicable for actions by shareholders (which would be renumbered as Section be appropriate for executives of Holdco under the Delaware General Corporation 2.6) of the NYSE Euronext Bylaws that and its subsidiaries to serve on this Law and for actions by the parent entity directors be elected by a majority of the board, and the reference to Section 3.4 of other wholly owned subsidiaries of votes cast (and that they must tender in Section 3.2(A) would accordingly be NYSE Euronext such as NYSE Group; their resignation if such a majority vote deleted; • is not received), except in the case of • Section 3.9 (which would be In light of the fact that NYSE contested elections, and that the NYSE renumbered as Section 3.8) of the NYSE Alternext US LLC formally changed its Euronext board of directors may fill any Euronext Bylaws would be amended to name to NYSE Amex LLC, references to resulting vacancy or may decrease the clarify that notice of board meetings is NYSE Alternext US LLC in the NYSE size of the board, would be deleted and not required if waived in accordance Euronext Bylaws would be amended to with Section 10.3 of the NYSE Euronext refer instead to NYSE Amex LLC; a plurality voting standard would be • adopted for all director elections, Bylaws; Section 10.13 of the NYSE Euronext • because these requirements would no The advance notice period in Bylaws—which requires that, for so long longer serve any purpose after NYSE Section 3.9 (which would be as NYSE Euronext directly or indirectly Euronext becomes wholly owned by a renumbered as Section 3.8) of the NYSE controls NYSE Amex, any amendments single shareholder and a plurality voting Euronext Bylaws for electronic or to the NYSE Euronext Certificate must standard is consistent with the standard telephonic notices of board meetings be approved by the Commission— generally applicable for elections of would be reduced from 24 hours to 12 would be deleted and Article X of the directors under the Delaware General hours, in order to simplify the NYSE Euronext Certificate would be Corporation Law and for actions by the requirements for board meetings and to amended to incorporate this be consistent with the analogous 12- requirement; and parent entity of other wholly owned • subsidiaries of NYSE Euronext such as hour time period currently required for Certain clarifying, conforming or NYSE Group; notices pursuant to Section 3.7 of the other technical edits would be made to • The requirements in Section 2.10 of NYSE Group Bylaws; Sections 1(B), 1(C), 1(L), 2(C) and 2(E) • the NYSE Euronext Bylaws requiring Section 3.12 of the NYSE Euronext of Article V, Article X and Article XIII certain advance notice from Bylaws (which would be renumbered as of the NYSE Euronext Certificate and to shareholders of director nominations Section 3.11) would be amended to Sections 3.7 (which would be and shareholder proposals, and the delete the requirement that, if the renumbered as Section 3.6) and requirement that only business brought chairman or deputy chairman of the 3.15(A)(2) and 3.15(B) (which would be before a special meeting of stockholders board of directors is also the chief renumbered as Section 3.14(A)(2) and pursuant to NYSE Euronext’s notice of executive officer or deputy chief 3.14(B), respectively) of the NYSE the meeting may be brought before the executive officer, he or she may not Euronext Bylaws. In addition, the meeting, would be eliminated, because participate in executive sessions of the numbering of certain sections of the these requirements would no longer board of directors, and if the chairman NYSE Euronext Certificate and NYSE is not the chief executive officer or Euronext Bylaws, and cross-references 63 See Section 231(e) of the Delaware General deputy chief executive officer, he or she to such sections, would be deleted or Corporation Law. will act as a liaison between the board updated to reflect the amendments to

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the NYSE Euronext Certificate and the vote will be open to examination by either (1) The NYSE Group board of NYSE Euronext Bylaws set forth above. shareholders, because this is required by directors or (2) subject to any vote of In addition, the current Independence Section 219 of the Delaware General holders of any class or series of NYSE Policy of the NYSE Euronext board of Corporation Law and is consistent with Group stock required by law or the directors would, effective as of the the analogous provision in Section 2.9 NYSE Group Certificate, the affirmative Combination, cease to apply. (which would be renumbered as Section vote of holders of a majority of the votes 7. Proposed Amendments to the NYSE 2.8) of the NYSE Euronext Bylaws; entitled to be cast by holders of • The reference at the end of Section Group Certificate and NYSE Group outstanding shares of NYSE Group 3.4 of the NYSE Group Bylaws to a Bylaws entitled to vote generally in the election special meeting of shareholders would of directors, voting together as a single Under the Proposed Rule Change, the be deleted because the shareholder of class; revisions summarized below to the NYSE Group may act by written consent • In light of the fact that NYSE NYSE Group Certificate and the NYSE to fill board vacancies pursuant to Alternext US LLC formally changed its Group Bylaws are proposed in order to: Section 2.9 of the NYSE Group Bylaws; name to NYSE Amex LLC, references to (1) Conform certain provisions to the • Section 3.7 of the NYSE Group NYSE Alternext US LLC in the NYSE analogous provisions of the Bylaws would be amended to clarify Group Bylaws would be amended to organizational documents of NYSE that notice of any special meeting of refer instead to NYSE Amex LLC, and Euronext, which would likewise be a directors is not required if waived in the definition of ‘‘Regulated Subsidiary’’ wholly owned subsidiary of Holdco accordance with Section 7.3 of the in the NYSE Group Certificate would be following completion of the NYSE Group Bylaws, and the methods amended to include NYSE Amex; and Combination; and (2) make certain of delivery of notices would be updated • Certain other clarifying, conforming clarification and technical edits (for to delete references to telegrams, or other technical edits would be made example, to conform the use of defined provide certain requirements for notices to Sections 4(a), 4(b)(1)(A)(w), terms and other provisions to reflect the sent to non-U.S. addresses and add a 4(b)(1)(A)(y), 4(b)(1)(A)(z), 4(b)(1)(E)(iv), other amendments set forth in this reference to email or other electronic 4(b)(1)(E)(vi), 4(b)(1)(E)(x), Proposed Rule Change): transmission of notices, in each case to 4(b)(1)(E)(xii), 4(b)(2)(C) and 4(b)(2)(E) • Section 2 of Article IV of the NYSE be consistent with the analogous of Article IV, Sections 6 and 8 of Article Group Certificate would be amended to provisions in Section 3.9 (which would V, Article X, Article XII and Article XIV clarify that (1) Preferred stock may be be renumbered as Section 3.8) of the of the NYSE Group Certificate and to issued ‘‘from time to time,’’ and (2) the NYSE Euronext Bylaws; • Sections 2.3, 2.9, 5.1 and 7.9 of the certificate of designations for such stock The reference in Section 3.8 of the NYSE Group Bylaws. In addition, the would fix, among other things, the NYSE Group Bylaws to restrictions on numbering of certain sections of the ‘‘relative, participating, optional and telephonic participation in meetings NYSE Group Certificate and NYSE other’’ rights of such shares including would be deleted, because the NYSE Group Bylaws would be updated to the qualifications and restrictions of any Group Bylaws and the NYSE Group reflect the amendments set forth above. series of preferred stock, which is Certificate do not contain any such consistent with the analogous restrictions, and the wording of this 8. Proposed Amendments to Board provisions in Section 2 of Article IV of provision would be amended to be Composition Requirements for the the NYSE Euronext Certificate; consistent with the analogous language Exchange, NYSE Amex, NYSE Market • Section 3 of Article V of the NYSE in Section 3.10 (renumbered as Section and NYSE Regulation Group Certificate would be revised to 3.9) of the NYSE Euronext Bylaws; The Third Amended and Restated • clarify that the number of directors will Section 7.4 would be revised to Operating Agreement, dated as of April be fixed ‘‘from time to time,’’ which is provide that the persons who are 1, 2009, of the Exchange (the ‘‘Exchange consistent with the analogous provision authorized to execute contracts and Operating Agreement’’), currently in Section 3 of Article VI of the NYSE other instruments on behalf of NYSE provides that (1) A majority of the Euronext Certificate; Group would include the Chief members of the Exchange’s board of • Section 5 of Article V of the NYSE Executive Officer, which is consistent directors must be U.S. persons and Group Certificate would be amended to with the analogous provision in Section members of the board of directors of clarify that the right of the NYSE Group 10.4 of the NYSE Euronext Bylaws; • NYSE Euronext who satisfy the board of directors to remove directors is Certain aspects of the independence requirements of the subject to any rights of holders of any indemnification and expense NYSE Euronext board, and (2) at least preferred stock, in order to make this advancement provisions in Section 7.6 20% of the Exchange’s board members provision consistent with Section 2 of of the NYSE Group Bylaws, including must be persons who are not board Article IV of the NYSE Group the terms of any insurance policy members of NYSE Euronext but who Certificate, which provides that maintained by NYSE Group, would be qualify as independent under the preferred stock may be issued that may simplified in light of the fact that there independence policy of the NYSE have voting rights, and also to make it are not expected to be any independent, Euronext board of directors (the ‘‘Non- consistent with the analogous provision non-executive directors of NYSE Group Affiliated Exchange Directors’’).64 The in Section 5 of Article VI of the NYSE and, therefore, a more streamlined nominating and governance committee Euronext Certificate; process for indemnification claims is • of the NYSE Euronext board of directors Section 2.3 of the NYSE Group appropriate, and these revisions would is required to designate as Non- Bylaws would be amended to clarify be consistent with the revisions to the Affiliated Exchange Directors the that notice of shareholder meetings is analogous provisions of the NYSE candidates recommended jointly by the not required if waived in accordance Euronext Bylaws set forth in this Director Candidate Recommendation with Section 7.3 of the NYSE Group Proposed Rule Change; Committees of each of NYSE Market and Bylaws; • Section 7.9 of the NYSE Group • Bylaws would be amended to clarify A new Section 2.8 would be added 64 See Third Amended and Restated Operating to the NYSE Group Bylaws to clarify that they may be amended or repealed, Agreement of New York Stock Exchange LLC, that a list of shareholders entitled to and new bylaws may be adopted, by Section 2.03(a).

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NYSE Regulation or, in the event there would be changed to refer instead to language providing an exception are Petition Candidates (as such term is NYSE Amex. applicable only to NYSE Euronext defined in the Exchange Operating The SRO Director Independence directors would be deleted. In addition, Agreement), the candidates that emerge Policy to be adopted by each of the the ‘‘additional independence from a specified process will be Exchange, NYSE Market, NYSE requirements’’ at the end of the current designated as the Non-Affiliated Regulation and NYSE Amex under the Independence Policy of NYSE Euronext, Exchange Directors.65 Proposed Rule Change would be which provides that executive officers Under the Proposed Rule Change, substantially similar to the current of foreign private issuers, executive these provisions would be amended (1) Independence Policy of the NYSE officers of NYSE Euronext and directors To provide that the independent Euronext board of directors, except that of affiliates of member organizations members of the Exchange’s board of certain conforming changes would be must together comprise no more than a directors, rather than the nominating made, including the deletion of minority of the total board, would be and governance committee of the NYSE provisions that currently apply only to eliminated. This provision is designed Euronext board of directors, will NYSE Euronext directors and expressly to ensure that although persons who are designate the Non-Affiliated Exchange do not apply to directors of these NYSE directors of an affiliate of a Member Directors and make the other related U.S. Regulated Subsidiaries. In Organization or who are executive determinations that were previously to particular, (1) References to NYSE officers of a ‘‘foreign private issuer’’ be made by the nominating and Euronext would refer instead to the listed on a NYSE Exchange may in some governance committee of the NYSE relevant NYSE U.S. Regulated circumstances qualify as independent Euronext board of directors; (2) to Subsidiary or Holdco, as applicable; (2) for purposes of NYSE Euronext board provide that instead of using the the requirement that at least three- membership, such persons may not, independence policy of the NYSE fourths of the directors must be together with executive officers of NYSE Euronext board of directors to assess the independent would be deleted, since Euronext, constitute more than a independence of the Exchange’s board the organizational documents of these minority of the total NYSE Euronext members, the Exchange will have its NYSE U.S. Regulated Subsidiaries directors. Under the proposed SRO own independence policy in the form contain the independence and other Director Independence Policy, such attached to this Proposed Rule Change qualification requirements for directors; persons could not be deemed to be as Exhibit 5K (the ‘‘SRO Director (3) the requirement in the Independence independent directors of the relevant Independence Policy’’); (3) in light of Policy of NYSE Euronext that the board NYSE U.S. Regulated Subsidiary and, the fact that the board of directors of consider the special responsibilities of a accordingly, this limitation on the NYSE Euronext will be decreased in director in light of NYSE Euronext’s number of such persons who may serve size once it becomes a wholly owned ownership of NYSE U.S. Regulated on the board is unnecessary. subsidiary of Holdco, the requirement Subsidiaries and European regulated 9. Proposed Amendments to the that a majority of the members of the entities would be deleted, because Exchange Rules, NYSE Amex Rules and Exchange’s board of directors must be unlike NYSE Euronext, these NYSE U.S. NYSE Arca Equities Rules members of the board of directors of Regulated Subsidiaries are not holding Under the Proposed Rule Change, NYSE Euronext would be eliminated; companies; (4) the requirement for and (4) to provide that at least 20% of certain technical amendments would be directors to inform the Chairman of the made to the Exchange Rules, as the Exchange’s directors must be Nominating and Governance Committee persons who are not members of the summarized below: of certain relationships and interests • References therein to ‘‘NYSE board of directors of Holdco (rather than would be deleted, since the boards of referring to the board of directors of Euronext’’ would be replaced with these NYSE U.S. Regulated Subsidiaries references to Holdco, except that NYSE Euronext). Substantially the same do not have a Nominating and revisions would be made to the references to NYSE Euronext in Rule 22 Governance Committee, except that in and Rule 422 would be retained and analogous provisions of the Amended the SRO Director Independence Policy and Restated Operating Agreement of references to Holdco would be added; to be adopted by NYSE Regulation, this and NYSE Amex,66 the Amended and provision would reference the • Rule 2 would be revised to delete Restated Bylaws of NYSE Market 67 and Nominating and Governance Committee the definitions of ‘‘member’’ and the Third Amended and Restated of NYSE Regulation, Inc.; (5) references ‘‘member organization’’ relating to Bylaws of NYSE Regulation.68 to NYSE Alternext, Inc. would refer NYSE Amex which are set forth in Rule The Amended and Restated Bylaws of instead to NYSE Amex, because of this 2 for purposes of Section 1(L) of Article NYSE Market and the Third Amended entity’s name change; (6) because the 5 of the NYSE Euronext Certificate, and Restated Bylaws of NYSE current Independence Policy of NYSE because under the Proposed Rule Regulation would also be amended to Euronext provides that a director of an Change, that section of the NYSE change the registered office of these affiliate of a Member Organization Euronext Certificate will be revised to entities from National Registered Agents cannot qualify as an independent incorporate this language [sic] to The Corporation Trust Company and director of these NYSE U.S Regulated In addition, certain technical CT Corporation, respectively. In Subsidiaries, the conflicting language amendments would be made to the addition, references to NYSE Alternext stating that a director of an affiliate of NYSE Amex Rules and NYSE Arca US LLC in the Third Amended and a Member Organization shall not per se Equities Rules to replace references Restated Bylaws of NYSE Regulation fail to be independent would be deleted; therein to ‘‘NYSE Euronext’’ with and (7) because language in the current references to Holdco. 65 See id. Independence Policy of NYSE Euronext 66 See Amended and Restated Operating provides that an executive officer of an 10. Proposed Technical Amendment to Agreement of NYSE Amex LLC, Section 2.03(a). issuer whose securities are listed on a the NYSE Trust Agreement 67 See Amended and Restated Bylaws of NYSE Market, Inc., Article III Section 1. NYSE Exchange cannot qualify as an Following completion of the 68 See Third Amended and Restated Bylaws of independent director of these NYSE U.S Combination, NYSE Euronext will NYSE Regulation, Inc., Article III Section 1. Regulated Subsidiaries, the conflicting become a wholly owned subsidiary of

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Holdco and, as such, its board of 6(b)(5) 71 of the Exchange Act because III. Date of Effectiveness of the directors will likely be reduced in size the Proposed Rule Change summarized Proposed Rule Change and Timing for and may not include directors who herein would be consistent with and Commission Action satisfy the independence criteria that facilitate a governance and regulatory Within 45 days of the date of are currently applicable. Accordingly, structure that is designed to prevent publication of this notice in the Federal under the Proposed Rule Change, the fraudulent and manipulative acts and Register or within such longer period (i) functions currently performed by the practices, to promote just and equitable As the Commission may designate up to nominating and governance committee principles of trade, to foster cooperation 90 days of such date if it finds such of NYSE Euronext in connection with and coordination with persons engaged longer period to be appropriate and reviewing and appointing trustees in regulating, clearing, settling, publishes its reasons for so finding or pursuant to the Trust Agreement, dated processing information with respect to, (ii) as to which the self-regulatory as of April 4, 2007, by and among NYSE organization consents, the Commission Euronext, NYSE Group and the other and facilitating transactions in will: parties thereto, would be transferred to securities, to remove impediments to, (A) By order approve or disapprove the Holdco Nominating, Governance and perfect the mechanism of a free and such proposed rule change, or and Corporate Responsibility open market and a national market (B) Institute proceedings to determine Committee. References in such trust system and, in general, to protect whether the proposed rule change agreement to the nominating and investors and the public interest. NYSE governance committee of NYSE Arca expects that the Combination will should be disapproved. Euronext would be replaced with position the Holdco Group to be a leader IV. Solicitation of Comments references to the Holdco Nominating, in a diverse set of large and growing Interested persons are invited to Governance and Corporate businesses, including derivatives, submit written data, views, and Responsibility Committee, as indicated listings, cash equities, post-trade arguments concerning the foregoing, in Exhibit 5O attached to this Proposed settlement and asset servicing, market including whether the proposed rule Rule Change. data and technology servicing. NYSE change is consistent with the Act. 11. Statutory Basis Arca believes this will enable the Comments may be submitted by any of Holdco Group to leverage technology NYSE Arca believes that this filing is the following methods: and a unique collection of markets to consistent with Section 6(b) 69 of the create a mutually reinforcing capital Electronic Comments Exchange Act in general, and furthers • the objectives of Section 6(b)(1) 70 in markets community driving efficiencies Use the Commission’s Internet particular, in that it enables NYSE Arca and innovation for clients and efficient, comment form (http://www.sec.gov/ transparent and well-regulated markets rules/sro.shtml); or to be so organized as to have the • capacity to be able to carry out the for issuers and clients. As a true Send an e-mail to rule- purposes of the Exchange Act and to pacesetter across the spectrum of capital [email protected]. Please include File comply, and to enforce compliance by markets services, the Holdco Group Number SR–NYSEArca–2011–72 on the its exchange members and persons would be positioned to offer clients subject line. associated with its exchange members, global scale, product innovation, Paper Comments with the provisions of the Exchange Act, operational and capital efficiencies and • Send paper comments in triplicate the rules and regulations thereunder, an enhanced range of technology and to Elizabeth M. Murphy, Secretary, and the rules of NYSE Arca. With market information solutions. Securities and Exchange Commission, respect to the ability of the Commission In addition, NYSE Arca expects that to enforce the Exchange Act as it applies 100 F Street, NE., Washington, DC the Holdco Group would be positioned to the U.S. Regulated Subsidiaries after 20549–1090. to serve as a benchmark regulatory the Combination, the U.S. Regulated All submissions should refer to File model, facilitating transparency and Subsidiaries will operate in the same Number SR–NYSEArca–2011–72. This manner following the Combination as standardization in capital markets file number should be included on the they operate today. Thus, the globally, while continuing to operate all subject line if e-mail is used. To help the Commission will continue to have national exchanges under local Commission process and review your plenary regulatory authority over the regulatory frameworks. comments more efficiently, please use only one method. The Commission will U.S. Regulated Subsidiaries, as is the B. Self-Regulatory Organization’s post all comments on the Commission’s case currently with these entities. The Statement on Burden on Competition Proposed Rule Change is consistent Internet Web site (http://www.sec.gov/ with and will facilitate an ownership NYSE Arca does not believe that the rules/sro.shtml). Copies of the structure that will provide the Proposed Rule Change will impose any submission, all subsequent Commission with appropriate oversight burden on competition that is not amendments, all written statements tools to ensure that the Commission will necessary or appropriate in furtherance with respect to the proposed rule have the ability to enforce the Exchange of the purposes of the Exchange Act. change that are filed with the Act with respect to each U.S. Regulated Commission, and all written Subsidiary, its direct and indirect parent C. Self-Regulatory Organization’s communications relating to the entities and its directors, officers, Statement on Comments on the proposed rule change between the employees and agents to the extent they Proposed Rule Change Received From Commission and any person, other than are involved in the activities of such Members, Participants or Others those that may be withheld from the U.S. Regulated Subsidiary. public in accordance with the NYSE Arca also believes that this NYSE Arca has neither solicited nor provisions of 5 U.S.C. 552, will be filing furthers the objectives of Section received written comments on the available for Web site viewing and Proposed Rule Change. printing in the Commission’s Public 69 15 U.S.C. 78(f)(b). Reference Room, 100 F Street, NE., 70 15 U.S.C. 78(f)(b)(1). 71 15 U.S.C. 78(f)(b)(5). Washington, DC 20549, on official

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business days between the hours of 10 filing (the ‘‘Proposed Rule Change’’) to (‘‘Holdco’’).3 The Proposed Rule a.m. and 3 p.m. Copies of the filing also the Commission in connection with the Change, if approved by the Commission, will be available for inspection and proposed business combination (the will not be operative until the copying at the principal office of the ‘‘Combination’’) of NYSE Euronext, a consummation of the Combination. Exchange. All comments received will Delaware corporation, and Deutsche B. Summary of Proposed Rule Change be posted without change; the Bo¨rse AG, an Aktiengesellschaft Commission does not edit personal organized under the laws of the Federal The Exchange is proposing that, identifying information from Republic of Germany (‘‘Deutsche pursuant to the Combination, its submissions. You should submit only Bo¨rse’’). indirect parent, Deutsche Bo¨rse, will information that you wish to make NYSE Euronext owns 100% of the become a wholly owned subsidiary of available publicly. All submissions equity interest of NYSE Group, Inc., a Holdco. In addition, the Exchange is should refer to File Number SR– Delaware corporation (‘‘NYSE Group’’), proposing that, in connection with the NYSEArca–2011–72 and should be which in turn directly or indirectly Combination, the Commission approve submitted on or before November 10, owns (1) 100% of the equity interest of certain amendments to the 2011. three registered national securities organizational and other governance exchanges and self-regulatory documents of Holdco and ISE Holdings. For the Commission, by the Division of organizations (together, the ‘‘NYSE The Proposed Rule Change is Trading and Markets, pursuant to delegated authority.72 Exchanges’’)—the New York Stock summarized as follows: Exchange, LLC (‘‘NYSE’’), NYSE Arca, • Proposed Approval of Waiver of Elizabeth M. Murphy, Inc. (‘‘NYSE Arca’’) and NYSE Amex Ownership and Voting Restrictions of Secretary. LLC (‘‘NYSE Amex’’)—and (2) 100% of ISE Holdings. The Amended and [FR Doc. 2011–27197 Filed 10–19–11; 8:45 am] the equity interest of NYSE Market, Inc. Restated Certificate of Incorporation of BILLING CODE 8011–01–P (‘‘NYSE Market’’), NYSE Regulation, ISE Holdings (the ‘‘ISE Holdings Inc. (‘‘NYSE Regulation’’), NYSE Arca Certificate’’) currently restricts any L.L.C. (‘‘NYSE Arca LLC’’) and NYSE person, either alone or together with its SECURITIES AND EXCHANGE Arca Equities, Inc. (‘‘NYSE Arca related persons, from having voting COMMISSION Equities’’) (the NYSE Exchanges, control over more than 20% of the [Release No. 34–65566; File No. SR–ISE– together with NYSE Market, NYSE outstanding capital stock of ISE 2011–69] Regulation, NYSE Arca LLC and NYSE Holdings and from owning of record or Arca Equities, the ‘‘NYSE U.S. beneficially more than 40% of the Self-Regulatory Organizations; Regulated Subsidiaries’’ and each, a outstanding capital stock of ISE International Securities Exchange, ‘‘NYSE U.S. Regulated Subsidiary’’). Holdings (or in the case of any Exchange LLC; Notice of Filing of Proposed Rule NYSE, NYSE Arca and NYSE Amex will member, acting alone or together with Change Relating to a Corporate be separately filing a proposed rule its related persons, from owning of Transaction in which Its Indirect change in connection with the record or beneficially more than 20% of Parent, Deutsche Bo¨ rse AG, Will Combination. the outstanding capital stock of ISE Become a Wholly Owned Subsidiary of Deutsche Bo¨rse indirectly owns 50% Holdings).4 If a person were to obtain a Alpha Beta Netherlands Holding N.V. of the equity interest of International voting or ownership interest in excess of Securities Exchange Holdings, Inc. (‘‘ISE October 14, 2011. the voting or ownership restrictions Holdings’’), which in turn holds 100% without obtaining the approval of the Pursuant to Section 19(b)(1) 1 of the of the equity interest of the Exchange. Commission, the shares of ISE Holdings Securities Exchange Act of 1934 (the ISE Holdings also holds 31.54% of the would automatically transfer to a ‘‘Exchange Act’’), and Rule 19b–4 equity interest of Direct Edge Holdings, statutory trust established under and thereunder,2 notice is hereby given that LLC (‘‘Direct Edge Holdings’’), which in pursuant to the provisions of the on October 12, 2011, International turn indirectly holds 100% of the equity Delaware Statutory Trust Act, 12 Del. C. Securities Exchange, LLC (the interest of two registered national §§ 3801 et seq. (‘‘ISE Trust’’). The ISE ‘‘Exchange’’) filed with the Securities securities exchanges and self-regulatory Holdings Certificate and the Amended and Exchange Commission (the organizations—EDGA Exchange, Inc. and Restated Bylaws of ISE Holdings ‘‘Commission’’) the proposed rule (‘‘EDGA’’) and EDGX Exchange, Inc. (the ‘‘ISE Holdings Bylaws’’) provide change as described in Items I and II (‘‘EDGX’’) (each of the Exchange, EDGA that the board of directors of ISE below, which Items have been prepared and EDGX, a ‘‘DB Exchange’’ and a ‘‘DB Holdings may waive these voting and substantially by the Exchange. The U.S. Regulated Subsidiary’’ and ownership restrictions in an amendment Commission is publishing this notice to together, the ‘‘DB Exchanges’’ and the to the ISE Holdings Bylaws if it makes solicit comments on the proposed rule ‘‘DB U.S. Regulated Subsidiaries’’). certain findings and the amendment to change from interested persons. EDGA and EDGX will be separately the ISE Holdings Bylaws has been filed I. Self-Regulatory Organization’s filing a proposed rule change in with, and approved by, the Commission Statement of the Terms of Substance of connection with the Combination that under Section 19(b) of the Exchange the Proposed Rule Change will be the substantially the same as the Act.5 Acting pursuant to this waiver Proposed Rule Change. provision, the board of directors of ISE A. Overview of the Proposed If the Combination is completed, the Holdings has approved the amendment Combination businesses of NYSE Euronext and ¨ The Exchange, a Delaware limited Deutsche Borse, including the NYSE 3 Holdco is currently named ‘‘Alpha Beta liability company, registered national U.S. Regulated Subsidiaries and the DB Netherlands Holding N.V.,’’ but it is expected that securities exchange and self-regulatory U.S. Regulated Subsidiaries (together, Holdco will be renamed prior to the completion of organization, is submitting this rule the ‘‘U.S. Regulated Subsidiaries’’ and the Combination to a name agreed between NYSE each, a ‘‘U.S. Regulated Subsidiary’’), Euronext and Deutsche Bo¨rse. 4 See Amended and Restated Certificate of 72 17 CFR 200.30–3(a)(12). will be held under a single, publicly Incorporation of ISE Holdings, Article FOURTH, 1 15 U.S.C. 78s(b)(1). traded holding company organized Section III. 2 17 CFR 240.19b–4. under the laws of the Netherlands 5 15 U.S.C. 78s(b).

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to the ISE Holdings Bylaws set forth in sale and transfer the number of Holdco employee, as applicable, to agree and Exhibit 5A (the ‘‘ISE Holdings Bylaws shares required to comply with the consent in writing to the applicability to Amendment’’) in order to permit Holdco ownership restriction, and the rights to them of these jurisdictional and to indirectly own 50% of the vote, attend general meetings of Holdco oversight provisions with respect to outstanding common stock of ISE shareholders and receive dividends or their activities related to any U.S. Holdings as of and after the other distributions attached to shares Regulated Subsidiary. Furthermore, the Combination. The Exchange is held in excess of the 40% threshold (or Holdco Articles would provide that no requesting approval by the Commission 20% threshold, if applicable) will be person may be a director of Holdco of the ISE Holdings Bylaws Amendment suspended for so long as such threshold unless he or she has agreed and in order to allow the Combination to is exceeded. If such person(s) fails to consented in writing to the applicability take place. comply with the transfer obligation to him or her of these jurisdictional and Under the Proposed Rule Change, within two weeks, then the Holdco oversight provisions with respect to his Holdco would take appropriate steps to Articles would provide that Holdco will or her activities related to any U.S. incorporate voting and ownership be irrevocably authorized to take actions Regulated Subsidiary. Holdco would restrictions, requirements relating to on behalf of such person(s) in order to sign an irrevocable agreement and submission to jurisdiction, access to cause it to comply with such consent for the benefit of each U.S. books and records and other obligations. The Holdco board of Regulated Subsidiary 12 that it will requirements related to its control of the directors may waive the voting and comply with these provisions of the U.S. Regulated Subsidiaries. ownership restrictions if it makes Holdco Articles. Specifically, the Articles of Association certain determinations (which will be • Books and Records. The Holdco of Holdco in effect as of the completion subject to the same requirements which Articles would provide that for so long of the Combination (the ‘‘Holdco are currently required to be made by the as Holdco directly or indirectly controls Articles’’) would contain provisions 6 to board of directors of NYSE Euronext any U.S. Regulated Subsidiary, the incorporate these concepts with respect and ISE Holdings in order to waive the books, records and premises of Holdco to itself, as well as its directors, officers, voting and ownership restrictions in the will be deemed to be the books, records employees and agents (as applicable): current NYSE Euronext Certificate and and premises of such U.S. Regulated • Voting and Ownership Restrictions the ISE Holdings Certificate, as Subsidiaries for purposes of, and subject in the Holdco Articles. The Holdco applicable) and resolves to expressly to oversight pursuant to, the Exchange Articles would contain voting and permit the voting and ownership that is Act, and that Holdco’s books and ownership restrictions that will restrict subject to such restrictions, and such records will at all times be made any person, either alone or together with resolutions have been filed with, and available for inspection and copying by its related persons, from having voting approved by, the Commission under the Commission, and by any U.S. control over Holdco shares entitling the Section 19(b) of the Exchange Act and Regulated Subsidiary to the extent they holder thereof to cast more than 20% of filed with, and approved by, the are related to the activities of such U.S. the then outstanding votes entitled to be relevant European Regulators 11 having Regulated Subsidiary or any other U.S. cast on a matter or beneficially owning appropriate jurisdiction and authority. Regulated Subsidiary over which such • Holdco shares representing more than Jurisdiction. The Holdco Articles U.S. Regulated Subsidiary has 40% of the outstanding votes entitled to will provide that Holdco and its regulatory authority or oversight. In be cast on a matter (except that a 20% directors, and to the extent they are addition, Holdco’s books and records ownership restriction would apply to involved in the activities of the U.S. related to the U.S. Regulated 7 any person who is a Member of NYSE Regulated Subsidiaries, (x) Holdco’s Subsidiaries will be maintained within 8 (a ‘‘NYSE Member’’), a Member of officers, and (y) those of its employees the United States, except that to the NYSE Amex (including any person who whose principal place of business and extent that books and records may relate is a related person of such member, an residence is outside the United States, to both European subsidiaries and U.S. ‘‘Amex Member’’), an ETP Holder of will be deemed to irrevocably submit to 9 Regulated Subsidiaries, Holdco may NYSE Arca Equities (an ‘‘ETP Holder’’) the jurisdiction of the U.S. federal maintain such books and records either an OTP Holder or OTP Firm of NYSE courts and the Commission for the 10 in the home jurisdiction of one or more Arca (an ‘‘OTP Holder’’ and ‘‘OTP purposes of any suit, action or European subsidiaries or in the United Firm,’’ respectively), a Member (as such proceeding pursuant to the U.S. federal States. term is defined in Section 3(a)(3)(A) of securities laws and the rules or • Amendments to Holdco Articles. the Exchange Act) of ISE (an ‘‘ISE regulations thereunder, arising out of, or The Holdco Articles would provide that Member’’), or a member of EDGA or relating to, the activities of the U.S. before any amendment to the Holdco EDGX (as such terms are defined in the Regulated Subsidiaries. In addition, the Articles may be effectuated by execution rules of EDGA and EDGX, respectively, Holdco Articles would provide that so of a notarial deed of amendment, such an ‘‘EDGA Member’’ and ‘‘EDGX long as Holdco directly or indirectly amendment would need to be submitted Member,’’ respectively)). The Holdco controls any U.S. Regulated Subsidiary, to the board of directors of each U.S. Articles would provide that Holdco will the directors, officers and employees Regulated Subsidiary and, if so be required to disregard any votes will be deemed to be directors, officers determined by any such board, would purported to be cast in excess of the and employees of such U.S. Regulated need to be filed with, or filed with and voting restriction. In the event that any Subsidiaries for purposes of, and subject approved by, the Commission before such person(s) exceeds the ownership to oversight pursuant to, the Exchange such amendment may become effective. restriction, it will be required to offer for Act. The Holdco Articles would provide • Additional Matters. The Holdco that Holdco will take reasonable steps Articles would include provisions 6 The text of the proposed Holdco Articles is necessary to cause its officers, directors attached to the Proposed Rule Change as Exhibit 5B. regarding cooperation with the 7 See Form of Deed of Amendment to Holdco and employees, prior to accepting a Commission and the U.S. Regulated Articles of Association, Article 34.3(c). position as an officer, director or 8 See id. 12 The form of Holdco’s agreement and consent is 9 See id. 11 See Form of Deed of Amendment to Holdco attached as Exhibit 5C to this Proposed Rule 10 See id. Articles of Association, Article 1.1. Change.

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Subsidiaries, compliance with U.S. Other than as described herein and set Regulated Subsidiaries in connection federal securities laws, confidentiality forth in the attached Exhibits 5A with the Combination. If Holdco of information regarding the U.S. through 5D, the Exchange will continue determines to make any such changes to Regulated Subsidiaries’ self-regulatory to conduct its regulated activities in the the regulated activities of any U.S. function, preservation of the manner currently conducted and will Regulated Subsidiary, it will seek the independence of the U.S. Regulated not make any changes to its regulated approval of the Commission. The Subsidiaries’ self-regulatory function, activities in connection with the Proposed Rule Change, if approved by and directors’ consideration of the effect Combination. If the Exchange the Commission, will not be operative of Holdco’s actions on the U.S. determines to make any such changes, until the consummation of the Regulated Subsidiaries’ ability to carry it will seek approval of the Commission. Combination. out their respective responsibilities II. Self-Regulatory Organization’s The Combination will occur pursuant under the Exchange Act. In addition, the Statement of the Purpose of, and to the terms of the Business Holdco Articles would provide that Statutory Basis for, the Proposed Rule Combination Agreement, dated as of Holdco will take reasonable steps Change February 15, 2011, as amended by necessary to cause its officers, directors Amendment No. 1 dated as of May 2, and employees, prior to accepting a In its filing with the Commission, the 2011 and by Amendment No. 2 dated as position as an officer, director or Exchange has included statements of June 16, 2011 (as it may be further employee, as applicable, of Holdco to concerning the purpose of, and basis for, amended from time to time, the agree and consent in writing to the the Proposed Rule Change. The text of ‘‘Combination Agreement’’), by and applicability to them of these provisions these statements may be examined at among NYSE Euronext, Deutsche Bo¨rse, of the Holdco Articles with respect to the places specified in Item IV below. Holdco and Pomme Merger Corporation, their activities related to any U.S. The Exchange has prepared summaries, a Delaware corporation and newly Regulated Subsidiary. The Holdco set forth in Sections A, B and C below, formed wholly owned subsidiary of Articles would also provide that no of the most significant aspects of such Holdco (‘‘Merger Sub’’). Subject to the person may be a director of Holdco statements. terms and conditions set forth in the unless he or she has agreed and A. Purpose [sic] Combination Agreement and in consented in writing to the applicability The purpose of this rule filing is to compliance with applicable law, Holdco to him or her of these provisions with has conducted a public exchange offer respect to his or her activities related to adopt the rules necessary to permit Deutsche Bo¨rse to effect the (the ‘‘Exchange Offer’’), in which any U.S. Regulated Subsidiary. Holdco shareholders of Deutsche Bo¨rse have will sign an irrevocable agreement and Combination and to amend the ISE Holdings Bylaws and certain provisions been afforded the opportunity to tender consent for the benefit of each U.S. each share of Deutsche Bo¨rse for one 13 of the Holdco Articles. Regulated Subsidiary that it will ordinary share of Holdco (each, a comply with these provisions of the 1. Overview of the Combination ‘‘Holdco Share’’). Holdco Articles.14 In addition, Holdco would adopt a The Exchange is submitting this Immediately after the time that Director Independence Policy in the Proposed Rule Change to the Holdco accepts for exchange, and form attached hereto as Exhibit 5D (the Commission in connection with the exchanges, the Deutsche Bo¨rse shares ‘‘Holdco Independence Policy’’), which Combination of NYSE Euronext and that are validly tendered and not would be substantially similar to the Deutsche Bo¨rse. The Combination will withdrawn in the Exchange Offer, current Independence Policy of the create a holding company, Holdco, Merger Sub will merge with and into NYSE Euronext board of directors. The which will hold the businesses of NYSE NYSE Euronext, as a result of which Proposed Rule Change filed by the Euronext and Deutsche Bo¨rse. NYSE Euronext will become a wholly NYSE in connection with the Following the Combination, each of owned subsidiary of Holdco (the combination describes the Holdco NYSE Euronext and Deutsche Bo¨rse will ‘‘Merger’’). In the Merger, each Independence Policy as it relates to the be a separate subsidiary of Holdco. outstanding share of NYSE Euronext current Independence Policy of the Holdco expects the Combination will common stock will be converted into NYSE Euronext board of directors.15 create a group that will be both a world the right to receive 0.47 of a fully paid The text of the Proposed Rule Change leader in derivatives and risk and non-assessable Holdco Share. NYSE is available at the Exchange, the management and the premier global Euronext’s obligation to complete the Commission’s Public Reference Room, venue for capital raising, with a truly Merger is subject to the completion of and on the Web site of the Exchange global franchise and presence in many the Exchange Offer and the acquisition (http://www.ise.com). The text of of the world’s financial centers by Holdco of all of the Deutsche Bo¨rse Exhibits 5A through 5D of the Proposed including New York, London, Frankfurt, shares validly tendered and not Rule Change are also available on the Paris and Luxembourg. This global withdrawn in the Exchange Offer. The Exchange’s Web site and on the presence should facilitate providing completion of the Exchange Offer (and, Commission’s Web site (http:// world-class services to global and local therefore, the completion of the Merger) www.sec.gov/rules/sro.shtml). customers worldwide. is subject to the satisfaction of a number Other than as described herein, of conditions, including that Deutsche 13 The form of Holdco’s agreement and consent is Holdco and the Exchange will not make Bo¨rse shares representing at least 75% attached as Exhibit 5C to this Proposed Rule any changes to the regulated activities of of the Deutsche Bo¨rse shares Change. the DB Exchanges in connection with outstanding, on a fully diluted basis, 14 The Holdco Articles will also set forth certain restrictions and requirements relating to Holdco’s the Combination, and, other than as must be validly tendered and not European subsidiaries and applicable European described in the separate proposed rule withdrawn in the Exchange Offer, and regulatory matters, which will be substantially changes filed by each of the NYSE that holders of a majority of the consistent with the analogous restrictions and Exchanges in connection with the outstanding shares of NYSE Euronext requirements applicable with respect to Holdco’s U.S. Regulated Subsidiaries and U.S. regulatory Combination, Holdco and the NYSE shall have adopted the Combination matters. Exchanges will not make any changes to Agreement. Both of these conditions 15 See File No. SR–NYSE–2011–51. the regulated activities of the NYSE U.S. have been satisfied.

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Following the completion of the New York Stock Exchange, the • The Exchange will remain a direct Exchange Offer, and depending on the Frankfurt Stock Exchange and Euronext wholly owned subsidiary of ISE percentage of Deutsche Bo¨rse shares Paris. The Holdco Group will have dual Holdings and an indirect 50% owned acquired by Holdco in the Exchange headquarters in Frankfurt and New subsidiary of Deutsche Bo¨rse. Offer, Deutsche Bo¨rse and Holdco York. • The Combination will have no intend to complete a post-completion After the Combination, NYSE Group effect on the ability of any party to trade reorganization pursuant to which will continue to be directly wholly securities on the Exchange, EDGX or Holdco will enter into a domination owned by NYSE Euronext and will EDGA. agreement or a combination of a continue to directly or indirectly own Similarly, Deutsche Bo¨rse and its domination agreement and a profit and the three NYSE Exchanges—NYSE, subsidiaries, and NYSE Euronext and its loss transfer agreement, pursuant to NYSE Arca and NYSE Amex—which subsidiaries, will continue to conduct which the remaining shareholders of provide marketplaces where investors their regulated activities in the same Deutsche Bo¨rse will have limited rights, buy and sell listed companies’ common manner as they are currently conducted, including a limited ability to participate stock and other securities as well as with any changes subject to the relevant in the profits of Deutsche Bo¨rse. equity options and securities traded on approvals of their respective European Holdco expects the Combination will the basis of unlisted trading privileges. regulators and, in the case of the U.S. create a group that will be both a world NYSE Regulation, Inc., an indirect not- Regulated Subsidiaries, with any leader in derivatives and risk for-profit subsidiary of NYSE Group, changes subject to the approval of the management and the premier global oversees FINRA’s performance of Commission. venue for capital raising, with a truly certain market surveillance and Holdco acknowledges that to the global franchise and presence in many enforcement functions for NYSE extent it becomes aware of possible of the world’s financial centers Euronext’s U.S. securities exchanges, violations of the rules of the Exchange, including New York, London, Frankfurt, enforces listed company compliance it will be responsible for referring such Paris and Luxembourg. This global with applicable standards, and oversees possible violations to the Exchange. In presence should facilitate providing regulatory policy determinations, rule addition, Holdco will become a party to world-class services to global and local interpretation and regulation related the agreement among Deutsche Bo¨rse, customers worldwide. Following the rule development. Eurex Frankfurt, Eurex Zu¨ rich, SIX Combination, Holdco and its In Europe, NYSE Euronext, Deutsche (formerly SWX), SIX Group (formerly subsidiaries (together, the ‘‘Holdco Bo¨rse and their respective subsidiaries SWX Group), Verein SIX Swiss Group’’) expect to serve as a benchmark own several European exchanges, Exchange (formerly SWX Swiss regulatory model, facilitating including trading operations on Exchange), U.S. Exchange Holdings, transparency and harmonization of regulated and non-regulated markets for Inc., ISE Holdings and the Exchange to capital markets globally, while cash products in Germany, France, provide for adequate funding for the continuing to operate all national Belgium, The Netherlands, and Portugal Exchange’s regulatory responsibilities. exchanges under local regulatory and derivatives in the United Kingdom 3. Proposed Approval of Waiver of frameworks and their respective brand and in the five above-mentioned Voting and Ownership Restrictions of names. locations. As a result, the activities of ISE Holdings the NYSE Euronext and Deutsche Bo¨rse 2. Overview of the Holdco Group European markets are or may be subject Article FOURTH, Section III of the Following the Combination to the jurisdiction and authority of a current ISE Holdings Certificate Following the Combination, Holdco number of European regulators, provides that (1) No person, either alone will be a for-profit, publicly traded including the German Federal Financial or together with its ‘‘related persons’’ (as corporation formed under the laws of Supervisory Authority (Bundesanstalt defined in the ISE Holdings Certificate), The Netherlands and will act as the fu¨ r Finanzdienstleistungsaufsicht), the may be entitled to vote or cause the holding company for the businesses of Hessian Exchange Supervisory voting of shares of ISE Holdings at any NYSE Euronext and Deutsche Bo¨rse. Authority, the Dutch Minister of time, directly, indirectly or pursuant to Holdco will hold all of the equity Finance, the French Minister of the any voting trust, agreement, plan or interests in NYSE Euronext, which Economy, the French Financial Market other arrangement, to the extent that holds (1) 100% of the equity interest of Authority (Autorite´ des Marche´s such shares represent more than 20% of NYSE Group (which, in turn, directly or Financiers), the French Prudential the voting power of the then indirectly holds 100% of the equity Supervisory Authority (Autorite´ de outstanding votes entitled to be cast on interests of the NYSE U.S. Regulated Controˆ le Prudentiel), the Netherlands such matter; and (2) no person, either Subsidiaries) and (2) 100% of the equity Authority for the Financial Markets alone or together with its related interest of Euronext N.V. (which, in (Autoriteit Financie¨le Markten), the persons, at any time, directly, indirectly turn, directly or indirectly holds 100% Belgian Financial Services and Markets or pursuant to any voting trust, may of the equity interests of trading markets Authority (Autorite´ des Services et enter into any agreement, plan or other in Belgium, France, the Netherlands, Marche´s Financiers), the Portuguese arrangement with any other person, Portugal and the United Kingdom). Securities Market Commission either alone or together with its related Holdco will also hold a majority of the (Comissa˜o do Mercado de Valores persons, under circumstances which equity interests in Deutsche Bo¨rse, Mobilia´rios—CMVM) and the U.K. would result in the voting shares that which indirectly holds 50% of the Financial Services Authority (FSA). shall be subject to such agreement, plan equity interest of ISE Holdings (which, Other than certain modifications or other arrangement not being voted on in turn, holds (1) 100% of the equity described herein, the current corporate any matter or matters or the withholding interest of the Exchange and (2) 31.54% structure, governance and self- of any proxy relating thereto, where the of the equity interest of Direct Edge regulatory independence and separation effect of such agreement, plan or Holdings). Direct Edge Holdings of the Exchange will be preserved. arrangement would be to enable any indirectly holds 100% of the equity Specifically, after the Combination, ISE person, either alone or together with its interest of EDGA and EDGX. Holdco Holdings’ businesses and assets will related persons, to possess more than intends to list its ordinary shares on the continue to be structured as follows: 20% of the voting power of the then

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outstanding votes entitled to be cast on • is otherwise in the best interest of the Combination, the Exchange will any such matter (the ‘‘ISE Holdings ISE Holdings, its stockholders and the operate in the same manner following Voting Restriction’’).16 If any person, DB U.S. Regulated Subsidiaries; the Combination as it operates today.21 either alone or together with its related • will not impair the Commission’s Thus, the Commission will continue to persons, acquires voting power in ability to enforce the Exchange Act; have plenary regulatory authority over excess of the ISE Holdings Voting • for so long as ISE Holdings directly the Exchange, as is the case currently Restriction, the ISE Holdings board of or indirectly controls the Exchange, with the Exchange. As described in the directors must notify the ISE Trust and neither such person nor any of its following sections of this filing, the such ISE Holdings Voting Restriction related persons is an ISE Member, Exchange is proposing certain shall result in the automatic transfer to EDGA Member or EDGX Member; and provisions of the Holdco Articles that the ISE Trust of a majority of the voting • neither such person nor any of its will create an ownership structure that shares then outstanding pro rata from related persons is subject to any will provide the Commission with the holders thereof. ‘‘statutory disqualification’’ (as such appropriate oversight tools to ensure In addition, the ISE Holdings term is defined in Section 3(a)(39) of the that the Commission will have the Certificate provides that no person, Exchange Act).19 ability to enforce the Exchange Act with either alone or together with its related Such amendment shall not be respect to each U.S. Regulated persons, may at any time of record or effective unless it has been filed with Subsidiary, its direct and indirect parent beneficially own, directly or indirectly, and approved by the Commission under entities and its directors, officers, shares of ISE Holdings representing Section 19(b) of the Exchange Act 20 and employees and agents to the extent they more than 40% of the then outstanding has become effective thereunder. are involved in the activities of such votes entitled to be cast on any matter In order to allow Holdco to indirectly U.S. Regulated Subsidiary. and no person who is a member of the own 50% of the outstanding common The ISE Holdings board of directors Exchange, either alone or together with stock of ISE Holdings upon also determined that ownership of ISE its related person, may at any time of consummation of the Combination, Holdings by Holdco is in the best record or beneficially own, directly or Holdco has delivered written notice to interests of ISE Holdings, its indirectly, shares of ISE Holdings the board of directors of ISE Holdings shareholders and the DB U.S. Regulated representing in the more than 20% of pursuant to the procedures set forth in Subsidiaries. With respect to the the then outstanding votes entitled to be the ISE Holdings Certificate requesting interests of the DB U.S. Regulated cast on any matter (the ‘‘ISE Holdings approval of its voting and ownership of 17 Subsidiaries, the board of directors of Ownership Restriction’’). If any ISE Holdings shares in excess of the ISE ISE Holdings has noted, among other person, either alone or together with its Holdings Voting Restriction and the ISE things, its expectation that the related persons, owns shares of ISE Holdings Ownership Restriction. Combination would over time create Holdings in excess of the ISE Holdings Among other things, in this notice, substantial incremental efficiency and Ownership Restriction, then the ISE Holdco represented to the board of growth opportunities and that the Holdings board of directors must notify directors of ISE Holdings that neither it, Holdco Group is expected to be a leader the ISE Trust and such ISE Holdings nor any of its related persons, is (1) An in a diverse set of large and growing Ownership Restriction shall result in ISE Member; (2) EDGA Member; (3) businesses, including derivatives, the automatic transfer to the ISE Trust EDGX Member; or (4) subject to any listings, cash equities, post-trade of a majority of the voting shares then ‘‘statutory disqualification.’’ settlement and asset servicing, market outstanding pro rata from the holders At a meeting duly convened on 18 data and technology servicing. thereof. September 16, 2011, the board of The ISE Holdings board of directors directors of ISE Holdings adopted the In addition, neither Holdco, nor any may waive the ISE Holdings Voting ISE Holdings Bylaws Amendment to of its related persons, is (1) An ISE Restriction and the ISE Holdings permit Holdco, either alone or together Member; (2) an EDGA Member; (3) an Ownership Restriction pursuant to an with its related persons, to exceed the EDGX Member; or (4) subject to any amendment to the ISE Holdings Bylaws ISE Holdings Ownership Restriction and ‘‘statutory disqualification.’’ adopted by the ISE Holdings board of the ISE Holdings Voting Restriction. In An extract with the relevant directors, if in connection with the adopting such amendment, the board of provisions of the ISE Holdings Bylaws adoption of such amendment, the board directors of ISE Holdings made the Amendment is attached as Exhibit 5A to of directors in its sole discretion adopts necessary determinations set forth above the Proposed Rule Change and can be a resolution stating that it is the and approved the submission of this found on the Exchange’s Web site and determination of the board of directors Proposed Rule Change to the the Commission’s Web site. that such amendment: Commission. The Exchange will • The Exchange hereby requests that the Will not impair the ability of ISE continue to operate and regulate its Commission approve the ISE Holdings Holdings and any of the DB U.S. market and members exactly as it has Bylaws Amendment and allow Holdco, Regulated Subsidiaries, or facility done prior to the Combination. Except either alone or with its related persons, thereof, to carry out their respective as set forth in this Proposed Rule to indirectly own 50% of the responsibilities under the Exchange Act Change, the Exchange is not proposing outstanding common stock of ISE and the rules and regulations any amendments to its trading or Holdings upon and following the thereunder; regulatory rules. consummation of the Combination. With respect to the ability of the 16 See Amended and Restated Certificate of Commission to enforce the Exchange Incorporation of ISE Holdings, Article FOURTH, 21 The Exchange has been informed by NYSE Section III. Act as it applies to the Exchange after Euronext, EDGA and EDGX that the NYSE U.S. 17 See Amended and Restated Certificate of Regulated Subsidiaries, EDGA and EDGX, Incorporation of ISE Holdings, Article FOURTH, 19 See Amended and Restated Certificate of respectively, are also expected to operate in the Section III. Incorporation of ISE Holdings, Article Fourth, same manner following the Combination as they 18 See Amended and Restated Certificate of Section III, and Amended and Restated Bylaws of operate today. This is addressed in the separate Incorporation of ISE Holdings, Article Fourth, ISE Holdings, Article XI. proposed rule change filed by each of the NYSE Section III. 20 15 U.S.C. 78s(b). Exchanges, EDGA and EDGX.

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4. Proposed Amendments to Ownership votes purported to be cast in excess of a written notice of its intention to and Voting Restrictions After the the Holdco Voting Restriction. acquire voting power or ownership in Combination In addition, the Holdco Articles excess of the relevant limitation, and would provide that any person who, such notice is delivered at least 45 days Overview either alone or together with its related (or such shorter period as the Holdco The Exchange is proposing that, persons, beneficially owns Holdco board of directors expressly consents to) effective as of the completion of the shares which represent in the aggregate prior to acquiring Holdco shares in Combination, the Holdco Articles would more than 40% of the outstanding votes excess of the Holdco Voting Restriction contain voting and ownership entitled to be cast on any matter (except or Holdco Ownership Restriction, and restrictions that restrict any person, that a 20% restriction would apply to (2) obtains a written confirmation from either alone or together with its related any person who is a NYSE Member, an the Holdco board of directors that the Amex Member, an ETP Holder, an OTP persons, from having voting control over board has expressly resolved to permit Holder, an OTP Firm, an ISE Member, Holdco shares entitling the holder such voting or ownership, and (3) such an EDGA Member or an EDGX Member) thereof to cast more than 20% of the resolution has been filed with, and (the ‘‘Holdco Ownership Restriction’’), votes entitled to be cast on any matter approved by, the Commission under will be obligated to offer for sale and to Section 19(b) of the Exchange Act and or beneficially owning Holdco shares transfer a number of Holdco shares filed with, and approved by, the representing more than 40% of the necessary so that such person, together relevant European regulators having outstanding votes that may be cast on with its related persons, beneficially appropriate jurisdiction and authority.28 any matter (except that a 20% owns a number of Holdco shares that The Holdco board of directors may ownership restriction would apply to complies with the Holdco Ownership waive the Holdco Voting Restriction and any person who is a NYSE Member, an Restriction (the ‘‘Holdco Transfer Holdco Ownership Restriction if it Amex Member, an ETP Holder, an OTP Obligation’’).24 If such person(s) fails to makes certain determinations, which Holder, an OTP Firm, an ISE Member, comply with the Holdco Transfer will be consistent with the an EDGA Member or an EDGX Member). Obligation within two weeks, Holdco determinations currently required to be In addition, the Exchange is will be irrevocably authorized to act on made by the board of directors of NYSE proposing that, effective as of the behalf of such person(s) in order to Euronext and ISE Holdings in order to Combination, the voting and ownership ensure compliance with the Holdco waive the voting and ownership restrictions currently in the ISE Transfer Obligation.25 restrictions in the NYSE Euronext Holdings Certificate and the ISE Furthermore, the Holdco Articles Certificate and the ISE Holdings Holdings Bylaws, as well as the related would provide that in the event any Certificate, respectively.29 waiver provisions set forth therein, person, either alone or together with its related persons, exceeds the Holdco 5. Additional Matters To Be Addressed would remain in effect, except that they in the Holdco Articles 30 would be modified in certain respects as Ownership Restriction (any such described herein.22 person(s), a ‘‘Non-Compliant Owner’’), Jurisdiction Over Individuals the Non-Compliant Owner would cease Under the Proposed Rule Change, the Voting and Ownership Restrictions in to have certain rights to the extent that Holdco Articles would provide that Holdco Articles its shareholding exceeds the Holdco Holdco and its directors, and to the Ownership Restriction. Specifically, the extent that they are involved in the Under the Proposed Rule Change, the Non-Compliant Owner’s rights to vote, Holdco Articles would provide that no activities of the U.S. Regulated to attend general meetings of Holdco Subsidiaries, (x) Holdco’s officers, and person, either alone or together with its shareholders and to receive dividends related persons, will be entitled to vote (y) those of its employees whose or other distributions attached to such principal place of business and or cause the voting of a number of shares in excess of the Holdco shares of Holdco, in person or by proxy residence is outside the United States, Ownership Restriction would be would be deemed to irrevocably submit or through any voting agreement or suspended for so long as the Holdco other arrangement, which represent in to the jurisdiction of the U.S. federal Ownership Restriction is exceeded.26 courts and the Commission for the the aggregate (1) More than 20% of the Pursuant to Section 2:87a of the Dutch then outstanding votes entitled to be purposes of any suit, action or Civil Code, the Non-Compliant Owner proceeding pursuant to the U.S. federal cast on such matter; or (2) more than may request that an independent expert securities laws, and the rules and 20% of the then outstanding votes be appointed to determine the value of regulations thereunder, commenced or entitled to be cast on any such matter the Holdco shares, but such expert will initiated by the Commission arising out by virtue of agreements or arrangements have discretion to determine that the of, or relating to, the activities of the entered into with other persons to value of the shares is equal to the price U.S. Regulated Subsidiaries.31 The refrain from voting shares of Holdco (the received for the shares by the Non- Holdco Articles would also provide ‘‘Holdco Voting Restriction’’).23 The Compliant Owner on any stock that, with respect to any such suit, Holdco Articles would provide that exchange where the Holdco shares are Holdco will be required to disregard any 27 listed. 28 See Form of Deed of Amendment to Holdco The voting and ownership restrictions Articles of Association, Articles 34.2 and 35.2. 22 The current voting and ownership restrictions will apply to each person unless it (1) 29 See Form of Deed of Amendment to Holdco contained in the certificate of incorporation of ISE Delivers to the Holdco board of directors Articles of Association, Articles 34.3 and 35.3. Holdings, as well as the related provisions 30 The Holdco Articles will set forth certain contained in the amended and restated bylaws of restrictions and requirements relating to Holdco’s 24 U.S. Exchange Holdings and the board resolutions See Form of Deed of Amendment to Holdco European subsidiaries and applicable European of Deutsche Bo¨rse, Eurex Frankfurt AG and other Articles of Association, Articles 35.1 and 35.4. regulatory matters, which will be substantially indirect parent entities of the Exchange, would 25 See Form of Deed of Amendment to Holdco consistent with the analogous restrictions and remain in effect. The ISE Trust would also remain Articles of Association, Article 35.7. requirements applicable with respect to Holdco’s unaltered and would continue to have rights to 26 See Form of Deed of Amendment to Holdco U.S. Regulated Subsidiaries and U.S. regulatory enforce these restrictions. Articles of Association, Article 35.6. matters. 23 See Form of Deed of Amendment to Holdco 27 See Form of Deed of Amendment to Holdco 31 See Form of Deed of Amendment to Holdco Articles of Association, Article 34.1. Articles of Association, Articles 35.5. Articles of Association, Article 3.2(c).

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action, or proceeding brought by the Regulated Subsidiary generally will be directors or as an officer or employee of Commission, Holdco and its directors, carried out by the officers and directors Holdco, each such director, officer or officers and employees would (1) Be of such U.S. Regulated Subsidiary, each employee will (a) comply with the U.S. deemed to agree that NYSE Group may of whom the Commission has direct federal securities laws and the rules and serve as U.S. agent for purposes of authority over pursuant to Section regulations thereunder; (b) cooperate service of process in such suit, action, 19(h)(4) of the Exchange Act.37 with the Commission; and (c) cooperate or proceeding relating to NYSE Group or Access to Books and Records with the U.S. Regulated Subsidiaries any of its subsidiaries, and ISE Holdings pursuant to and to the extent of their may serve as the U.S. agent for Under the Proposed Rule Change, the regulatory authority (but this provision proceedings relating to ISE Holdings or Holdco Articles would provide that for will not create any duty owed by any any of its subsidiaries; and (2) be so long as Holdco directly or indirectly director, officer or employee of Holdco deemed to waive, and agree not to assert controls any U.S. Regulated Subsidiary, to any person to consider, or afford any by way of motion, as a defense or the books, records and premises of particular weight to, any such matters or otherwise, in any such suit, action, or Holdco will be deemed to be the books, to limit his or her consideration to such proceeding, any claims that it or they records and premises of such U.S. matters).43 are not personally subject to the Regulated Subsidiaries for purposes of, The Holdco Articles would also jurisdiction of the Commission, that the and subject to oversight pursuant to, the provide that all confidential information suit, action, or proceeding is an Exchange Act.38 In addition, the Holdco that comes into the possession of inconvenient forum or that the venue of Articles would provide that Holdco’s Holdco pertaining to the self-regulatory the suit, action, or proceeding is books and records will at all times be function of any U.S. Regulated improper, or that the subject matter made available for inspection and Subsidiary will (a) not be made thereof may not be enforced in or by the copying by the Commission, and any available to any persons other than to U.S. federal courts or the Commission.32 U.S. Regulated Subsidiary to the extent those officers, directors, employees and In addition, the Holdco Articles they are related to the activities of such agents of Holdco that have a reasonable would provide that, so long as Holdco U.S. Regulated Subsidiary or any other need to know the contents thereof; (b) directly or indirectly controls any U.S. U.S. Regulated Subsidiary over which be retained in confidence by Holdco and Regulated Subsidiary, the directors, such U.S. Regulated Subsidiary has the officers, directors, employees and officers and employees of Holdco will regulatory authority or oversight.39 In agents of Holdco; and (c) not be used for be deemed to be directors, officers and addition, Holdco’s books and records any commercial purposes.44 In addition, employees of such U.S. Regulated related to the U.S. Regulated the Holdco Articles would provide that Subsidiaries for purposes of, and subject Subsidiaries will be maintained within these obligations regarding such to oversight pursuant to, the Exchange the United States, except that to the confidential information will not be Act.33 extent that books and records may relate interpreted so as to limit or impede (i) The Holdco Articles would provide to both European subsidiaries and U.S. the rights of the Commission or the that Holdco will take reasonable steps Regulated Subsidiaries, Holdco may relevant U.S. Regulated Subsidiary to necessary to cause its directors, officers maintain such books and records either have access to and examine such and employees, prior to accepting a in the home jurisdiction of one or more confidential information pursuant to the position as an officer, director or European subsidiaries or in the United U.S. federal securities laws and the employee, as applicable, of Holdco to States.40 rules and regulations thereunder; or (ii) agree and consent in writing to the Additional Matters the ability of any officers, directors, applicability to them of these employees or agents of Holdco to jurisdictional and oversight provisions Under the Proposed Rule Change, the disclose such confidential information with respect to their activities related to Holdco Articles would provide that to the Commission or any U.S. any U.S. Regulated Subsidiary.34 The Holdco will comply with the U.S. Regulated Subsidiary.45 Holdco Articles would also provide that federal securities laws and the rules and Additionally, the Holdco Articles no person may be a director of Holdco regulations thereunder, and will would provide that, for so long as unless he or she has agreed and cooperate with the Commission and Holdco directly or indirectly controls consented in writing to the applicability with the U.S. Regulated Subsidiaries any U.S. Regulated Subsidiary, Holdco to him or her of these jurisdictional and pursuant to and to the extent of their and its directors, officers and employees 41 oversight provisions with respect to his respective regulatory authority. In will give due regard to the preservation or her activities related to any U.S. addition, Holdco would be required to of the independence of the self- Regulated Subsidiary.35 Furthermore, take reasonable steps necessary to cause regulatory function of such U.S. Holdco would sign an irrevocable its agents to cooperate with the Regulated Subsidiary and to its agreement and consent for the benefit of Commission and, where applicable, the obligations to investors and the general each U.S. Regulated Subsidiary 36 that it U.S. Regulated Subsidiaries pursuant to public, and will not take any actions 42 will comply with these provisions in the their regulatory authority. The Holdco that would interfere with the Holdco Articles. Articles would also provide that, in effectuation of any decisions by the The Exchange anticipates that the discharging his or her responsibilities as board of directors or managers of such functions and activities of each U.S. a member of the Holdco board of U.S. Regulated Subsidiary relating to its regulatory responsibilities (including 32 See id. 37 15 U.S.C. 78s(h)(4). enforcement and disciplinary matters) 38 33 See Form of Deed of Amendment to Holdco See Form of Deed of Amendment to Holdco or that would interfere with the ability Articles of Association, Article 3.2(f). Articles of Association, Article 3.2(f). 34 See Form of Deed of Amendment to Holdco 39 See Form of Deed of Amendment to Holdco of such U.S. Regulated Subsidiary to Articles of Association, Article 3.2(m). Articles of Association, Article 3.2(e). 35 See Form of Deed of Amendment to Holdco 40 See Form of Deed of Amendment to Holdco 43 See Form of Deed of Amendment to Holdco Articles of Association, Article 14.11. Articles of Association, Article 3.2(g). Articles of Association, Article 3.2(l). 36 The form of Holdco’s agreement and consent is 41 See Form of Deed of Amendment to Holdco 44 See Form of Deed of Amendment to Holdco attached as Exhibit 5C to this Proposed Rule Articles of Association, Article 3.2(a). Articles of Association, Article 3.2(h). Change. 42 See id. 45 See id.

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carry out its responsibilities under the each U.S. Regulated Subsidiary that it 6. Statutory Basis 46 Exchange Act. will comply with provisions in the The Exchange believes that this filing Finally, the Holdco Articles would Holdco Articles regarding (1) is consistent with Section 6(b) 52 of the provide that each director of Holdco Cooperation with the Commission and Exchange Act in general, and furthers would, in discharging his or her such U.S. Regulated Subsidiaries; (2) the objectives of Section 6(b)(1) 53 in responsibilities, to the fullest extent compliance with U.S. federal securities particular, in that it enables the permitted by applicable law, take into laws; (3) inspection and copying of Exchange to be so organized as to have consideration the effect that Holdco’s Holdco’s books, records and premises; the capacity to be able to carry out the actions would have on the ability of (a) (4) Holdco’s books, records, premises, purposes of the Exchange Act and to the U.S. Regulated Subsidiaries to carry officers, directors and employees being out their responsibilities under the comply, and to enforce compliance by deemed to be those of U.S. Regulated its exchange members and persons Exchange Act; and (b) the U.S. Subsidiaries; (5) maintenance of books Regulated Subsidiaries, NYSE Group, associated with its exchange members, and records in the United States; (6) with the provisions of the Exchange Act, ISE Holdings and Holdco to (1) Engage confidentiality of information regarding in conduct that fosters and does not the rules and regulations thereunder, the U.S. Regulated Subsidiaries’ self- and the rules of the Exchange. With interfere with the ability of the U.S. regulatory function; (7) preservation of Regulated Subsidiaries, NYSE Group, respect to the ability of the Commission the independence of the self-regulatory to enforce the Exchange Act as it applies ISE Holdings and Holdco to prevent function of the U.S. Regulated fraudulent and manipulative acts and to the Exchange after the Combination, Subsidiaries; and (8) taking reasonable the Exchange will operate in the same practices in the securities markets; (2) steps to cause Holdco’s officers, promote just and equitable principles of manner following the Combination as it directors and employees to consent to operates today. Thus, the Commission trade in the securities markets; (3) foster the applicability to them of the Holdco cooperation and coordination with will continue to have plenary regulatory Articles. The form of Holdco’s authority over the Exchange, as is the persons engaged in regulating, clearing, agreement and consent is attached as settling, processing information with case currently with the Exchange. The Exhibit 5C to this Proposed Rule Proposed Rule Change is consistent respect to, and facilitating transactions Change. in securities; (4) remove impediments to with and will facilitate an ownership and perfect the mechanisms of a free Amendments to the Holdco Articles structure that will provide the and open market in securities and a U.S. Commission with appropriate oversight Under the Proposed Rule Change, the tools to ensure that the Commission will national securities market system; and Holdco Articles would provide that, (5) in general, protect investors and the have the ability to enforce the Exchange before any amendment to or repeal of Act with respect to each U.S. Regulated public interest.47 This requirement any provision of the Holdco Articles would not, however, create any duty Subsidiary, its direct and indirect parent may become effectuated by means of a entities and its directors, officers, owed by any director, officer or notarial deed of amendment, the same employee of Holdco to any person to employees and agents to the extent they will be submitted to the board of are involved in the activities of such consider, or afford any particular weight directors of each U.S. Regulated to, any of the foregoing matters or to U.S. Regulated Subsidiary. Subsidiary (or the boards of directors of The Exchange also believes that this limit his or her consideration to such their successors) and if any or all of 48 filing furthers the objectives of Section matters. such boards of directors determine that 54 In addition, the Holdco Articles 6(b)(5) of the Exchange Act because the same must be filed with, or filed the Proposed Rule Change summarized would provide that Holdco will take with and approved by, the Commission reasonable steps necessary to cause its herein would be consistent with and before the same may be effective under facilitate a governance and regulatory officers, directors and employees, prior Section 19 of the Exchange Act and the to accepting a position as an officer, structure that is designed to prevent rules promulgated thereunder, then the fraudulent and manipulative acts and director or employee, as applicable, of same will not be effective until filed Holdco to agree and consent in writing practices, to promote just and equitable with, or filed with and approved by, the principles of trade, to foster cooperation to the applicability to them of these Commission, as the case may be. These provisions of the Holdco Articles with and coordination with persons engaged requirements would also apply to any in regulating, clearing, settling, respect to their activities related to any action by Holdco that would have the U.S. Regulated Subsidiary.49 The processing information with respect to, effect of amending or repealing any and facilitating transactions in Holdco Articles would also provide that provision of the Holdco Articles. no person may be a director of Holdco securities, to remove impediments to, unless he or she has agreed and Holdco Director Independence Policy and perfect the mechanism of a free and open market and a national market consented in writing to the applicability Under the Proposed Rule Change, to him or her of these provisions with system and, in general, to protect Holdco would adopt the Holdco investors and the public interest. The respect to his or her activities related to Independence Policy in the form any U.S. Regulated Subsidiary.50 Exchange expects that the Combination attached hereto as Exhibit 5D, which will position the Holdco Group to be a Holdco would also sign an irrevocable would be substantially similar to the agreement and consent for the benefit of leader in a diverse set of large and current Independence Policy of the growing businesses, including NYSE Euronext board of directors. The 46 See Form of Deed of Amendment to Holdco derivatives, listings, cash equities, post- Articles of Association, Article 3.2(i). Proposed Rule Change filed by the trade settlement and asset servicing, 47 See Form of Deed of Amendment to Holdco NYSE in connection with the market data and technology servicing. Articles of Association, Article 3.2(k). combination describes the Holdco The Exchange believes this will enable 48 See Form of Deed of Amendment to Holdco Independence Policy as it relates to the the Holdco Group to leverage Articles of Association, Article 3.2(k). current Independence Policy of the 49 See Form of Deed of Amendment to Holdco 51 Articles of Association, Article 3.2(m). NYSE Euronext board of directors. 52 15 U.S.C. 78(f)(b). 50 See Form of Deed of Amendment to Holdco 53 15 U.S.C. 78(f)(b)(1). Articles of Association, Article 14.11. 51 See File No. SR–NYSE–2011–51. 54 15 U.S.C. 78(f)(b)(5).

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technology and a unique collection of Electronic Comments SECURITIES AND EXCHANGE markets to create a mutually reinforcing • COMMISSION capital markets community driving Use the Commission’s Internet comment form (http://www.sec.gov/ [Release No. 34–65565; File No. SR–EDGX– efficiencies and innovation for clients 2011–33] and efficient, transparent and well- rules/sro.shtml); or regulated markets for issuers and • Send an e-mail to rule- Self-Regulatory Organizations; EDGX clients. As a true pacesetter across the [email protected]. Please include File Exchange, Inc.; Notice of Filing of spectrum of capital markets services, the Number SR–ISE–2011–69 on the subject Proposed Rule Change Relating to a Holdco Group would be positioned to line. Corporate Transaction in Which Its offer clients global scale, product Indirect Parent, Deutsche Bo¨ rse AG, innovation, operational and capital Paper Comments Will Become a Wholly Owned efficiencies and an enhanced range of • Send paper comments in triplicate Subsidiary of Alpha Beta Netherlands technology and market information to Elizabeth M. Murphy, Secretary, Holding N.V. solutions. Securities and Exchange Commission, October 14, 2011. In addition, the Exchange expects that 100 F Street, NE., Washington, DC Pursuant to Section 19(b)(1) 1 of the the Holdco Group would be positioned 20549–1090. to serve as a benchmark regulatory Securities Exchange Act of 1934 (the All submissions should refer to File ‘‘Exchange Act’’), and Rule 19b–4 model, facilitating transparency and 2 standardization in capital markets Number SR–ISE–2011–69. This file thereunder, notice is hereby given that globally, while continuing to operate all number should be included on the on October 12, 2011, EDGX Exchange, national exchanges under local subject line if e-mail is used. To help the Inc. (the ‘‘Exchange’’) filed with the regulatory frameworks. Commission process and review your Securities and Exchange Commission (the ‘‘Commission’’) the proposed rule comments more efficiently, please use B. Self-Regulatory Organization’s change as described in Items I and II only one method. The Commission will Statement on Burden on Competition below, which items have been prepared post all comments on the Commission’s by the Exchange. The Commission is The Exchange does not believe that Internet Web site (http://www.sec.gov/ publishing this notice to solicit the Proposed Rule Change will impose rules/sro.shtml). Copies of the comments on the proposed rule change any burden on competition that is not submission, all subsequent from interested persons. necessary or appropriate in furtherance amendments, all written statements of the purposes of the Exchange Act. with respect to the proposed rule I. Self-Regulatory Organization’s change that are filed with the Statement of the Terms of Substance of C. Self-Regulatory Organization’s Commission, and all written the Proposed Rule Change Statement on Comments on the Proposed Rule Change Received From communications relating to the A. Overview of the Proposed Members, Participants or Others proposed rule change between the Combination Commission and any person, other than The Exchange, a Delaware The Exchange has neither solicited those that may be withheld from the corporation, registered national nor received written comments on the public in accordance with the securities exchange and self-regulatory Proposed Rule Change. provisions of 5 U.S.C. 552, will be organization, is submitting this rule available for Web site viewing and III. Date of Effectiveness of the filing (the ‘‘Proposed Rule Change’’) to Proposed Rule Change and Timing for printing in the Commission’s Public the Commission in connection with the Commission Action Reference Room, 100 F Street, NE., proposed business combination (the Washington, DC 20549, on official ‘‘Combination’’) of NYSE Euronext, a Within 45 days of the date of business days between the hours of 10 Delaware corporation, and Deutsche publication of this notice in the Federal a.m. and 3 p.m. Copies of the filing also Bo¨rse AG, an Aktiengesellschaft Register or within such longer period (i) will be available for inspection and organized under the laws of the Federal as the Commission may designate up to copying at the principal office of the Republic of Germany (‘‘Deutsche 90 days of such date if it finds such Exchange. All comments received will Bo¨rse’’). longer period to be appropriate and be posted without change; the NYSE Euronext owns 100% of the publishes its reasons for so finding or Commission does not edit personal equity interest of NYSE Group, Inc., a (ii) as to which the self-regulatory identifying information from Delaware corporation (‘‘NYSE Group’’), organization consents, the Commission submissions. You shouldsubmit only which in turn directly or indirectly will: information that you wish to make owns (1) 100% of the equity interest of (A) By order approve or disapprove available publicly. All submissions three registered national securities such proposed rule change, or should refer to File Number SR–ISE– exchanges and self-regulatory organizations (together, the ‘‘NYSE (B) Institute proceedings to determine 2011–69 and should be submitted on or Exchanges’’)—the New York Stock whether the proposed rule change before November 10, 2011. Exchange, LLC (‘‘NYSE’’), NYSE Arca, should be disapproved. For the Commission, by the Division of Inc. (‘‘NYSE Arca’’) and NYSE Amex IV. Solicitation of Comments Trading and Markets, pursuant to delegated LLC (‘‘NYSE Amex’’)—and (2) 100% of authority.55 the equity interest of NYSE Market, Inc. Interested persons are invited to Elizabeth M. Murphy, (‘‘NYSE Market’’), NYSE Regulation, submit written data, views, and Secretary. Inc. (‘‘NYSE Regulation’’), NYSE Arca arguments concerning the foregoing, [FR Doc. 2011–27195 Filed 10–19–11; 8:45 am] L.L.C. (‘‘NYSE Arca LLC’’) and NYSE including whether the proposed rule Arca Equities, Inc. (‘‘NYSE Arca change is consistent with the Act. BILLING CODE 8011–01–P Comments may be submitted by any of 1 15 U.S.C. 78s(b)(1). the following methods: 55 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4.

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Equities’’) (the NYSE Exchanges, Restated Certificate of Incorporation of • Voting and Ownership Restrictions together with NYSE Market, NYSE ISE Holdings (the ‘‘ISE Holdings in the Holdco Articles. The Holdco Regulation, NYSE Arca LLC and NYSE Certificate’’) currently restricts any Articles would contain voting and Arca Equities, the ‘‘NYSE U.S. person, either alone or together with its ownership restrictions that will restrict Regulated Subsidiaries’’ and each, a related persons, from having voting any person, either alone or together with ‘‘NYSE U.S. Regulated Subsidiary’’). control over more than 20% of the its related persons, from having voting NYSE, NYSE Arca and NYSE Amex will outstanding capital stock of ISE control over Holdco shares entitling the be separately filing a proposed rule Holdings and from owning of record or holder thereof to cast more than 20% of change in connection with the beneficially more than 40% of the the then outstanding votes entitled to be Combination. outstanding capital stock of ISE cast on a matter or beneficially owning Deutsche Bo¨rse indirectly owns 50% Holdings (or in the case of any Exchange Holdco shares representing more than of the equity interest of International member, acting alone or together with 40% of the outstanding votes entitled to Securities Exchange Holdings, Inc. (‘‘ISE its related persons, from owning of be cast on a matter (except that a 20% Holdings’’), which in turn holds 100% record or beneficially more than 20% of ownership restriction would apply to of the equity interest of International the outstanding capital stock of ISE any person who is a Member of NYSE 5 Securities Exchange, LLC (‘‘ISE’’). ISE Holdings). If a person were to obtain a (a ‘‘NYSE Member’’), a Member 6 of Holdings also holds 31.54% of the voting or ownership interest in excess of NYSE Amex (including any person who equity interest of Direct Edge Holdings, the voting or ownership restrictions is a related person of such member, an LLC (‘‘Direct Edge Holdings’’), which in without obtaining the approval of the ‘‘Amex Member’’), an ETP Holder of turn indirectly holds 100% of the equity Commission, the shares of ISE Holdings NYSE Arca Equities 7 (an ‘‘ETP Holder’’) interest of two registered national would automatically transfer to a an OTP Holder or OTP Firm of NYSE securities exchanges and self-regulatory statutory trust established under and Arca 8 (an ‘‘OTP Holder’’ and ‘‘OTP organizations—the Exchange and EDGA pursuant to the provisions of the Firm,’’ respectively), a Member (as such Exchange, Inc. (‘‘EDGA’’) (each of the Delaware Statutory Trust Act, 12 Del. C. term is defined in Section 3(a)(3)(A) of Exchange, ISE and EDGA, a ‘‘DB §§ 3801 et seq. (‘‘ISE Trust’’). The ISE the Exchange Act) of ISE (an ‘‘ISE Exchange’’ and a ‘‘DB U.S. Regulated Holdings Certificate and the Amended Member’’), or a member of EDGA or Subsidiary’’ and together, the ‘‘DB and Restated Bylaws of ISE Holdings EDGX (as such terms are defined in the Exchanges’’ and the ‘‘DB U.S. Regulated (the ‘‘ISE Holdings Bylaws’’) provide rules of EDGA and EDGX, respectively, Subsidiaries’’). ISE and EDGA will be that the board of directors of ISE an ‘‘EDGA Member’’ and ‘‘EDGX separately filing a proposed rule change Holdings may waive these voting and Member,’’ respectively)). The Holdco in connection with the Combination ownership restrictions in an amendment Articles would provide that Holdco will that will be the substantially the same to the ISE Holdings Bylaws if it makes be required to disregard any votes as the Proposed Rule Change. certain findings and the amendment to purported to be cast in excess of the If the Combination is completed, the the ISE Holdings Bylaws has been filed voting restriction. In the event that any businesses of NYSE Euronext and with, and approved by, the Commission such person(s) exceeds the ownership Deutsche Bo¨rse, including the NYSE under Section 19(b) of the Exchange restriction, it will be required to offer for U.S. Regulated Subsidiaries and the DB Act. Acting pursuant to this waiver sale and transfer the number of Holdco U.S. Regulated Subsidiaries (together, provision, the board of directors of ISE shares required to comply with the the ‘‘U.S. Regulated Subsidiaries’’ and Holdings has approved the amendment ownership restriction, and the rights to each, a ‘‘U.S. Regulated Subsidiary’’), to the ISE Holdings Bylaws set forth in vote, attend general meetings of Holdco will be held under a single, publicly Exhibit 5A (the ‘‘ISE Holdings Bylaws shareholders and receive dividends or traded holding company organized Amendment’’) in order to permit Holdco other distributions attached to shares under the laws of the Netherlands held in excess of the 40% threshold (or 3 to indirectly own 50% of the (‘‘Holdco’’). The Proposed Rule 20% threshold, if applicable) will be Change, if approved by the Commission, outstanding common stock of ISE Holdings as of and after the suspended for so long as such threshold will not be operative until the is exceeded. If such person(s) fails to consummation of the Combination. Combination. The Exchange is requesting approval by the Commission comply with the transfer obligation B. Summary of Proposed Rule Change of the ISE Holdings Bylaws Amendment within two weeks, then the Holdco Articles would provide that Holdco will The Exchange is proposing that, in order to allow the Combination to pursuant to the Combination, its take place. be irrevocably authorized to take actions on behalf of such person(s) in order to indirect parent, Deutsche Bo¨rse, will Under the Proposed Rule Change, cause it to comply with such become a wholly owned subsidiary of Holdco would take appropriate steps to obligations. The Holdco board of Holdco. In addition, the Exchange is incorporate voting and ownership directors may waive the voting and proposing that, in connection with the restrictions, requirements relating to ownership restrictions if it makes Combination, the Commission approve submission to jurisdiction, access to certain determinations (which will be certain amendments to the books and records and other subject to the same requirements which organizational and other governance requirements related to its control of the are currently required to be made by the documents of Holdco and ISE Holdings. U.S. Regulated Subsidiaries. board of directors of NYSE Euronext The Proposed Rule Change is Specifically, the Articles of Association and ISE Holdings in order to waive the summarized as follows: of Holdco in effect as of the completion • voting and ownership restrictions in the Proposed Approval of Waiver of of the Combination (the ‘‘Holdco current NYSE Euronext Certificate and Ownership and Voting Restrictions of Articles’’) would contain provisions 4 to the ISE Holdings Certificate, as ISE Holdings. The Amended and incorporate these concepts with respect to itself, as well as its directors, officers, 5 See Form of Deed of Amendment to Holdco 3 Holdco is currently named ‘‘Alpha Beta employees and agents (as applicable): Netherlands Holding N.V.,’’ but it is expected that Articles of Association, Article 34.3(c). Holdco will be renamed prior to the completion of 6 See id. the Combination to a name agreed between NYSE 4 The text of the proposed Holdco Articles is 7 See id. Euronext and Deutsche Bo¨rse. attached to the Proposed Rule Change as Exhibit 5B. 8 See id.

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applicable) and resolves to expressly will be deemed to be the books, records respect to his or her activities related to permit the voting and ownership that is and premises of such U.S. Regulated any U.S. Regulated Subsidiary. Holdco subject to such restrictions, and such Subsidiaries for purposes of, and subject will sign an irrevocable agreement and resolutions have been filed with, and to oversight pursuant to, the Exchange consent for the benefit of each U.S. approved by, the Commission under Act, and that Holdco’s books and Regulated Subsidiary11 that it will Section 19(b) of the Exchange Act and records will at all times be made comply with these provisions of the filed with, and approved by, the available for inspection and copying by Holdco Articles.12 9 the Commission, and by any U.S. relevant European Regulators having In addition, Holdco would adopt a appropriate jurisdiction and authority. Regulated Subsidiary to the extent they Director Independence Policy in the • Jurisdiction. The Holdco Articles are related to the activities of such U.S. form attached hereto as Exhibit 5D (the will provide that Holdco and its Regulated Subsidiary or any other U.S. ‘‘Holdco Independence Policy’’), which directors, and to the extent they are Regulated Subsidiary over which such would be substantially similar to the involved in the activities of the U.S. U.S. Regulated Subsidiary has current Independence Policy of the Regulated Subsidiaries, (x) Holdco’s regulatory authority or oversight. In officers, and (y) those of its employees addition, Holdco’s books and records NYSE Euronext board of directors. The whose principal place of business and related to the U.S. Regulated Proposed Rule Change filed by the residence is outside the United States, Subsidiaries will be maintained within NYSE in connection with the will be deemed to irrevocably submit to the United States, except that to the combination describes the Holdco the jurisdiction of the U.S. federal extent that books and records may relate Independence Policy as it relates to the courts and the Commission for the to both European subsidiaries and U.S. current Independence Policy of the 13 purposes of any suit, action or Regulated Subsidiaries, Holdco may NYSE Euronext board of directors. proceeding pursuant to the U.S. federal maintain such books and records either The text of the Proposed Rule Change securities laws and the rules or in the home jurisdiction of one or more is available at the Exchange, the regulations thereunder, arising out of, or European subsidiaries or in the United Commission’s Public Reference Room, relating to, the activities of the U.S. States. • and on the Web site of the Exchange Regulated Subsidiaries. In addition, the Amendments to Holdco Articles. (http://www.directedge.com). The text of Holdco Articles would provide that so The Holdco Articles would provide that Exhibits 5A through 5D of the Proposed before any amendment to the Holdco long as Holdco directly or indirectly Rule Change are also available on the Articles may be effectuated by execution controls any U.S. Regulated Subsidiary, Exchange’s Web site and on the of a notarial deed of amendment, such the directors, officers and employees Commission’s Web site (http:// amendment would need to be submitted will be deemed to be directors, officers www.sec.gov/rules/sro.shtml). and employees of such U.S. Regulated to the board of directors of each U.S. Other than as described herein and set Subsidiaries for purposes of, and subject Regulated Subsidiary and, if so forth in the attached Exhibits 5A to oversight pursuant to, the Exchange determined by any such board, would through 5D, the Exchange will continue Act. The Holdco Articles would provide need to be filed with, or filed with and that Holdco will take reasonable steps approved by, the Commission before to conduct its regulated activities in the necessary to cause its officers, directors such amendment may become effective. manner currently conducted and will • Additional Matters. The Holdco and employees, prior to accepting a not make any changes to its regulated Articles would include provisions position as an officer, director or activities in connection with the regarding cooperation with the employee, as applicable, to agree and Combination. If the Exchange Commission and the U.S. Regulated consent in writing to the applicability to determines to make any such changes, Subsidiaries, compliance with U.S. it will seek approval of the Commission. them of these jurisdictional and federal securities laws, confidentiality oversight provisions with respect to of information regarding the U.S. II. Self-Regulatory Organization’s their activities related to any U.S. Regulated Subsidiaries’ self-regulatory Statement of the Purpose of, and Regulated Subsidiary. Furthermore, the function, preservation of the Statutory Basis for, the Proposed Rule Holdco Articles would provide that no independence of the U.S. Regulated Change person may be a director of Holdco Subsidiaries’ self-regulatory function, unless he or she has agreed and and directors’ consideration of the effect In its filing with the Commission, the consented in writing to the applicability of Holdco’s actions on the U.S. Exchange has included statements to him or her of these jurisdictional and Regulated Subsidiaries’ ability to carry concerning the purpose of, and basis for, oversight provisions with respect to his out their respective responsibilities the Proposed Rule Change. The text of or her activities related to any U.S. under the Exchange Act. In addition, the these statements may be examined at Regulated Subsidiary. Holdco would Holdco Articles would provide that the places specified in Item IV below. sign an irrevocable agreement and Holdco will take reasonable steps The Exchange has prepared summaries, consent for the benefit of each U.S. necessary to cause its officers, directors set forth in Sections A, B and C below, 10 Regulated Subsidiary that it will and employees, prior to accepting a of the most significant aspects of such comply with these provisions of the position as an officer, director or statements. Holdco Articles. employee, as applicable, of Holdco to • Books and Records. The Holdco agree and consent in writing to the 11 The form of Holdco’s agreement and consent is Articles would provide that for so long applicability to them of these provisions attached as Exhibit 5C to this Proposed Rule as Holdco directly or indirectly controls of the Holdco Articles with respect to Change. any U.S. Regulated Subsidiary, the 12 The Holdco Articles will also set forth certain their activities related to any U.S. restrictions and requirements relating to Holdco’s books, records and premises of Holdco Regulated Subsidiary. The Holdco European subsidiaries and applicable European Articles would also provide that no regulatory matters, which will be substantially 9 See Form of Deed of Amendment to Holdco person may be a director of Holdco consistent with the analogous restrictions and Articles of Association, Article 1.1. requirements applicable with respect to Holdco’s 10 The form of Holdco’s agreement and consent is unless he or she has agreed and U.S. Regulated Subsidiaries and U.S. regulatory attached as Exhibit 5C to this Proposed Rule consented in writing to the applicability matters. Change. to him or her of these provisions with 13 See File No. SR–NYSE–2011–51.

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A. Purpose [sic] Combination Agreement and in customers worldwide. Following the The purpose of this rule filing is to compliance with applicable law, Holdco Combination, Holdco and its adopt the rules necessary to permit has conducted a public exchange offer subsidiaries (together, the ‘‘Holdco Deutsche Bo¨rse to effect the (the ‘‘Exchange Offer’’), in which Group’’) expect to serve as a benchmark Combination and to amend certain shareholders of Deutsche Bo¨rse have regulatory model, facilitating provisions of the organizational and been afforded the opportunity to tender transparency and harmonization of other governance documents of Holdco. each share of Deutsche Bo¨rse for one capital markets globally, while ordinary share of Holdco (each, a continuing to operate all national 1. Overview of the Combination ‘‘Holdco Share’’). exchanges under local regulatory The Exchange is submitting this Immediately after the time that frameworks and their respective brand Proposed Rule Change to the Holdco accepts for exchange, and names. Commission in connection with the exchanges, the Deutsche Bo¨rse shares that are validly tendered and not 2. Overview of the Holdco Group Combination of NYSE Euronext and Following the Combination Deutsche Bo¨rse. The Combination will withdrawn in the Exchange Offer, Merger Sub will merge with and into create a holding company, Holdco, Following the Combination, Holdco NYSE Euronext, as a result of which which will hold the businesses of NYSE will be a for-profit, publicly traded NYSE Euronext will become a wholly Euronext and Deutsche Bo¨rse. corporation formed under the laws of owned subsidiary of Holdco (the Following the Combination, each of The Netherlands and will act as the ‘‘Merger’’). In the Merger, each NYSE Euronext and Deutsche Bo¨rse will holding company for the businesses of outstanding share of NYSE Euronext be a separate subsidiary of Holdco. NYSE Euronext and Deutsche Bo¨rse. common stock will be converted into Holdco expects the Combination will Holdco will hold all of the equity the right to receive 0.47 of a fully paid create a group that will be both a world interests in NYSE Euronext, which and non-assessable Holdco Share. NYSE leader in derivatives and risk holds (1) 100% of the equity interest of Euronext’s obligation to complete the management and the premier global NYSE Group (which, in turn, directly or Merger is subject to the completion of indirectly holds 100% of the equity venue for capital raising, with a truly the Exchange Offer and the acquisition global franchise and presence in many interests of the NYSE U.S. Regulated by Holdco of all of the Deutsche Bo¨rse Subsidiaries) and (2) 100% of the equity of the world’s financial centers shares validly tendered and not including New York, London, Frankfurt, interest of Euronext N.V. (which, in withdrawn in the Exchange Offer. The turn, directly or indirectly holds 100% Paris and Luxembourg. This global completion of the Exchange Offer (and, presence should facilitate providing of the equity interests of trading markets therefore, the completion of the Merger) in Belgium, France, the Netherlands, world-class services to global and local is subject to the satisfaction of a number customers worldwide. Portugal and the United Kingdom). of conditions, including that Deutsche Holdco will also hold a majority of the Other than as described herein, ¨ Borse shares representing at least 75% equity interests in Deutsche Bo¨rse, Holdco and the Exchange will not make of the Deutsche Bo¨rse shares which indirectly holds 50% of the any changes to the regulated activities of outstanding, on a fully diluted basis, equity interest of ISE Holdings (which, the DB Exchanges in connection with must be validly tendered and not in turn, holds (1) 100% of the equity the Combination, and, other than as withdrawn in the Exchange Offer, and interest of ISE and (2) 31.54% of the described in the separate proposed rule that holders of a majority of the equity interest of Direct Edge Holdings). changes filed by each of the NYSE outstanding shares of NYSE Euronext Direct Edge Holdings indirectly holds Exchanges in connection with the shall have adopted the Combination 100% of the equity interest of the Combination, Holdco and the NYSE Agreement. Both of these conditions Exchange and EDGA. Holdco intends to Exchanges will not make any changes to have been satisfied. the regulated activities of the NYSE U.S. Following the completion of the list its ordinary shares on the New York Regulated Subsidiaries in connection Exchange Offer, and depending on the Stock Exchange, the Frankfurt Stock with the Combination. If Holdco percentage of Deutsche Bo¨rse shares Exchange and Euronext Paris. The determines to make any such changes to acquired by Holdco in the Exchange Holdco Group will have dual the regulated activities of any U.S. Offer, Deutsche Bo¨rse and Holdco headquarters in Frankfurt and New Regulated Subsidiary, it will seek the intend to complete a post-completion York. approval of the Commission. The reorganization pursuant to which After the Combination, NYSE Group Proposed Rule Change, if approved by Holdco will enter into a domination will continue to be directly wholly the Commission, will not be operative agreement or a combination of a owned by NYSE Euronext and will until the consummation of the domination agreement and a profit and continue to directly or indirectly own Combination. loss transfer agreement, pursuant to the three NYSE Exchanges—NYSE, The Combination will occur pursuant which the remaining shareholders of NYSE Arca and NYSE Amex—which to the terms of the Business Deutsche Bo¨rse will have limited rights, provide marketplaces where investors Combination Agreement, dated as of including a limited ability to participate buy and sell listed companies’ common February 15, 2011, as amended by in the profits of Deutsche Bo¨rse. stock and other securities as well as Amendment No. 1 dated as of May 2, Holdco expects the Combination will equity options and securities traded on 2011 and by Amendment No. 2 dated as create a group that will be both a world the basis of unlisted trading privileges. of June 16, 2011 (as it may be further leader in derivatives and risk NYSE Regulation, Inc., an indirect not- amended from time to time, the management and the premier global for-profit subsidiary of NYSE Group, ‘‘Combination Agreement’’), by and venue for capital raising, with a truly oversees FINRA’s performance of among NYSE Euronext, Deutsche Bo¨rse, global franchise and presence in many certain market surveillance and Holdco and Pomme Merger Corporation, of the world’s financial centers enforcement functions for NYSE a Delaware corporation and newly including New York, London, Frankfurt, Euronext’s U.S. securities exchanges, formed wholly owned subsidiary of Paris and Luxembourg. This global enforces listed company compliance Holdco (‘‘Merger Sub’’). Subject to the presence should facilitate providing with applicable standards, and oversees terms and conditions set forth in the world-class services to global and local regulatory policy determinations, rule

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interpretation and regulation related it will be responsible for referring such cast on any matter (the ‘‘ISE Holdings rule development. possible violations to the Exchange. Ownership Restriction’’).15 If any In Europe, NYSE Euronext, Deutsche person, either alone or together with its 3. Proposed Approval of Waiver of Bo¨rse and their respective subsidiaries related persons, owns shares of ISE own several European exchanges, Voting and Ownership Restrictions of ISE Holdings Holdings in excess of the ISE Holdings including trading operations on Ownership Restriction, then the ISE regulated and non-regulated markets for Article FOURTH, Section III of the Holdings board of directors must notify cash products in Germany, France, current ISE Holdings Certificate the ISE Trust and such ISE Holdings Belgium, The Netherlands, and Portugal provides that (1) no person, either alone Ownership Restriction shall result in and derivatives in the United Kingdom or together with its ‘‘related persons’’ (as the automatic transfer to the ISE Trust and in the five above-mentioned defined in the ISE Holdings Certificate), of a majority of the voting shares then locations. As a result, the activities of may be entitled to vote or cause the outstanding pro rata from the holders the NYSE Euronext and Deutsche Bo¨rse voting of shares of ISE Holdings at any thereof.16 European markets are or may be subject time, directly, indirectly or pursuant to The ISE Holdings board of directors to the jurisdiction and authority of a any voting trust, agreement, plan or may waive the ISE Holdings Voting number of European regulators, other arrangement, to the extent that Restriction and the ISE Holdings including the German Federal Financial such shares represent more than 20% of Ownership Restriction pursuant to an Supervisory Authority (Bundesanstalt the voting power of the then amendment to the ISE Holdings Bylaws fu¨ r Finanzdienstleistungsaufsicht), the outstanding votes entitled to be cast on adopted by the ISE Holdings board of Hessian Exchange Supervisory such matter; and (2) no person, either directors, if in connection with the Authority, the Dutch Minister of alone or together with its related adoption of such amendment, the board Finance, the French Minister of the persons, at any time, directly, indirectly of directors in its sole discretion adopts Economy, the French Financial Market or pursuant to any voting trust, may a resolution stating that it is the Authority (Autorite´ des Marche´s enter into any agreement, plan or other determination of the board of directors Financiers), the French Prudential arrangement with any other person, that such amendment: Supervisory Authority (Autorite´ de either alone or together with its related • Will not impair the ability of ISE Controˆ le Prudentiel), the Netherlands persons, under circumstances which Holdings and any of the DB U.S. Authority for the Financial Markets would result in the voting shares that Regulated Subsidiaries, or facility (Autoriteit Financie¨le Markten), the shall be subject to such agreement, plan thereof, to carry out their respective Belgian Financial Services and Markets or other arrangement not being voted on responsibilities under the Exchange Act Authority (Autorite´ des Services et any matter or matters or the withholding and the rules and regulations Marche´s Financiers), the Portuguese of any proxy relating thereto, where the thereunder; Securities Market Commission effect of such agreement, plan or • Is otherwise in the best interest of (Comissa˜ o do Mercado de Valores arrangement would be to enable any ISE Holdings, its stockholders and the ´ Mobiliarios—CMVM) and the U.K. person, either alone or together with its DB U.S. Regulated Subsidiaries; Financial Services Authority (FSA). related persons, to possess more than • Will not impair the Commission’s Other than certain modifications 20% of the voting power of the then ability to enforce the Exchange Act; described herein, the current corporate outstanding votes entitled to be cast on • For so long as ISE Holdings directly structure, governance and self- any such matter (the ‘‘ISE Holdings or indirectly controls the Exchange, regulatory independence and separation 14 Voting Restriction’’). If any person, neither such person nor any of its of the Exchange will be preserved. either alone or together with its related related persons is an ISE Member, Specifically, after the Combination, persons, acquires voting power in EDGA Member or EDGX Member; and Direct Edge Holdings’ businesses and excess of the ISE Holdings Voting • Neither such person nor any of its assets will continue to be structured as Restriction, the ISE Holdings board of related persons is subject to any follows: directors must notify the ISE Trust and • The Exchange will remain an ‘‘statutory disqualification’’ (as such such ISE Holdings Voting Restriction term is defined in Section 3(a)(39) of the indirect wholly owned subsidiary of shall result in the automatic transfer to 17 Direct Edge Holdings, with ISE Holdings Exchange Act). the ISE Trust of a majority of the voting Such amendment shall not be and Deutsche Bo¨rse holding equity shares then outstanding pro rata from interests of 31.54% and 15.77%, effective unless it has been filed with the holders thereof. and approved by the Commission under respectively. In addition, the ISE Holdings 18 • The Combination will have no Section 19(b) of the Exchange Act and Certificate provides that no person, has become effective thereunder. effect on the ability of any party to trade either alone or together with its related securities on the Exchange, ISE or In order to allow Holdco to indirectly persons, may at any time of record or own 50% of the outstanding common EDGA. beneficially own, directly or indirectly, Similarly, Deutsche Bo¨rse and its stock of ISE Holdings upon shares of ISE Holdings representing consummation of the Combination, subsidiaries, and NYSE Euronext and its more than 40% of the then outstanding subsidiaries, will continue to conduct Holdco has delivered written notice to votes entitled to be cast on any matter the board of directors of ISE Holdings their regulated activities in the same and no person who is a member of the manner as they are currently conducted, Exchange, either alone or together with 15 with any changes subject to the relevant See Amended and Restated Certificate of its related person, may at any time of Incorporation of ISE Holdings, Article FOURTH, approvals of their respective European record or beneficially own, directly or Section III. regulators and, in the case of the U.S. indirectly, shares of ISE Holdings 16 See Amended and Restated Certificate of Regulated Subsidiaries, with any representing in the more than 20% of Incorporation of ISE Holdings, Article FOURTH, changes subject to the approval of the Section III. the then outstanding votes entitled to be 17 Commission. See Amended and Restated Certificate of Incorporation of ISE Holdings, Article FOURTH, Holdco acknowledges that to the 14 See Amended and Restated Certificate of Section III, and Amended and Restated Bylaws of extent it becomes aware of possible Incorporation of ISE Holdings, Article FOURTH, ISE Holdings, Article XI. violations of the rules of the Exchange, Section III. 18 15 U.S.C. 78s(b).

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pursuant to the procedures set forth in interests of ISE Holdings, its person, either alone or together with its the ISE Holdings Certificate requesting shareholders and the DB U.S. Regulated related persons, will be entitled to vote approval of its voting and ownership of Subsidiaries. or cause the voting of a number of ISE Holdings shares in excess of the ISE In addition, neither Holdco, nor any shares of Holdco, in person or by proxy Holdings Voting Restriction and the ISE of its related persons, is (1) an ISE or through any voting agreement or Holdings Ownership Restriction. Member; (2) an EDGA Member; (3) an other arrangement, which represent in Among other things, in this notice, EDGX Member; or (4) subject to any the aggregate (1) more than 20% of the Holdco represented to the board of ‘‘statutory disqualification.’’ then outstanding votes entitled to be directors of ISE Holdings that neither it, An extract with the relevant cast on such matter; or (2) more than nor any of its related persons, is (1) an provisions of the ISE Holdings Bylaws 20% of the then outstanding votes ISE Member; (2) EDGA Member; (3) Amendment is attached as Exhibit 5A to entitled to be cast on any such matter EDGX Member; or (4) subject to any the Proposed Rule Change and can be by virtue of agreements or arrangements ‘‘statutory disqualification.’’ found on the Exchange’s Web site and entered into with other persons to At a meeting duly convened on the Commission’s Web site. refrain from voting shares of Holdco (the September 16, 2011, the board of The Exchange hereby requests that the ‘‘Holdco Voting Restriction’’).21 The directors of ISE Holdings adopted the Commission approve the ISE Holdings Holdco Articles would provide that ISE Holdings Bylaws Amendment to Bylaws Amendment and allow Holdco, Holdco will be required to disregard any permit Holdco, either alone or together either alone or with its related persons, votes purported to be cast in excess of with its related persons, to exceed the to indirectly own 50% of the the Holdco Voting Restriction. ISE Holdings Ownership Restriction and outstanding common stock of ISE In addition, the Holdco Articles the ISE Holdings Voting Restriction. In Holdings upon and following the would provide that any person who, adopting such amendment, the board of consummation of the Combination. either alone or together with its related directors of ISE Holdings made the 4. Proposed Amendments to Ownership persons, beneficially owns Holdco necessary determinations set forth above and Voting Restrictions After the shares which represent in the aggregate and approved the submission of this Combination more than 40% of the outstanding votes Proposed Rule Change to the entitled to be cast on any matter (except Overview Commission. The Exchange will that a 20% restriction would apply to continue to operate and regulate its The Exchange is proposing that, any person who is a NYSE Member, an market and members exactly as it has effective as of the completion of the Amex Member, an ETP Holder, an OTP done prior to the Combination. Except Combination, the Holdco Articles would Holder, an OTP Firm, an ISE Member, as set forth in this Proposed Rule contain voting and ownership an EDGA Member or an EDGX Member) Change, the Exchange is not proposing restrictions that restrict any person, (the ‘‘Holdco Ownership Restriction’’), any amendments to its trading or either alone or together with its related will be obligated to offer for sale and to regulatory rules. persons, from having voting control over transfer a number of Holdco shares With respect to the ability of the Holdco shares entitling the holder necessary so that such person, together Commission to enforce the Exchange thereof to cast more than 20% of the with its related persons, beneficially Act as it applies to the Exchange after votes entitled to be cast on any matter owns a number of Holdco shares that the Combination, the Exchange will or beneficially owning Holdco shares complies with the Holdco Ownership operate in the same manner following representing more than 40% of the Restriction (the ‘‘Holdco Transfer 19 the Combination as it operates today. outstanding votes that may be cast on Obligation’’).22 If such person(s) fails to Thus, the Commission will continue to any matter (except that a 20% comply with the Holdco Transfer have plenary regulatory authority over ownership restriction would apply to Obligation within two weeks, Holdco the Exchange, as is the case currently any person who is a NYSE Member, an will be irrevocably authorized to act on with the Exchange. As described in the Amex Member, an ETP Holder, an OTP behalf of such person(s) in order to following sections of this filing, the Holder, an OTP Firm, an ISE Member, ensure compliance with the Holdco Exchange is proposing certain an EDGA Member or an EDGX Member). Transfer Obligation.23 provisions of the Holdco Articles that In addition, the Exchange is Furthermore, the Holdco Articles will create an ownership structure that proposing that, effective as of the would provide that in the event any will provide the Commission with Combination, the voting and ownership person, either alone or together with its restrictions currently in the Amended appropriate oversight tools to ensure related persons, exceeds the Holdco and Restated Limited Liability Company that the Commission will have the Ownership Restriction (any such Operating Agreement of Direct Edge ability to enforce the Exchange Act with person(s), a ‘‘Non-Compliant Owner’’), Holdings (‘‘Direct Edge Holdings respect to each U.S. Regulated the Non-Compliant Owner would cease Operating Agreement’’) would remain in Subsidiary, its direct and indirect parent to have certain rights to the extent that effect.20 entities and its directors, officers, its shareholding exceeds the Holdco employees and agents to the extent they Voting and Ownership Restrictions in Ownership Restriction. Specifically, the are involved in the activities of such Holdco Articles Non-Compliant Owner’s rights to vote, U.S. Regulated Subsidiary. The ISE to attend general meetings of Holdco Holdings board of directors also Under the Proposed Rule Change, the Holdco Articles would provide that no shareholders and to receive dividends determined that ownership of ISE or other distributions attached to such Holdings by Holdco is in the best 20 The current voting and ownership restrictions shares in excess of the Holdco contained in the Direct Edge Holdings Operating Ownership Restriction would be 19 The Exchange has been informed by NYSE Agreement and the ISE Holdings Certificate, as well Euronext, EDGA and EDGX [sic] that the NYSE U.S. as the related provisions contained in the amended 21 Regulated Subsidiaries, EDGA and EDGX [sic], and restated bylaws of U.S. Exchange Holdings and See Form of Deed of Amendment to Holdco respectively, are also expected to operate in the the board resolutions of Deutsche Bo¨rse, Eurex Articles of Association, Article 34.1. same manner following the Combination as they Frankfurt AG and other indirect parent entities of 22 See Form of Deed of Amendment to Holdco operate today. This is addressed in the separate the Exchange, would remain in effect. The ISE Trust Articles of Association, Articles 35.1 and 35.4. proposed rule change filed by each of the NYSE would also remain unaltered and would continue 23 See Form of Deed of Amendment to Holdco Exchanges, EDGA and EDGX [sic]. to have rights to enforce these restrictions. Articles of Association, Article 35.7.

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suspended for so long as the Holdco extent that they are involved in the Holdco Articles would also provide that Ownership Restriction is exceeded.24 activities of the U.S. Regulated no person may be a director of Holdco Pursuant to Section 2:87a of the Dutch Subsidiaries, (x) Holdco’s officers, and unless he or she has agreed and Civil Code, the Non-Compliant Owner (y) those of its employees whose consented in writing to the applicability may request that an independent expert principal place of business and to him or her of these jurisdictional and be appointed to determine the value of residence is outside the United States, oversight provisions with respect to his the Holdco shares, but such expert will would be deemed to irrevocably submit or her activities related to any U.S. have discretion to determine that the to the jurisdiction of the U.S. federal Regulated Subsidiary.33 Furthermore, value of the shares is equal to the price courts and the Commission for the Holdco would sign an irrevocable received for the shares by the Non- purposes of any suit, action or agreement and consent for the benefit of Compliant Owner on any stock proceeding pursuant to the U.S. federal each U.S. Regulated Subsidiary 34 that it exchange where the Holdco shares are securities laws, and the rules and will comply with these provisions in the listed.25 regulations thereunder, commenced or Holdco Articles. The voting and ownership restrictions initiated by the Commission arising out The Exchange anticipates that the will apply to each person unless it (1) of, or relating to, the activities of the functions and activities of each U.S. delivers to the Holdco board of directors U.S. Regulated Subsidiaries.29 The Regulated Subsidiary generally will be a written notice of its intention to Holdco Articles would also provide carried out by the officers and directors acquire voting power or ownership in that, with respect to any such suit, of such U.S. Regulated Subsidiary, each excess of the relevant limitation, and action, or proceeding brought by the of whom the Commission has direct such notice is delivered at least 45 days Commission, Holdco and its directors, authority over pursuant Section 19(h)(4) (or such shorter period as the Holdco officers and employees would (1) be of the Exchange Act.35 board or directors expressly consents to) deemed to agree that NYSE Group may Access to Books and Records prior to acquiring Holdco shares in serve as U.S. agent for purposes of excess of the Holdco Voting Restriction service of process in such suit, action, Under the Proposed Rule Change, the or Holdco Ownership Restriction, and or proceeding relating to NYSE Group or Holdco Articles would provide that for (2) obtains a written confirmation from any of its subsidiaries, and ISE Holdings so long as Holdco directly or indirectly the Holdco board of directors that the may serve as the U.S. agent for controls any U.S. Regulated Subsidiary, board has expressly resolved to permit proceedings relating to ISE Holdings or the books, records and premises of such voting or ownership, and (3) such any of its subsidiaries; and (2) be Holdco will be deemed to be the books, resolution has been filed with, and deemed to waive, and agree not to assert records and premises of such U.S. approved by, the Commission under by way of motion, as a defense or Regulated Subsidiaries for purposes of, Section 19(b) of the Exchange Act and otherwise, in any such suit, action, or and subject to oversight pursuant to, the filed with, and approved by, the proceeding, any claims that it or they Exchange Act.36 In addition, the Holdco relevant European regulators having are not personally subject to the Articles would provide that Holdco’s appropriate jurisdiction and authority.26 jurisdiction of the Commission, that the books and records will at all times be The Holdco board of directors may suit, action, or proceeding is an made available for inspection and waive the Holdco Voting Restriction and inconvenient forum or that the venue of copying by the Commission, and any Holdco Ownership Restriction if it the suit, action, or proceeding is U.S. Regulated Subsidiary to the extent makes certain determinations, which improper, or that the subject matter they are related to the activities of such will be consistent with the thereof may not be enforced in or by the U.S. Regulated Subsidiary or any other determinations currently required to be U.S. federal courts or the Commission.30 U.S. Regulated Subsidiary over which made by the board of directors of NYSE In addition, the Holdco Articles such U.S. Regulated Subsidiary has Euronext and ISE Holdings in order to would provide that, so long as Holdco regulatory authority or oversight.37 In waive the voting and ownership directly or indirectly controls any U.S. addition, Holdco’s books and records restrictions in the NYSE Euronext Regulated Subsidiary, the directors, related to the U.S. Regulated Certificate and the ISE Holdings officers and employees of Holdco will Subsidiaries will be maintained within Certificate, respectively.27 be deemed to be directors, officers and the United States, except that to the employees of such U.S. Regulated extent that books and records may relate 5. Additional Matters To Be Addressed to both European subsidiaries and U.S. 28 Subsidiaries for purposes of, and subject in the Holdco Articles to oversight pursuant to, the Exchange Regulated Subsidiaries, Holdco may Jurisdiction Over Individuals Act.31 maintain such books and records either The Holdco Articles would provide in the home jurisdiction of one or more Under the Proposed Rule Change, the that Holdco will take reasonable steps European subsidiaries or in the United Holdco Articles would provide that necessary to cause its directors, officers States.38 Holdco and its directors, and to the and employees, prior to accepting a Additional Matters position as an officer, director or 24 See Form of Deed of Amendment to Holdco employee, as applicable, of Holdco to Under the Proposed Rule Change, the Articles of Association, Article 35.6. Holdco Articles would provide that 25 See Form of Deed of Amendment to Holdco agree and consent in writing to the Articles of Association, Articles 35.5. applicability to them of these 33 26 See Form of Deed of Amendment to Holdco jurisdictional and oversight provisions See Form of Deed of Amendment to Holdco Articles of Association, Articles 34.2 and 35.2. Articles of Association, Article 14.11. with respect to their activities related to 34 The form of Holdco’s agreement and consent is 27 See Form of Deed of Amendment to Holdco any U.S. Regulated Subsidiary.32 The Articles of Association, Articles 34.3 and 35.3. attached as Exhibit 5C to this Proposed Rule Change. 28 The Holdco Articles will set forth certain 35 restrictions and requirements relating to Holdco’s 29 See Form of Deed of Amendment to Holdco 15 U.S.C. 78s(h)(4). European subsidiaries and applicable European Articles of Association, Article 3.2(c). 36 See Form of Deed of Amendment to Holdco regulatory matters, which will be substantially 30 See id. Articles of Association, Article 3.2(f). consistent with the analogous restrictions and 31 See Form of Deed of Amendment to Holdco 37 See Form of Deed of Amendment to Holdco requirements applicable with respect to Holdco’s Articles of Association, Article 3.2(f). Articles of Association, Article 3.2(e). U.S. Regulated Subsidiaries and U.S. regulatory 32 See Form of Deed of Amendment to Holdco 38 See Form of Deed of Amendment to Holdco matters. Articles of Association, Article 3.2(m). Articles of Association, Article 3.2(g).

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Holdco will comply with the U.S. Additionally, the Holdco Articles director or employee, as applicable, of federal securities laws and the rules and would provide that, for so long as Holdco to agree and consent in writing regulations thereunder, and will Holdco directly or indirectly controls to the applicability to them of these cooperate with the Commission and any U.S. Regulated Subsidiary, Holdco provisions of the Holdco Articles with with the U.S. Regulated Subsidiaries and its directors, officers and employees respect to their activities related to any pursuant to and to the extent of their will give due regard to the preservation U.S. Regulated Subsidiary.47 The respective regulatory authority.39 In of the independence of the self- Holdco Articles would also provide that addition, Holdco would be required to regulatory function of such U.S. no person may be a director of Holdco take reasonable steps necessary to cause Regulated Subsidiary and to its unless he or she has agreed and its agents to cooperate with the obligations to investors and the general consented in writing to the applicability Commission and, where applicable, the public, and will not take any actions to him or her of these provisions with U.S. Regulated Subsidiaries pursuant to that would interfere with the respect to his or her activities related to their regulatory authority.40 The Holdco effectuation of any decisions by the any U.S. Regulated Subsidiary.48 Articles would also provide that, in board of directors or managers of such Holdco would also sign an irrevocable discharging his or her responsibilities as U.S. Regulated Subsidiary relating to its agreement and consent for the benefit of a member of the Holdco board of regulatory responsibilities (including each U.S. Regulated Subsidiary that it directors or as an officer or employee of enforcement and disciplinary matters) will comply with provisions in the Holdco, each such director, officer or or that would interfere with the ability Holdco Articles regarding (1) employee will (a) comply with the U.S. of such U.S. Regulated Subsidiary to cooperation with the Commission and federal securities laws and the rules and carry out its responsibilities under the such U.S. Regulated Subsidiaries; (2) regulations thereunder; (b) cooperate Exchange Act.44 compliance with U.S. federal securities with the Commission; and (c) cooperate Finally, the Holdco Articles would laws; (3) inspection and copying of with the U.S. Regulated Subsidiaries provide that each director of Holdco Holdco’s books, records and premises; pursuant to and to the extent of their would, in discharging his or her (4) Holdco’s books, records, premises, regulatory authority (but this provision responsibilities, to the fullest extent officers, directors and employees being will not create any duty owed by any permitted by applicable law, take into deemed to be those of U.S. Regulated director, officer or employee of Holdco consideration the effect that Holdco’s Subsidiaries; (5) maintenance of books to any person to consider, or afford any actions would have on the ability of (a) and records in the United States; (6) particular weight to, any such matters or the U.S. Regulated Subsidiaries to carry confidentiality of information regarding to limit his or her consideration to such out their responsibilities under the the U.S. Regulated Subsidiaries’ self- matters).41 Exchange Act; and (b) the U.S. regulatory function; (7) preservation of Regulated Subsidiaries, NYSE Group, The Holdco Articles would also the independence of the self-regulatory ISE Holdings and Holdco to (1) engage provide that all confidential information function of the U.S. Regulated in conduct that fosters and does not that comes into the possession of Subsidiaries; and (8) taking reasonable interfere with the ability of the U.S. Holdco pertaining to the self-regulatory steps to cause Holdco’s officers, Regulated Subsidiaries, NYSE Group, function of any U.S. Regulated directors and employees to consent to ISE Holdings and Holdco to prevent Subsidiary will (a) not be made the applicability to them of the Holdco fraudulent and manipulative acts and available to any persons other than to Articles. The form of Holdco’s practices in the securities markets; (2) agreement and consent is attached as those officers, directors, employees and promote just and equitable principles of agents of Holdco that have a reasonable Exhibit 5C to this Proposed Rule trade in the securities markets; (3) foster Change. need to know the contents thereof; (b) cooperation and coordination with be retained in confidence by Holdco and persons engaged in regulating, clearing, Amendments to the Holdco Articles the officers, directors, employees and settling, processing information with Under the Proposed Rule Change, the agents of Holdco; and (c) not be used for respect to, and facilitating transactions any commercial purposes.42 In addition, Holdco Articles would provide that, in securities; (4) remove impediments to before any amendment to or repeal of the Holdco Articles would provide that and perfect the mechanisms of a free these obligations regarding such any provision of the Holdco Articles and open market in securities and a U.S. may become effectuated by means of a confidential information will not be national securities market system; and interpreted so as to limit or impede (i) notarial deed of amendment, the same (5) in general, protect investors and the will be submitted to the board of the rights of the Commission or the 45 public interest. This requirement directors of each U.S. Regulated relevant U.S. Regulated Subsidiary to would not, however, create any duty have access to and examine such Subsidiary (or the boards of directors of owed by any director, officer or their successors) and if any or all of confidential information pursuant to the employee of Holdco to any person to U.S. federal securities laws and the such boards of directors determine that consider, or afford any particular weight the same must be filed with, or filed rules and regulations thereunder; or (ii) to, any of the foregoing matters or to the ability of any officers, directors, with and approved by, the Commission limit his or her consideration to such before the same may be effective under employees or agents of Holdco to 46 matters. Section 19 of the Exchange Act and the disclose such confidential information In addition, the Holdco Articles rules promulgated thereunder, then the to the Commission or any U.S. would provide that Holdco will take same will not be effective until filed Regulated Subsidiary.43 reasonable steps necessary to cause its with, or filed with and approved by, the officers, directors and employees, prior Commission, as the case may be. These 39 See Form of Deed of Amendment to Holdco to accepting a position as an officer, Articles of Association, Article 3.2(a). requirements would also apply to any 40 See id. 44 See Form of Deed of Amendment to Holdco action by Holdco that would have the 41 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(i). Articles of Association, Article 3.2(l). 45 See Form of Deed of Amendment to Holdco 47 See Form of Deed of Amendment to Holdco 42 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(k). Articles of Association, Article 3.2(m). Articles of Association, Article 3.2(h). 46 See Form of Deed of Amendment to Holdco 48 See Form of Deed of Amendment to Holdco 43 See id. Articles of Association, Article 3.2(k). Articles of Association, Article 14.11.

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effect of amending or repealing any and coordination with persons engaged Paper Comments provision of the Holdco Articles. in regulating, clearing, settling, • processing information with respect to, Send paper comments in triplicate Holdco Director Independence Policy and facilitating transactions in to Elizabeth M. Murphy, Secretary, Under the Proposed Rule Change, securities, to remove impediments to, Securities and Exchange Commission, Holdco would adopt the Holdco and perfect the mechanism of a free and 100 F Street, NE., Washington, DC Independence Policy in the form open market and a national market 20549–1090. attached hereto as Exhibit 5D, which system and, in general, to protect All submissions should refer to File would be substantially similar to the investors and the public interest. The Number SR–EDGX–2011–33. This file current Independence Policy of the Exchange does not expect that the number should be included on the NYSE Euronext board of directors. The Combination will impact the current subject line if e-mail is used. To help the Proposed Rule Change filed by the operations of the Exchange. However, Commission process and review your NYSE in connection with the the Exchange believes that by combination describes the Holdco comments more efficiently, please use incorporating Holdco’s governance only one method. The Commission will Independence Policy as it relates to the documents as part of the proposed rule post all comments on the Commission’s current Independence Policy of the filing, investors will be better apprised 49 Internet website (http://www.sec.gov/ NYSE Euronext board of directors. of Holdco’s proposed indirect ownership interest in the Exchange. rules/sro.shtml). Copies of the 6. Statutory Basis submission, all subsequent The Exchange believes that this filing B. Self-Regulatory Organization’s amendments, all written statements is consistent with Section 6(b) 50 of the Statement on Burden on Competition with respect to the proposed rule Exchange Act in general, and furthers The Exchange does not believe that change that are filed with the the objectives of Section 6(b)(1) 51 in the Proposed Rule Change will impose Commission, and all written particular, in that it enables the any burden on competition that is not communications relating to the Exchange to be so organized as to have necessary or appropriate in furtherance proposed rule change between the the capacity to be able to carry out the of the purposes of the Exchange Act. Commission and any person, other than purposes of the Exchange Act and to those that may be withheld from the comply, and to enforce compliance by C. Self-Regulatory Organization’s Statement on Comments on the public in accordance with the its exchange members and persons provisions of 5 U.S.C. 552, will be associated with its exchange members, Proposed Rule Change Received From Members, Participants or Others available for website viewing and with the provisions of the Exchange Act, printing in the Commission’s Public the rules and regulations thereunder, The Exchange has neither solicited Reference Room, 100 F Street, NE., and the rules of the Exchange. With nor received written comments on the Washington, DC 20549, on official respect to the ability of the Commission Proposed Rule Change. to enforce the Exchange Act as it applies business days between the hours of 10 to the Exchange after the Combination, III. Date of Effectiveness of the a.m. and 3 p.m. Copies of such filing the Exchange will operate in the same Proposed Rule Change and Timing for also will be available for inspection and manner following the Combination as it Commission Action copying at the principal office of the operates today. Thus, the Commission Within 45 days of the date of Exchange. All comments received will will continue to have plenary regulatory publication of this notice in the Federal be posted without change; the authority over the Exchange, as is the Register or within such longer period (i) Commission does not edit personal case currently with the Exchange. The as the Commission may designate up to identifying information from Proposed Rule Change is consistent 90 days of such date if it finds such submissions. You should submit only with and will facilitate an ownership longer period to be appropriate and information that you wish to make structure that will provide the publishes its reasons for so finding or available publicly. All submissions Commission with appropriate oversight (ii) as to which the Exchange consents, should refer to File Number SR–EDGX– tools to ensure that the Commission will the Commission shall: (a) By order 2011–33 and should be submitted on or have the ability to enforce the Exchange approve or disapprove such proposed before November 10, 2011. Act with respect to each U.S. Regulated rule change, or (b) institute proceedings For the Commission, by the Division of Subsidiary, its direct and indirect parent to determine whether the proposed rule Trading and Markets, pursuant to delegated entities and its directors, officers, change should be disapproved. authority.53 employees and agents to the extent they IV. Solicitation of Comments are involved in the activities of such Elizabeth M. Murphy, U.S. Regulated Subsidiary. Interested persons are invited to Secretary. The Exchange also believes that this submit written data, views, and [FR Doc. 2011–27194 Filed 10–19–11; 8:45 am] filing furthers the objectives of Section arguments concerning the foregoing, BILLING CODE 8011–01–P 6(b)(5) 52 of the Exchange Act because including whether the proposed rule the Proposed Rule Change summarized change is consistent with the Act. herein would be consistent with and Comments may be submitted by any of facilitate a governance and regulatory the following methods: structure that is designed to prevent Electronic Comments fraudulent and manipulative acts and • practices, to promote just and equitable Use the Commission’s Internet principles of trade, to foster cooperation comment form (http://www.sec.gov/ rules/sro.shtml); or • 49 See File No. SR–NYSE–2011–51. Send an e-mail to rule- 50 15 U.S.C. 78(f)(b). [email protected]. Please include File 51 15 U.S.C. 78(f)(b)(1). Number SR–EDGX–2011–33 on the 52 15 U.S.C. 78(f)(b)(5). subject line. 53 17 CFR 200.30–3(a)(12).

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SECURITIES AND EXCHANGE Equities’’) (the NYSE Exchanges, Restated Certificate of Incorporation of COMMISSION together with NYSE Market, NYSE ISE Holdings (the ‘‘ISE Holdings Regulation, NYSE Arca LLC and NYSE Certificate’’) currently restricts any [Release No. 34–65564; File No. SR–EDGA– Arca Equities, the ‘‘NYSE U.S. 2011–34] person, either alone or together with its Regulated Subsidiaries’’ and each, a related persons, from having voting Self-Regulatory Organizations; EDGA ‘‘NYSE U.S. Regulated Subsidiary’’). control over more than 20% of the Exchange, Inc.; Notice of Filing of NYSE, NYSE Arca and NYSE Amex will outstanding capital stock of ISE Proposed Rule Change Relating to a be separately filing a proposed rule Holdings and from owning of record or Corporate Transaction in Which Its change in connection with the beneficially more than 40% of the Indirect Parent, Deutsche Bo¨ rse AG, Combination. outstanding capital stock of ISE Will Become a Wholly Owned Deutsche Bo¨rse indirectly owns 50% Holdings (or in the case of any Exchange Subsidiary of Alpha Beta Netherlands of the equity interest of International member, acting alone or together with Holding N.V. Securities Exchange Holdings, Inc. (‘‘ISE its related persons, from owning of Holdings’’), which in turn holds 100% record or beneficially more than 20% of October 14, 2011. of the equity interest of International the outstanding capital stock of ISE Pursuant to Section 19(b)(1) 1 of the Securities Exchange, LLC (‘‘ISE’’). ISE Holdings). If a person were to obtain a Securities Exchange Act of 1934 (the Holdings also holds 31.54% of the voting or ownership interest in excess of ‘‘Exchange Act’’), and Rule 19b-4 equity interest of Direct Edge Holdings, the voting or ownership restrictions thereunder,2 notice is hereby given that LLC (‘‘Direct Edge Holdings’’), which in without obtaining the approval of the on October 12, 2011, EDGA Exchange, turn indirectly holds 100% of the equity Commission, the shares of ISE Holdings Inc. (the ‘‘Exchange’’) filed with the interest of two registered national would automatically transfer to a Securities and Exchange Commission securities exchanges and self-regulatory statutory trust established under and (the ‘‘Commission’’) the proposed rule organizations—the Exchange and EDGX pursuant to the provisions of the change as described in Items I and II Exchange, Inc. (‘‘EDGX’’) (each of the Delaware Statutory Trust Act, 12 Del. C. below, which items have been prepared Exchange, ISE and EDGX, a ‘‘DB §§ 3801 et seq. (‘‘ISE Trust’’). The ISE by the Exchange. The Commission is Exchange’’ and a ‘‘DB U.S. Regulated Holdings Certificate and the Amended publishing this notice to solicit Subsidiary’’ and together, the ‘‘DB and Restated Bylaws of ISE Holdings comments on the proposed rule change Exchanges’’ and the ‘‘DB U.S. Regulated (the ‘‘ISE Holdings Bylaws’’) provide from interested persons. Subsidiaries’’). ISE and EDGX will be that the board of directors of ISE separately filing a proposed rule change Holdings may waive these voting and I. Self-Regulatory Organization’s in connection with the Combination ownership restrictions in an amendment Statement of the Terms of Substance of that will be the substantially the same to the ISE Holdings Bylaws if it makes the Proposed Rule Change as the Proposed Rule Change. certain findings and the amendment to If the Combination is completed, the A. Overview of the Proposed the ISE Holdings Bylaws has been filed businesses of NYSE Euronext and Combination with, and approved by, the Commission Deutsche Bo¨rse, including the NYSE under Section 19(b) of the Exchange The Exchange, a Delaware U.S. Regulated Subsidiaries and the DB Act. Acting pursuant to this waiver corporation, registered national U.S. Regulated Subsidiaries (together, provision, the board of directors of ISE securities exchange and self-regulatory the ‘‘U.S. Regulated Subsidiaries’’ and Holdings has approved the amendment organization, is submitting this rule each, a ‘‘U.S. Regulated Subsidiary’’), to the ISE Holdings Bylaws set forth in filing (the ‘‘Proposed Rule Change’’) to will be held under a single, publicly Exhibit 5A (the ‘‘ISE Holdings Bylaws the Commission in connection with the traded holding company organized proposed business combination (the under the laws of the Netherlands Amendment’’) in order to permit Holdco ‘‘Combination’’) of NYSE Euronext, a (‘‘Holdco’’).3 The Proposed Rule to indirectly own 50% of the Delaware corporation, and Deutsche Change, if approved by the Commission, outstanding common stock of ISE Bo¨rse AG, an Aktiengesellschaft will not be operative until the Holdings as of and after the organized under the laws of the Federal consummation of the Combination. Combination. The Exchange is Republic of Germany (‘‘Deutsche requesting approval by the Commission B. Summary of Proposed Rule Change Bo¨rse’’). of the ISE Holdings Bylaws Amendment NYSE Euronext owns 100% of the The Exchange is proposing that, in order to allow the Combination to equity interest of NYSE Group, Inc., a pursuant to the Combination, its take place. Delaware corporation (‘‘NYSE Group’’), indirect parent, Deutsche Bo¨rse, will Under the Proposed Rule Change, which in turn directly or indirectly become a wholly owned subsidiary of Holdco would take appropriate steps to owns (1) 100% of the equity interest of Holdco. In addition, the Exchange is incorporate voting and ownership three registered national securities proposing that, in connection with the restrictions, requirements relating to exchanges and self-regulatory Combination, the Commission approve submission to jurisdiction, access to organizations (together, the ‘‘NYSE certain amendments to the books and records and other Exchanges’’)—the New York Stock organizational and other governance requirements related to its control of the Exchange, LLC (‘‘NYSE’’), NYSE Arca, documents of Holdco and ISE Holdings. U.S. Regulated Subsidiaries. Inc. (‘‘NYSE Arca’’) and NYSE Amex The Proposed Rule Change is Specifically, the Articles of Association LLC (‘‘NYSE Amex’’)—and (2) 100% of summarized as follows: of Holdco in effect as of the completion • the equity interest of NYSE Market, Inc. Proposed Approval of Waiver of of the Combination (the ‘‘Holdco (‘‘NYSE Market’’), NYSE Regulation, Ownership and Voting Restrictions of Articles’’) would contain provisions 4 to Inc. (‘‘NYSE Regulation’’), NYSE Arca ISE Holdings. The Amended and incorporate these concepts with respect L.L.C. (‘‘NYSE Arca LLC’’) and NYSE to itself, as well as its directors, officers, Arca Equities, Inc. (‘‘NYSE Arca 3 Holdco is currently named ‘‘Alpha Beta employees and agents (as applicable): Netherlands Holding N.V.,’’ but it is expected that Holdco will be renamed prior to the completion of 1 15 U.S.C. 78s(b)(1). the Combination to a name agreed between NYSE 4 The text of the proposed Holdco Articles is 2 17 CFR 240.19b-4. Euronext and Deutsche Bo¨rse. attached to the Proposed Rule Change as Exhibit 5B.

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• Voting and Ownership Restrictions applicable) and resolves to expressly will be deemed to be the books, records in the Holdco Articles. The Holdco permit the voting and ownership that is and premises of such U.S. Regulated Articles would contain voting and subject to such restrictions, and such Subsidiaries for purposes of, and subject ownership restrictions that will restrict resolutions have been filed with, and to oversight pursuant to, the Exchange any person, either alone or together with approved by, the Commission under Act, and that Holdco’s books and its related persons, from having voting Section 19(b) of the Exchange Act and records will at all times be made control over Holdco shares entitling the filed with, and approved by, the available for inspection and copying by holder thereof to cast more than 20% of relevant European Regulators 9 having the Commission, and by any U.S. the then outstanding votes entitled to be appropriate jurisdiction and authority. Regulated Subsidiary to the extent they cast on a matter or beneficially owning • Jurisdiction. The Holdco Articles are related to the activities of such U.S. Holdco shares representing more than will provide that Holdco and its Regulated Subsidiary or any other U.S. 40% of the outstanding votes entitled to directors, and to the extent they are Regulated Subsidiary over which such be cast on a matter (except that a 20% involved in the activities of the U.S. U.S. Regulated Subsidiary has ownership restriction would apply to Regulated Subsidiaries, (x) Holdco’s regulatory authority or oversight. In any person who is a Member of NYSE 5 officers, and (y) those of its employees addition, Holdco’s books and records (a ‘‘NYSE Member’’), a Member 6 of whose principal place of business and related to the U.S. Regulated NYSE Amex (including any person who residence is outside the United States, Subsidiaries will be maintained within is a related person of such member, an will be deemed to irrevocably submit to the United States, except that to the ‘‘Amex Member’’), an ETP Holder of the jurisdiction of the U.S. Federal extent that books and records may relate NYSE Arca Equities 7 (an ‘‘ETP Holder’’) courts and the Commission for the to both European subsidiaries and U.S. an OTP Holder or OTP Firm of NYSE purposes of any suit, action or Regulated Subsidiaries, Holdco may Arca 8 (an ‘‘OTP Holder’’ and ‘‘OTP proceeding pursuant to the U.S. Federal maintain such books and records either Firm,’’ respectively), a Member (as such securities laws and the rules or in the home jurisdiction of one or more term is defined in Section 3(a)(3)(A) of regulations thereunder, arising out of, or European subsidiaries or in the United the Exchange Act) of ISE (an ‘‘ISE relating to, the activities of the U.S. States. • Member’’), or a member of EDGA or Regulated Subsidiaries. In addition, the Amendments to Holdco Articles. EDGX (as such terms are defined in the Holdco Articles would provide that so The Holdco Articles would provide that rules of EDGA and EDGX, respectively, long as Holdco directly or indirectly before any amendment to the Holdco an ‘‘EDGA Member’’ and ‘‘EDGX controls any U.S. Regulated Subsidiary, Articles may be effectuated by execution Member,’’ respectively)). The Holdco the directors, officers and employees of a notarial deed of amendment, such Articles would provide that Holdco will will be deemed to be directors, officers amendment would need to be submitted be required to disregard any votes and employees of such U.S. Regulated to the board of directors of each U.S. purported to be cast in excess of the Subsidiaries for purposes of, and subject Regulated Subsidiary and, if so voting restriction. In the event that any to oversight pursuant to, the Exchange determined by any such board, would such person(s) exceeds the ownership Act. The Holdco Articles would provide need to be filed with, or filed with and restriction, it will be required to offer for that Holdco will take reasonable steps approved by, the Commission before sale and transfer the number of Holdco necessary to cause its officers, directors such amendment may become effective. • Additional Matters. The Holdco shares required to comply with the and employees, prior to accepting a Articles would include provisions ownership restriction, and the rights to position as an officer, director or regarding cooperation with the vote, attend general meetings of Holdco employee, as applicable, to agree and Commission and the U.S. Regulated shareholders and receive dividends or consent in writing to the applicability to Subsidiaries, compliance with U.S. other distributions attached to shares them of these jurisdictional and held in excess of the 40% threshold (or federal securities laws, confidentiality oversight provisions with respect to of information regarding the U.S. 20% threshold, if applicable) will be their activities related to any U.S. suspended for so long as such threshold Regulated Subsidiaries’ self-regulatory Regulated Subsidiary. Furthermore, the function, preservation of the is exceeded. If such person(s) fails to Holdco Articles would provide that no comply with the transfer obligation independence of the U.S. Regulated person may be a director of Holdco Subsidiaries’ self-regulatory function, within two weeks, then the Holdco unless he or she has agreed and Articles would provide that Holdco will and directors’ consideration of the effect consented in writing to the applicability of Holdco’s actions on the U.S. be irrevocably authorized to take actions to him or her of these jurisdictional and on behalf of such person(s) in order to Regulated Subsidiaries’ ability to carry oversight provisions with respect to his out their respective responsibilities cause it to comply with such or her activities related to any U.S. obligations. The Holdco board of under the Exchange Act. In addition, the Regulated Subsidiary. Holdco would Holdco Articles would provide that directors may waive the voting and sign an irrevocable agreement and ownership restrictions if it makes Holdco will take reasonable steps consent for the benefit of each U.S. necessary to cause its officers, directors certain determinations (which will be Regulated Subsidiary 10 that it will subject to the same requirements which and employees, prior to accepting a comply with these provisions of the position as an officer, director or are currently required to be made by the Holdco Articles. employee, as applicable, of Holdco to board of directors of NYSE Euronext • Books and Records. The Holdco agree and consent in writing to the and ISE Holdings in order to waive the Articles would provide that for so long applicability to them of these provisions voting and ownership restrictions in the as Holdco directly or indirectly controls of the Holdco Articles with respect to current NYSE Euronext Certificate and any U.S. Regulated Subsidiary, the their activities related to any U.S. the ISE Holdings Certificate, as books, records and premises of Holdco Regulated Subsidiary. The Holdco Articles would also provide that no 5 See Form of Deed of Amendment to Holdco 9 See Form of Deed of Amendment to Holdco person may be a director of Holdco Articles of Association, Article 34.3(c). Articles of Association, Article 1.1. 6 See id. 10 The form of Holdco’s agreement and consent is unless he or she has agreed and 7 See id. attached as Exhibit 5C to this Proposed Rule consented in writing to the applicability 8 See id. Change. to him or her of these provisions with

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respect to his or her activities related to A. Purpose [sic] Combination Agreement and in any U.S. Regulated Subsidiary. Holdco The purpose of this rule filing is to compliance with applicable law, Holdco will sign an irrevocable agreement and adopt the rules necessary to permit has conducted a public exchange offer consent for the benefit of each U.S. Deutsche Bo¨rse to effect the (the ‘‘Exchange Offer’’), in which Regulated Subsidiary 11 that it will Combination and to amend certain shareholders of Deutsche Bo¨rse have comply with these provisions of the provisions of the organizational and been afforded the opportunity to tender Holdco Articles.12 other governance documents of Holdco. each share of Deutsche Bo¨rse for one ordinary share of Holdco (each, a In addition, Holdco would adopt a 1. Overview of the Combination ‘‘Holdco Share’’). Director Independence Policy in the The Exchange is submitting this Immediately after the time that form attached hereto as Exhibit 5D (the Holdco accepts for exchange, and ‘‘Holdco Independence Policy’’), which Proposed Rule Change to the Commission in connection with the exchanges, the Deutsche Bo¨rse shares would be substantially similar to the that are validly tendered and not current Independence Policy of the Combination of NYSE Euronext and Deutsche Bo¨rse. The Combination will withdrawn in the Exchange Offer, NYSE Euronext board of directors. The Merger Sub will merge with and into create a holding company, Holdco, Proposed Rule Change filed by the NYSE Euronext, as a result of which which will hold the businesses of NYSE NYSE in connection with the NYSE Euronext will become a wholly Euronext and Deutsche Bo¨rse. combination describes the Holdco owned subsidiary of Holdco (the Following the Combination, each of Independence Policy as it relates to the ‘‘Merger’’). In the Merger, each NYSE Euronext and Deutsche Bo¨rse will current Independence Policy of the outstanding share of NYSE Euronext be a separate subsidiary of Holdco. NYSE Euronext board of directors.13 common stock will be converted into Holdco expects the Combination will the right to receive 0.47 of a fully paid The text of the Proposed Rule Change create a group that will be both a world and non-assessable Holdco Share. NYSE is available at the Exchange, the leader in derivatives and risk Commission’s Public Reference Room, Euronext’s obligation to complete the management and the premier global Merger is subject to the completion of and on the Web site of the Exchange venue for capital raising, with a truly (http://www.directedge.com). The text of the Exchange Offer and the acquisition global franchise and presence in many ¨ Exhibits 5A through 5D of the Proposed by Holdco of all of the Deutsche Borse of the world’s financial centers shares validly tendered and not Rule Change are also available on the including New York, London, Frankfurt, withdrawn in the Exchange Offer. The Exchange’s Web site and on the Paris and Luxembourg. This global completion of the Exchange Offer (and, Commission’s Web site (http:// presence should facilitate providing therefore, the completion of the Merger) www.sec.gov/rules/sro.shtml). world-class services to global and local is subject to the satisfaction of a number Other than as described herein and set customers worldwide. of conditions, including that Deutsche forth in the attached Exhibits 5A Other than as described herein, Bo¨rse shares representing at least 75% through 5D, the Exchange will continue Holdco and the Exchange will not make of the Deutsche Bo¨rse shares to conduct its regulated activities in the any changes to the regulated activities of outstanding, on a fully diluted basis, manner currently conducted and will the DB Exchanges in connection with must be validly tendered and not not make any changes to its regulated the Combination, and, other than as withdrawn in the Exchange Offer, and activities in connection with the described in the separate proposed rule that holders of a majority of the Combination. If the Exchange changes filed by each of the NYSE outstanding shares of NYSE Euronext determines to make any such changes, Exchanges in connection with the shall have adopted the Combination Combination, Holdco and the NYSE it will seek approval of the Commission. Agreement. Both of these conditions Exchanges will not make any changes to have been satisfied. II. Self-Regulatory Organization’s the regulated activities of the NYSE U.S. Following the completion of the Statement of the Purpose of, and Regulated Subsidiaries in connection Exchange Offer, and depending on the Statutory Basis for, the Proposed Rule with the Combination. If Holdco percentage of Deutsche Bo¨rse shares Change determines to make any such changes to acquired by Holdco in the Exchange the regulated activities of any U.S. Offer, Deutsche Bo¨rse and Holdco In its filing with the Commission, the Regulated Subsidiary, it will seek the intend to complete a post-completion Exchange has included statements approval of the Commission. The reorganization pursuant to which concerning the purpose of, and basis for, Proposed Rule Change, if approved by Holdco will enter into a domination the Proposed Rule Change. The text of the Commission, will not be operative agreement or a combination of a these statements may be examined at until the consummation of the domination agreement and a profit and the places specified in Item IV below. Combination. loss transfer agreement, pursuant to The Exchange has prepared summaries, The Combination will occur pursuant which the remaining shareholders of set forth in Sections A, B and C below, to the terms of the Business Deutsche Bo¨rse will have limited rights, of the most significant aspects of such Combination Agreement, dated as of including a limited ability to participate statements. February 15, 2011, as amended by in the profits of Deutsche Bo¨rse. Amendment No. 1 dated as of May 2, Holdco expects the Combination will 11 The form of Holdco’s agreement and consent is 2011 and by Amendment No. 2 dated as create a group that will be both a world attached as Exhibit 5C to this Proposed Rule of June 16, 2011 (as it may be further leader in derivatives and risk Change. amended from time to time, the management and the premier global 12 The Holdco Articles will also set forth certain restrictions and requirements relating to Holdco’s ‘‘Combination Agreement’’), by and venue for capital raising, with a truly European subsidiaries and applicable European among NYSE Euronext, Deutsche Bo¨rse, global franchise and presence in many regulatory matters, which will be substantially Holdco and Pomme Merger Corporation, of the world’s financial centers consistent with the analogous restrictions and a Delaware corporation and newly including New York, London, Frankfurt, requirements applicable with respect to Holdco’s U.S. Regulated Subsidiaries and U.S. regulatory formed wholly owned subsidiary of Paris and Luxembourg. This global matters. Holdco (‘‘Merger Sub’’). Subject to the presence should facilitate providing 13 See File No. SR–NYSE–2011–51. terms and conditions set forth in the world-class services to global and local

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customers worldwide. Following the interpretation and regulation related it will be responsible for referring such Combination, Holdco and its rule development. possible violations to the Exchange. subsidiaries (together, the ‘‘Holdco In Europe, NYSE Euronext, Deutsche 3. Proposed Approval of Waiver of Group’’) expect to serve as a benchmark Bo¨rse and their respective subsidiaries own several European exchanges, Voting and Ownership Restrictions of regulatory model, facilitating ISE Holdings transparency and harmonization of including trading operations on capital markets globally, while regulated and non-regulated markets for Article FOURTH, Section III of the continuing to operate all national cash products in Germany, France, current ISE Holdings Certificate exchanges under local regulatory Belgium, The Netherlands, and Portugal provides that (1) No person, either alone frameworks and their respective brand and derivatives in the United Kingdom or together with its ‘‘related persons’’ (as names. and in the five above-mentioned defined in the ISE Holdings Certificate), locations. As a result, the activities of may be entitled to vote or cause the 2. Overview of the Holdco Group the NYSE Euronext and Deutsche Bo¨rse voting of shares of ISE Holdings at any Following the Combination European markets are or may be subject time, directly, indirectly or pursuant to Following the Combination, Holdco to the jurisdiction and authority of a any voting trust, agreement, plan or will be a for-profit, publicly traded number of European regulators, other arrangement, to the extent that corporation formed under the laws of including the German Federal Financial such shares represent more than 20% of The Netherlands and will act as the Supervisory Authority (Bundesanstalt the voting power of the then holding company for the businesses of fu¨ r Finanzdienstleistungsaufsicht), the outstanding votes entitled to be cast on NYSE Euronext and Deutsche Bo¨rse. Hessian Exchange Supervisory such matter; and (2) no person, either Holdco will hold all of the equity Authority, the Dutch Minister of alone or together with its related interests in NYSE Euronext, which Finance, the French Minister of the persons, at any time, directly, indirectly holds (1) 100% of the equity interest of Economy, the French Financial Market or pursuant to any voting trust, may NYSE Group (which, in turn, directly or Authority (Autorite´ des Marche´s enter into any agreement, plan or other indirectly holds 100% of the equity Financiers), the French Prudential arrangement with any other person, interests of the NYSE U.S. Regulated Supervisory Authority (Autorite´ de either alone or together with its related Subsidiaries) and (2) 100% of the equity Controˆ le Prudentiel), the Netherlands persons, under circumstances which interest of Euronext N.V. (which, in Authority for the Financial Markets would result in the voting shares that turn, directly or indirectly holds 100% (Autoriteit Financie¨le Markten), the shall be subject to such agreement, plan of the equity interests of trading markets Belgian Financial Services and Markets or other arrangement not being voted on ´ in Belgium, France, the Netherlands, Authority (Autorite des Services et any matter or matters or the withholding ´ Portugal and the United Kingdom). Marches Financiers), the Portuguese of any proxy relating thereto, where the Holdco will also hold a majority of the Securities Market Commission effect of such agreement, plan or (Comissa˜o do Mercado de Valores equity interests in Deutsche Bo¨rse, arrangement would be to enable any Mobilia´rios—CMVM) and the U.K. which indirectly holds 50% of the person, either alone or together with its Financial Services Authority (FSA). equity interest of ISE Holdings (which, related persons, to possess more than Other than certain modifications in turn, holds (1) 100% of the equity 20% of the voting power of the then described herein, the current corporate interest of ISE and (2) 31.54% of the outstanding votes entitled to be cast on structure, governance and self- equity interest of Direct Edge Holdings). any such matter (the ‘‘ISE Holdings regulatory independence and separation 14 Direct Edge Holdings indirectly holds Voting Restriction’’). If any person, of the Exchange will be preserved. 100% of the equity interest of the either alone or together with its related Specifically, after the Combination, Exchange and EDGX. Holdco intends to persons, acquires voting power in Direct Edge Holdings’ businesses and list its ordinary shares on the New York excess of the ISE Holdings Voting assets will continue to be structured as Stock Exchange, the Frankfurt Stock Restriction, the ISE Holdings board of follows: directors must notify the ISE Trust and Exchange and Euronext Paris. The • The Exchange will remain an Holdco Group will have dual such ISE Holdings Voting Restriction indirect wholly owned subsidiary of shall result in the automatic transfer to headquarters in Frankfurt and New Direct Edge Holdings, with ISE Holdings York. the ISE Trust of a majority of the voting and Deutsche Bo¨rse holding equity shares then outstanding pro rata from After the Combination, NYSE Group interests of 31.54% and 15.77%, the holders thereof. will continue to be directly wholly respectively. In addition, the ISE Holdings owned by NYSE Euronext and will • The Combination will have no Certificate provides that no person, continue to directly or indirectly own effect on the ability of any party to trade either alone or together with its related the three NYSE Exchanges—NYSE, securities on the Exchange, ISE or persons, may at any time of record or NYSE Arca and NYSE Amex—which EDGX. beneficially own, directly or indirectly, provide marketplaces where investors Similarly, Deutsche Bo¨rse and its shares of ISE Holdings representing buy and sell listed companies’ common subsidiaries, and NYSE Euronext and its more than 40% of the then outstanding stock and other securities as well as subsidiaries, will continue to conduct votes entitled to be cast on any matter equity options and securities traded on their regulated activities in the same and no person who is a member of the the basis of unlisted trading privileges. manner as they are currently conducted, Exchange, either alone or together with NYSE Regulation, Inc., an indirect not- with any changes subject to the relevant its related person, may at any time of for-profit subsidiary of NYSE Group, approvals of their respective European record or beneficially own, directly or oversees FINRA’s performance of regulators and, in the case of the U.S. indirectly, shares of ISE Holdings certain market surveillance and Regulated Subsidiaries, with any representing in the more than 20% of enforcement functions for NYSE changes subject to the approval of the the then outstanding votes entitled to be Euronext’s U.S. securities exchanges, Commission. Holdco acknowledges that to the enforces listed company compliance 14 See Amended and Restated Certificate of with applicable standards, and oversees extent it becomes aware of possible Incorporation of ISE Holdings, Article FOURTH, regulatory policy determinations, rule violations of the rules of the Exchange, Section III.

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cast on any matter (the ‘‘ISE Holdings pursuant to the procedures set forth in interests of ISE Holdings, its Ownership Restriction’’).15 If any the ISE Holdings Certificate requesting shareholders and the DB U.S. Regulated person, either alone or together with its approval of its voting and ownership of Subsidiaries. related persons, owns shares of ISE ISE Holdings shares in excess of the ISE In addition, neither Holdco, nor any Holdings in excess of the ISE Holdings Holdings Voting Restriction and the ISE of its related persons, is (1) An ISE Ownership Restriction, then the ISE Holdings Ownership Restriction. Member; (2) an EDGA Member; (3) an Holdings board of directors must notify Among other things, in this notice, EDGX Member; or (4) subject to any the ISE Trust and such ISE Holdings Holdco represented to the board of ‘‘statutory disqualification.’’ Ownership Restriction shall result in directors of ISE Holdings that neither it, An extract with the relevant the automatic transfer to the ISE Trust nor any of its related persons, is (1) An provisions of the ISE Holdings Bylaws of a majority of the voting shares then ISE Member; (2) EDGA Member; (3) Amendment is attached as Exhibit 5A to outstanding pro rata from the holders EDGX Member; or (4) subject to any the Proposed Rule Change and can be thereof.16 ‘‘statutory disqualification.’’ found on the Exchange’s Web site and The ISE Holdings board of directors At a meeting duly convened on the Commission’s Web site. may waive the ISE Holdings Voting September 16, 2011, the board of The Exchange hereby requests that the Restriction and the ISE Holdings directors of ISE Holdings adopted the Commission approve the ISE Holdings Ownership Restriction pursuant to an ISE Holdings Bylaws Amendment to Bylaws Amendment and allow Holdco, amendment to the ISE Holdings Bylaws permit Holdco, either alone or together either alone or with its related persons, adopted by the ISE Holdings board of with its related persons, to exceed the to indirectly own 50% of the directors, if in connection with the ISE Holdings Ownership Restriction and outstanding common stock of ISE adoption of such amendment, the board the ISE Holdings Voting Restriction. In Holdings upon and following the of directors in its sole discretion adopts adopting such amendment, the board of consummation of the Combination. a resolution stating that it is the directors of ISE Holdings made the 4. Proposed Amendments to Ownership determination of the board of directors necessary determinations set forth above and Voting Restrictions After the that such amendment: and approved the submission of this Combination • Proposed Rule Change to the Will not impair the ability of ISE Overview Holdings and any of the DB U.S. Commission. The Exchange will Regulated Subsidiaries, or facility continue to operate and regulate its The Exchange is proposing that, thereof, to carry out their respective market and members exactly as it has effective as of the completion of the responsibilities under the Exchange Act done prior to the Combination. Except Combination, the Holdco Articles would and the rules and regulations as set forth in this Proposed Rule contain voting and ownership thereunder; Change, the Exchange is not proposing restrictions that restrict any person, • Is otherwise in the best interest of any amendments to its trading or either alone or together with its related ISE Holdings, its stockholders and the regulatory rules. persons, from having voting control over DB U.S. Regulated Subsidiaries; With respect to the ability of the Holdco shares entitling the holder • Will not impair the Commission’s Commission to enforce the Exchange thereof to cast more than 20% of the ability to enforce the Exchange Act; Act as it applies to the Exchange after votes entitled to be cast on any matter • For so long as ISE Holdings directly the Combination, the Exchange will or beneficially owning Holdco shares or indirectly controls the Exchange, operate in the same manner following representing more than 40% of the 19 neither such person nor any of its the Combination as it operates today. outstanding votes that may be cast on related persons is an ISE Member, Thus, the Commission will continue to any matter (except that a 20% EDGA Member or EDGX Member; and have plenary regulatory authority over ownership restriction would apply to • Neither such person nor any of its the Exchange, as is the case currently any person who is a NYSE Member, an related persons is subject to any with the Exchange. As described in the Amex Member, an ETP Holder, an OTP ‘‘statutory disqualification’’ (as such following sections of this filing, the Holder, an OTP Firm, an ISE Member, term is defined in Section 3(a)(39) of the Exchange is proposing certain an EDGA Member or an EDGX Member). In addition, the Exchange is Exchange Act).17 provisions of the Holdco Articles that proposing that, effective as of the Such amendment shall not be will create an ownership structure that Combination, the voting and ownership effective unless it has been filed with will provide the Commission with appropriate oversight tools to ensure restrictions currently in the Amended and approved by the Commission under and Restated Limited Liability Company Section 19(b) of the Exchange Act 18 and that the Commission will have the ability to enforce the Exchange Act with Operating Agreement of Direct Edge has become effective thereunder. Holdings (‘‘Direct Edge Holdings In order to allow Holdco to indirectly respect to each U.S. Regulated Subsidiary, its direct and indirect parent Operating Agreement’’) would remain in own 50% of the outstanding common effect.20 stock of ISE Holdings upon entities and its directors, officers, consummation of the Combination, employees and agents to the extent they Voting and Ownership Restrictions in Holdco has delivered written notice to are involved in the activities of such Holdco Articles U.S. Regulated Subsidiary. The ISE the board of directors of ISE Holdings Under the Proposed Rule Change, the Holdings board of directors also Holdco Articles would provide that no 15 See Amended and Restated Certificate of determined that ownership of ISE Incorporation of ISE Holdings, Article FOURTH, Holdings by Holdco is in the best 20 The current voting and ownership restrictions Section III. contained in the Direct Edge Holdings Operating 16 See Amended and Restated Certificate of 19 The Exchange has been informed by NYSE Agreement and the ISE Holdings Certificate, as well Incorporation of ISE Holdings, Article FOURTH, Euronext, EDGA [sic] and EDGX that the NYSE U.S. as the related provisions contained in the amended Section III. Regulated Subsidiaries, EDGA [sic] and EDGX, and restated bylaws of U.S. Exchange Holdings and 17 See Amended and Restated Certificate of respectively, are also expected to operate in the the board resolutions of Deutsche Bo¨rse, Eurex Incorporation of ISE Holdings, Article FOURTH, same manner following the Combination as they Frankfurt AG and other indirect parent entities of Section III, and Amended and Restated Bylaws of operate today. This is addressed in the separate the Exchange, would remain in effect. The ISE Trust ISE Holdings, Article XI. proposed rule change filed by each of the NYSE would also remain unaltered and would continue 18 15 U.S.C. 78s(b). Exchanges, EDGA [sic] and EDGX. to have rights to enforce these restrictions.

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person, either alone or together with its suspended for so long as the Holdco extent that they are involved in the related persons, will be entitled to vote Ownership Restriction is exceeded.24 activities of the U.S. Regulated or cause the voting of a number of Pursuant to Section 2:87a of the Dutch Subsidiaries, (x) Holdco’s officers, and shares of Holdco, in person or by proxy Civil Code, the Non-Compliant Owner (y) those of its employees whose or through any voting agreement or may request that an independent expert principal place of business and other arrangement, which represent in be appointed to determine the value of residence is outside the United States, the aggregate (1) More than 20% of the the Holdco shares, but such expert will would be deemed to irrevocably submit then outstanding votes entitled to be have discretion to determine that the to the jurisdiction of the U.S. federal cast on such matter; or (2) more than value of the shares is equal to the price courts and the Commission for the 20% of the then outstanding votes received for the shares by the Non- purposes of any suit, action or entitled to be cast on any such matter Compliant Owner on any stock proceeding pursuant to the U.S. federal by virtue of agreements or arrangements exchange where the Holdco shares are 25 securities laws, and the rules and entered into with other persons to listed. regulations thereunder, commenced or The voting and ownership restrictions refrain from voting shares of Holdco (the initiated by the Commission arising out 21 will apply to each person unless it (1) ‘‘Holdco Voting Restriction’’). The of, or relating to, the activities of the Holdco Articles would provide that Delivers to the Holdco board of directors 29 a written notice of its intention to U.S. Regulated Subsidiaries. The Holdco will be required to disregard any Holdco Articles would also provide votes purported to be cast in excess of acquire voting power or ownership in excess of the relevant limitation, and that, with respect to any such suit, the Holdco Voting Restriction. action, or proceeding brought by the In addition, the Holdco Articles such notice is delivered at least 45 days (or such shorter period as the Holdco Commission, Holdco and its directors, would provide that any person who, officers and employees would (1) Be either alone or together with its related board or directors expressly consents to) prior to acquiring Holdco shares in deemed to agree that NYSE Group may persons, beneficially owns Holdco serve as U.S. agent for purposes of shares which represent in the aggregate excess of the Holdco Voting Restriction service of process in such suit, action, more than 40% of the outstanding votes or Holdco Ownership Restriction, and or proceeding relating to NYSE Group or entitled to be cast on any matter (except (2) obtains a written confirmation from any of its subsidiaries, and ISE Holdings that a 20% restriction would apply to the Holdco board of directors that the may serve as the U.S. agent for any person who is a NYSE Member, an board has expressly resolved to permit proceedings relating to ISE Holdings or Amex Member, an ETP Holder, an OTP such voting or ownership, and (3) such Holder, an OTP Firm, an ISE Member, resolution has been filed with, and any of its subsidiaries; and (2) be an EDGA Member or an EDGX Member) approved by, the Commission under deemed to waive, and agree not to assert (the ‘‘Holdco Ownership Restriction’’), Section 19(b) of the Exchange Act and by way of motion, as a defense or will be obligated to offer for sale and to filed with, and approved by, the otherwise, in any such suit, action, or transfer a number of Holdco shares relevant European regulators having proceeding, any claims that it or they 26 necessary so that such person, together appropriate jurisdiction and authority. are not personally subject to the with its related persons, beneficially The Holdco board of directors may jurisdiction of the Commission, that the owns a number of Holdco shares that waive the Holdco Voting Restriction and suit, action, or proceeding is an complies with the Holdco Ownership Holdco Ownership Restriction if it inconvenient forum or that the venue of Restriction (the ‘‘Holdco Transfer makes certain determinations, which the suit, action, or proceeding is Obligation’’).22 If such person(s) fails to will be consistent with the improper, or that the subject matter comply with the Holdco Transfer determinations currently required to be thereof may not be enforced in or by the Obligation within two weeks, Holdco made by the board of directors of NYSE U.S. federal courts or the Commission.30 Euronext and ISE Holdings in order to will be irrevocably authorized to act on In addition, the Holdco Articles waive the voting and ownership behalf of such person(s) in order to would provide that, so long as Holdco restrictions in the NYSE Euronext ensure compliance with the Holdco directly or indirectly controls any U.S. Certificate and the ISE Holdings Transfer Obligation.23 Regulated Subsidiary, the directors, Certificate, respectively.27 Furthermore, the Holdco Articles officers and employees of Holdco will would provide that in the event any 5. Additional Matters To Be Addressed be deemed to be directors, officers and person, either alone or together with its in the Holdco Articles 28 employees of such U.S. Regulated related persons, exceeds the Holdco Jurisdiction Over Individuals Subsidiaries for purposes of, and subject Ownership Restriction (any such to oversight pursuant to, the Exchange person(s), a ‘‘Non-Compliant Owner’’), Under the Proposed Rule Change, the Act.31 the Non-Compliant Owner would cease Holdco Articles would provide that to have certain rights to the extent that Holdco and its directors, and to the The Holdco Articles would provide its shareholding exceeds the Holdco that Holdco will take reasonable steps Ownership Restriction. Specifically, the 24 See Form of Deed of Amendment to Holdco necessary to cause its directors, officers Non-Compliant Owner’s rights to vote, Articles of Association, Article 35.6. and employees, prior to accepting a 25 See Form of Deed of Amendment to Holdco to attend general meetings of Holdco position as an officer, director or Articles of Association, Article 35.5. employee, as applicable, of Holdco to shareholders and to receive dividends 26 See Form of Deed of Amendment to Holdco or other distributions attached to such Articles of Association, Articles 34.2 and 35.2. agree and consent in writing to the shares in excess of the Holdco 27 See Form of Deed of Amendment to Holdco applicability to them of these Ownership Restriction would be Articles of Association, Articles 34.3 and 35.3. jurisdictional and oversight provisions 28 The Holdco Articles will set forth certain with respect to their activities related to restrictions and requirements relating to Holdco’s 21 See Form of Deed of Amendment to Holdco European subsidiaries and applicable European Articles of Association, Article 34.1. regulatory matters, which will be substantially 29 See Form of Deed of Amendment to Holdco 22 See Form of Deed of Amendment to Holdco consistent with the analogous restrictions and Articles of Association, Article 3.2(c). Articles of Association, Articles 35.1 and 35.4. requirements applicable with respect to Holdco’s 30 See id. 23 See Form of Deed of Amendment to Holdco U.S. Regulated Subsidiaries and U.S. regulatory 31 See Form of Deed of Amendment to Holdco Articles of Association, Article 35.7. matters. Articles of Association, Article 3.2(f).

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any U.S. Regulated Subsidiary.32 The Additional Matters to the Commission or any U.S. 43 Holdco Articles would also provide that Under the Proposed Rule Change, the Regulated Subsidiary. no person may be a director of Holdco Holdco Articles would provide that Additionally, the Holdco Articles unless he or she has agreed and Holdco will comply with the U.S. would provide that, for so long as consented in writing to the applicability federal securities laws and the rules and Holdco directly or indirectly controls to him or her of these jurisdictional and regulations thereunder, and will any U.S. Regulated Subsidiary, Holdco oversight provisions with respect to his cooperate with the Commission and and its directors, officers and employees or her activities related to any U.S. with the U.S. Regulated Subsidiaries will give due regard to the preservation Regulated Subsidiary.33 Furthermore, pursuant to and to the extent of their of the independence of the self- Holdco would sign an irrevocable respective regulatory authority.39 In regulatory function of such U.S. agreement and consent for the benefit of addition, Holdco would be required to Regulated Subsidiary and to its each U.S. Regulated Subsidiary 34 that it take reasonable steps necessary to cause obligations to investors and the general will comply with these provisions in the its agents to cooperate with the public, and will not take any actions Holdco Articles. Commission and, where applicable, the that would interfere with the The Exchange anticipates that the U.S. Regulated Subsidiaries pursuant to effectuation of any decisions by the board of directors or managers of such functions and activities of each U.S. their regulatory authority.40 The Holdco U.S. Regulated Subsidiary relating to its Regulated Subsidiary generally will be Articles would also provide that, in regulatory responsibilities (including carried out by the officers and directors discharging his or her responsibilities as enforcement and disciplinary matters) of such U.S. Regulated Subsidiary, each a member of the Holdco board of or that would interfere with the ability of whom the Commission has direct directors or as an officer or employee of of such U.S. Regulated Subsidiary to authority over pursuant Section 19(h)(4) Holdco, each such director, officer or carry out its responsibilities under the of the Exchange Act.35 employee will (a) Comply with the U.S. Exchange Act.44 Access to Books and Records federal securities laws and the rules and Finally, the Holdco Articles would regulations thereunder; (b) cooperate provide that each director of Holdco Under the Proposed Rule Change, the with the Commission; and (c) cooperate would, in discharging his or her Holdco Articles would provide that for with the U.S. Regulated Subsidiaries responsibilities, to the fullest extent so long as Holdco directly or indirectly pursuant to and to the extent of their permitted by applicable law, take into controls any U.S. Regulated Subsidiary, regulatory authority (but this provision consideration the effect that Holdco’s the books, records and premises of will not create any duty owed by any actions would have on the ability of (a) Holdco will be deemed to be the books, director, officer or employee of Holdco The U.S. Regulated Subsidiaries to carry records and premises of such U.S. to any person to consider, or afford any out their responsibilities under the Regulated Subsidiaries for purposes of, particular weight to, any such matters or Exchange Act; and (b) the U.S. and subject to oversight pursuant to, the to limit his or her consideration to such 36 Regulated Subsidiaries, NYSE Group, Exchange Act. In addition, the Holdco matters).41 ISE Holdings and Holdco to (1) Engage Articles would provide that Holdco’s The Holdco Articles would also in conduct that fosters and does not books and records will at all times be provide that all confidential information interfere with the ability of the U.S. made available for inspection and that comes into the possession of Regulated Subsidiaries, NYSE Group, copying by the Commission, and any Holdco pertaining to the self-regulatory ISE Holdings and Holdco to prevent U.S. Regulated Subsidiary to the extent function of any U.S. Regulated fraudulent and manipulative acts and they are related to the activities of such Subsidiary will (a) Not be made practices in the securities markets; (2) U.S. Regulated Subsidiary or any other available to any persons other than to promote just and equitable principles of U.S. Regulated Subsidiary over which those officers, directors, employees and trade in the securities markets; (3) foster such U.S. Regulated Subsidiary has agents of Holdco that have a reasonable cooperation and coordination with 37 regulatory authority or oversight. In need to know the contents thereof; (b) persons engaged in regulating, clearing, addition, Holdco’s books and records be retained in confidence by Holdco and settling, processing information with related to the U.S. Regulated the officers, directors, employees and respect to, and facilitating transactions Subsidiaries will be maintained within agents of Holdco; and (c) not be used for in securities; (4) remove impediments to the United States, except that to the any commercial purposes.42 In addition, and perfect the mechanisms of a free extent that books and records may relate the Holdco Articles would provide that and open market in securities and a U.S. to both European subsidiaries and U.S. these obligations regarding such national securities market system; and Regulated Subsidiaries, Holdco may confidential information will not be (5) in general, protect investors and the maintain such books and records either interpreted so as to limit or impede (i) public interest.45 This requirement in the home jurisdiction of one or more The rights of the Commission or the would not, however, create any duty European subsidiaries or in the United relevant U.S. Regulated Subsidiary to owed by any director, officer or States.38 have access to and examine such employee of Holdco to any person to confidential information pursuant to the consider, or afford any particular weight 32 See Form of Deed of Amendment to Holdco U.S. federal securities laws and the to, any of the foregoing matters or to Articles of Association, Article 3.2(m). rules and regulations thereunder; or (ii) limit his or her consideration to such 33 See Form of Deed of Amendment to Holdco the ability of any officers, directors, matters.46 Articles of Association, Article 14.11. employees or agents of Holdco to In addition, the Holdco Articles 34 The form of Holdco’s agreement and consent is attached as Exhibit 5C to this Proposed Rule disclose such confidential information would provide that Holdco will take Change. 35 15 U.S.C. 78s(h)(4). 39 See Form of Deed of Amendment to Holdco 43 See id. 36 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(a). 44 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(f). 40 See id. Articles of Association, Article 3.2(i). 37 See Form of Deed of Amendment to Holdco 41 See Form of Deed of Amendment to Holdco 45 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(e). Articles of Association, Article 3.2(l). Articles of Association, Article 3.2(k). 38 See Form of Deed of Amendment to Holdco 42 See Form of Deed of Amendment to Holdco 46 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(g). Articles of Association, Article 3.2(h). Articles of Association, Article 3.2(k).

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reasonable steps necessary to cause its Commission, as the case may be. These fraudulent and manipulative acts and officers, directors and employees, prior requirements would also apply to any practices, to promote just and equitable to accepting a position as an officer, action by Holdco that would have the principles of trade, to foster cooperation director or employee, as applicable, of effect of amending or repealing any and coordination with persons engaged Holdco to agree and consent in writing provision of the Holdco Articles. in regulating, clearing, settling, to the applicability to them of these processing information with respect to, Holdco Director Independence Policy provisions of the Holdco Articles with and facilitating transactions in respect to their activities related to any Under the Proposed Rule Change, securities, to remove impediments to, U.S. Regulated Subsidiary.47 The Holdco would adopt the Holdco and perfect the mechanism of a free and Holdco Articles would also provide that Independence Policy in the form open market and a national market no person may be a director of Holdco attached hereto as Exhibit 5D, which system and, in general, to protect unless he or she has agreed and would be substantially similar to the investors and the public interest. The consented in writing to the applicability current Independence Policy of the Exchange does not expect that the to him or her of these provisions with NYSE Euronext board of directors. The Combination will impact the current respect to his or her activities related to Proposed Rule Change filed by the operations of the Exchange. However, any U.S. Regulated Subsidiary.48 NYSE in connection with the the Exchange believes that by Holdco would also sign an irrevocable Combination describes the Holdco incorporating Holdco’s governance agreement and consent for the benefit of Independence Policy as it relates to the documents as part of the proposed rule each U.S. Regulated Subsidiary that it current Independence Policy of the filing, investors will be better apprised will comply with provisions in the NYSE Euronext board of directors.49 of Holdco’s proposed indirect Holdco Articles regarding (1) 6. Statutory Basis ownership interest in the Exchange. Cooperation with the Commission and such U.S. Regulated Subsidiaries; (2) The Exchange believes that this filing B. Self-Regulatory Organization’s compliance with U.S. federal securities is consistent with Section 6(b) 50 of the Statement on Burden on Competition laws; (3) inspection and copying of Exchange Act in general, and furthers 51 The Exchange does not believe that Holdco’s books, records and premises; the objectives of Section 6(b)(1) in the Proposed Rule Change will impose (4) Holdco’s books, records, premises, particular, in that it enables the any burden on competition that is not officers, directors and employees being Exchange to be so organized as to have necessary or appropriate in furtherance deemed to be those of U.S. Regulated the capacity to be able to carry out the of the purposes of the Exchange Act. Subsidiaries; (5) maintenance of books purposes of the Exchange Act and to and records in the United States; (6) comply, and to enforce compliance by C. Self-Regulatory Organization’s confidentiality of information regarding its exchange members and persons Statement on Comments on the the U.S. Regulated Subsidiaries’ self- associated with its exchange members, Proposed Rule Change Received From regulatory function; (7) preservation of with the provisions of the Exchange Act, Members, Participants or Others the independence of the self-regulatory the rules and regulations thereunder, The Exchange has neither solicited function of the U.S. Regulated and the rules of the Exchange. With nor received written comments on the Subsidiaries; and (8) taking reasonable respect to the ability of the Commission Proposed Rule Change. steps to cause Holdco’s officers, to enforce the Exchange Act as it applies directors and employees to consent to to the Exchange after the Combination, III. Date of Effectiveness of the the applicability to them of the Holdco the Exchange will operate in the same Proposed Rule Change and Timing for Articles. The form of Holdco’s manner following the Combination as it Commission Action operates today. Thus, the Commission agreement and consent is attached as Within 45 days of the date of will continue to have plenary regulatory Exhibit 5C to this Proposed Rule publication of this notice in the Federal authority over the Exchange, as is the Change. Register or within such longer period (i) case currently with the Exchange. The As the Commission may designate up to Amendments to the Holdco Articles Proposed Rule Change is consistent 90 days of such date if it finds such with and will facilitate an ownership Under the Proposed Rule Change, the longer period to be appropriate and structure that will provide the Holdco Articles would provide that, publishes its reasons for so finding or Commission with appropriate oversight before any amendment to or repeal of (ii) as to which the Exchange consents, tools to ensure that the Commission will any provision of the Holdco Articles the Commission shall: (a) By order have the ability to enforce the Exchange may become effectuated by means of a approve or disapprove such proposed Act with respect to each U.S. Regulated notarial deed of amendment, the same rule change, or (b) institute proceedings Subsidiary, its direct and indirect parent will be submitted to the board of to determine whether the proposed rule entities and its directors, officers, directors of each U.S. Regulated change should be disapproved. Subsidiary (or the boards of directors of employees and agents to the extent they their successors) and if any or all of are involved in the activities of such IV. Solicitation of Comments U.S. Regulated Subsidiary. such boards of directors determine that Interested persons are invited to the same must be filed with, or filed The Exchange also believes that this filing furthers the objectives of Section submit written data, views, and with and approved by, the Commission arguments concerning the foregoing, before the same may be effective under 6(b)(5) 52 of the Exchange Act because the Proposed Rule Change summarized including whether the proposed rule Section 19 of the Exchange Act and the change is consistent with the Act. rules promulgated thereunder, then the herein would be consistent with and facilitate a governance and regulatory Comments may be submitted by any of same will not be effective until filed the following methods: with, or filed with and approved by, the structure that is designed to prevent Electronic Comments 49 47 See Form of Deed of Amendment to Holdco See File No. SR–NYSE–2011–51. • Articles of Association, Article 3.2(m). 50 15 U.S.C. 78(f)(b). Use the Commission’s Internet 48 See Form of Deed of Amendment to Holdco 51 15 U.S.C. 78(f)(b)(1). comment form (http://www.sec.gov/ Articles of Association, Article 14.11. 52 15 U.S.C. 78(f)(b)(5). rules/sro.shtml); or

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• Send an e-mail to rule- SECURITIES AND EXCHANGE Regulation, NYSE Arca LLC and NYSE [email protected]. Please include File COMMISSION Arca Equities, the ‘‘NYSE U.S. Number SR–EDGA–2011–34 on the Regulated Subsidiaries’’ and each, an [Release No. 34–65563; File No. SR– subject line. NYSEAMEX–2011–78] ‘‘NYSE U.S. Regulated Subsidiary’’). The Exchange and NYSE Arca will be Paper Comments Self-Regulatory Organizations; NYSE separately filing a proposed rule change • Send paper comments in triplicate Amex LLC; Notice of Filing of in connection with the Combination that will be substantially the same as the to Elizabeth M. Murphy, Secretary, Proposed Rule Change Relating to a Proposed Rule Change. Securities and Exchange Commission, Corporate Transaction in Which Its 100 F Street, NE., Washington, DC Indirect Parent, NYSE Euronext, Will Deutsche Bo¨rse indirectly owns 50% 20549–1090. Become a Wholly Owned Subsidiary of of the equity interest of International Alpha Beta Netherlands Holding N.V. Securities Exchange Holdings, Inc. (‘‘ISE All submissions should refer to File Holdings’’), which in turn holds 100% Number SR–EDGA–2011–34. This file October 14, 2011. of the equity interest of International 1 number should be included on the Pursuant to Section 19(b)(1) of the Securities Exchange, LLC (‘‘ISE’’), a subject line if e-mail is used. To help the Securities Exchange Act of 1934 (the registered national securities exchange Commission process and review your ‘‘Exchange Act’’), and Rule 19b–4 and self-regulatory organization. ISE 2 comments more efficiently, please use thereunder, notice is hereby given that Holdings also holds 31.54% of the only one method. The Commission will on October 12, 2011, NYSE Amex LLC equity interest of Direct Edge Holdings, post all comments on the Commission’s (the ‘‘NYSE Amex’’) filed with the LLC (‘‘Direct Edge Holdings’’), which in Securities and Exchange Commission Internet Web site (http://www.sec.gov/ turn indirectly holds 100% of the equity (the ‘‘Commission’’) the proposed rule rules/sro.shtml). Copies of the interest of two registered national change as described in Items I and II submission, all subsequent securities exchanges and self-regulatory below, which items have been prepared amendments, all written statements organizations—EDGA Exchange, Inc. by NYSE Amex. The Commission is (‘‘EDGA’’) and EDGX Exchange, Inc. with respect to the proposed rule publishing this notice to solicit change that are filed with the (‘‘EDGX’’) (each of ISE, EDGA and comments on the proposed rule change EDGX, a ‘‘DB Exchange’’ and a ‘‘DB U.S. Commission, and all written from interested persons. communications relating to the Regulated Subsidiary’’ and together, the proposed rule change between the I. Self-Regulatory Organization’s ‘‘DB Exchanges’’ and the ‘‘DB U.S. Regulated Subsidiaries’’). The DB Commission and any person, other than Statement of the Terms of Substance of Exchanges will be separately filing a those that may be withheld from the the Proposed Rule Change proposed rule change in connection public in accordance with the A. Overview of the Proposed with the Combination. provisions of 5 U.S.C. 552, will be Combination If the Combination is completed, the available for Web site viewing and NYSE Amex, a Delaware limited printing in the Commission’s Public businesses of NYSE Euronext and liability company, registered national Deutsche Bo¨rse, including the NYSE Reference Room, 100 F Street, NE., securities exchange and self-regulatory Washington, DC 20549, on official U.S. Regulated Subsidiaries and the DB organization, is submitting this rule U.S. Regulated Subsidiaries (together, business days between the hours of filing (the ‘‘Proposed Rule Change’’) to the ‘‘U.S. Regulated Subsidiaries’’ and 10 a.m. and 3 p.m. Copies of such filing the Commission in connection with the each, a ‘‘U.S. Regulated Subsidiary’’), also will be available for inspection and proposed business combination (the will be held under a single, publicly copying at the principal office of the ‘‘Combination’’) of NYSE Euronext, a traded holding company organized Exchange. All comments received will Delaware corporation, and Deutsche under the laws of the Netherlands be posted without change; the Bo¨rse AG, an Aktiengesellschaft (‘‘Holdco’’).3 The Proposed Rule Commission does not edit personal organized under the laws of the Federal Change, if approved by the Commission, identifying information from Republic of Germany (‘‘Deutsche will not be operative until the submissions. You should submit only Bo¨rse’’). consummation of the Combination. information that you wish to make NYSE Euronext owns 100% of the available publicly. All submissions equity interest of NYSE Group, Inc., a B. Summary of Proposed Rule Change should refer to File Number SR–EDGA– Delaware corporation (‘‘NYSE Group’’), which in turn directly or indirectly NYSE Amex is proposing that, 2011–34 and should be submitted on or pursuant to the Combination, its before November 10, 2011. owns (1) 100% of the equity interest of three registered national securities indirect parent, NYSE Euronext, will For the Commission, by the Division of exchanges and self-regulatory become a wholly owned subsidiary of Trading and Markets, pursuant to delegated organizations (together, the ‘‘NYSE Holdco. In addition, NYSE Amex is 53 authority. Exchanges’’)—NYSE Amex, NYSE Arca, proposing that, in connection with the Elizabeth M. Murphy, Inc. (‘‘NYSE Arca’’) and New York Stock Combination, the Commission approve certain amendments to the Secretary. Exchange LLC (‘‘Exchange’’)—and (2) 100% of the equity interest of NYSE organizational and other governance [FR Doc. 2011–27193 Filed 10–19–11; 8:45 am] documents of Holdco, NYSE Euronext, BILLING CODE 8011–01–P Market, Inc. (‘‘NYSE Market’’), NYSE Regulation, Inc. (‘‘NYSE Regulation’’), NYSE Group and certain of the NYSE NYSE Arca L.L.C. (‘‘NYSE Arca LLC’’) U.S. Regulated Subsidiaries as well as and NYSE Arca Equities, Inc. (‘‘NYSE certain rules of the Exchange, NYSE Arca Equities’’) (the NYSE Exchanges, together with NYSE Market, NYSE 3 Holdco is currently named ‘‘Alpha Beta Netherlands Holding N.V.,’’ but it is expected that Holdco will be renamed prior to the completion of 1 15 U.S.C. 78s(b)(1). the Combination to a name agreen between NYSE 53 17 CFR 200.30–3(a)(12). 2 17 CFR 240.19b–4. Euronext and Deutsche Bo¨rse.

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Amex and NYSE Arca Equities.4 The • Proposed Amendments to Voting to NYSE Amex in order to waive the Proposed Rule Change is summarized as and Ownership Restrictions of NYSE voting and ownership restrictions to the follows: Euronext. Because NYSE Euronext NYSE Euronext Certificate, and delete • Proposed Approval of Waiver of would become a wholly owned this provision from the NYSE Euronext Ownership and Voting Restrictions of subsidiary of Holdco as a result of the Bylaws; (d) update the names of certain NYSE Euronext. The Amended and Combination, NYSE Amex is proposing European regulatory entities in the Restated Certificate of Incorporation of to amend the voting and ownership definition of ‘‘European Regulator’’ (as NYSE Euronext (the ‘‘NYSE Euronext restrictions in the NYSE Euronext currently defined in the NYSE Euronext Certificate’’) currently restricts any Certificate to be consistent with the Certificate and the NYSE Euronext person, either alone or together with its analogous provisions in the Second Bylaws); and (e) expand the definition related persons, from being entitled to Amended and Restated Certificate of of ‘‘Related Persons’’ to address Amex vote or cause the voting of shares to the Incorporation of NYSE Group (the Members in a manner that is extent that such shares represent in the ‘‘NYSE Group Certificate’’): (1) first, the substantively consistent with provisions aggregate more than 10% of the NYSE Euronext Certificate would be currently located in the NYSE Rules. outstanding votes entitled to be cast on amended to provide that all of the • Proposed Amendments to Voting any matter or beneficially owning shares issued and outstanding shares of NYSE and Ownership Restrictions of NYSE of stock of NYSE Euronext representing Euronext will be held by Holdco, and Group. The NYSE Group Certificate in the aggregate more than 20% of the that Holdco may not transfer or assign currently provides that, if NYSE outstanding votes entitled to be cast on any shares without approval by the Euronext and the trust 10 established any matter.5 NYSE Euronext is required Commission under the Exchange Act pursuant to the Trust Agreement, dated to disregard votes which are in excess and the relevant European Regulators as of April 4, 2007, by and among NYSE of the voting restriction and to under the applicable European Euronext, NYSE Group and the other repurchase NYSE Euronext shares that Exchange Regulations (as defined in the parties thereto, do not hold 100% of the are held in excess of the ownership NYSE Euronext Certificate); 8 and (2) outstanding stock of NYSE Group, no restriction. The NYSE Euronext second, the NYSE Euronext Certificate person, either alone or together with its Certificate and the Amended and would be amended to provide that the related persons, may be entitled to vote Restated Bylaws of NYSE Euronext (the voting and ownership restrictions or cause the voting of shares to the ‘‘NYSE Euronext Bylaws’’) provide that contained therein would only apply in extent that such shares represent in the the board of directors of NYSE Euronext the event that Holdco does not own all aggregate more than 10% of the may waive these voting and ownership of the issued and outstanding shares of outstanding votes entitled to be cast on restrictions if it makes certain NYSE Euronext and only for so long as any matter or beneficially own shares of determinations and resolves to NYSE Euronext directly or indirectly stock of NYSE Group representing in the expressly permit the voting and controls any U.S. Regulated Subsidiary aggregate more than 20% of the or any European Market Subsidiary (as outstanding votes entitled to be cast on ownership that is subject to such 11 restrictions, and such resolutions have such terms are defined in the NYSE any matter. NYSE Group is required to been filed with, and approved by, the Euronext Certificate).9 In addition, the disregard votes which are in excess of Commission under Section 19(b) of the voting and ownership restrictions in the the voting restriction and to repurchase 6 NYSE Euronext Certificate would be NYSE Group shares which are held in Exchange Act and filed with, and 12 approved by, each European Regulator amended to (a) Change the 10% excess of the ownership restriction. Under the Proposed Rule Change, the (as defined in the NYSE Euronext threshold for the voting restriction to a voting and ownership restrictions in the Certificate) having appropriate 20% threshold; (b) change the 20% NYSE Group Certificate would be jurisdiction and authority.7 Acting threshold for the ownership restriction amended to (1) Change the 10% pursuant to this waiver provision, the to a 40% restriction (except that a 20% threshold for the voting restriction to a board of directors of NYSE Euronext has ownership restriction would continue to 20% threshold; (2) change the 20% adopted the resolutions set forth in apply to any person who is, or with threshold for the ownership restriction Exhibit 5A (the ‘‘NYSE Euronext respect to whom a related person is, (A) to a 40% restriction (except that a 20% Resolutions’’) in order to permit Holdco A Member of the Exchange, as defined ownership restriction would continue to to own and vote 100% of the in the NYSE Euronext Certificate (a apply to any person who is, or with outstanding common stock of NYSE ‘‘NYSE Member’’), (B) a Member of respect to whom a related person is, a Euronext as of and after the NYSE Amex as defined in the current NYSE Member, an Amex Member, an Combination. NYSE Amex is requesting NYSE Euronext Bylaws (including any ETP Holder or an OTP Holder or OTP approval by the Commission of the person who is a related person of such Firm); (3) provide that the ownership NYSE Euronext Resolutions in order to member, an ‘‘Amex Member’’), (C) an and voting limitations would apply only allow the Combination to take place. ETP Holder of NYSE Arca Equities, as defined in the NYSE Euronext for so long as NYSE Group directly or indirectly controls any Regulated 4 Proposed amendments to the governance Certificate (an ‘‘ETP Holder’’), or (D) an documents and/or rules of NYSE Amex and NYSE OTP Holder or OTP Firm of NYSE Arca, Subsidiary (as defined in the NYSE Arca Equities are included in this Proposed Rule as defined in the NYSE Euronext Change, and the text of those proposed amendments Certificate (an ‘‘OTP Holder’’ and ‘‘OTP 10 No changes are being proposed to the current are attached as exhibits to this Proposed Rule Delaware trust and stichting for ‘‘regulatory Change, because they are part of the overall set of Firm,’’ respectively)); (c) add the overspill’’ matters, except that references to the changes proposed by the NYSE Exchanges to be provision, which is currently in the Nominating and Governance Committee of NYSE made in connection with the Combination. NYSE Euronext Bylaws, that requires Euronext would be replaced with references to the 5 See Amended and Restated Certificate of the board of directors of NYSE Euronext Holdco Nominating, Governance and Corporate Incorporation of NYSE Euronext, Article V Sections Responsibility Committee. 1 & 2. to make certain determinations relating 11 See Second Amended and Restated Certificate 6 15 U.S.C. 78s(b). of Incorporation of NYSE Group, Inc., Article IV 7 See Amended and Restated Certificate of 8 The analogous provision in the NYSE Group Section 4(b)(1) & (2). Incorporation of NYSE Euronext, Article V Sections Certificate is Section 4(a) of Article IV. 12 See Second Amended and Restated Certificate 1 & 2, and Amended and Restated Bylaws of NYSE 9 The analogous provision in the NYSE Group of Incorporation of NYSE Group, Inc., Article IV Euronext, Section 10.12. Certificate is Section 4(b) of Article IV. Sections 4(b)(1)(A) & 4(b)(2)(D).

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Group Certificate); and (4) expand the Amended and Restated Bylaws of NYSE Under the Proposed Rule Change, definition of ‘‘Related Persons’’ Market 14 and the Third Amended and Holdco would take appropriate steps to regarding Amex Members so that it is Restated Bylaws of NYSE Regulation.15 incorporate voting and ownership consistent with the language in the • Proposed Amendments to the NYSE restrictions, requirements relating to NYSE Rules, which language will be Group Certificate and NYSE Group submission to jurisdiction, access to incorporated in the NYSE Euronext Bylaws. Under the Proposed Rule books and records and other Certificate pursuant to this Proposed Change, the NYSE Group Certificate and requirements related to its control of the Rule Change. the NYSE Group Bylaws would be U.S. Regulated Subsidiaries. • Proposed Amendments to Certain amended in order to (1) conform certain Specifically, the Articles of Association Public-Company-Related and Other provisions to analogous provisions of of Holdco in effect as of the completion Provisions of NYSE Euronext the organizational documents of NYSE of the Combination (the ‘‘Holdco Organizational and Corporate Euronext, which will likewise be a Articles’’) would contain provisions 16 Governance Documents. Under the wholly owned subsidiary of Holdco to incorporate these concepts with Proposed Rule Change, in light of the following completion of the respect to itself, as well as its directors, fact that NYSE Euronext would become Combination; and (2) make certain officers, employees and agents (as a wholly owned subsidiary of Holdco clarification and technical edits (for applicable): following completion of the example, to conform the use of defined • Voting and Ownership Restrictions Combination, the NYSE Euronext terms and other provisions to be in the Holdco Articles. The Holdco Certificate and the NYSE Euronext consistent with the other amendments Articles would contain voting and Bylaws would be amended to (1) to the NYSE Group Certificate and the ownership restrictions that will restrict Simplify and provide for a more NYSE Group Bylaws set forth in this any person, either alone or together with efficient governance and capital Proposed Rule Change). its related persons, from having voting structure that is appropriate for a wholly • Proposed Amendments to the control over Holdco shares entitling the owned subsidiary; (2) conform certain Exchange Rules, NYSE Amex Rules and holder thereof to cast more than 20% of provisions to analogous provisions of NYSE Arca Equities Rules. Under the the then outstanding votes entitled to be the organizational documents of NYSE Proposed Rule Change, certain technical cast on a matter or beneficially owning Group, which will likewise be an amendments would be made to the rules Holdco shares representing more than indirect wholly owned subsidiary of of the Exchange (the ‘‘Exchange Rules’’) 40% of the outstanding votes entitled to Holdco following completion of the to (1) replace references therein to be cast on a matter (except that a 20% Combination; and (3) make certain ‘‘NYSE Euronext’’ with references to ownership restriction would apply to clarification and technical edits (for Holdco; and (2) delete the definitions of any person who is a NYSE Member, an example, to conform the use of defined ‘‘member’’ and ‘‘member organization’’ Amex Member, an ETP Holder, an OTP terms and other provisions, and to relating to NYSE Amex which are set Holder or OTP Firm, a Member (as such update cross-references to sections, forth in Rule 2 for purposes of Section term is defined in Section 3(a)(3)(A) of consistent with the other amendments 1(L) of Article 5 of the NYSE Euronext the Exchange Act) of ISE (an ‘‘ISE to the NYSE Euronext Certificate and Certificate, because the Proposed Rule Member’’), or a member of EDGA or the NYSE Euronext Bylaws set forth in Change will revise the NYSE Euronext EDGX (as such terms are defined in the this Proposed Rule Change). In addition, Certificate to include analogous rules of EDGA and EDGX, respectively, the current Independence Policy of the language relating to NYSE Amex an ‘‘EDGA Member’’ and ‘‘EDGX NYSE Euronext board of directors Members. In addition, certain technical Member,’’ respectively)). The Holdco would cease to be in effect. Articles would provide that Holdco will • amendments would be made to the rules Proposed Amendments to Board of NYSE Amex (the ‘‘NYSE Amex be required to disregard any votes Composition Requirements for the Rules’’) and to the rules of NYSE Arca purported to be cast in excess of the Exchange, NYSE Amex, NYSE Market Equities (the ‘‘NYSE Arca Equities voting restriction. In the event that any and NYSE Regulation. Under the Rules’’) to replace references therein to such person(s) exceeds the ownership Proposed Rule Change, certain ‘‘NYSE Euronext’’ with references to restriction, it will be required to offer for provisions of the Third Amended and Holdco. sale and transfer the number of Holdco Restated Operating Agreement, dated as The text of the proposed amended shares required to comply with the of April 1, 2009, of the Exchange (the NYSE Euronext Certificate, NYSE ownership restriction, and the rights to ‘‘Exchange Operating Agreement’’) Euronext Bylaws, NYSE Group vote, attend general meetings of Holdco relating to the composition of the Certificate, NYSE Group Bylaws, shareholders and receive dividends or Exchange’s board of directors would be Exchange Operating Agreement, other distributions attached to shares amended, including to provide that the Amended and Restated Operating held in excess of the 40% threshold (or independent directors of the Exchange Agreement of NYSE Amex, Amended 20% threshold, if applicable) will be would perform certain functions and Restated Bylaws of NYSE Market, suspended for so long as such threshold currently allocated to the NYSE Third Amended and Restated Bylaws of is exceeded. If such person(s) fails to Euronext nominating and governance NYSE Regulation, Exchange Rules, form comply with the transfer obligation committee and that the Exchange’s of Director Independence Policy for within two weeks, then the Holdco board of directors would have its own certain NYSE U.S. Regulated Articles would provide that Holdco will director independence policy, instead of Subsidiaries, NYSE Amex Rules and be irrevocably authorized to take actions referring to the director independence NYSE Arca Equities Rules are attached on behalf of such person(s) in order to policy of NYSE Euronext. Substantially to the Proposed Rule Change as Exhibits cause it to comply with such the same revisions would be made to 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, obligations. Consistent with the current the analogous provisions of the 5P and 5Q, respectively. NYSE Euronext Certificate, the Holdco Amended and Restated Operating board of directors may waive the voting 13 Agreement of NYSE Amex, the 14 See Amended and Restated Bylaws of NYSE and ownership restrictions if it makes Market, Inc., Article III Section 1. 13 See Amended and Restated Operating 15 See Third Amended and Restated Bylaws of 16 The text of the proposed Holdco Articles is Agreement of NYSE Amex LLC, Section 2.03(a). NYSE Regulation, Inc., Article III Section. 1. attached to the Proposed Rule Change as Exhibit 5L.

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certain determinations (which will be as Holdco directly or indirectly controls unless he or she has agreed and subject to the same requirements which any U.S. Regulated Subsidiary, the consented in writing to the applicability are currently required to be made by the books, records and premises of Holdco to him or her of these provisions with board of directors of NYSE Euronext will be deemed to be the books, records respect to his or her activities related to and ISE Holdings in order to waive the and premises of such U.S. Regulated any U.S. Regulated Subsidiary. Holdco voting and ownership restrictions in the Subsidiaries for purposes of, and subject will sign an irrevocable agreement and current NYSE Euronext Certificate and to oversight pursuant to, the Exchange consent for the benefit of each U.S. the Certificate of Incorporation of ISE Act, and that Holdco’s books and Regulated Subsidiary 17 that it will Holdings (the ‘‘ISE Certificate’’), as records will at all times be made comply with these provisions of the applicable) and resolves to expressly available for inspection and copying by Holdco Articles.18 permit the voting and ownership that is the Commission, and by any U.S. In addition, Holdco would adopt a subject to such restrictions, and such Regulated Subsidiary to the extent they Director Independence Policy in the resolutions have been filed with, and are related to the activities of such U.S. form attached hereto as Exhibit 5N (the approved by, the Commission under Regulated Subsidiary or any other U.S. ‘‘Holdco Independence Policy’’), which Section 19(b) of the Exchange Act and Regulated Subsidiary over which such would be substantially similar to the filed with, and approved by, the U.S. Regulated Subsidiary has current Independence Policy of the relevant European Regulators having regulatory authority or oversight. In NYSE Euronext board of directors, appropriate jurisdiction and authority. addition, Holdco’s books and records except for certain changes described in • Jurisdiction. The Holdco Articles related to the U.S. Regulated this Proposed Rule Change. will provide that Holdco and its Subsidiaries will be maintained within The text of the Proposed Rule Change directors, and to the extent they are the United States, except that to the is available at NYSE Amex, the involved in the activities of the U.S. extent that books and records may relate Commission’s Public Reference Room, Regulated Subsidiaries, (x) Holdco’s to both European subsidiaries and U.S. and on the website of NYSE Euronext officers, and (y) those of its employees Regulated Subsidiaries, Holdco may (http://www.nyse.com). The text of whose principal place of business and maintain such books and records either Exhibits 5A through 5Q of the Proposed residence is outside the United States, in the home jurisdiction of one or more Rule Change are also available on the will be deemed to irrevocably submit to European subsidiaries or in the United NYSE Euronext website and on the the jurisdiction of the U.S. federal States. Commission’s website (http:// courts and the Commission for the • Amendments to Holdco Articles. www.sec.gov/rules/sro.shtml). purposes of any suit, action or The Holdco Articles would provide that Other than as described herein and set proceeding pursuant to the U.S. federal before any amendment to the Holdco forth in the attached Exhibits 5A securities laws and the rules or Articles may be effectuated by execution through 5Q, NYSE Amex will continue regulations thereunder, arising out of, or of a notarial deed of amendment, such to conduct its regulated activities in the relating to, the activities of the U.S. amendment would need to be submitted manner currently conducted and will Regulated Subsidiaries. In addition, the to the board of directors of each U.S. not make any changes to its regulated Holdco Articles would provide that so Regulated Subsidiary and, if so activities in connection with the long as Holdco directly or indirectly determined by any such board, would Combination. If NYSE Amex determines controls any U.S. Regulated Subsidiary, need to be filed with, or filed with and to make any such changes, it will seek the directors, officers and employees approved by, the Commission before approval of the Commission. will be deemed to be directors, officers such amendment may become effective. II. Self-Regulatory Organization’s and employees of such U.S. Regulated • Additional Matters. The Holdco Statement of the Purpose of, and Subsidiaries for purposes of, and subject Articles would include provisions Statutory Basis for, the Proposed Rule to oversight pursuant to, the Exchange regarding cooperation with the Change Act. The Holdco Articles would provide Commission and the U.S. Regulated that Holdco will take reasonable steps Subsidiaries, compliance with U.S. In its filing with the Commission, necessary to cause its officers, directors federal securities laws, confidentiality NYSE Amex has included statements and employees, prior to accepting a of information regarding the U.S. concerning the purpose of, and basis for, position as an officer, director or Regulated Subsidiaries’ self-regulatory the Proposed Rule Change. The text of employee, as applicable, to agree and function, preservation of the these statements may be examined at consent in writing to the applicability to independence of the U.S. Regulated the places specified in Item IV below. them of these jurisdictional and Subsidiaries’ self-regulatory function, NYSE Amex has prepared summaries, oversight provisions with respect to and directors’ consideration of the effect set forth in Sections A, B and C below, their activities related to any U.S. of Holdco’s actions on the U.S. of the most significant aspects of such Regulated Subsidiary. Furthermore, the Regulated Subsidiaries’ ability to carry statements. out their respective responsibilities Holdco Articles would provide that no A. Purpose [sic] person may be a director of Holdco under the Exchange Act. In addition, the unless he or she has agreed and Holdco Articles would provide that The purpose of this rule filing is to consented in writing to the applicability Holdco will take reasonable steps adopt the rules necessary to permit to him or her of these jurisdictional and necessary to cause its officers, directors NYSE Euronext to effect the oversight provisions with respect to his and employees, prior to accepting a or her activities related to any U.S. position as an officer, director or 17 The form of Holdco’s agreement and consent is employee, as applicable, of Holdco to attached as Exhibit 5M to this Proposed Rule Regulated Subsidiary. Holdco would Change. sign an irrevocable agreement and agree and consent in writing to the 18 The Holdco Articles will also set forth certain consent for the benefit of each U.S. applicability to them of these provisions restrictions and requirements relating to Holdco’s Regulated Subsidiary that it will comply of the Holdco Articles with respect to European subsidiaries and applicable European with these provisions of the Holdco their activities related to any U.S. regulatory matters, which will be substantially Articles. Regulated Subsidiary. The Holdco consistent with the analogous restrictions and • requirements applicable with respect to Holdco’s Books and Records. The Holdco Articles would also provide that no U.S. Regulated Subsidiaries and U.S. regulatory Articles would provide that for so long person may be a director of Holdco matters.

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Combination and to amend certain terms and conditions set forth in the world-class services to global and local provisions of the organizational and Combination Agreement and in customers worldwide. Following the other governance documents of NYSE compliance with applicable law, Holdco Combination, Holdco and its Euronext, NYSE Group and certain of has conducted a public exchange offer subsidiaries (together, the ‘‘Holdco the NYSE U.S. Regulated Subsidiaries, (the ‘‘Exchange Offer’’), in which Group’’) expect to serve as a benchmark including certain Exchange Rules, NYSE shareholders of Deutsche Bo¨rse have regulatory model, facilitating Amex Rules and NYSE Arca Equities been afforded the opportunity to tender transparency and harmonization of Rules. each share of Deutsche Bo¨rse for one capital markets globally, while ordinary share of Holdco (each, a 1. Overview of the Combination continuing to operate all national ‘‘Holdco Share’’). exchanges under local regulatory NYSE Amex is submitting this Immediately after the time that frameworks and their respective brand Proposed Rule Change to the Holdco accepts for exchange, and names. Commission in connection with the exchanges, the Deutsche Bo¨rse shares Combination of NYSE Euronext and that are validly tendered and not 2. Overview of the Holdco Group Deutsche Bo¨rse. The Combination will withdrawn in the Exchange Offer, Following the Combination create a holding company, Holdco, Merger Sub will merge with and into Following the Combination, Holdco which will hold the businesses of NYSE NYSE Euronext, as a result of which will be a for-profit, publicly traded Euronext and Deutsche Bo¨rse. NYSE Euronext will become a wholly corporation formed under the laws of Following the Combination, each of owned subsidiary of Holdco (the the Netherlands and will act as the NYSE Euronext and Deutsche Bo¨rse will ‘‘Merger’’). In the Merger, each holding company for the businesses of be a separate subsidiary of Holdco. outstanding share of NYSE Euronext NYSE Euronext and Deutsche Bo¨rse. Holdco expects the Combination will common stock will be converted into Holdco will hold all of the equity create a group that will be both a world the right to receive 0.47 of a fully paid interests in NYSE Euronext, which leader in derivatives and risk and non-assessable Holdco Share. NYSE holds (1) 100% of the equity interest of management and the premier global Euronext’s obligation to complete the NYSE Group (which, in turn, directly or venue for capital raising, with a truly Merger is subject to the completion of indirectly holds 100% of the equity global franchise and presence in many the Exchange Offer and the acquisition interests of the NYSE U.S. Regulated of the world’s financial centers by Holdco of all of the Deutsche Bo¨rse Subsidiaries) and (2) 100% of the equity including New York, London, Frankfurt, shares validly tendered and not interest of Euronext N.V. (which, in Paris and Luxembourg. This global withdrawn in the Exchange Offer. The turn, directly or indirectly holds 100% presence should facilitate providing completion of the Exchange Offer (and, of the equity interests of trading markets world-class services to global and local therefore, the completion of the Merger) in Belgium, France, the Netherlands, customers worldwide. is subject to the satisfaction of a number Other than as described herein, Portugal and the United Kingdom). of conditions, including that Deutsche Holdco will also hold a majority of the Holdco and the NYSE Exchanges will Bo¨rse shares representing at least 75% equity interests in Deutsche Bo¨rse, not make any changes to the regulated of the Deutsche Bo¨rse shares which indirectly holds 50% of the activities of the NYSE U.S. Regulated outstanding, on a fully diluted basis, equity interest of ISE Holdings (which, Subsidiaries in connection with the must be validly tendered and not in turn, holds (1) 100% of the equity Combination, and, other than as withdrawn in the Exchange Offer, and interest of ISE and (2) 31.54% of the described in the separate proposed rule that holders of a majority of the equity interest of Direct Edge Holdings). changes filed by each of the DB outstanding shares of NYSE Euronext Direct Edge Holdings indirectly holds Exchanges in connection with the shall have adopted the Combination 100% of the equity interest of EDGA Combination, Holdco and the DB Agreement. Both of these conditions and EDGX. Holdco intends to list its Exchanges will not make any changes to have been satisfied. the regulated activities of the DB U.S. Following the completion of the ordinary shares on the New York Stock Regulated Subsidiaries in connection Exchange Offer, and depending on the Exchange, the Frankfurt Stock Exchange with the Combination. If Holdco percentage of Deutsche Bo¨rse shares and Euronext Paris. The Holdco Group determines to make any such changes to acquired by Holdco in the Exchange will have dual headquarters in Frankfurt the regulated activities of any U.S. Offer, Deutsche Bo¨rse and Holdco and New York. Regulated Subsidiary, it will seek the intend to complete a post-completion After the Combination, NYSE Group approval of the Commission. The reorganization pursuant to which will continue to be directly wholly Proposed Rule Change, if approved by Holdco will enter into a domination owned by NYSE Euronext and will the Commission, will not be operative agreement, or a combination of a continue to directly or indirectly own until the consummation of the domination agreement and a profit and the three NYSE Exchanges—the Combination. loss transfer agreement, pursuant to Exchange, NYSE Arca and NYSE The Combination will occur pursuant which the remaining shareholders of Amex—which provide marketplaces to the terms of the Business Deutsche Bo¨rse will have limited rights, where investors buy and sell listed Combination Agreement, dated as of including a limited ability to participate companies’ common stock and other February 15, 2011, as amended by in the profits of Deutsche Bo¨rse. securities as well as equity options and Amendment No. 1 dated as of May 2, Holdco expects the Combination will securities traded on the basis of unlisted 2011 and by Amendment No. 2 dated as create a group that will be both a world trading privileges. NYSE Regulation, of June 16, 2011 (as it may be further leader in derivatives and risk Inc., an indirect not-for-profit subsidiary amended from time to time, the management and the premier global of NYSE Group, oversees FINRA’s ‘‘Combination Agreement’’), by and venue for capital raising, with a truly performance of certain market among NYSE Euronext, Deutsche Bo¨rse, global franchise and presence in many surveillance and enforcement functions Holdco and Pomme Merger Corporation, of the world’s financial centers for NYSE Euronext’s U.S. securities a Delaware corporation and newly including New York, London, Frankfurt, exchanges, enforces listed company formed wholly owned subsidiary of Paris and Luxembourg. This global compliance with applicable standards, Holdco (‘‘Merger Sub’’). Subject to the presence should facilitate providing and oversees regulatory policy

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determinations, rule interpretation and Holdings’’), will remain a wholly owned cast on any such matter by virtue of regulation related rule development. subsidiary of NYSE Group and indirect agreements or arrangements entered into In Europe, NYSE Euronext, Deutsche wholly owned subsidiary of NYSE with other persons to refrain from Bo¨rse and their respective subsidiaries Euronext. voting shares of stock of NYSE Euronext own several European exchanges, • NYSE Arca Holdings, Inc., a (the ‘‘NYSE Euronext Voting including trading operations on Delaware corporation (‘‘NYSE Arca Restriction’’).20 NYSE Euronext must regulated and non-regulated markets for Holdings’’), and NYSE Arca, L.L.C., a disregard any votes purposed to be cast cash products in Germany, France, Delaware limited liability company in excess of the NYSE Euronext Voting Belgium, the Netherlands, and Portugal (‘‘NYSE Arca LLC’’), will remain wholly Restriction.21 and derivatives in the United Kingdom owned subsidiaries of Arca Holdings. In addition, the NYSE Euronext and in the five above-mentioned • NYSE Arca will remain a wholly Certificate provides that no person, locations. As a result, the activities of owned subsidiary of NYSE Arca either alone or together with its related the NYSE Euronext and Deutsche Bo¨rse Holdings. persons, may at any time beneficially European markets are or may be subject • NYSE Arca Equities, a Delaware own shares of NYSE Euronext to the jurisdiction and authority of a corporation, will remain a wholly representing in the aggregate more than number of European regulators, owned subsidiary of NYSE Arca. 20% of the then outstanding votes • including the German Federal Financial NYSE Amex will remain a direct entitled to be cast on any matter (the Supervisory Authority (Bundesanstalt wholly owned subsidiary of NYSE ‘‘NYSE Euronext Ownership fu¨ r Finanzdienstleistungsaufsicht), the Group and an indirectly wholly owned Restriction’’).22 If any person, either subsidiary of NYSE Euronext. alone or together with its related Hessian Exchange Supervisory • Authority, the Dutch Minister of The Combination will have no persons, owns shares of NYSE Euronext Finance, the French Minister of the effect on the ability of any party to trade in excess of the NYSE Euronext Economy, the French Financial Market securities on the Exchange, NYSE Arca Ownership Restriction, then such Authority (Autorite´ des Marche´s or NYSE Amex. person and its related persons are Similarly, Deutsche Bo¨rse and its Financiers), the French Prudential obligated to sell promptly, and NYSE subsidiaries, and NYSE Euronext and its Supervisory Authority (Autorite´ de Euronext is obligated to purchase subsidiaries, will continue to conduct Controˆ le Prudentiel), the Netherlands promptly, at a price equal to the par their regulated activities in the same Authority for the Financial Markets value of such shares and to the extent manner as they are currently conducted, (Autoriteit Financie¨le Markten), the funds are legally available for such with any changes subject to the relevant Belgian Financial Services and Markets purchase, the number of shares of NYSE approvals of their respective European Authority (Autorite´ des Services et Euronext necessary so that such person, regulators and, in the case of the U.S. Marche´s Financiers), the Portuguese together with its related persons, will Regulated Subsidiaries, with any Securities Market Commission beneficially own shares of NYSE changes subject to the approval of the (Comissa˜ o do Mercado de Valores Euronext representing in the aggregate Commission. Mobilia´ rios—CMVM) and the U.K. no more than 20% of the then Holdco acknowledges that to the Financial Services Authority (FSA). outstanding votes entitled to be cast on extent it becomes aware of possible Other than certain modifications any matter, after taking into account that violations of the rules of the Exchange, described herein, the current corporate such repurchased shares will become NYSE Arca or NYSE Amex, it will be structure, governance and self- treasury shares and will no longer be responsible for referring such possible 23 regulatory independence and separation deemed to be outstanding. violations to each such exchange, of each NYSE U.S. Regulated Subsidiary The NYSE Euronext Voting respectively. In addition, Holdco will will be preserved. Specifically, after the Restriction and the NYSE Euronext become a party to the agreement among Combination, NYSE Group’s businesses Ownership Restriction are applicable to NYSE Euronext, NYSE Group, the and assets will continue to be structured each person unless and until (1) such Exchange, NYSE Market and NYSE person has delivered a notice in writing as follows: • The Exchange will remain a direct Regulation to provide for adequate to the board of directors of NYSE wholly owned subsidiary of NYSE funding for NYSE Regulation. Euronext, not less than 45 days (or such shorter period as the board of directors Group and an indirectly wholly owned 3. Proposed Approval of Waiver of of NYSE Euronext expressly permits) subsidiary of NYSE Euronext. Voting and Ownership Restrictions of prior to any vote or, in the case of the • NYSE Market will remain a wholly NYSE Euronext NYSE Euronext Ownership Restriction, owned subsidiary of the Exchange and Article V of the current NYSE will continue to conduct the Exchange’s prior to the acquisition of any shares of Euronext Certificate provides that (1) no NYSE Euronext that would cause such business. person, either alone or together with its • NYSE Regulation will remain a person, either alone or together with its ‘‘related persons’’ (as defined in the wholly owned subsidiary of the related persons, to exceed the NYSE NYSE Euronext Certificate), may be Exchange and continue to perform, and/ Euronext Ownership Restriction, of entitled to vote or cause the voting of or oversee the performance of, such person’s intention, either alone or shares of NYSE Euronext beneficially regulatory responsibilities of the together with its related persons, to vote owned by such person or its related Exchange pursuant to a delegation persons, in person or by proxy or 20 See Amended and Restated Certificate of agreement with the Exchange and through any voting agreement or other Incorporation of NYSE Euronext, Article V regulatory functions of NYSE Arca and arrangement, to the extent that such Section 1. NYSE Amex pursuant to services 21 See Amended and Restated Certificate of shares represent in the aggregate more agreements with them.19 Incorporation of NYSE Euronext, Article V Section than 10% of the then outstanding votes • Archipelago Holdings, Inc., a 1(A). entitled to be cast on such matter; and 22 See Amended and Restated Certificate of Delaware corporation (‘‘Arca (2) no person, either alone or together Incorporation of NYSE Euronext, Article V with its related persons, may acquire the Section 2. 19 Certain regulatory functions have been 23 See Amended and Restated Certificate of allocated to, and/or are otherwise performed by, ability to vote more than 10% of the Incorporation of NYSE Euronext, Article V Section FINRA. then outstanding votes entitled to be 2(D).

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or cause the voting of shares of NYSE Holder, an OTP Holder or an OTP Firm; plenary regulatory authority over the Euronext stock beneficially owned by and NYSE U.S. Regulated Subsidiaries, as is such person or its related persons in • Neither such person nor any of its the case currently with these entities. As excess of the NYSE Euronext Voting related persons is a U.S. Disqualified described in the following sections of Restriction or, in the case of the NYSE Person or a European Disqualified this filing, NYSE Amex is proposing a Euronext Ownership Restriction, of Person (as such terms are defined in the series of amendments to the NYSE such person’s intention, either alone or NYSE Euronext Certificate).25 Euronext Certificate, the NYSE Euronext together with its related persons, to In order to allow Holdco to wholly Bylaws, the NYSE Group Certificate and acquire such ownership; (2) the board of own and vote all of the outstanding the NYSE Group Bylaws, as well as directors of NYSE Euronext has resolved common stock of NYSE Euronext upon certain provisions of the Holdco to expressly permit such voting or consummation of the Combination, Articles, that will create an ownership ownership, as applicable; (3) such Holdco has delivered written notice to structure that will provide the resolution has been filed with, and the board of directors of NYSE Euronext Commission with appropriate oversight approved by, the Commission under pursuant to the procedures set forth in tools to ensure that the Commission will Section 19(b) of the Exchange Act 24 and the NYSE Euronext Certificate have the ability to enforce the Exchange has become effective thereunder; and (4) requesting approval of its voting and Act with respect to each U.S. Regulated such resolution has been filed with, and ownership of NYSE Euronext shares in Subsidiary, its direct and indirect parent approved by, each European Regulator excess of the NYSE Euronext Voting entities and its directors, officers, having appropriate jurisdiction and Restriction and the NYSE Euronext employees and agents to the extent they authority. Subject to its fiduciary duties Ownership Restriction. Among other are involved in the activities of such under applicable law, the NYSE things, in this notice, Holdco U.S. Regulated Subsidiary. Euronext board of directors may not represented to the board of directors of The NYSE Euronext board of directors adopt any resolution pursuant to the NYSE Euronext that neither it, nor any also determined that ownership of foregoing clause (2) unless it has of its related persons, is (1) A ‘‘member’’ NYSE Euronext by Holdco is in the best determined that the exercise of such or ‘‘member organization’’ of the interests of NYSE Euronext, its voting rights (or the entering into of a Exchange; (2) a ‘‘member’’ of NYSE shareholders and the NYSE U.S. voting agreement) or ownership, as Amex; (3) an ETP Holder; (4) an OTP Regulated Subsidiaries. With respect to applicable: Holder or an OTP Firm; or (5) a U.S. • the interests of the NYSE U.S. Regulated Will not impair the ability of any Disqualified Person or a European Subsidiaries, the board of directors of NYSE U.S. Regulated Subsidiary, NYSE Disqualified Person. NYSE Euronext has noted, among other At a meeting duly convened on Euronext or NYSE Group (if and to the things, its expectation that the September 15, 2011, the board of extent that NYSE Group continues to Combination would over time create directors of NYSE Euronext adopted the exist as a separate entity) to discharge substantial incremental efficiency and NYSE Euronext Resolutions to permit their respective responsibilities under growth opportunities and that the Holdco, either alone or with its related the Exchange Act and the rules and Holdco Group is expected to be a leader persons, to exceed the NYSE Euronext regulations thereunder; in a diverse set of large and growing • Ownership Restriction and the NYSE Will not impair the ability of any of businesses, including derivatives, the European Market Subsidiaries (as Euronext Voting Restriction. In adopting such resolutions, the board of directors listings, cash equities, post-trade defined in the NYSE Euronext Bylaws) settlement and asset servicing, market of NYSE Euronext or Euronext (to the of NYSE Euronext made the necessary determinations set forth above and data and technology servicing. extent that Euronext continues to exist In addition, neither Holdco, nor any as a separate entity) to discharge their approved the submission of this Proposed Rule Change to the of its related persons, is (1) a NYSE respective responsibilities under the Member; (2) an Amex Member; (3) an European Exchange Regulations (as Commission. The NYSE U.S. Regulated Subsidiaries will continue to operate ETP Holder, an OTP Holder or an OTP defined in the NYSE Euronext Bylaws); Firm; or (4) a U.S. Disqualified Person • Is otherwise in the best interest of and regulate their markets and members exactly as they have done prior to the or a European Disqualified Person. NYSE Euronext, its stockholders, the An extract with the relevant NYSE U.S. Regulated Subsidiaries and Combination. Except as set forth in this Proposed Rule Change, Holdco is not provisions of the NYSE Euronext the European Market Subsidiaries, and Resolutions is attached as Exhibit 5A to will not impair the Commission’s ability proposing any amendments to their trading or regulatory rules. the Proposed Rule Change and can be to enforce the Exchange Act or the found on the NYSE Euronext website European Regulators’ ability to enforce With respect to the ability of the Commission to enforce the Exchange and the Commission’s website. the European Exchange Regulations; NYSE Amex hereby requests that the • For so long as NYSE Euronext Act as it applies to the NYSE U.S. Commission approve the NYSE directly or indirectly controls the Regulated Subsidiaries after the Euronext Resolutions and allow Holdco, Exchange or NYSE Market, neither such Combination, the NYSE U.S. Regulated either alone or with its related persons, person nor any of its related persons is Subsidiaries will operate in the same to own and vote all of the outstanding a NYSE Member; manner following the Combination as • For so long as NYSE Euronext they operate today.26 Thus, the common stock of NYSE Euronext upon directly or indirectly controls NYSE Commission will continue to have and following the consummation of the Amex, neither such person nor any of Combination. its related persons is an Amex Member; 25 See Amended and Restated Certificate of 4. Proposed Amendments to Ownership • Incorporation of NYSE Euronext, Article V Sections For so long as NYSE Euronext 1(B), 1(C), 2(B) and 2(C), and Amended and and Voting Restrictions After the directly or indirectly controls NYSE Restated Bylaws of NYSE Euronext, Section 10.12. Combination Arca, NYSE Arca Equities or any facility 26 NYSE Amex has been informed by Deutsche of NYSE Arca, neither such person nor Bo¨rse that the DB U.S. Regulated Subsidiaries are Overview also expected to operate in the same manner NYSE Amex is proposing that, any of its related persons is an ETP following the Combination as they operate today. This is addressed in the separate proposed rule effective as of the completion of the 24 15 U.S.C. 78S(b). change filed by each of the DB Exchanges. Combination, the Holdco Articles would

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contain voting and ownership any person who is a NYSE Member, an Holdco board of directors that the board restrictions that restrict any person, Amex Member, an ETP Holder, an OTP has expressly resolved to permit such either alone or together with its related Holder, an OTP Firm, an ISE Member, voting or ownership; and (3) such persons, from having voting control over an EDGA Member or an EDGX Member) resolution has been filed with, and Holdco shares entitling the holder (the ‘‘Holdco Ownership Restriction’’), approved by, the Commission under thereof to cast more than 20% of the will be obligated to offer for sale and to Section 19(b) of the Exchange Act and votes entitled to be cast on any matter transfer a number of Holdco shares filed with, and approved by, the or beneficially owning Holdco shares necessary so that such person, together relevant European regulators having representing more than 40% of the with its related persons, beneficially appropriate jurisdiction and authority.33 outstanding votes that may be cast on owns a number of Holdco shares that The Holdco board of directors may any matter (except that a 20% complies with the Holdco Ownership waive the Holdco Voting Restriction and ownership restriction would apply to Restriction (the ‘‘Holdco Transfer Holdco Ownership Restriction if it any person who is a NYSE Member, an Obligation’’).29 If such person(s) fails to makes certain determinations, which Amex Member, an ETP Holder, an OTP comply with the Holdco Transfer will be consistent with the Holder, an OTP Firm, an ISE Member, Obligation within two weeks, Holdco determinations currently required to be an EDGA Member or an EDGX Member). will be irrevocably authorized to act on made by the board of directors of NYSE In addition, NYSE Amex is proposing behalf of such person(s) in order to Euronext and ISE Holdings in order to that, effective as of the Combination, the ensure compliance with the Holdco waive the voting and ownership voting and ownership restrictions Transfer Obligation.30 restrictions in the NYSE Euronext currently in the NYSE Euronext Furthermore, the Holdco Articles Certificate and the ISE Holdings Certificate and NYSE Euronext Bylaws, would provide that in the event any Certificate, respectively.34 as well as the related waiver provisions person, either alone or together with its related persons, exceeds the Holdco Amendments to NYSE Group Voting set forth therein, would remain in effect, and Ownership Restrictions except that they would be modified in Ownership Restriction (any such certain respects as described herein.27 person(s), a ‘‘Non-Compliant Owner’’), The voting restrictions contained in the Non-Compliant Owner would cease the current NYSE Group Certificate Voting and Ownership Restrictions in to have certain rights to the extent that provide that, if such restrictions apply, Holdco Articles its shareholding exceeds the Holdco (1) no person, either alone or together Under the Proposed Rule Change, the Ownership Restriction. Specifically, the with its related persons (as defined in Holdco Articles would provide that no Non-Compliant Owner’s rights to vote, the NYSE Group Certificate), may be person, either alone or together with its to attend general meetings of Holdco entitled to vote or cause the voting of related persons, will be entitled to vote shareholders and to receive dividends shares of stock of NYSE Group or cause the voting of a number of or other distributions attached to such beneficially owned by such person or its shares of Holdco, in person or by proxy shares in excess of the Holdco related persons, in person or by proxy or through any voting agreement or Ownership Restriction would be or through any voting agreement or other arrangement, which represent in suspended for so long as the Holdco other arrangement, to the extent that the aggregate (1) more than 20% of the Ownership Restriction is exceeded.31 such shares represent in the aggregate then outstanding votes entitled to be Pursuant to Section 2:87a of the Dutch more than 10% of the then outstanding cast on such matter; or (2) more than Civil Code, the Non-Compliant Owner votes entitled to be cast on such matter; 20% of the then outstanding votes may request that an independent expert and (2) no person, either alone or entitled to be cast on any such matter be appointed to determine the value of together with its related persons, may by virtue of agreements or arrangements the Holdco shares, but such expert will acquire the ability to vote more than entered into with other persons to have discretion to determine that the 10% of the then outstanding votes refrain from voting shares of Holdco (the value of the shares is equal to the price entitled to be cast on any such matter ‘‘Holdco Voting Restriction’’).28 The received for the shares by the Non- by virtue of agreements or arrangements Holdco Articles would provide that Compliant Owner on any stock entered into with other persons to Holdco will be required to disregard any exchange where the Holdco shares are refrain from voting shares of stock of votes purported to be cast in excess of listed.32 NYSE Group (the ‘‘NYSE Group Voting the Holdco Voting Restriction. The voting and ownership restrictions Restriction’’).35 NYSE Group must In addition, the Holdco Articles will apply to each person unless it (1) disregard any votes purported to be cast would provide that any person who, delivers to the Holdco board of directors in excess of the NYSE Group Voting either alone or together with its related a written notice of its intention to Restriction. persons, beneficially owns Holdco acquire voting power or ownership in In addition, the ownership shares which represent in the aggregate excess of the relevant limitation, and restrictions contained in the current more than 40% of the outstanding votes such notice is delivered at least 45 days NYSE Group Certificate provide that, if entitled to be cast on any matter (except (or such shorter period as the Holdco such restrictions apply, no person, that a 20% restriction would apply to board of directors expressly consents to) either alone or together with its related prior to acquiring Holdco shares in persons, may at any time own 27 As described in the proposed rule change filed excess of the Holdco Voting Restriction beneficially shares of NYSE Group by each of the DB Exchanges, the current voting and or Holdco Ownership Restriction; (2) representing in the aggregate more than ownership restrictions contained in the certificate obtains a written confirmation from the 20% of the then outstanding votes of incorporation of ISE Holdings, as well as the entitled to be cast on any matter (the related provisions contained in the amended and restated bylaws of U.S. Exchange Holdings and the 29 See Form of Deed of Amendment to Holdco board resolutions of Deutsche Bo¨rse, Eurex Articles of Association, Articles 35.1 and 35.4. 33 See Form of Deed of Amendment to Holdco Frankfurt AG and other indirect parent entities of 30 See Form of Deed of Amendment to Holdco Articles of Association, Articles 34.2 and 35.2. ISE, would remain in effect. The DB Trust would Articles of Association, Article 35.7. 34 See Form of Deed of Amendment to Holdco also remain unaltered and would continue to have 31 See Form of Deed of Amendment to Holdco Articles of Association, Articles 34.3 and 35.3. rights to enforce these restrictions. Articles of Association, Article 35.6. 35 See Second Amended and Restated Certificate 28 See Form of Deed of Amendment to Holdco 32 See Form of Deed of Amendment to Holdco of Incorporation of NYSE Group, Inc., Article IV Articles of Association, Article 34.1. Articles of Association, Article 35.5. Section 4(b).

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‘‘NYSE Group Ownership Restriction’’). NYSE Euronext Ownership Limitation Amendments to NYSE Euronext Voting If any person, either alone or together (as described above). and Ownership Restrictions with its related persons, owns shares of Under the Proposed Rule Change, the Under the Proposed Rule Change, the NYSE Group in excess of the NYSE NYSE Group Certificate would be NYSE Euronext Certificate would be Group Ownership Restriction, then such amended, effective as of the amended, effective as of the person and its related persons are Combination, to (1) change the 10% Combination, to be consistent with the obligated to sell promptly, and NYSE threshold for the NYSE Group Voting NYSE Group Certificate in the following Group is obligated to purchase Restriction to a 20% threshold; and (2) respects: (1) First, the NYSE Euronext promptly, at a price equal to the par change the 20% threshold for the NYSE Certificate would be amended to value of such shares and to the extent Group Ownership Restriction to a 40% provide that all of the issued and funds are legally available for such restriction (except that a 20% restriction outstanding shares of NYSE Euronext purchase, the number of shares of NYSE would continue to apply to any person will be held by Holdco, and that Holdco Group necessary so that such person, who is a NYSE Member, an Amex may not transfer or assign any shares together with its related persons, will Member, an ETP Holder, an OTP Holder without approval by the Commission beneficially own shares of NYSE Group or an OTP Firm). These percentage under the Exchange Act and the representing in the aggregate no more thresholds are consistent with those relevant European Regulators (as than 20% of the then outstanding votes applicable to ISE Holdings and other defined in the NYSE Euronext entitled to be cast on any matter, after regulated exchanges and have been Certificate) under the applicable taking into account that such approved on several occasions by the 37 European Exchange Regulations (as repurchased shares will become Commission. The NYSE Group defined in the NYSE Euronext treasury shares and will no longer be Certificate would also be updated to Certificate); 38 and (2) the NYSE deemed to be outstanding. provide that the NYSE Group Voting Euronext Certificate would be amended The NYSE Group Voting Restriction Restriction and the NYSE Group to provide that the NYSE Euronext and the NYSE Group Ownership Ownership Restriction would apply Voting Restriction and NYSE Euronext Restriction apply to each person unless only for so long as NYSE Group directly Ownership Restriction contained and until (1) such person has delivered or indirectly controls any Regulated therein would only apply in the event a notice in writing to the board of Subsidiary (as defined in the NYSE that Holdco does not own all of the directors of NYSE Group, not less than Group Certificate). issued and outstanding shares of NYSE Under the Proposed Rule Change, the 45 days (or such shorter period as the Euronext.39 In addition, the NYSE definition of ‘‘Related Persons’’ would board of directors of NYSE Group Euronext Certificate would be amended be expanded to provide that (1) in the expressly permits) prior to any vote or, to (a) change the 10% threshold for the case of a person that is a ‘‘member’’ (as NYSE Euronext Voting Restriction to a in the case of the NYSE Group defined in Section 3(a)(3)(A)(i) of the 20% threshold; (b) change the 20% Ownership Restriction, prior to the Exchange Act) of NYSE Amex, such threshold for the NYSE Euronext acquisition of any shares of NYSE person’s ‘‘Related Persons’’ would Ownership Restriction to a 40% Group that would cause such person, include the ‘‘member’’ (as defined in restriction (except that a 20% either alone or together with its related Section 3(a)(3)(A)(iv) of the Exchange ownership restriction would continue to persons, to exceed the NYSE Group Act, in addition to Sections 3(a)(3)(A)(ii) apply to any person who is a NYSE Ownership Restriction, of such person’s and 3(a)(3)(A)(iii) of the Exchange Act Member, an Amex Member, an ETP intention, either alone or together with which are currently referenced in this Holder, an OTP Holder or an OTP Firm); its related persons, to vote or cause the provision of the NYSE Group (c) provide that the NYSE Euronext voting of shares of NYSE Group stock Certificate) with which such person is Voting Restriction and NYSE Euronext beneficially owned by such person or its associated; and (2) in the case of any Ownership Restriction contained related persons in excess of the NYSE person that is a ‘‘member’’ (as defined therein would only apply only for so Group Voting Restriction or, in the case in Section 3(a)(3)(A)(iv) of the Exchange of the NYSE Group Ownership long as NYSE Euronext directly or Act, in addition to Sections 3(a)(3)(A)(ii) indirectly controls any U.S. Regulated Restriction, of such person’s intention, and 3(a)(3)(A)(iii) of the Exchange Act either alone or together with its related Subsidiary or any European Market which are currently referenced in this Subsidiary (as such terms are defined in persons, to acquire such ownership; (2) provision of the NYSE Group the board of directors of NYSE Group the NYSE Euronext Certificate); (d) add Certificate) of NYSE Amex, such the provision, which is currently in the has resolved to expressly permit such person’s ‘‘Related Persons’’ would voting or ownership, as applicable; and NYSE Euronext Bylaws, that requires include any ‘‘member’’ (as defined in the board of directors of NYSE Euronext (3) such resolution has been filed with, Section 3(a)(3)(A)(i) of the Exchange and approved by, the Commission to make certain determinations relating Act) that is associated with such person. to NYSE Amex in order to waive the under Section 19(b) of the Exchange These provisions are substantively 36 voting and ownership restrictions in the Act and has become effective consistent with language in the NYSE thereunder. Subject to its fiduciary NYSE Euronext Certificate, and delete Rules, which language would be deleted this provision from the NYSE Euronext duties under applicable law, the NYSE under the Proposed Rule Change. Group board of directors may not adopt Bylaws; (e) update the names of certain European regulatory entities in the any resolution pursuant to the foregoing 37 See e.g., SEC Release No. 34–49718 (May 17, definition of ‘‘European Regulator’’; and clause (2) unless the board has made 2004) (File No. SR–PCX–2004–08), 69 FR 29611 certain determinations which are (approval of rule change proposed by the Pacific (f) expand the definition of ‘‘Related substantially similar to the Exchange, Inc.); SEC Release No. 34–49098 (January Persons’’ to address Amex Members in 16, 2004) (File No. SR–PHLX–2003–73), 69 FR 3974 determinations required to be made by a manner that is substantively (approval of rule change proposed by the consistent with language currently the NYSE Euronext board of directors in Philadelphia Stock Exchange, Inc.); and SEC connection with a waiver of the NYSE Release No. 34–50170 (August 9, 2004) (File No. 38 Euronext Voting Limitation and/or the SR–PCX–2004–56), 69 FR 50419 (approval of rule The analogous provision in the NYSE Group change proposed by the Pacific Exchange, Inc. Certificate is Section 4(a) of Article IV. relating to initial public offering of parent of 39 The analogous provision in the NYSE Group 36 15 U.S.C. 78s(b). Archipelago Exchange, L.L.C.). Certificate is Section 4(b) of Article IV.

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located in the NYSE Rules, as described to oversight pursuant to, the Exchange addition, Holdco’s books and records above. Act.43 related to the U.S. Regulated The Holdco Articles would provide Subsidiaries will be maintained within 5. Additional Matters To Be Addressed that Holdco will take reasonable steps in the Holdco Articles 40 the United States, except that to the necessary to cause its directors, officers extent that books and records may relate Jurisdiction Over Individuals and employees, prior to accepting a to both European subsidiaries and U.S. Under the Proposed Rule Change, the position as an officer, director or Regulated Subsidiaries, Holdco may Holdco Articles would provide that employee, as applicable, of Holdco to maintain such books and records either Holdco and its directors, and to the agree and consent in writing to the in the home jurisdiction of one or more extent that they are involved in the applicability to them of these European subsidiaries or in the United jurisdictional and oversight provisions activities of the U.S. Regulated States.50 Subsidiaries, (x) Holdco’s officers, and with respect to their activities related to 44 (y) those of its employees whose any U.S. Regulated Subsidiary. The Additional Matters principal place of business and Holdco Articles would also provide that Under the Proposed Rule Change, the residence is outside the United States, no person may be a director of Holdco Holdco Articles would provide that would be deemed to irrevocably submit unless he or she has agreed and Holdco will comply with the U.S. to the jurisdiction of the U.S. federal consented in writing to the applicability courts and the Commission for the to him or her of these jurisdictional and federal securities laws and the rules and purposes of any suit, action or oversight provisions with respect to his regulations thereunder, and will or her activities related to any U.S. cooperate with the Commission and proceeding pursuant to the U.S. federal 45 securities laws, and the rules and Regulated Subsidiary. Furthermore, with the U.S. Regulated Subsidiaries regulations thereunder, commenced or Holdco would sign an irrevocable pursuant to and to the extent of their agreement and consent for the benefit of respective regulatory authority.51 In initiated by the Commission arising out 46 of, or relating to, the activities of the each U.S. Regulated Subsidiary that it addition, Holdco would be required to U.S. Regulated Subsidiaries.41 The will comply with these provisions in the take reasonable steps necessary to cause Holdco Articles would also provide Holdco Articles. its agents to cooperate with the NYSE Amex anticipates that the that, with respect to any such suit, Commission and, where applicable, the functions and activities of each U.S. action, or proceeding brought by the U.S. Regulated Subsidiaries pursuant to Regulated Subsidiary generally will be their regulatory authority.52 The Holdco Commission, Holdco and its directors, carried out by the officers and directors Articles would also provide that, in officers and employees would (1) be of such U.S. Regulated Subsidiary, each discharging his or her responsibilities as deemed to agree that NYSE Group may of whom the Commission has direct serve as U.S. agent for purposes of authority over pursuant Section 19(h)(4) a member of the Holdco board of service of process in such suit, action, of the Exchange Act.47 directors or as an officer or employee of or proceeding relating to NYSE Group or Holdco, each such director, officer or any of its subsidiaries, and ISE Holdings Access to Books and Records employee will (a) comply with the U.S. may serve as the U.S. agent for Under the Proposed Rule Change, the federal securities laws and the rules and proceedings relating to ISE Holdings or Holdco Articles would provide that for regulations thereunder; (b) cooperate any of its subsidiaries; and (2) be so long as Holdco directly or indirectly with the Commission; and (c) cooperate deemed to waive, and agree not to assert controls any U.S. Regulated Subsidiary, with the U.S. Regulated Subsidiaries by way of motion, as a defense or the books, records and premises of pursuant to and to the extent of their otherwise, in any such suit, action, or Holdco will be deemed to be the books, regulatory authority (but this provision proceeding, any claims that it or they records and premises of such U.S. will not create any duty owed by any are not personally subject to the Regulated Subsidiaries for purposes of, director, officer or employee of Holdco jurisdiction of the Commission, that the and subject to oversight pursuant to, the to any person to consider, or afford any suit, action, or proceeding is an Exchange Act.48 In addition, the Holdco particular weight to, any such matters or inconvenient forum or that the venue of Articles would provide that Holdco’s to limit his or her consideration to such the suit, action, or proceeding is books and records will at all times be matters).53 improper, or that the subject matter made available for inspection and The Holdco Articles would also thereof may not be enforced in or by the copying by the Commission, and any provide that all confidential information U.S. federal courts or the Commission.42 U.S. Regulated Subsidiary to the extent In addition, the Holdco Articles they are related to the activities of such that comes into the possession of would provide that, so long as Holdco U.S. Regulated Subsidiary or any other Holdco pertaining to the self-regulatory directly or indirectly controls any U.S. U.S. Regulated Subsidiary over which function of any U.S. Regulated Regulated Subsidiary, the directors, such U.S. Regulated Subsidiary has Subsidiary will (a) Not be made officers and employees of Holdco will regulatory authority or oversight.49 In available to any persons other than to be deemed to be directors, officers and those officers, directors, employees and employees of such U.S. Regulated 43 See Form of Deed of Amendment to Holdco agents of Holdco that have a reasonable Subsidiaries for purposes of, and subject Articles of Association, Article 3.2(f). need to know the contents thereof; (b) 44 See Form of Deed of Amendment to Holdco be retained in confidence by Holdco and 40 The Holdco Articles will also set forth certain Articles of Association, Article 3.2(m). the officers, directors, employees and 45 restrictions and requirements relating to Holdco’s See Form of Deed of Amendment to Holdco agents of Holdco; and (c) not be used for European subsidiaries and applicable European Articles of Association, Article 14.11. regulatory matters, which will be substantially 46 The form of Holdco’s agreement and consent is consistent with the analogous restrictions and attached as Exhibit 5M to this Proposed Rule 50 See Form of Deed of Amendment to Holdco requirements applicable with respect to Holdco’s Change. Articles of Association, Article 3.2(g). U.S. Regulated Subsidiaries and U.S. regulatory 47 15 U.S.C. 78s(h)(4). 51 See Form of Deed of Amendment to Holdco matters. 48 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(a). 41 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(f). 52 See id. Articles of Association, Article 3.2(c). 49 See Form of Deed of Amendment to Holdco 53 See Form of Deed of Amendment to Holdco 42 See id. Articles of Association, Article 3.2(e). Articles of Association, Article 3.2(l).

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any commercial purposes.54 In addition, and open market in securities and a U.S. before any amendment to or repeal of the Holdco Articles would provide that national securities market system; and any provision of the Holdco Articles these obligations regarding such (5) in general, protect investors and the may become effectuated by means of a confidential information will not be public interest.57 This requirement notarial deed of amendment, the same interpreted so as to limit or impede (i) would not, however, create any duty will be submitted to the board of the rights of the Commission or the owed by any director, officer or directors of each U.S. Regulated relevant U.S. Regulated Subsidiary to employee of Holdco to any person to Subsidiary (or the boards of directors of have access to and examine such consider, or afford any particular weight their successors) and if any or all of confidential information pursuant to the to, any of the foregoing matters or to such boards of directors determine that U.S. federal securities laws and the limit his or her consideration to such the same must be filed with, or filed rules and regulations thereunder; or (ii) matters.58 with and approved by, the Commission the ability of any officers, directors, In addition, the Holdco Articles before the same may be effective under employees or agents of Holdco to would provide that Holdco will take Section 19 of the Exchange Act and the disclose such confidential information reasonable steps necessary to cause its rules promulgated thereunder, then the to the Commission or any U.S. officers, directors and employees, prior same will not be effective until filed Regulated Subsidiary.55 to accepting a position as an officer, with, or filed with and approved by, the Additionally, the Holdco Articles director or employee, as applicable, of Commission, as the case may be. These would provide that, for so long as Holdco to agree and consent in writing requirements would also apply to any Holdco directly or indirectly controls to the applicability to them of these action by Holdco that would have the any U.S. Regulated Subsidiary, Holdco provisions of the Holdco Articles with effect of amending or repealing any and its directors, officers and employees respect to their activities related to any provision of the Holdco Articles. U.S. Regulated Subsidiary.59 The will give due regard to the preservation Holdco Director Independence Policy of the independence of the self- Holdco Articles would also provide that regulatory function of such U.S. no person may be a director of Holdco Under the Proposed Rule Change, Regulated Subsidiary and to its unless he or she has agreed and Holdco would adopt the Holdco obligations to investors and the general consented in writing to the applicability Independence Policy in the form public, and will not take any actions to him or her of these provisions with attached hereto as Exhibit 5N, which that would interfere with the respect to his or her activities related to would be substantially similar to the effectuation of any decisions by the any U.S. Regulated Subsidiary.60 current Independence Policy of the board of directors or managers of such Holdco would also sign an irrevocable NYSE Euronext board of directors, U.S. Regulated Subsidiary relating to its agreement and consent for the benefit of except that (1) A majority (as opposed regulatory responsibilities (including each U.S. Regulated Subsidiary that it to 75%) of the board of Holdco would enforcement and disciplinary matters) will comply with provisions in the be required to be independent; (2) or that would interfere with the ability Holdco Articles regarding (1) executive officers of listed companies of such U.S. Regulated Subsidiary to Cooperation with the Commission and would no longer be prohibited from carry out its responsibilities under the such U.S. Regulated Subsidiaries; (2) being considered independent for purposes of the Holdco board; (3) the Exchange Act.56 compliance with U.S. federal securities Finally, the Holdco Articles would laws; (3) inspection and copying of ‘‘additional independence provide that each director of Holdco Holdco’s books, records and premises; requirements’’ at the end of the current would, in discharging his or her (4) Holdco’s books, records, premises, Independence Policy of NYSE Euronext, responsibilities, to the fullest extent officers, directors and employees being which provide that executive officers of permitted by applicable law, take into deemed to be those of U.S. Regulated foreign private issuers, executive consideration the effect that Holdco’s Subsidiaries; (5) maintenance of books officers of NYSE Euronext and directors of affiliates of member organizations actions would have on the ability of (a) and records in the United States; (6) must together comprise no more than a the U.S. Regulated Subsidiaries to carry confidentiality of information regarding minority of the total board, would be out their responsibilities under the the U.S. Regulated Subsidiaries’ self- eliminated; (4) references to certain Exchange Act; and (b) the U.S. regulatory function; (7) preservation of European regulatory authorities would Regulated Subsidiaries, NYSE Group, the independence of the self-regulatory be updated, because their names have ISE Holdings and Holdco to (1) Engage function of the U.S. Regulated changed; (5) references to NYSE in conduct that fosters and does not Subsidiaries; and (8) taking reasonable Alternext, Inc. would refer instead to interfere with the ability of the U.S. steps to cause Holdco’s officers, NYSE Amex, because of this entity’s Regulated Subsidiaries, NYSE Group, directors and employees to consent to the applicability to them of the Holdco name change; (6) footnote 2 of the ISE Holdings and Holdco to prevent current Independence Policy of NYSE fraudulent and manipulative acts and Articles. The form of Holdco’s agreement and consent is attached as Euronext would be deleted because the practices in the securities markets; (2) Holdco Independence Policy would not promote just and equitable principles of Exhibit 5M to this Proposed Rule Change. be applicable to NYSE Regulation, Inc., trade in the securities markets; (3) foster the Exchange, NYSE Amex or NYSE cooperation and coordination with Amendments to the Holdco Articles Market, which would have their own persons engaged in regulating, clearing, Under the Proposed Rule Change, the director independence policy in the settling, processing information with Holdco Articles would provide that, form attached to this Proposed Rule respect to, and facilitating transactions Change as Exhibit 5K; and (7) references in securities; (4) remove impediments to 57 See Form of Deed of Amendment to Holdco to the independence standards and and perfect the mechanisms of a free Articles of Association, Article 3.2(k). criteria in the Dutch Corporate 58 See Form of Deed of Amendment to Holdco Governance Code would be added, 54 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(k). because such standards and criteria will Articles of Association, Article 3.2(h). 59 See Form of Deed of Amendment to Holdco 55 See id. Articles of Association, Article 3.2(m). apply to Holdco, a Dutch company, and 56 See Form of Deed of Amendment to Holdco 60 See Form of Deed of Amendment to Holdco will supplement (rather than supersede Articles of Association, Article 3.2(i). Articles of Association, Article 14.11. or limit) the other independence

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standards and criteria set forth in the combination of NYSE Euronext and companies who are foreign private Holdco Independence Policy. Deutsche Bo¨rse, the disqualification of issuers are not disqualified from serving NYSE Amex believes that a majority listed company executives would on the board, such executives may not, independence standard is appropriate to impede rather than facilitate Holdco’s together with NYSE Euronext executives ensure that Holdco’s board as a whole efforts to ensure a qualified and and directors of affiliates of members, consists of individuals with balanced board composition and constitute more than a minority of the independent, objective perspectives, promote various other important board. In light of NYSE Amex’s proposal while at the same time affording Holdco corporate governance objectives, such as to eliminate the disqualification of sufficient flexibility to include persons ensuring appropriate expertise and listed company executives from the with expertise and qualifications that experience on its board, as well as Holdco Independence Policy, this will contribute meaningfully to the representation of the interests of a requirement would serve no purpose board’s performance of its oversight diverse range of market constituencies because the exception to such function. The importance of allowing and local European and U.S. interests. A disqualification for foreign private highly qualified individuals to serve on per se disqualification would narrow issuer executives would also be the board is underscored by the fact that the pool of potential Holdco director eliminated. NYSE Amex further notes Holdco will serve as the holding candidates and arbitrarily eliminate that under the proposed Holdco company for a complex, global business from consideration a large number of Independence Policy, executives of with highly specialized operations and highly qualified, experienced Holdco and directors of affiliates of regulatory functions. Although Holdco individuals who have proven track exchange members would not be has unique responsibilities and records as business leaders. In addition, deemed independent and, accordingly, functions as the holding company for because the listed companies of the U.S. could not in any event constitute more the NYSE U.S. Regulated Subsidiaries, it Regulated Subsidiaries tend to be U.S. than a minority of the Holdco board. will be subject to various corporate domestic companies, this requirement 6. Proposed Amendments to Certain governance and regulatory obligations could disproportionately restrict the Public-Company-Related and Other that will be addressed by means of eligibility of persons affiliated with U.S. Provisions of NYSE Euronext ownership and voting limitations on its companies as compared to non-U.S. Organizational and Corporate shareholders, commitments to provide companies to serve on the board of Governance Documents access to its books and records and to Holdco. Under the Holdco submit to the jurisdiction of the Independence Policy, the Holdco board Pursuant to the Combination, NYSE Commission, director qualification would still need to assess whether a Euronext will merge with Merger Sub, a requirements and other undertakings listed company executive meets the wholly owned subsidiary of Holdco. that are addressed in the Proposed Rule various independence criteria, NYSE Euronext, as the surviving Change and will be formalized in the including whether he or she has any corporation in the Merger, will become Holdco Articles and undertakings of ‘‘material relationship’’ with Holdco a wholly owned subsidiary of Holdco. Holdco to its U.S. Regulated and it subsidiaries. Following the Merger, the current Subsidiaries. NYSE Amex submits that Furthermore, NYSE Euronext believes organizational documents of NYSE some of these undertakings call for in- that the objectivity of board members is Euronext will remain in effect, except depth industry knowledge and expertise adequately protected by the various that NYSE Amex is proposing that, in on the Holdco board, such as the other independence criteria in the addition to the aforementioned requirement that Holdco’s directors take proposed Holdco Independence Policy, revisions relating to voting and into consideration the effect that such as the requirement that ownership limitations, certain Holdco’s actions would have on the independent directors may not be or provisions will be amended to reflect ability of its U.S. Regulated Subsidiaries have been within the last year, and may the fact that, after the Combination, to (i) foster cooperation and not have an immediate family member NYSE Euronext will be an intermediate coordination with persons engaging in who is or within the last year was, a holding company and will no longer be regulating, clearing, settling and member of the Exchange, NYSE Arca or a public company traded on the processing information with respect to, NYSE Amex. In addition, if and to the Exchange, and the registration of its and facilitating transactions in extent that a matter concerning a listed capital stock under Section 12 of the securities, and (ii) remove impediments company whose executive is a Holdco Exchange Act will be terminated upon to and perfect the mechanisms of a free director were ever to come before the application to the Commission. As a and open market in securities and a U.S. Holdco board for consideration, such result, NYSE Euronext will no longer be national securities market system. director would be required to be recused subject to the Exchange’s listing In addition, NYSE Amex believes that from acting on such matter pursuant to standards or to the corporate governance the per se disqualification of listed the Holdco board’s conflicts of interest requirements applicable to publicly company executives from being deemed policy. traded companies. As summarized independent should not be applicable to Finally, the current Independence below, the following revisions to the Holdco. The per se disqualification was Policy of NYSE Euronext provides that NYSE Euronext Certificate and NYSE initially adopted by the New York Stock the sum of (a) executive officers of Euronext Bylaws are proposed in order Exchange, Inc. in early 2005 in the foreign private issuers, (b) executive to (1) Simplify and provide for a more context of its unique circumstances and officers of NYSE Euronext and (c) efficient governance and capital history and its management structure directors of affiliates of ‘‘members’’ (as structure that is appropriate for a wholly and board composition at that time.61 defined in Sections 3(a)(A)(3)(ii), owned subsidiary; (2) conform certain NYSE Amex submits that those 3(a)(A)(3)(iii) and 3(a)(A)(3)(iv) of the provisions to analogous provisions of the organizational documents of NYSE circumstances are no longer applicable Exchange Act) of NYSE, NYSE Arca or Group, which will likewise be an and, following the proposed NYSE Amex, may not constitute more than a minority of the total number of indirect wholly owned subsidiary of 61 See Securities Exchange Act Release No. 34– directors of NYSE Euronext. The Holdco following completion of the 51217 (February 16, 2005) (File No. SR–NYSE– purpose of this requirement is to ensure Combination; and (3) make certain 2004–54), 70 FR 9688. that, although executives of listed clarification and technical edits (for

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example, to conform the use of defined (which would be renumbered as Section Euronext becomes wholly owned by a terms and other provisions, and to 2.9), would be amended to allow single shareholder and a plurality voting update cross-references to sections, to shareholders to take actions without a standard is consistent with the standard reflect the other amendments to the meeting and without prior notice if generally applicable for elections of NYSE Euronext Certificate and the written consents are signed by the directors under the Delaware General NYSE Euronext Bylaws set forth in this minimum number of votes that would Corporation Law and for actions by the Proposed Rule Change): be required to approve the action at a parent entity of other wholly owned • The NYSE Euronext Certificate meeting, in order to give Holdco subsidiaries of NYSE Euronext such as would be revised to provide that the additional flexibility to take actions in NYSE Group; registered office and agent of NYSE its capacity as the sole shareholder of • The requirements in Section 2.10 of Euronext in Delaware will be the NYSE Euronext following completion of the NYSE Euronext Bylaws requiring Corporation Trust Company, which is the Combination, and the reference at certain advance notice from the registered agent of other subsidiaries the end of Section 3.5 of the NYSE shareholders of director nominations of NYSE Euronext; Euronext Bylaws to a special meeting of and shareholder proposals, and the • The number of authorized shares of shareholders would be deleted because requirement that only business brought NYSE Euronext common stock and the NYSE Euronext shareholder may act before a special meeting of stockholders preferred stock will be reduced to 1,000 by written consent to fill board pursuant to NYSE Euronext’s notice of and 100, respectively, because it would vacancies; the meeting may be brought before the no longer be necessary for NYSE • The supermajority shareholder vote meeting, would be eliminated, because Euronext to have a large number of requirements pursuant to Article X to these requirements would no longer widely held and actively traded amend or repeal certain provisions of serve any purpose after NYSE Euronext shares; 62 the NYSE Euronext Certificate would be becomes wholly owned by a single • The restrictions on transfers of eliminated and replaced with a majority shareholder; NYSE Euronext shares contained in vote requirement, because a • Section 3.1 of the NYSE Euronext Section 4 of Article IV of the NYSE supermajority vote requirement would Bylaws would be amended to clarify Euronext Certificate have now expired no longer serve any purpose after NYSE that the right of the NYSE Euronext in accordance with their terms and Euronext becomes wholly owned by a board of directors to fix and change the would accordingly be deleted; single shareholder and a majority voting number of directors on such board is • Sections 2(A) and 2(B) of Article VI standard is consistent with the standard subject to any rights of holders of any of the NYSE Euronext Certificate, and generally applicable for actions by preferred stock to elect additional Section 2.2 of the NYSE Euronext shareholders under the Delaware directors, in order to make this Bylaws, would be amended to allow General Corporation Law and for actions provision consistent with Section 2 of shareholders to call special meetings of by the parent entity of other wholly Article IV of the NYSE Euronext shareholders and to postpone such owned subsidiaries of NYSE Euronext Certificate, which provides that meetings, in order to give Holdco such as NYSE Group; preferred stock may be issued which additional flexibility to take actions in • Section 2.3 of the NYSE Euronext may have voting rights; • its capacity as the sole shareholder of Bylaws would be amended to clarify Sections 3.2(B) and 4.4 of the NYSE NYSE Euronext following completion of that notice of shareholder meetings is Euronext Bylaws would be amended to the Combination; not required if waived in accordance add ‘‘if any’’ after the references therein • Section 6 of Article VI of the NYSE with Section 10.3 of the NYSE Euronext to the Nominating and Governance Euronext Certificate, and Section 3.6 of Bylaws; Committee, because NYSE Euronext the NYSE Euronext Bylaws (which • The requirement in Section 2.6 of would become a wholly owned would be renumbered as Section 3.5), the NYSE Euronext Bylaws for the subsidiary of Holdco and, as such, may would be amended to allow appointment of an inspector of elections not have a Nominating and Governance for shareholders meetings would be Committee; shareholders to fill board vacancies in • order to give Holdco additional deleted, because the requirement for an The requirement in Section 3.4 of flexibility to take actions in its capacity inspector of elections pursuant to the NYSE Euronext Bylaws that at least as the sole shareholder of NYSE Section 231 of the Delaware General 75% of the board must be independent Euronext following completion of the Corporation Law would no longer apply would be deleted, because NYSE Combination; to NYSE Euronext after completion of Euronext would be a wholly owned • Section 1 of Article VIII of the the Combination; 63 subsidiary of Holdco after completion of NYSE Euronext Certificate, and Section • The requirement in Section 2.7 the Combination and, therefore, it may 2.11 of the NYSE Euronext Bylaws (which would be renumbered as Section be appropriate for executives of Holdco 2.6) of the NYSE Euronext Bylaws that and its subsidiaries to serve on this 62 Effective as of the time that NYSE Euronext directors be elected by a majority of the board, and the reference to Section 3.4 merges with Pomme Merger Corporation, the votes cast (and that they must tender in Section 3.2(A) would accordingly be Second Amended and Restated Certificate of their resignation if such a majority vote deleted; Incorporation of NYSE Euronext (as the surviving • Section 3.9 (which would be corporation in the merger) will provide that is not received), except in the case of 800,000,000 shares of common stock will be contested elections, and that the NYSE renumbered as Section 3.8) of the NYSE authorized and 100 shares of preferred stock will Euronext board of directors may fill any Euronext Bylaws would be amended to be authorized. All of the outstanding shares of resulting vacancy or may decrease the clarify that notice of board meetings is NYSE Euronext will be held by Alpha Beta not required if waived in accordance Netherlands Holding N.V. Promptly thereafter, (1) size of the board, would be deleted and NYSE Euronext will conduct a reverse stock split a plurality voting standard would be with Section 10.3 of the NYSE Euronext so that Alpha Beta Netherlands Holding N.V. will adopted for all director elections, Bylaws; • hold a substantially reduced number of NYSE because these requirements would no The advance notice period in Euronext shares (e.g., 1,000 common shares), and Section 3.9 (which would be (2) the Second Amended and Restated Certificate of longer serve any purpose after NYSE Incorporation of NYSE Euronext will accordingly be renumbered as Section 3.8) of the NYSE amended to reduce the total number of authorized 63 See Section 231(e) of the Delaware General Euronext Bylaws for electronic or shares of common stock to 1,000. Corporation Law. telephonic notices of board meetings

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would be reduced from 24 hours to 12 NYSE Euronext Certificate would be subject to any rights of holders of any hours, in order to simplify the amended to incorporate this preferred stock, in order to make this requirements for board meetings and to requirement; and provision consistent with Section 2 of be consistent with the analogous 12- • Certain clarifying, conforming or Article IV of the NYSE Group hour time period currently required for other technical edits would be made to Certificate, which provides that notices pursuant to Section 3.7 of the Sections 1(B), 1(C), 1(L), 2(C) and 2(E) preferred stock may be issued that may NYSE Group Bylaws; of Article V, Article X and Article XIII have voting rights, and also to make it • Section 3.12 of the NYSE Euronext of the NYSE Euronext Certificate and to consistent with the analogous provision Bylaws (which would be renumbered as Sections 3.7 (which would be in Section 5 of Article VI of the NYSE Section 3.11) would be amended to renumbered as Section 3.6) and Euronext Certificate; delete the requirement that, if the 3.15(A)(2) and 3.15(B) (which would be • Section 2.3 of the NYSE Group chairman or deputy chairman of the renumbered as Section 3.14(A)(2) and Bylaws would be amended to clarify board of directors is also the chief 3.14(B), respectively) of the NYSE that notice of shareholder meetings is executive officer or deputy chief Euronext Bylaws. In addition, the not required if waived in accordance executive officer, he or she may not numbering of certain sections of the with Section 7.3 of the NYSE Group participate in executive sessions of the NYSE Euronext Certificate and NYSE Bylaws; board of directors, and if the chairman Euronext Bylaws, and cross-references • A new Section 2.8 would be added is not the chief executive officer or to such sections, would be deleted or to the NYSE Group Bylaws to clarify deputy chief executive officer, he or she updated to reflect the amendments to that a list of shareholders entitled to will act as a liaison between the board the NYSE Euronext Certificate and the vote will be open to examination by of directors and the chief executive NYSE Euronext Bylaws set forth above. shareholders, because this is required by officer or the deputy chief executive In addition, the current Independence Section 219 of the Delaware General officer, in light of the fact that there are Policy of the NYSE Euronext board of Corporation Law and is consistent with not expected to be any independent, directors would, effective as of the the analogous provision in Section 2.9 non-executive directors of NYSE Combination, cease to apply. (which would be renumbered as Section Euronext and in order to simplify the 7. Proposed Amendments to the NYSE 2.8) of the NYSE Euronext Bylaws; governance requirements for NYSE Group Certificate and NYSE Group • The reference at the end of Section Euronext as a wholly owned subsidiary Bylaws 3.4 of the NYSE Group Bylaws to a of Holdco; special meeting of shareholders would • Certain aspects of the Under the Proposed Rule Change, the be deleted because the shareholder of indemnification and expense revisions summarized below to the NYSE Group may act by written consent advancement provisions in Section 10.6 NYSE Group Certificate and the NYSE of the NYSE Euronext Bylaws, including Group Bylaws are proposed in order to: to fill board vacancies pursuant to (1) Conform certain provisions to the Section 2.9 of the NYSE Group Bylaws; the terms of any insurance policy • maintained by NYSE Euronext, would analogous provisions of the Section 3.7 of the NYSE Group be simplified in light of the fact that organizational documents of NYSE Bylaws would be amended to clarify there are not expected to be any Euronext, which would likewise be a that notice of any special meeting of independent, non-executive directors of wholly owned subsidiary of Holdco directors is not required if waived in NYSE Euronext, and, therefore, a more following completion of the accordance with Section 7.3 of the streamlined process for indemnification Combination; and (2) make certain NYSE Group Bylaws, and the methods claims is appropriate; clarification and technical edits (for of delivery of notices would be updated • The supermajority shareholder vote example, to conform the use of defined to delete references to telegrams, requirements in Section 10.10(B) of the terms and other provisions to reflect the provide certain requirements for notices NYSE Euronext Bylaws would be other amendments set forth in this sent to non-U.S. addresses and add a changed to a majority vote requirement, Proposed Rule Change): reference to email or other electronic because a supermajority vote • Section 2 of Article IV of the NYSE transmission of notices, in each case to requirement would no longer serve any Group Certificate would be amended to be consistent with the analogous purpose after NYSE Euronext becomes clarify that (1) preferred stock may be provisions in Section 3.9 (which would wholly owned by a single shareholder issued ‘‘from time to time,’’ and (2) the be renumbered as Section 3.8) of the and a majority voting standard is certificate of designations for such stock NYSE Euronext Bylaws; consistent with the standard generally would fix, among other things, the • The reference in Section 3.8 of the applicable for actions by shareholders ‘‘relative, participating, optional and NYSE Group Bylaws to restrictions on under the Delaware General Corporation other’’ rights of such shares including telephonic participation in meetings Law and for actions by the parent entity the qualifications and restrictions of any would be deleted, because the NYSE of other wholly owned subsidiaries of series of preferred stock, which is Group Bylaws and the NYSE Group NYSE Euronext such as NYSE Group; consistent with the analogous Certificate do not contain any such • In light of the fact that NYSE provisions in Section 2 of Article IV of restrictions, and the wording of this Alternext US LLC formally changed its the NYSE Euronext Certificate; provision would be amended to be name to NYSE Amex LLC, references to • Section 3 of Article V of the NYSE consistent with the analogous language NYSE Alternext US LLC in the NYSE Group Certificate would be revised to in Section 3.10 (renumbered as Section Euronext Bylaws would be amended to clarify that the number of directors will 3.9) of the NYSE Euronext Bylaws; refer instead to NYSE Amex LLC; be fixed ‘‘from time to time,’’ which is • Section 7.4 would be revised to • Section 10.13 of the NYSE Euronext consistent with the analogous provision provide that the persons who are Bylaws—which requires that, for so long in Section 3 of Article VI of the NYSE authorized to execute contracts and as NYSE Euronext directly or indirectly Euronext Certificate; other instruments on behalf of NYSE controls NYSE Amex, any amendments • Section 5 of Article V of the NYSE Group would include the Chief to the NYSE Euronext Certificate must Group Certificate would be amended to Executive Officer, which is consistent be approved by the Commission— clarify that the right of the NYSE Group with the analogous provision in Section would be deleted and Article X of the board of directors to remove directors is 10.4 of the NYSE Euronext Bylaws;

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• Certain aspects of the independence requirements of the NYSE Amex,66 the Amended and indemnification and expense NYSE Euronext board, and (2) at least Restated Bylaws of NYSE Market 67 and advancement provisions in Section 7.6 20% of the Exchange’s board members the Third Amended and Restated of the NYSE Group Bylaws, including must be persons who are not board Bylaws of NYSE Regulation.68 the terms of any insurance policy members of NYSE Euronext but who The Amended and Restated Bylaws of maintained by NYSE Group, would be qualify as independent under the NYSE Market and the Third Amended simplified in light of the fact that there independence policy of the NYSE and Restated Bylaws of NYSE are not expected to be any independent, Euronext board of directors (the ‘‘Non- Regulation would also be amended to non-executive directors of NYSE Group Affiliated Exchange Directors’’).64 The change the registered office of these and, therefore, a more streamlined nominating and governance committee entities from National Registered Agents process for indemnification claims is of the NYSE Euronext board of directors to The Corporation Trust Company and CT Corporation, respectively. In appropriate, and these revisions would is required to designate as Non- addition, references to NYSE Alternext be consistent with the revisions to the Affiliated Exchange Directors the analogous provisions of the NYSE US LLC in the Third Amended and candidates recommended jointly by the Euronext Bylaws set forth in this Restated Bylaws of NYSE Regulation Director Candidate Recommendation Proposed Rule Change; would be changed to refer instead to • Section 7.9 of the NYSE Group Committees of each of NYSE Market and NYSE Amex. Bylaws would be amended to clarify NYSE Regulation or, in the event there The SRO Director Independence that they may be amended or repealed, are Petition Candidates (as such term is Policy to be adopted by each of the and new bylaws may be adopted, by defined in the Exchange Operating Exchange, NYSE Market, NYSE either (1) the NYSE Group board of Agreement), the candidates that emerge Regulation and NYSE Amex under the directors or (2) subject to any vote of from a specified process will be Proposed Rule Change would be holders of any class or series of NYSE designated as the Non-Affiliated substantially similar to the current Group stock required by law or the Exchange Directors.65 Independence Policy of the NYSE NYSE Group Certificate, the affirmative Under the Proposed Rule Change, Euronext board of directors, except that vote of holders of a majority of the votes these provisions would be amended (1) certain conforming changes would be entitled to be cast by holders of to provide that the independent made, including the deletion of outstanding shares of NYSE Group members of the Exchange’s board of provisions that currently apply only to entitled to vote generally in the election directors, rather than the nominating NYSE Euronext directors and expressly of directors, voting together as a single and governance committee of the NYSE do not apply to directors of these NYSE class; U.S. Regulated Subsidiaries. In • Euronext board of directors, will In light of the fact that NYSE designate the Non-Affiliated Exchange particular, (1) References to NYSE Alternext US LLC formally changed its Euronext would refer instead to the Directors and make the other related name to NYSE Amex LLC, references to relevant NYSE U.S. Regulated determinations that were previously to NYSE Alternext US LLC in the NYSE Subsidiary or Holdco, as applicable; (2) be made by the nominating and Group Bylaws would be amended to the requirement that at least three- refer instead to NYSE Amex LLC, and governance committee of the NYSE fourths of the directors must be the definition of ‘‘Regulated Subsidiary’’ Euronext board of directors; (2) to independent would be deleted, since in the NYSE Group Certificate would be provide that instead of using the the organizational documents of these amended to include NYSE Amex; and independence policy of the NYSE NYSE U.S. Regulated Subsidiaries • Certain other clarifying, conforming Euronext board of directors to assess the contain the independence and other or other technical edits would be made independence of the Exchange’s board qualification requirements for directors; to Sections 4(a), 4(b)(1)(A)(w), members, the Exchange will have its (3) the requirement in the Independence 4(b)(1)(A)(y), 4(b)(1)(A)(z), 4(b)(1)(E)(iv), own independence policy in the form Policy of NYSE Euronext that the board 4(b)(1)(E)(vi), 4(b)(1)(E)(x), attached to this Proposed Rule Change consider the special responsibilities of a 4(b)(1)(E)(xii), 4(b)(2)(C) and 4(b)(2)(E) as Exhibit 5K (the ‘‘SRO Director director in light of NYSE Euronext’s of Article IV, Sections 6 and 8 of Article Independence Policy’’); (3) in light of ownership of NYSE U.S. Regulated V, Article X, Article XII and Article XIV the fact that the board of directors of Subsidiaries and European regulated of the NYSE Group Certificate and to NYSE Euronext will be decreased in entities would be deleted, because Sections 2.3, 2.9, 5.1 and 7.9 of the size once it becomes a wholly owned unlike NYSE Euronext, these NYSE U.S. NYSE Group Bylaws. In addition, the subsidiary of Holdco, the requirement Regulated Subsidiaries are not holding numbering of certain sections of the that a majority of the members of the companies; (4) the requirement for NYSE Group Certificate and NYSE Exchange’s board of directors must be directors to inform the Chairman of the Group Bylaws would be updated to members of the board of directors of Nominating and Governance Committee reflect the amendments set forth above. NYSE Euronext would be eliminated; of certain relationships and interests and (4) to provide that at least 20% of would be deleted, since the boards of 8. Proposed Amendments to Board these NYSE U.S. Regulated Subsidiaries Composition Requirements for the the Exchange’s directors must be persons who are not members of the do not have a Nominating and Exchange, NYSE Amex, NYSE Market Governance Committee, except that in and NYSE Regulation board of directors of Holdco (rather than referring to the board of directors of the SRO Director Independence Policy The Third Amended and Restated NYSE Euronext). Substantially the same to be adopted by NYSE Regulation, this Operating Agreement, dated as of April revisions would be made to the provision would reference the 1, 2009, of the Exchange (the ‘‘Exchange analogous provisions of the Amended Nominating and Governance Committee Operating Agreement’’), currently and Restated Operating Agreement of provides that (1) a majority of the 66 See Amended and Restated Operating members of the Exchange’s board of Agreement of NYSE Amex LLC, Section 2.03(a). 64 See Third Amended and Restated Operating 67 See Amended and Restated Bylaws of NYSE directors must be U.S. persons and Agreement of New York Stock Exchange LLC, Market, Inc., Article III Section 1. members of the board of directors of Section 2.03(a). 68 See Third Amended and Restated Bylaws of NYSE Euronext who satisfy the 65 See id. NYSE Regulation, Inc., Article III Section 1.

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of NYSE Regulation, Inc.; (5) references ‘‘member organization’’ relating to manner following the Combination as to NYSE Alternext, Inc. would refer NYSE Amex which are set forth in Rule they operate today. Thus, the instead to NYSE Amex, because of this 2 for purposes of Section 1(L) of Article Commission will continue to have entity’s name change; (6) because the 5 of the NYSE Euronext Certificate, plenary regulatory authority over the current Independence Policy of NYSE because under the Proposed Rule U.S. Regulated Subsidiaries, as is the Euronext provides that a director of an Change, that section of the NYSE case currently with these entities. The affiliate of a Member Organization Euronext Certificate will be revised to Proposed Rule Change is consistent cannot qualify as an independent incorporate this language. with and will facilitate an ownership director of these NYSE U.S. Regulated In addition, certain technical structure that will provide the Subsidiaries, the conflicting language amendments would be made to the Commission with appropriate oversight stating that a director of an affiliate of NYSE Amex Rules and NYSE Arca tools to ensure that the Commission will a Member Organization shall not per se Equities Rules to replace references have the ability to enforce the Exchange fail to be independent would be deleted; therein to ‘‘NYSE Euronext’’ with Act with respect to each U.S. Regulated and (7) because language in the current references to Holdco. Subsidiary, its direct and indirect parent Independence Policy of NYSE Euronext 10. Proposed Technical Amendment to entities and its directors, officers, provides that an executive officer of an the NYSE Trust Agreement employees and agents to the extent they issuer whose securities are listed on a are involved in the activities of such NYSE Exchange cannot qualify as an Following completion of the U.S. Regulated Subsidiary. independent director of these NYSE Combination, NYSE Euronext will NYSE Amex also believes that this U.S. Regulated Subsidiaries, the become a wholly owned subsidiary of filing furthers the objectives of Section conflicting language providing an Holdco and, as such, its board of 6(b)(5) 71 of the Exchange Act because exception applicable only to NYSE directors will likely be reduced in size the Proposed Rule Change summarized Euronext directors would be deleted. In and may not include directors who herein would be consistent with and addition, the ‘‘additional independence satisfy the independence criteria that facilitate a governance and regulatory requirements’’ at the end of the current are currently applicable. Accordingly, structure that is designed to prevent Independence Policy of NYSE Euronext, under the Proposed Rule Change, the fraudulent and manipulative acts and which provides that executive officers functions currently performed by the practices, to promote just and equitable of foreign private issuers, executive nominating and governance committee principles of trade, to foster cooperation officers of NYSE Euronext and directors of NYSE Euronext in connection with and coordination with persons engaged of affiliates of member organizations reviewing and appointing trustees in regulating, clearing, settling, must together comprise no more than a pursuant to the Trust Agreement, dated processing information with respect to, minority of the total board, would be as of April 4, 2007, by and among NYSE and facilitating transactions in eliminated. This provision is designed Euronext, NYSE Group and the other securities, to remove impediments to, to ensure that although persons who are parties thereto, would be transferred to and perfect the mechanism of a free and directors of an affiliate of a Member the Holdco Nominating, Governance open market and a national market Organization or who are executive and Corporate Responsibility system and, in general, to protect officers of a ‘‘foreign private issuer’’ Committee. References in such trust investors and the public interest. NYSE listed on a NYSE Exchange may in some agreement to the nominating and Amex expects that the Combination will circumstances qualify as independent governance committee of NYSE position the Holdco Group to be a leader for purposes of NYSE Euronext board Euronext would be replaced with in a diverse set of large and growing membership, such persons may not, references to the Holdco Nominating, businesses, including derivatives, together with executive officers of NYSE Governance and Corporate listings, cash equities, post-trade Euronext, constitute more than a Responsibility Committee, as indicated settlement and asset servicing, market minority of the total NYSE Euronext in Exhibit 5O attached to this Proposed data and technology servicing. NYSE directors. Under the proposed SRO Rule Change. Amex believes this will enable the Director Independence Policy, such Holdco Group to leverage technology 11. Statutory Basis persons could not be deemed to be and a unique collection of markets to independent directors of the relevant NYSE Amex believes that this filing is create a mutually reinforcing capital NYSE U.S. Regulated Subsidiary and, consistent with Section 6(b) 69 of the markets community driving efficiencies accordingly, this limitation on the Exchange Act in general, and furthers and innovation for clients and efficient, number of such persons who may serve the objectives of Section 6(b)(1) 70 in transparent and well-regulated markets on the board is unnecessary. particular, in that it enables NYSE for issuers and clients. As a true Amex to be so organized as to have the pacesetter across the spectrum of capital 9. Proposed Amendments to the capacity to be able to carry out the markets services, the Holdco Group Exchange Rules NYSE Amex Rules and purposes of the Exchange Act and to would be positioned to offer clients NYSE Arca Equities Rules comply, and to enforce compliance by global scale, product innovation, Under the Proposed Rule Change, its exchange members and persons operational and capital efficiencies and certain technical amendments would be associated with its exchange members, an enhanced range of technology and made to the Exchange Rules, as with the provisions of the Exchange Act, market information solutions. summarized below: the rules and regulations thereunder, In addition, NYSE Amex expects that • References therein to ‘‘NYSE and the rules of NYSE Amex. With the Holdco Group would be positioned Euronext’’ would be replaced with respect to the ability of the Commission to serve as a benchmark regulatory references to Holdco, except that to enforce the Exchange Act as it applies model, facilitating transparency and references to NYSE Euronext in Rule 22 to the U.S. Regulated Subsidiaries after standardization in capital markets and Rule 422 would be retained and the Combination, the U.S. Regulated globally, while continuing to operate all references to Holdco would be added; Subsidiaries will operate in the same national exchanges under local and regulatory frameworks. • Rule 2 would be revised to delete 69 15 U.S.C. 78(f)(b). the definitions of ‘‘member’’ and 70 15 U.S.C. 78(f)(b)(1). 71 15 U.S.C. 78(f)(b)(5).

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B. Self-Regulatory Organization’s with respect to the proposed rule notice to solicit comments on the Statement on Burden on Competition change that are filed with the proposed rule change from interested NYSE Amex does not believe that the Commission, and all written persons. communications relating to the Proposed Rule Change will impose any I. Self-Regulatory Organization’s burden on competition that is not proposed rule change between the Commission and any person, other than Statement of the Terms of Substance of necessary or appropriate in furtherance the Proposed Rule Change of the purposes of the Exchange Act. those that may be withheld from the public in accordance with the A. Overview of the Proposed C. Self-Regulatory Organization’s provisions of 5 U.S.C. 552, will be Combination Statement on Comments on the available for Web site viewing and The Exchange, a New York limited Proposed Rule Change Received From printing in the Commission’s Public Members, Participants or Others liability company, registered national Reference Room, 100 F Street, NE., securities exchange and self-regulatory Washington, DC 20549, on official NYSE Amex has neither solicited nor organization, is submitting this rule business days between the hours of 10 received written comments on the filing (the ‘‘Proposed Rule Change’’) to a.m. and 3 p.m. Copies of such filing Proposed Rule Change. the Commission in connection with the also will be available for inspection and proposed business combination (the III. Date of Effectiveness of the copying at the principal office of the ‘‘Combination’’) of NYSE Euronext, a Proposed Rule Change and Timing for Exchange. All comments received will Delaware corporation, and Deutsche Commission Action be posted without change; the Bo¨rse AG, an Aktiengesellschaft Within 45 days of the date of Commission does not edit personal organized under the laws of the Federal publication of this notice in the Federal identifying information from Republic of Germany (‘‘Deutsche Register or within such longer period (i) submissions. You should submit only ¨ As the Commission may designate up to information that you wish to make Borse’’). NYSE Euronext owns 100% of the 90 days of such date if it finds such available publicly. All submissions equity interest of NYSE Group, Inc., a longer period to be appropriate and should refer to File Number SR– Delaware corporation (‘‘NYSE Group’’), publishes its reasons for so finding or NYSEAMEX–2011–78 and should be which in turn directly or indirectly (ii) as to which the Exchange consents, submitted on or before November 10, owns (1) 100% of the equity interest of the Commission shall: (a) By order 2011. three registered national securities approve or disapprove such proposed For the Commission, by the Division of exchanges and self-regulatory rule change, or (b) institute proceedings Trading and Markets, pursuant to delegated organizations (together, the ‘‘NYSE to determine whether the proposed rule authority.72 Exchanges’’)—the Exchange, NYSE change should be disapproved. Elizabeth M. Murphy, Arca, Inc. (‘‘NYSE Arca’’) and NYSE IV. Solicitation of Comments Secretary. Amex LLC (‘‘NYSE Amex’’)—and (2) [FR Doc. 2011–27192 Filed 10–19–11; 8:45 am] Interested persons are invited to 100% of the equity interest of NYSE submit written data, views, and BILLING CODE 8011–01–P Market, Inc. (‘‘NYSE Market’’), NYSE arguments concerning the foregoing, Regulation, Inc. (‘‘NYSE Regulation’’), including whether the proposed rule NYSE Arca L.L.C. (‘‘NYSE Arca LLC’’) SECURITIES AND EXCHANGE and NYSE Arca Equities, Inc. (‘‘NYSE change is consistent with the Act. COMMISSION Comments may be submitted by any of Arca Equities’’) (the NYSE Exchanges, the following methods: [Release No. 34–65562; File No. SR–NYSE– together with NYSE Market, NYSE 2011–51] Regulation, NYSE Arca LLC and NYSE Electronic Comments Arca Equities, the ‘‘NYSE U.S. • Use the Commission’s Internet Self-Regulatory Organizations; New Regulated Subsidiaries’’ and each, a comment form (http://www.sec.gov/ York Stock Exchange, LLC; Notice of ‘‘NYSE U.S. Regulated Subsidiary’’). rules/sro.shtml); or Filing of Proposed Rule Change NYSE Arca and NYSE Amex will be • Send an e-mail to rule- Relating to a Corporate Transaction in separately filing a proposed rule change [email protected]. Please include File Which Its Indirect Parent, NYSE in connection with the Combination Number SR–NYSEAMEX–2011–78 on Euronext, Will Become a Wholly that will be substantially the same as the the subject line. Owned Subsidiary of Alpha Beta Proposed Rule Change. Netherlands Holding N.V. Deutsche Bo¨rse indirectly owns 50% Paper Comments October 14, 2011. of the equity interest of International • Send paper comments in triplicate Pursuant to Section 19(b)(1) 1 of the Securities Exchange Holdings, Inc. (‘‘ISE to Elizabeth M. Murphy, Secretary, U.S. Securities Exchange Act of 1934, as Holdings’’), which in turn holds 100% Securities and Exchange Commission, amended (the ‘‘Exchange Act’’), and of the equity interest of International 100 F Street, NE., Washington, DC Rule 19b–4 thereunder,2 notice is Securities Exchange, LLC (‘‘ISE’’), a 20549–1090. hereby given that on October 12, 2011, registered national securities exchange All submissions should refer to File New York Stock Exchange, LLC (the and self-regulatory organization. ISE Number SR–NYSEAMEX–2011–78. This ‘‘Exchange’’) filed with the U.S. Holdings also holds 31.54% of the file number should be included on the Securities and Exchange Commission equity interest of Direct Edge Holdings, subject line if e-mail is used. To help the (the ‘‘Commission’’) the proposed rule LLC (‘‘Direct Edge Holdings’’), which in Commission process and review your change as described in Items I, II, and turn indirectly holds 100% of the equity comments more efficiently, please use III below, which items have been interest of two registered national only one method. The Commission will prepared substantially by the Exchange. securities exchanges and self-regulatory post all comments on the Commission’s The Commission is publishing this organizations—EDGA Exchange, Inc. Internet Web site (http://www.sec.gov/ (‘‘EDGA’’) and EDGX Exchange, Inc. rules/sro.shtml). Copies of the 72 17 CFR 200.30–3(a)(12). (‘‘EDGX’’) (each of ISE, EDGA and submission, all subsequent 1 15 U.S.C. 78s(b)(1). EDGX, a ‘‘DB Exchange’’ and a ‘‘DB U.S. amendments, all written statements 2 17 CFR 240.19b–4. Regulated Subsidiary’’ and together, the

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‘‘DB Exchanges’’ and the ‘‘DB U.S. of the voting restriction and to the event that Holdco does not own all Regulated Subsidiaries’’). The DB repurchase NYSE Euronext shares that of the issued and outstanding shares of Exchanges will be separately filing a are held in excess of the ownership NYSE Euronext and only for so long as proposed rule change in connection restriction. The NYSE Euronext NYSE Euronext directly or indirectly with the Combination. Certificate and the Amended and controls any U.S. Regulated Subsidiary If the Combination is completed, the Restated Bylaws of NYSE Euronext (the or any European Market Subsidiary (as businesses of NYSE Euronext and ‘‘NYSE Euronext Bylaws’’) provide that such terms are defined in the NYSE Deutsche Bo¨rse, including the NYSE the board of directors of NYSE Euronext Euronext Certificate).9 In addition, the U.S. Regulated Subsidiaries and the DB may waive these voting and ownership voting and ownership restrictions in the U.S. Regulated Subsidiaries (together, restrictions if it makes certain NYSE Euronext Certificate would be the ‘‘U.S. Regulated Subsidiaries’’ and determinations and resolves to amended to (a) change the 10% each, a ‘‘U.S. Regulated Subsidiary’’), expressly permit the voting and threshold for the voting restriction to a will be held under a single, publicly ownership that is subject to such 20% threshold; (b) change the 20% traded holding company organized restrictions, and such resolutions have threshold for the ownership restriction under the laws of the Netherlands been filed with, and approved by, the to a 40% restriction (except that a 20% (‘‘Holdco’’).3 The Proposed Rule Commission under Section 19(b) of the ownership restriction would continue to Change, if approved by the Commission, Exchange Act6 and filed with, and apply to any person who is, or with will not be operative until the approved by, each European Regulator respect to whom a related person is, (A) consummation of the Combination. (as defined in the NYSE Euronext a Member of the Exchange, as defined B. Summary of Proposed Rule Change Certificate) having appropriate in the NYSE Euronext Certificate (a jurisdiction and authority.7 Acting ‘‘NYSE Member’’), (B) a Member of The Exchange is proposing that, pursuant to this waiver provision, the NYSE Amex as defined in the current pursuant to the Combination, its board of directors of NYSE Euronext has NYSE Euronext Bylaws (including any indirect parent, NYSE Euronext, will adopted the resolutions set forth in person who is a related person of such become a wholly owned subsidiary of Exhibit 5A (the ‘‘NYSE Euronext member, an ‘‘Amex Member’’), (C) an Holdco. In addition, the Exchange is Resolutions’’) in order to permit Holdco ETP Holder of NYSE Arca Equities, as proposing that, in connection with the to own and vote 100% of the defined in the NYSE Euronext Combination, the Commission approve outstanding common stock of NYSE Certificate (an ‘‘ETP Holder’’), or (D) an certain amendments to the Euronext as of and after the OTP Holder or OTP Firm of NYSE Arca, organizational and other governance Combination. The Exchange is as defined in the NYSE Euronext documents of Holdco, NYSE Euronext, requesting approval by the Commission Certificate (an ‘‘OTP Holder’’ and ‘‘OTP NYSE Group and certain of the NYSE of the NYSE Euronext Resolutions in Firm,’’ respectively)); (c) add the U.S. Regulated Subsidiaries as well as order to allow the Combination to take provision, which is currently in the certain rules of the Exchange, NYSE place. NYSE Euronext Bylaws, that requires 4 • Amex and NYSE Arca Equities. The Proposed Amendments to Voting the board of directors of NYSE Euronext Proposed Rule Change is summarized as and Ownership Restrictions of NYSE to make certain determinations relating follows: Euronext. Because NYSE Euronext to NYSE Amex in order to waive the • Proposed Approval of Waiver of would become a wholly owned voting and ownership restrictions to the Ownership and Voting Restrictions of subsidiary of Holdco as a result of the NYSE Euronext Certificate, and delete NYSE Euronext. The Amended and Combination, the Exchange is proposing this provision from the NYSE Euronext Restated Certificate of Incorporation of to amend the voting and ownership Bylaws; (d) update the names of certain NYSE Euronext (the ‘‘NYSE Euronext restrictions in the NYSE Euronext Certificate’’) currently restricts any European regulatory entities in the Certificate to be consistent with the definition of ‘‘European Regulator’’ (as person, either alone or together with its analogous provisions in the Second related persons, from being entitled to currently defined in the NYSE Euronext Amended and Restated Certificate of Certificate and the NYSE Euronext vote or cause the voting of shares to the Incorporation of NYSE Group (the extent that such shares represent in the Bylaws); and (e) expand the definition ‘‘NYSE Group Certificate’’): (1) First, the of ‘‘Related Persons’’ to address Amex aggregate more than 10% of the NYSE Euronext Certificate would be outstanding votes entitled to be cast on Members in a manner that is amended to provide that all of the substantively consistent with provisions any matter or beneficially owning shares issued and outstanding shares of NYSE of stock of NYSE Euronext representing currently located in the NYSE Rules. Euronext will be held by Holdco, and • Proposed Amendments to Voting in the aggregate more than 20% of the that Holdco may not transfer or assign outstanding votes entitled to be cast on and Ownership Restrictions of NYSE any shares without approval by the Group. The NYSE Group Certificate any matter.5 NYSE Euronext is required Commission under the Exchange Act to disregard votes which are in excess currently provides that, if NYSE and the relevant European Regulators Euronext and the trust 10 established under the applicable European 3 Holdco is currently named ‘‘Alpha Beta pursuant to the Trust Agreement, dated Exchange Regulations (as defined in the as of April 4, 2007, by and among NYSE Netherlands Holding N.V.,’’ but it is expected that 8 Holdco will be renamed prior to the completion of NYSE Euronext Certificate); and (2) Euronext, NYSE Group and the other the Combination to a name agreed between NYSE second, the NYSE Euronext Certificate parties thereto, do not hold 100% of the ¨ Euronext and Deutsche Borse. would be amended to provide that the outstanding stock of NYSE Group, no 4 Proposed amendments to the governance voting and ownership restrictions documents and/or rules of NYSE Amex and NYSE contained therein would only apply in Arca Equities are included in this Proposed Rule 9 The analogous provision in the NYSE Group Change, and the text of those proposed amendments Certificate is Section 4(b) of Article IV. are attached as exhibits to this Proposed Rule 6 15 U.S.C. 78s(b). 10 No changes are being proposed to the current Change, because they are part of the overall set of 7 See Amended and Restated Certificate of Delaware trust and stichting for ‘‘regulatory changes proposed by the NYSE Exchanges to be Incorporation of NYSE Euronext, Article V Sections overspill’’ matters, except that references to the made in connection with the Combination. 1 & 2, and Amended and Restated Bylaws of NYSE Nominating and Governance Committee of NYSE 5 See Amended and Restated Certificate of Euronext, Section 10.12. Euronext would be replaced with references to the Incorporation of NYSE Euronext, Article V Sections 8 The analogous provision in the NYSE Group Holdco Nominating, Governance and Corporate 1 & 2. Certificate is Section 4(a) of Article IV. Responsibility Committee.

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person, either alone or together with its edits (for example, to conform the use of the Exchange (the ‘‘Exchange Rules’’) related persons, may be entitled to vote of defined terms and other provisions, to (1) replace references therein to or cause the voting of shares to the and to update cross-references to ‘‘NYSE Euronext’’ with references to extent that such shares represent in the sections, consistent with the other Holdco; and (2) delete the definitions of aggregate more than 10% of the amendments to the NYSE Euronext ‘‘member’’ and ‘‘member organization’’ outstanding votes entitled to be cast on Certificate and the NYSE Euronext relating to NYSE Amex which are set any matter or beneficially own shares of Bylaws set forth in this Proposed Rule forth in Rule 2 for purposes of Section stock of NYSE Group representing in the Change). In addition, the current 1(L) of Article 5 of the NYSE Euronext aggregate more than 20% of the Independence Policy of the NYSE Certificate, because the Proposed Rule outstanding votes entitled to be cast on Euronext board of directors would cease Change will revise the NYSE Euronext any matter.11 NYSE Group is required to to be in effect. Certificate to include analogous disregard votes which are in excess of • Proposed Amendments to Board language relating to NYSE Amex the voting restriction and to repurchase Composition Requirements for the Members. In addition, certain technical NYSE Group shares which are held in Exchange, NYSE Amex, NYSE Market amendments would be made to the rules excess of the ownership restriction.12 and NYSE Regulation. Under the of NYSE Amex (the ‘‘NYSE Amex Under the Proposed Rule Change, the Proposed Rule Change, certain Rules’’) and to the rules of NYSE Arca voting and ownership restrictions in the provisions of the Third Amended and Equities (the ‘‘NYSE Arca Equities NYSE Group Certificate would be Restated Operating Agreement, dated as Rules’’) to replace references therein to amended to (1) change the 10% of April 1, 2009, of the Exchange (the ‘‘NYSE Euronext’’ with references to threshold for the voting restriction to a ‘‘Exchange Operating Agreement’’) Holdco. 20% threshold; (2) change the 20% relating to the composition of the The text of the proposed amended threshold for the ownership restriction Exchange’s board of directors would be NYSE Euronext Certificate, NYSE to a 40% restriction (except that a 20% amended, including to provide that the Euronext Bylaws, NYSE Group ownership restriction would continue to independent directors of the Exchange Certificate, NYSE Group Bylaws, apply to any person who is, or with would perform certain functions Exchange Operating Agreement, respect to whom a related person is, a currently allocated to the NYSE Amended and Restated Operating NYSE Member, an Amex Member, an Euronext nominating and governance Agreement of NYSE Amex, Amended ETP Holder or an OTP Holder or OTP committee and that the Exchange’s and Restated Bylaws of NYSE Market, Firm); (3) provide that the ownership board of directors would have its own Third Amended and Restated Bylaws of and voting limitations would apply only director independence policy, instead of NYSE Regulation, Exchange Rules, form for so long as NYSE Group directly or referring to the director independence of Director Independence Policy for indirectly controls any Regulated policy of NYSE Euronext. Substantially certain NYSE U.S. Regulated Subsidiary (as defined in the NYSE the same revisions would be made to Subsidiaries, NYSE Amex Rules and Group Certificate); and (4) expand the the analogous provisions of the NYSE Arca Equities Rules are attached definition of ‘‘Related Persons’’ Amended and Restated Operating to the Proposed Rule Change as Exhibits regarding Amex Members so that it is Agreement of NYSE Amex,13 the 5B, 5C, 5D, 5E, 5F, 5G, 5H, 5I, 5J, 5K, consistent with the language in the Amended and Restated Bylaws of NYSE 5P and 5Q, respectively. NYSE Rules, which language will be Market 14 and the Third Amended and Under the Proposed Rule Change, incorporated in the NYSE Euronext Restated Bylaws of NYSE Regulation.15 Holdco would take appropriate steps to Certificate pursuant to this Proposed • Proposed Amendments to the NYSE incorporate voting and ownership Rule Change. Group Certificate and NYSE Group restrictions, requirements relating to • Proposed Amendments to Certain Bylaws. Under the Proposed Rule submission to jurisdiction, access to Public-Company-Related and Other Change, the NYSE Group Certificate and books and records and other Provisions of NYSE Euronext the NYSE Group Bylaws would be requirements related to its control of the Organizational and Corporate amended in order to (1) conform certain U.S. Regulated Subsidiaries. Governance Documents. Under the provisions to analogous provisions of Specifically, the Articles of Association Proposed Rule Change, in light of the the organizational documents of NYSE of Holdco in effect as of the completion fact that NYSE Euronext would become Euronext, which will likewise be a of the Combination (the ‘‘Holdco a wholly owned subsidiary of Holdco wholly owned subsidiary of Holdco Articles’’) would contain provisions 16 following completion of the following completion of the to incorporate these concepts with Combination, NYSE Euronext Certificate Combination; and (2) make certain respect to itself, as well as its directors, and the NYSE Euronext Bylaws would clarification and technical edits (for officers, employees and agents (as be amended to (1) simplify and provide example, to conform the use of defined applicable): for a more efficient governance and terms and other provisions to be • Voting and Ownership Restrictions capital structure that is appropriate for consistent with the other amendments in the Holdco Articles. The Holdco a wholly owned subsidiary; (2) conform to the NYSE Group Certificate and the Articles would contain voting and certain provisions to analogous NYSE Group Bylaws set forth in this ownership restrictions that will restrict provisions of the organizational Proposed Rule Change). any person, either alone or together with • documents of NYSE Group, which will Proposed Amendments to the its related persons, from having voting likewise be an indirect wholly owned Exchange Rules, NYSE Amex Rules and control over Holdco shares entitling the subsidiary of Holdco following NYSE Arca Equities Rules. Under the holder thereof to cast more than 20% of completion of the Combination; and (3) Proposed Rule Change, certain technical the then outstanding votes entitled to be make certain clarification and technical amendments would be made to the rules cast on a matter or beneficially owning Holdco shares representing more than 11 See Second Amended and Restated Certificate 13 See Amended and Restated Operating 40% of the outstanding votes entitled to of Incorporation of NYSE Group, Inc., Article IV Agreement of NYSE Amex LLC, Section 2.03(a). Section 4(b)(1) & (2). 14 See Amended and Restated Bylaws of NYSE be cast on a matter (except that a 20% 12 See Second Amended and Restated Certificate Market, Inc., Article III Section 1. of Incorporation of NYSE Group, Inc., Article IV 15 See Third Amended and Restated Bylaws of 16 The text of the proposed Holdco Articles is Sections 4(b)(1)(A) & 4(b)(2)(D). NYSE Regulation, Inc., Article III Section 1. attached to the Proposed Rule Change as Exhibit 5L.

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ownership restriction would apply to securities laws and the rules or Articles may be effectuated by execution any person who is a NYSE Member, an regulations thereunder, arising out of, or of a notarial deed of amendment, such Amex Member, an ETP Holder, an OTP relating to, the activities of the U.S. amendment would need to be submitted Holder or OTP Firm, a Member (as such Regulated Subsidiaries. In addition, the to the board of directors of each U.S. term is defined in Section 3(a)(3)(A) of Holdco Articles would provide that so Regulated Subsidiary and, if so the Exchange Act) of ISE (an ‘‘ISE long as Holdco directly or indirectly determined by any such board, would Member’’), or a member of EDGA or controls any U.S. Regulated Subsidiary, need to be filed with, or filed with and EDGX (as such terms are defined in the the directors, officers and employees approved by, the Commission before rules of EDGA and EDGX, respectively, will be deemed to be directors, officers such amendment may become effective. an ‘‘EDGA Member’’ and ‘‘EDGX and employees of such U.S. Regulated • Additional Matters. The Holdco Member,’’ respectively)). The Holdco Subsidiaries for purposes of, and subject Articles would include provisions Articles would provide that Holdco will to oversight pursuant to, the Exchange regarding cooperation with the be required to disregard any votes Act. The Holdco Articles would provide Commission and the U.S. Regulated purported to be cast in excess of the that Holdco will take reasonable steps Subsidiaries, compliance with U.S. voting restriction. In the event that any necessary to cause its officers, directors federal securities laws, confidentiality such person(s) exceeds the ownership and employees, prior to accepting a of information regarding the U.S. restriction, it will be required to offer for position as an officer, director or Regulated Subsidiaries’ self-regulatory sale and transfer the number of Holdco employee, as applicable, to agree and function, preservation of the shares required to comply with the consent in writing to the applicability to independence of the U.S. Regulated ownership restriction, and the rights to them of these jurisdictional and Subsidiaries’ self-regulatory function, vote, attend general meetings of Holdco oversight provisions with respect to and directors’ consideration of the effect shareholders and receive dividends or their activities related to any U.S. of Holdco’s actions on the U.S. other distributions attached to shares Regulated Subsidiary. Furthermore, the Regulated Subsidiaries’ ability to carry held in excess of the 40% threshold (or Holdco Articles would provide that no out their respective responsibilities 20% threshold, if applicable) will be person may be a director of Holdco under the Exchange Act. In addition, the suspended for so long as such threshold unless he or she has agreed and Holdco Articles would provide that is exceeded. If such person(s) fails to consented in writing to the applicability Holdco will take reasonable steps comply with the transfer obligation to him or her of these jurisdictional and necessary to cause its officers, directors within two weeks, then the Holdco oversight provisions with respect to his and employees, prior to accepting a Articles would provide that Holdco will or her activities related to any U.S. position as an officer, director or be irrevocably authorized to take actions Regulated Subsidiary. Holdco would employee, as applicable, of Holdco to on behalf of such person(s) in order to sign an irrevocable agreement and agree and consent in writing to the cause it to comply with such consent for the benefit of each U.S. applicability to them of these provisions obligations. Consistent with the current Regulated Subsidiary that it will comply of the Holdco Articles with respect to NYSE Euronext Certificate, the Holdco with these provisions of the Holdco their activities related to any U.S. Articles. Regulated Subsidiary. The Holdco board of directors may waive the voting • and ownership restrictions if it makes Books and Records. The Holdco Articles would also provide that no certain determinations (which will be Articles would provide that for so long person may be a director of Holdco as Holdco directly or indirectly controls unless he or she has agreed and subject to the same requirements which any U.S. Regulated Subsidiary, the consented in writing to the applicability are currently required to be made by the books, records and premises of Holdco to him or her of these provisions with board of directors of NYSE Euronext will be deemed to be the books, records respect to his or her activities related to and ISE Holdings in order to waive the and premises of such U.S. Regulated any U.S. Regulated Subsidiary. Holdco voting and ownership restrictions in the Subsidiaries for purposes of, and subject will sign an irrevocable agreement and current NYSE Euronext Certificate and to oversight pursuant to, the Exchange consent for the benefit of each U.S. the Certificate of Incorporation of ISE Act, and that Holdco’s books and Regulated Subsidiary 17 that it will Holdings (the ‘‘ISE Certificate’’), as records will at all times be made comply with these provisions of the applicable) and resolves to expressly available for inspection and copying by Holdco Articles.18 permit the voting and ownership that is the Commission, and by any U.S. In addition, Holdco would adopt a subject to such restrictions, and such Regulated Subsidiary to the extent they Director Independence Policy in the resolutions have been filed with, and are related to the activities of such U.S. form attached hereto as Exhibit 5N (the approved by, the Commission under Regulated Subsidiary or any other U.S. ‘‘Holdco Independence Policy’’), which Section 19(b) of the Exchange Act and Regulated Subsidiary over which such would be substantially similar to the filed with, and approved by, the U.S. Regulated Subsidiary has current Independence Policy of the relevant European Regulators having regulatory authority or oversight. In NYSE Euronext board of directors, appropriate jurisdiction and authority. addition, Holdco’s books and records except for certain changes described in • Jurisdiction. The Holdco Articles related to the U.S. Regulated this Proposed Rule Change. will provide that Holdco and its Subsidiaries will be maintained within The text of the Proposed Rule Change directors, and to the extent they are the United States, except that to the is available at the Exchange, the involved in the activities of the U.S. extent that books and records may relate Regulated Subsidiaries, (x) Holdco’s to both European subsidiaries and U.S. 17 The form of Holdco’s agreement and consent is officers, and (y) those of its employees Regulated Subsidiaries, Holdco may attached as Exhibit 5M to this Proposed Rule whose principal place of business and Change. maintain such books and records either 18 The Holdco Articles will also set forth certain residence is outside the United States, in the home jurisdiction of one or more restrictions and requirements relating to Holdco’s will be deemed to irrevocably submit to European subsidiaries or in the United European subsidiaries and applicable European the jurisdiction of the U.S. federal States. regulatory matters, which will be substantially • consistent with the analogous restrictions and courts and the Commission for the Amendments to Holdco Articles. requirements applicable with respect to Holdco’s purposes of any suit, action or The Holdco Articles would provide that U.S. Regulated Subsidiaries and U.S. regulatory proceeding pursuant to the U.S. federal before any amendment to the Holdco matters.

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Commission’s Public Reference Room, world-class services to global and local therefore, the completion of the Merger) and on the Web site of the Exchange customers worldwide. is subject to the satisfaction of a number (http://www.nyse.com). The text of Other than as described herein, of conditions, including that Deutsche Exhibits 5A through 5Q of the Proposed Holdco and the NYSE Exchanges will Bo¨rse shares representing at least 75% Rule Change are also available on the not make any changes to the regulated of the Deutsche Bo¨rse shares Exchange’s Web site and on the activities of the NYSE U.S. Regulated outstanding, on a fully diluted basis, Commission’s Web site (http:// Subsidiaries in connection with the must be validly tendered and not www.sec.gov/rules/sro.shtml). Combination, and, other than as withdrawn in the Exchange Offer, and Other than as described herein and set described in the separate proposed rule that holders of a majority of the forth in the attached Exhibits 5A changes filed by each of the DB outstanding shares of NYSE Euronext through 5Q, the Exchange will continue Exchanges in connection with the shall have adopted the Combination to conduct its regulated activities in the Combination, Holdco and the DB Agreement. Both of these conditions manner currently conducted and will Exchanges will not make any changes to have been satisfied. not make any changes to its regulated the regulated activities of the DB U.S. Following the completion of the activities in connection with the Regulated Subsidiaries in connection Exchange Offer, and depending on the Combination. If the Exchange with the Combination. If Holdco percentage of Deutsche Bo¨rse shares determines to make any such changes, determines to make any such changes to acquired by Holdco in the Exchange it will seek approval of the Commission. the regulated activities of any U.S. Offer, Deutsche Bo¨rse and Holdco Regulated Subsidiary, it will seek the intend to complete a post-completion II. Self-Regulatory Organization’s approval of the Commission. The reorganization pursuant to which Statement of the Purpose of, and Proposed Rule Change, if approved by Holdco will enter into a domination Statutory Basis for, the Proposed Rule the Commission, will not be operative agreement, or a combination of a Change until the consummation of the domination agreement and a profit and In its filing with the Commission, the Combination. loss transfer agreement, pursuant to Exchange has included statements The Combination will occur pursuant which the remaining shareholders of concerning the purpose of, and basis for, to the terms of the Business Deutsche Bo¨rse will have limited rights, the Proposed Rule Change. The text of Combination Agreement, dated as of including a limited ability to participate these statements may be examined at February 15, 2011, as amended by in the profits of Deutsche Bo¨rse. the places specified in Item IV below. Amendment No. 1 dated as of May 2, Holdco expects the Combination will The Exchange has prepared summaries, 2011 and by Amendment No. 2 dated as create a group that will be both a world set forth in Sections A, B and C below, of June 16, 2011 (as it may be further leader in derivatives and risk of the most significant aspects of such amended from time to time, the management and the premier global statements. ‘‘Combination Agreement’’), by and venue for capital raising, with a truly among NYSE Euronext, Deutsche Bo¨rse, global franchise and presence in many A. Purpose [sic] Holdco and Pomme Merger Corporation, of the world’s financial centers The purpose of this rule filing is to a Delaware corporation and newly including New York, London, Frankfurt, adopt the rules necessary to permit formed wholly owned subsidiary of Paris and Luxembourg. This global NYSE Euronext to effect the Holdco (‘‘Merger Sub’’). Subject to the presence should facilitate providing Combination and to amend certain terms and conditions set forth in the world-class services to global and local provisions of the organizational and Combination Agreement and in customers worldwide. Following the other governance documents of NYSE compliance with applicable law, Holdco Combination, Holdco and its Euronext, NYSE Group and certain of has conducted a public exchange offer subsidiaries (together, the ‘‘Holdco the NYSE U.S. Regulated Subsidiaries, (the ‘‘Exchange Offer’’), in which Group’’) expect to serve as a benchmark including certain Exchange Rules, NYSE shareholders of Deutsche Bo¨rse have regulatory model, facilitating Amex Rules and NYSE Arca Equities been afforded the opportunity to tender transparency and harmonization of Rules. each share of Deutsche Bo¨rse for one capital markets globally, while ordinary share of Holdco (each, a continuing to operate all national 1. Overview of the Combination ‘‘Holdco Share’’). exchanges under local regulatory The Exchange is submitting this Immediately after the time that frameworks and their respective brand Proposed Rule Change to the Holdco accepts for exchange, and names. Commission in connection with the exchanges, the Deutsche Bo¨rse shares Combination of NYSE Euronext and that are validly tendered and not 2. Overview of the Holdco Group Deutsche Bo¨rse. The Combination will withdrawn in the Exchange Offer, Following the Combination create a holding company, Holdco, Merger Sub will merge with and into Following the Combination, Holdco which will hold the businesses of NYSE NYSE Euronext, as a result of which will be a for-profit, publicly traded Euronext and Deutsche Bo¨rse. NYSE Euronext will become a wholly corporation formed under the laws of Following the Combination, each of owned subsidiary of Holdco (the the Netherlands and will act as the NYSE Euronext and Deutsche Bo¨rse will ‘‘Merger’’). In the Merger, each holding company for the businesses of be a separate subsidiary of Holdco. outstanding share of NYSE Euronext NYSE Euronext and Deutsche Bo¨rse. Holdco expects the Combination will common stock will be converted into Holdco will hold all of the equity create a group that will be both a world the right to receive 0.47 of a fully paid interests in NYSE Euronext, which leader in derivatives and risk and non-assessable Holdco Share. NYSE holds (1) 100% of the equity interest of management and the premier global Euronext’s obligation to complete the NYSE Group (which, in turn, directly or venue for capital raising, with a truly Merger is subject to the completion of indirectly holds 100% of the equity global franchise and presence in many the Exchange Offer and the acquisition interests of the NYSE U.S. Regulated of the world’s financial centers by Holdco of all of the Deutsche Bo¨rse Subsidiaries) and (2) 100% of the equity including New York, London, Frankfurt, shares validly tendered and not interest of Euronext N.V. (which, in Paris and Luxembourg. This global withdrawn in the Exchange Offer. The turn, directly or indirectly holds 100% presence should facilitate providing completion of the Exchange Offer (and, of the equity interests of trading markets

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in Belgium, France, the Netherlands, Securities Market Commission Regulated Subsidiaries, with any Portugal and the United Kingdom). (Comissa˜ o do Mercado de Valores changes subject to the approval of the Holdco will also hold a majority of the Mobilia´ rios—CMVM) and the U.K. Commission. equity interests in Deutsche Bo¨rse, Financial Services Authority (FSA). Holdco acknowledges that to the which indirectly holds 50% of the Other than certain modifications extent it becomes aware of possible equity interest of ISE Holdings (which, described herein, the current corporate violations of the rules of the Exchange, in turn, holds (1) 100% of the equity structure, governance and self- NYSE Arca or NYSE Amex, it will be interest of ISE and (2) 31.54% of the regulatory independence and separation responsible for referring such possible equity interest of Direct Edge Holdings). of each NYSE U.S. Regulated Subsidiary violations to each such exchange, Direct Edge Holdings indirectly holds will be preserved. Specifically, after the respectively. In addition, Holdco will 100% of the equity interest of EDGA Combination, NYSE Group’s businesses become a party to the agreement among and EDGX. Holdco intends to list its and assets will continue to be structured NYSE Euronext, NYSE Group, the ordinary shares on the New York Stock as follows: Exchange, NYSE Market and NYSE Exchange, the Frankfurt Stock Exchange • The Exchange will remain a direct Regulation to provide for adequate and Euronext Paris. The Holdco Group wholly owned subsidiary of NYSE funding for NYSE Regulation. will have dual headquarters in Frankfurt Group and an indirectly wholly owned 3. Proposed Approval of Waiver of and New York. subsidiary of NYSE Euronext. Voting and Ownership Restrictions of After the Combination, NYSE Group • NYSE Market will remain a wholly NYSE Euronext will continue to be directly wholly owned subsidiary of the Exchange and owned by NYSE Euronext and will will continue to conduct the Exchange’s Article V of the current NYSE continue to directly or indirectly own business. Euronext Certificate provides that (1) no the three NYSE Exchanges—the • NYSE Regulation will remain a person, either alone or together with its Exchange, NYSE Arca and NYSE wholly owned subsidiary of the ‘‘related persons’’ (as defined in the Amex—which provide marketplaces Exchange and continue to perform, and/ NYSE Euronext Certificate), may be where investors buy and sell listed or oversee the performance of, entitled to vote or cause the voting of companies’ common stock and other regulatory responsibilities of the shares of NYSE Euronext beneficially securities as well as equity options and Exchange pursuant to a delegation owned by such person or its related securities traded on the basis of unlisted agreement with the Exchange and persons, in person or by proxy or trading privileges. NYSE Regulation, regulatory functions of NYSE Arca and through any voting agreement or other Inc., an indirect not-for-profit subsidiary NYSE Amex pursuant to services arrangement, to the extent that such of NYSE Group, oversees FINRA’s agreements with them.19 shares represent in the aggregate more performance of certain market • Archipelago Holdings, Inc., a than 10% of the then outstanding votes surveillance and enforcement functions Delaware corporation (‘‘Arca entitled to be cast on such matter; and for NYSE Euronext’s U.S. securities Holdings’’), will remain a wholly owned (2) no person, either alone or together exchanges, enforces listed company subsidiary of NYSE Group and indirect with its related persons, may acquire the compliance with applicable standards, wholly owned subsidiary of NYSE ability to vote more than 10% of the and oversees regulatory policy Euronext. then outstanding votes entitled to be determinations, rule interpretation and • NYSE Arca Holdings, Inc., a cast on any such matter by virtue of regulation related rule development. Delaware corporation (‘‘NYSE Arca agreements or arrangements entered into In Europe, NYSE Euronext, Deutsche Holdings’’), and NYSE Arca, L.L.C., a with other persons to refrain from Bo¨rse and their respective subsidiaries Delaware limited liability company voting shares of stock of NYSE Euronext own several European exchanges, (‘‘NYSE Arca LLC’’), will remain wholly (the ‘‘NYSE Euronext Voting including trading operations on owned subsidiaries of Arca Holdings. Restriction’’).20 NYSE Euronext must regulated and non-regulated markets for • NYSE Arca will remain a wholly disregard any votes purposed to be cast cash products in Germany, France, owned subsidiary of NYSE Arca in excess of the NYSE Euronext Voting Belgium, the Netherlands, and Portugal Holdings. Restriction.21 and derivatives in the United Kingdom • NYSE Arca Equities, a Delaware In addition, the NYSE Euronext and in the five above-mentioned corporation, will remain a wholly Certificate provides that no person, locations. As a result, the activities of owned subsidiary of NYSE Arca. either alone or together with its related the NYSE Euronext and Deutsche Bo¨rse • NYSE Amex will remain a direct persons, may at any time beneficially European markets are or may be subject wholly owned subsidiary of NYSE own shares of NYSE Euronext to the jurisdiction and authority of a Group and an indirectly wholly owned representing in the aggregate more than number of European regulators, subsidiary of NYSE Euronext. 20% of the then outstanding votes including the German Federal Financial • The Combination will have no entitled to be cast on any matter (the Supervisory Authority (Bundesanstalt effect on the ability of any party to trade ‘‘NYSE Euronext Ownership fu¨ r Finanzdienstleistungsaufsicht), the securities on the Exchange, NYSE Arca Restriction’’).22 If any person, either Hessian Exchange Supervisory or NYSE Amex. alone or together with its related Authority, the Dutch Minister of Similarly, Deutsche Bo¨rse and its persons, owns shares of NYSE Euronext Finance, the French Minister of the subsidiaries, and NYSE Euronext and its in excess of the NYSE Euronext Economy, the French Financial Market subsidiaries, will continue to conduct Ownership Restriction, then such Authority (Autorite´ des Marche´s their regulated activities in the same Financiers), the French Prudential manner as they are currently conducted, 20 See Amended and Restated Certificate of ´ Supervisory Authority (Autorite de with any changes subject to the relevant Incorporation of NYSE Euronext, Article V Section ˆ 1. Controle Prudentiel), the Netherlands approvals of their respective European 21 See Amended and Restated Certificate of Authority for the Financial Markets regulators and, in the case of the U.S. (Autoriteit Financie¨le Markten), the Incorporation of NYSE Euronext, Article V Section 1(A). Belgian Financial Services and Markets 19 Certain regulatory functions have been 22 See Amended and Restated Certificate of Authority (Autorite´ des Services et allocated to, and/or are otherwise performed by, Incorporation of NYSE Euronext, Article V Section Marche´s Financiers), the Portuguese FINRA. 2.

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person and its related persons are • Will not impair the ability of any Exchange; (2) a ‘‘member’’ of NYSE obligated to sell promptly, and NYSE NYSE U.S. Regulated Subsidiary, NYSE Amex; (3) an ETP Holder; (4) an OTP Euronext is obligated to purchase Euronext or NYSE Group (if and to the Holder or an OTP Firm; or (5) a U.S. promptly, at a price equal to the par extent that NYSE Group continues to Disqualified Person or a European value of such shares and to the extent exist as a separate entity) to discharge Disqualified Person. funds are legally available for such their respective responsibilities under At a meeting duly convened on purchase, the number of shares of NYSE the Exchange Act and the rules and September 15, 2011, the board of Euronext necessary so that such person, regulations thereunder; directors of NYSE Euronext adopted the together with its related persons, will • Will not impair the ability of any of NYSE Euronext Resolutions to permit beneficially own shares of NYSE the European Market Subsidiaries (as Holdco, either alone or with its related Euronext representing in the aggregate defined in the NYSE Euronext Bylaws) persons, to exceed the NYSE Euronext no more than 20% of the then of NYSE Euronext or Euronext (to the Ownership Restriction and the NYSE outstanding votes entitled to be cast on extent that Euronext continues to exist Euronext Voting Restriction. In adopting any matter, after taking into account that as a separate entity) to discharge their such resolutions, the board of directors such repurchased shares will become respective responsibilities under the of NYSE Euronext made the necessary treasury shares and will no longer be European Exchange Regulations (as determinations set forth above and deemed to be outstanding.23 defined in the NYSE Euronext Bylaws); approved the submission of this • Is otherwise in the best interest of Proposed Rule Change to the The NYSE Euronext Voting NYSE Euronext, its stockholders, the Commission. The NYSE U.S. Regulated Restriction and the NYSE Euronext NYSE U.S. Regulated Subsidiaries and Subsidiaries will continue to operate Ownership Restriction are applicable to the European Market Subsidiaries, and and regulate their markets and members each person unless and until (1) such will not impair the Commission’s ability exactly as they have done prior to the person has delivered a notice in writing to enforce the Exchange Act or the Combination. Except as set forth in this to the board of directors of NYSE European Regulators’ ability to enforce Proposed Rule Change, Holdco is not Euronext, not less than 45 days (or such the European Exchange Regulations; proposing any amendments to their shorter period as the board of directors • For so long as NYSE Euronext trading or regulatory rules. of NYSE Euronext expressly permits) directly or indirectly controls the With respect to the ability of the prior to any vote or, in the case of the Exchange or NYSE Market, neither such Commission to enforce the Exchange NYSE Euronext Ownership Restriction, person nor any of its related persons is Act as it applies to the NYSE U.S. prior to the acquisition of any shares of a NYSE Member; Regulated Subsidiaries after the NYSE Euronext that would cause such • For so long as NYSE Euronext Combination, the NYSE U.S. Regulated person, either alone or together with its directly or indirectly controls NYSE Subsidiaries will operate in the same related persons, to exceed the NYSE Amex, neither such person nor any of manner following the Combination as 26 Euronext Ownership Restriction, of its related persons is an Amex Member; they operate today. Thus, the such person’s intention, either alone or • For so long as NYSE Euronext Commission will continue to have together with its related persons, to vote directly or indirectly controls NYSE plenary regulatory authority over the or cause the voting of shares of NYSE Arca, NYSE Arca Equities or any facility NYSE U.S. Regulated Subsidiaries, as is Euronext stock beneficially owned by of NYSE Arca, neither such person nor the case currently with these entities. As such person or its related persons in any of its related persons is an ETP described in the following sections of excess of the NYSE Euronext Voting Holder, an OTP Holder or an OTP Firm; this filing, the Exchange is proposing a Restriction or, in the case of the NYSE and series of amendments to the NYSE Euronext Ownership Restriction, of • Neither such person nor any of its Euronext Certificate, the NYSE Euronext such person’s intention, either alone or related persons is a U.S. Disqualified Bylaws, the NYSE Group Certificate and together with its related persons, to Person or a European Disqualified the NYSE Group Bylaws, as well as acquire such ownership; (2) the board of Person (as such terms are defined in the certain provisions of the Holdco Articles, that will create an ownership directors of NYSE Euronext has resolved NYSE Euronext Certificate).25 structure that will provide the to expressly permit such voting or In order to allow Holdco to wholly Commission with appropriate oversight ownership, as applicable; (3) such own and vote all of the outstanding tools to ensure that the Commission will resolution has been filed with, and common stock of NYSE Euronext upon have the ability to enforce the Exchange approved by, the Commission under consummation of the Combination, 24 Act with respect to each U.S. Regulated Section 19(b) of the Exchange Act and Holdco has delivered written notice to Subsidiary, its direct and indirect parent has become effective thereunder; and (4) the board of directors of NYSE Euronext entities and its directors, officers, such resolution has been filed with, and pursuant to the procedures set forth in employees and agents to the extent they approved by, each European Regulator the NYSE Euronext Certificate are involved in the activities of such having appropriate jurisdiction and requesting approval of its voting and authority. Subject to its fiduciary duties U.S. Regulated Subsidiary. ownership of NYSE Euronext shares in The NYSE Euronext board of directors under applicable law, the NYSE excess of the NYSE Euronext Voting Euronext board of directors may not also determined that ownership of Restriction and the NYSE Euronext NYSE Euronext by Holdco is in the best adopt any resolution pursuant to the Ownership Restriction. Among other foregoing clause (2) unless it has interests of NYSE Euronext, its things, in this notice, Holdco shareholders and the NYSE U.S. determined that the exercise of such represented to the board of directors of voting rights (or the entering into of a Regulated Subsidiaries. With respect to NYSE Euronext that neither it, nor any the interests of the NYSE U.S. Regulated voting agreement) or ownership, as of its related persons, is (1) a ‘‘member’’ applicable: or ‘‘member organization’’ of the 26 The Exchange has been informed by Deutsche Bo¨rse that the DB U.S. Regulated Subsidiaries are 23 See Amended and Restated Certificate of 25 See Amended and Restated Certificate of also expected to operate in the same manner Incorporation of NYSE Euronext, Article V Section Incorporation of NYSE Euronext, Article V Sections following the Combination as they operate today. 2(D). 1(B), 1(C), 2(B) and 2(C), and Amended and This is addressed in the separate proposed rule 24 15 U.S.C. 78s(b). Restated Bylaws of NYSE Euronext, Section 10.12. change filed by each of the DB Exchanges.

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Subsidiaries, the board of directors of Voting and Ownership Restrictions in person(s), a ‘‘Non-Compliant Owner’’), NYSE Euronext has noted, among other Holdco Articles the Non-Compliant Owner would cease things, its expectation that the Under the Proposed Rule Change, the to have certain rights to the extent that Combination would over time create Holdco Articles would provide that no its shareholding exceeds the Holdco substantial incremental efficiency and person, either alone or together with its Ownership Restriction. Specifically, the growth opportunities and that the related persons, will be entitled to vote Non-Compliant Owner’s rights to vote, Holdco Group is expected to be a leader or cause the voting of a number of to attend general meetings of Holdco in a diverse set of large and growing shares of Holdco, in person or by proxy shareholders and to receive dividends businesses, including derivatives, or through any voting agreement or or other distributions attached to such listings, cash equities, post-trade other arrangement, which represent in shares in excess of the Holdco settlement and asset servicing, market the aggregate (1) more than 20% of the Ownership Restriction would be data and technology servicing. then outstanding votes entitled to be suspended for so long as the Holdco In addition, neither Holdco, nor any cast on such matter; or (2) more than Ownership Restriction is exceeded.31 of its related persons, is (1) a NYSE 20% of the then outstanding votes Pursuant to Section 2:87a of the Dutch Member; (2) an Amex Member; (3) an entitled to be cast on any such matter Civil Code, the Non-Compliant Owner ETP Holder, an OTP Holder or an OTP by virtue of agreements or arrangements Firm; or (4) a U.S. Disqualified Person entered into with other persons to may request that an independent expert or a European Disqualified Person. refrain from voting shares of Holdco (the be appointed to determine the value of An extract with the relevant ‘‘Holdco Voting Restriction’’).28 The the Holdco shares, but such expert will provisions of the NYSE Euronext Holdco Articles would provide that have discretion to determine that the Resolutions is attached as Exhibit 5A to Holdco will be required to disregard any value of the shares is equal to the price the Proposed Rule Change and can be votes purported to be cast in excess of received for the shares by the Non- found on the Exchange’s Web site and the Holdco Voting Restriction. Compliant Owner on any stock the Commission’s Web site. In addition, the Holdco Articles exchange where the Holdco shares are The Exchange hereby requests that the would provide that any person who, listed.32 Commission approve the NYSE either alone or together with its related Euronext Resolutions and allow Holdco, The voting and ownership restrictions persons, beneficially owns Holdco either alone or with its related persons, will apply to each person unless it (1) shares which represent in the aggregate to own and vote all of the outstanding delivers to the Holdco board of directors more than 40% of the outstanding votes common stock of NYSE Euronext upon a written notice of its intention to entitled to be cast on any matter (except and following the consummation of the acquire voting power or ownership in that a 20% restriction would apply to Combination. excess of the relevant limitation, and any person who is a NYSE Member, an such notice is delivered at least 45 days 4. Proposed Amendments to Ownership Amex Member, an ETP Holder, an OTP and Voting Restrictions After the Holder, an OTP Firm, an ISE Member, (or such shorter period as the Holdco Combination an EDGA Member or an EDGX Member) board of directors expressly consents to) prior to acquiring Holdco shares in Overview (the ‘‘Holdco Ownership Restriction’’), will be obligated to offer for sale and to excess of the Holdco Voting Restriction The Exchange is proposing that, transfer a number of Holdco shares or Holdco Ownership Restriction; (2) effective as of the completion of the necessary so that such person, together obtains a written confirmation from the Combination, the Holdco Articles would with its related persons, beneficially Holdco board of directors that the board contain voting and ownership owns a number of Holdco shares that has expressly resolved to permit such restrictions that restrict any person, complies with the Holdco Ownership voting or ownership; and (3) such either alone or together with its related Restriction (the ‘‘Holdco Transfer resolution has been filed with, and persons, from having voting control over Obligation’’).29 If such person(s) fails to approved by, the Commission under Holdco shares entitling the holder comply with the Holdco Transfer Section 19(b) of the Exchange Act and thereof to cast more than 20% of the Obligation within two weeks, Holdco filed with, and approved by, the votes entitled to be cast on any matter will be irrevocably authorized to act on relevant European regulators having or beneficially owning Holdco shares behalf of such person(s) in order to appropriate jurisdiction and authority.33 representing more than 40% of the ensure compliance with the Holdco The Holdco board of directors may outstanding votes that may be cast on Transfer Obligation.30 waive the Holdco Voting Restriction and any matter (except that a 20% Furthermore, the Holdco Articles Holdco Ownership Restriction if it ownership restriction would apply to would provide that in the event any makes certain determinations, which any person who is a NYSE Member, an person, either alone or together with its will be consistent with the Amex Member, an ETP Holder, an OTP related persons, exceeds the Holdco determinations currently required to be Holder, an OTP Firm, an ISE Member, Ownership Restriction (any such made by the board of directors of NYSE an EDGA Member or an EDGX Member). Euronext and ISE Holdings in order to In addition, the Exchange is ownership restrictions contained in the certificate proposing that, effective as of the of incorporation of ISE Holdings, as well as the waive the voting and ownership Combination, the voting and ownership related provisions contained in the amended and restrictions in the NYSE Euronext restrictions currently in the NYSE restated bylaws of U.S. Exchange Holdings and the Certificate and the ISE Holdings board resolutions of Deutsche Bo¨rse, Eurex Certificate, respectively.34 Euronext Certificate and NYSE Euronext Frankfurt AG and other indirect parent entities of Bylaws, as well as the related waiver ISE, would remain in effect. The DB Trust would provisions set forth therein, would also remain unaltered and would continue to have 31 See Form of Deed of Amendment to Holdco remain in effect, except that they would rights to enforce these restrictions. Articles of Association, Article 35.6. 28 See Form of Deed of Amendment to Holdco 32 See Form of Deed of Amendment to Holdco be modified in certain respects as Articles of Association, Article 34.1. Articles of Association, Article 35.5. 27 described herein. 29 See Form of Deed of Amendment to Holdco 33 See Form of Deed of Amendment to Holdco Articles of Association, Articles 35.1 and 35.4. Articles of Association, Articles 34.2 and 35.2. 27 As described in the proposed rule change filed 30 See Form of Deed of Amendment to Holdco 34 See Form of Deed of Amendment to Holdco by each of the DB Exchanges, the current voting and Articles of Association, Article 35.7. Articles of Association, Articles 34.3 and 35.3.

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Amendments to NYSE Group Voting and until (1) such person has delivered Certificate would also be updated to and Ownership Restrictions a notice in writing to the board of provide that the NYSE Group Voting The voting restrictions contained in directors of NYSE Group, not less than Restriction and the NYSE Group the current NYSE Group Certificate 45 days (or such shorter period as the Ownership Restriction would apply provide that, if such restrictions apply, board of directors of NYSE Group only for so long as NYSE Group directly (1) no person, either alone or together expressly permits) prior to any vote or, or indirectly controls any Regulated with its related persons (as defined in in the case of the NYSE Group Subsidiary (as defined in the NYSE the NYSE Group Certificate), may be Ownership Restriction, prior to the Group Certificate). entitled to vote or cause the voting of acquisition of any shares of NYSE Under the Proposed Rule Change, the shares of stock of NYSE Group Group that would cause such person, definition of ‘‘Related Persons’’ would beneficially owned by such person or its either alone or together with its related be expanded to provide that (1) in the related persons, in person or by proxy persons, to exceed the NYSE Group case of a person that is a ‘‘member’’ (as or through any voting agreement or Ownership Restriction, of such person’s defined in Section 3(a)(3)(A)(i) of the other arrangement, to the extent that intention, either alone or together with Exchange Act) of NYSE Amex, such such shares represent in the aggregate its related persons, to vote or cause the person’s ‘‘Related Persons’’ would more than 10% of the then outstanding voting of shares of NYSE Group stock include the ‘‘member’’ (as defined in votes entitled to be cast on such matter; beneficially owned by such person or its Section 3(a)(3)(A)(iv) of the Exchange and (2) no person, either alone or related persons in excess of the NYSE Act, in addition to Sections 3(a)(3)(A)(ii) together with its related persons, may Group Voting Restriction or, in the case and 3(a)(3)(A)(iii) of the Exchange Act acquire the ability to vote more than of the NYSE Group Ownership which are currently referenced in this 10% of the then outstanding votes Restriction, of such person’s intention, provision of the NYSE Group entitled to be cast on any such matter either alone or together with its related Certificate) with which such person is by virtue of agreements or arrangements persons, to acquire such ownership; (2) associated; and (2) in the case of any entered into with other persons to the board of directors of NYSE Group person that is a ‘‘member’’ (as defined refrain from voting shares of stock of has resolved to expressly permit such in Section 3(a)(3)(A)(iv) of the Exchange NYSE Group (the ‘‘NYSE Group Voting voting or ownership, as applicable; and Act, in addition to Sections 3(a)(3)(A)(ii) Restriction’’).35 NYSE Group must (3) such resolution has been filed with, and 3(a)(3)(A)(iii) of the Exchange Act disregard any votes purported to be cast and approved by, the Commission which are currently referenced in this in excess of the NYSE Group Voting under Section 19(b) of the Exchange provision of the NYSE Group 36 Restriction. Act and has become effective Certificate) of NYSE Amex, such In addition, the ownership thereunder. Subject to its fiduciary person’s ‘‘Related Persons’’ would restrictions contained in the current duties under applicable law, the NYSE include any ‘‘member’’ (as defined in NYSE Group Certificate provide that, if Group board of directors may not adopt Section 3(a)(3)(A)(i) of the Exchange such restrictions apply, no person, any resolution pursuant to the foregoing Act) that is associated with such person. either alone or together with its related clause (2) unless the board has made These provisions are substantively persons, may at any time own certain determinations which are consistent with language in the NYSE beneficially shares of NYSE Group substantially similar to the Rules, which language would be deleted representing in the aggregate more than determinations required to be made by under the Proposed Rule Change. 20% of the then outstanding votes the NYSE Euronext board of directors in Amendments to NYSE Euronext Voting entitled to be cast on any matter (the connection with a waiver of the NYSE and Ownership Restrictions ‘‘NYSE Group Ownership Restriction’’). Euronext Voting Limitation and/or the Under the Proposed Rule Change, the If any person, either alone or together NYSE Euronext Ownership Limitation NYSE Euronext Certificate would be with its related persons, owns shares of (as described above). amended, effective as of the NYSE Group in excess of the NYSE Under the Proposed Rule Change, the Combination, to be consistent with the Group Ownership Restriction, then such NYSE Group Certificate would be NYSE Group Certificate in the following person and its related persons are amended, effective as of the respects: (1) First, the NYSE Euronext obligated to sell promptly, and NYSE Combination, to (1) change the 10% Group is obligated to purchase threshold for the NYSE Group Voting Certificate would be amended to promptly, at a price equal to the par Restriction to a 20% threshold; and (2) provide that all of the issued and value of such shares and to the extent change the 20% threshold for the NYSE outstanding shares of NYSE Euronext funds are legally available for such Group Ownership Restriction to a 40% will be held by Holdco, and that Holdco purchase, the number of shares of NYSE restriction (except that a 20% restriction may not transfer or assign any shares Group necessary so that such person, would continue to apply to any person without approval by the Commission together with its related persons, will who is a NYSE Member, an Amex under the Exchange Act and the beneficially own shares of NYSE Group Member, an ETP Holder, an OTP Holder relevant European Regulators (as representing in the aggregate no more or an OTP Firm). These percentage defined in the NYSE Euronext than 20% of the then outstanding votes thresholds are consistent with those Certificate) under the applicable entitled to be cast on any matter, after applicable to ISE Holdings and other European Exchange Regulations (as taking into account that such regulated exchanges and have been defined in the NYSE Euronext 38 repurchased shares will become approved on several occasions by the Certificate); and (2) the NYSE treasury shares and will no longer be Commission.37 The NYSE Group Euronext Certificate would be amended deemed to be outstanding. to provide that the NYSE Euronext The NYSE Group Voting Restriction 36 15 U.S.C. 78s(b). and the NYSE Group Ownership 37 See e.g., SEC Release No. 34–49718 (May 17, Release No. 34–50170 (August 9, 2004) (File No. 2004) (File No. SR–PCX–2004–08), 69 FR 29611 SR–PCX–2004–56), 69 FR 50419 (approval of rule Restriction apply to each person unless (approval of rule change proposed by the Pacific change proposed by the Pacific Exchange, Inc. Exchange, Inc.); SEC Release No. 34–49098 (January relating to initial public offering of parent of 35 See Second Amended and Restated Certificate 16, 2004) (File No. SR–PHLX–2003–73), 69 FR 3974 Archipelago Exchange, L.L.C.). of Incorporation of NYSE Group, Inc., Article IV (approval of rule change proposed by the 38 The analogous provision in the NYSE Group Section 4(b). Philadelphia Stock Exchange, Inc.); and SEC Certificate is Section 4(a) of Article IV.

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Voting Restriction and NYSE Euronext purposes of any suit, action or Regulated Subsidiary.45 Furthermore, Ownership Restriction contained proceeding pursuant to the U.S. federal Holdco would sign an irrevocable therein would only apply in the event securities laws, and the rules and agreement and consent for the benefit of that Holdco does not own all of the regulations thereunder, commenced or each U.S. Regulated Subsidiary 46 that it issued and outstanding shares of NYSE initiated by the Commission arising out will comply with these provisions in the Euronext.39 In addition, the NYSE of, or relating to, the activities of the Holdco Articles. Euronext Certificate would be amended U.S. Regulated Subsidiaries.41 The The Exchange anticipates that the to (a) change the 10% threshold for the Holdco Articles would also provide functions and activities of each U.S. NYSE Euronext Voting Restriction to a that, with respect to any such suit, Regulated Subsidiary generally will be 20% threshold; (b) change the 20% action, or proceeding brought by the carried out by the officers and directors threshold for the NYSE Euronext Commission, Holdco and its directors, of such U.S. Regulated Subsidiary, each Ownership Restriction to a 40% officers and employees would (1) be of whom the Commission has direct restriction (except that a 20% deemed to agree that NYSE Group may authority over pursuant Section 19(h)(4) ownership restriction would continue to serve as U.S. agent for purposes of of the Exchange Act.47 apply to any person who is a NYSE service of process in such suit, action, Access to Books and Records Member, an Amex Member, an ETP or proceeding relating to NYSE Group or Holder, an OTP Holder or an OTP Firm); any of its subsidiaries, and ISE Holdings Under the Proposed Rule Change, the (c) provide that the NYSE Euronext may serve as the U.S. agent for Holdco Articles would provide that for Voting Restriction and NYSE Euronext proceedings relating to ISE Holdings or so long as Holdco directly or indirectly Ownership Restriction contained any of its subsidiaries; and (2) be controls any U.S. Regulated Subsidiary, therein would only apply only for so deemed to waive, and agree not to assert the books, records and premises of long as NYSE Euronext directly or by way of motion, as a defense or Holdco will be deemed to be the books, indirectly controls any U.S. Regulated otherwise, in any such suit, action, or records and premises of such U.S. Subsidiary or any European Market proceeding, any claims that it or they Regulated Subsidiaries for purposes of, Subsidiary (as such terms are defined in are not personally subject to the and subject to oversight pursuant to, the the NYSE Euronext Certificate); (d) add 48 jurisdiction of the Commission, that the Exchange Act. In addition, the Holdco the provision, which is currently in the suit, action, or proceeding is an Articles would provide that Holdco’s NYSE Euronext Bylaws, that requires inconvenient forum or that the venue of books and records will at all times be the board of directors of NYSE Euronext the suit, action, or proceeding is made available for inspection and to make certain determinations relating improper, or that the subject matter copying by the Commission, and any to NYSE Amex in order to waive the thereof may not be enforced in or by the U.S. Regulated Subsidiary to the extent voting and ownership restrictions in the U.S. federal courts or the Commission.42 they are related to the activities of such NYSE Euronext Certificate, and delete U.S. Regulated Subsidiary or any other this provision from the NYSE Euronext In addition, the Holdco Articles U.S. Regulated Subsidiary over which Bylaws; (e) update the names of certain would provide that, so long as Holdco such U.S. Regulated Subsidiary has European regulatory entities in the directly or indirectly controls any U.S. regulatory authority or oversight.49 In definition of ‘‘European Regulator’’; and Regulated Subsidiary, the directors, addition, Holdco’s books and records (f) expand the definition of ‘‘Related officers and employees of Holdco will related to the U.S. Regulated Persons’’ to address Amex Members in be deemed to be directors, officers and Subsidiaries will be maintained within a manner that is substantively employees of such U.S. Regulated the United States, except that to the consistent with language currently Subsidiaries for purposes of, and subject extent that books and records may relate located in the NYSE Rules, as described to oversight pursuant to, the Exchange to both European subsidiaries and U.S. above. Act.43 Regulated Subsidiaries, Holdco may 5. Additional Matters To Be Addressed The Holdco Articles would provide maintain such books and records either in the Holdco Articles 40 that Holdco will take reasonable steps in the home jurisdiction of one or more necessary to cause its directors, officers European subsidiaries or in the United Jurisdiction Over Individuals and employees, prior to accepting a States.50 Under the Proposed Rule Change, the position as an officer, director or Additional Matters Holdco Articles would provide that employee, as applicable, of Holdco to Holdco and its directors, and to the agree and consent in writing to the Under the Proposed Rule Change, the extent that they are involved in the applicability to them of these Holdco Articles would provide that activities of the U.S. Regulated jurisdictional and oversight provisions Holdco will comply with the U.S. Subsidiaries, (x) Holdco’s officers, and with respect to their activities related to federal securities laws and the rules and (y) those of its employees whose any U.S. Regulated Subsidiary.44 The regulations thereunder, and will principal place of business and Holdco Articles would also provide that cooperate with the Commission and residence is outside the United States, no person may be a director of Holdco with the U.S. Regulated Subsidiaries would be deemed to irrevocably submit unless he or she has agreed and pursuant to and to the extent of their to the jurisdiction of the U.S. federal consented in writing to the applicability courts and the Commission for the to him or her of these jurisdictional and 45 See Form of Deed of Amendment to Holdco oversight provisions with respect to his Articles of Association, Article 14.11. 46 39 The analogous provision in the NYSE Group or her activities related to any U.S. The form of Holdco’s agreement and consent is Certificate is Section 4(b) of Article IV. attached as Exhibit 5M to this Proposed Rule Change. 40 The Holdco Articles will also set forth certain 41 47 restrictions and requirements relating to Holdco’s See Form of Deed of Amendment to Holdco 15 U.S.C. 78s(h)(4). European subsidiaries and applicable European Articles of Association, Article 3.2(c). 48 See Form of Deed of Amendment to Holdco regulatory matters, which will be substantially 42 See id. Articles of Association, Article 3.2(f). consistent with the analogous restrictions and 43 See Form of Deed of Amendment to Holdco 49 See Form of Deed of Amendment to Holdco requirements applicable with respect to Holdco’s Articles of Association, Article 3.2(f). Articles of Association, Article 3.2(e). U.S. Regulated Subsidiaries and U.S. regulatory 44 See Form of Deed of Amendment to Holdco 50 See Form of Deed of Amendment to Holdco matters. Articles of Association, Article 3.2(m). Articles of Association, Article 3.2(g).

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respective regulatory authority.51 In regulatory function of such U.S. U.S. Regulated Subsidiary.59 The addition, Holdco would be required to Regulated Subsidiary and to its Holdco Articles would also provide that take reasonable steps necessary to cause obligations to investors and the general no person may be a director of Holdco its agents to cooperate with the public, and will not take any actions unless he or she has agreed and Commission and, where applicable, the that would interfere with the consented in writing to the applicability U.S. Regulated Subsidiaries pursuant to effectuation of any decisions by the to him or her of these provisions with 52 their regulatory authority. The Holdco board of directors or managers of such respect to his or her activities related to Articles would also provide that, in U.S. Regulated Subsidiary relating to its any U.S. Regulated Subsidiary.60 discharging his or her responsibilities as regulatory responsibilities (including Holdco would also sign an irrevocable a member of the Holdco board of enforcement and disciplinary matters) agreement and consent for the benefit of directors or as an officer or employee of or that would interfere with the ability Holdco, each such director, officer or of such U.S. Regulated Subsidiary to each U.S. Regulated Subsidiary that it employee will (a) comply with the U.S. carry out its responsibilities under the will comply with provisions in the federal securities laws and the rules and Exchange Act.56 Holdco Articles regarding (1) regulations thereunder; (b) cooperate cooperation with the Commission and with the Commission; and (c) cooperate Finally, the Holdco Articles would such U.S. Regulated Subsidiaries; (2) with the U.S. Regulated Subsidiaries provide that each director of Holdco compliance with U.S. federal securities would, in discharging his or her pursuant to and to the extent of their laws; (3) inspection and copying of responsibilities, to the fullest extent regulatory authority (but this provision Holdco’s books, records and premises; permitted by applicable law, take into will not create any duty owed by any (4) Holdco’s books, records, premises, consideration the effect that Holdco’s director, officer or employee of Holdco officers, directors and employees being actions would have on the ability of (a) to any person to consider, or afford any deemed to be those of U.S. Regulated particular weight to, any such matters or the U.S. Regulated Subsidiaries to carry out their responsibilities under the Subsidiaries; (5) maintenance of books to limit his or her consideration to such and records in the United States; (6) 53 Exchange Act; and (b) the U.S. matters). confidentiality of information regarding The Holdco Articles would also Regulated Subsidiaries, NYSE Group, provide that all confidential information ISE Holdings and Holdco to (1) engage the U.S. Regulated Subsidiaries’ self- that comes into the possession of in conduct that fosters and does not regulatory function; (7) preservation of Holdco pertaining to the self-regulatory interfere with the ability of the U.S. the independence of the self-regulatory function of any U.S. Regulated Regulated Subsidiaries, NYSE Group, function of the U.S. Regulated Subsidiary will (a) not be made ISE Holdings and Holdco to prevent Subsidiaries; and (8) taking reasonable available to any persons other than to fraudulent and manipulative acts and steps to cause Holdco’s officers, those officers, directors, employees and practices in the securities markets; (2) directors and employees to consent to agents of Holdco that have a reasonable promote just and equitable principles of the applicability to them of the Holdco need to know the contents thereof; (b) trade in the securities markets; (3) foster Articles. The form of Holdco’s be retained in confidence by Holdco and cooperation and coordination with agreement and consent is attached as the officers, directors, employees and persons engaged in regulating, clearing, Exhibit 5M to this Proposed Rule agents of Holdco; and (c) not be used for settling, processing information with Change. any commercial purposes.54 In addition, respect to, and facilitating transactions the Holdco Articles would provide that in securities; (4) remove impediments to Amendments to the Holdco Articles these obligations regarding such and perfect the mechanisms of a free Under the Proposed Rule Change, the confidential information will not be and open market in securities and a U.S. Holdco Articles would provide that, interpreted so as to limit or impede (i) national securities market system; and before any amendment to or repeal of the rights of the Commission or the (5) in general, protect investors and the any provision of the Holdco Articles relevant U.S. Regulated Subsidiary to public interest.57 This requirement may become effectuated by means of a have access to and examine such would not, however, create any duty notarial deed of amendment, the same confidential information pursuant to the owed by any director, officer or will be submitted to the board of U.S. federal securities laws and the employee of Holdco to any person to rules and regulations thereunder; or (ii) consider, or afford any particular weight directors of each U.S. Regulated the ability of any officers, directors, to, any of the foregoing matters or to Subsidiary (or the boards of directors of employees or agents of Holdco to limit his or her consideration to such their successors) and if any or all of disclose such confidential information matters.58 such boards of directors determine that to the Commission or any U.S. the same must be filed with, or filed In addition, the Holdco Articles Regulated Subsidiary.55 with and approved by, the Commission Additionally, the Holdco Articles would provide that Holdco will take before the same may be effective under reasonable steps necessary to cause its would provide that, for so long as Section 19 of the Exchange Act and the officers, directors and employees, prior Holdco directly or indirectly controls rules promulgated thereunder, then the to accepting a position as an officer, any U.S. Regulated Subsidiary, Holdco same will not be effective until filed and its directors, officers and employees director or employee, as applicable, of Holdco to agree and consent in writing with, or filed with and approved by, the will give due regard to the preservation Commission, as the case may be. These of the independence of the self- to the applicability to them of these provisions of the Holdco Articles with requirements would also apply to any respect to their activities related to any action by Holdco that would have the 51 See Form of Deed of Amendment to Holdco effect of amending or repealing any Articles of Association, Article 3.2(a). 52 See id. 56 See Form of Deed of Amendment to Holdco provision of the Holdco Articles. 53 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(i). Articles of Association, Article 3.2(l). 57 See Form of Deed of Amendment to Holdco 59 See Form of Deed of Amendment to Holdco 54 See Form of Deed of Amendment to Holdco Articles of Association, Article 3.2(k). Articles of Association, Article 3.2(m). Articles of Association, Article 3.2(h). 58 See Form of Deed of Amendment to Holdco 60 See Form of Deed of Amendment to Holdco 55 See id. Articles of Association, Article 3.2(k). Articles of Association, Article 14.11.

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Holdco Director Independence Policy the NYSE U.S. Regulated Subsidiaries, it Regulated Subsidiaries tend to be U.S. Under the Proposed Rule Change, will be subject to various corporate domestic companies, this requirement Holdco would adopt the Holdco governance and regulatory obligations could disproportionately restrict the Independence Policy in the form that will be addressed by means of eligibility of persons affiliated with U.S. attached hereto as Exhibit 5N, which ownership and voting limitations on its companies as compared to non-U.S. would be substantially similar to the shareholders, commitments to provide companies to serve on the board of current Independence Policy of the access to its books and records and to Holdco. Under the Holdco NYSE Euronext board of directors, submit to the jurisdiction of the Independence Policy, the Holdco board except that (1) a majority (as opposed to Commission, director qualification would still need to assess whether a 75%) of the board of Holdco would be requirements and other undertakings listed company executive meets the required to be independent; (2) that are addressed in the Proposed Rule various independence criteria, executive officers of listed companies Change and will be formalized in the including whether he or she has any would no longer be prohibited from Holdco Articles and undertakings of ‘‘material relationship’’ with Holdco being considered independent for Holdco to its U.S. Regulated and it subsidiaries. purposes of the Holdco board; (3) the Subsidiaries. The Exchange submits that Furthermore, NYSE Euronext believes ‘‘additional independence some of these undertakings call for in- that the objectivity of board members is requirements’’ at the end of the current depth industry knowledge and expertise adequately protected by the various on the Holdco board, such as the Independence Policy of NYSE Euronext, other independence criteria in the requirement that Holdco’s directors take which provide that executive officers of proposed Holdco Independence Policy, into consideration the effect that foreign private issuers, executive such as the requirement that Holdco’s actions would have on the officers of NYSE Euronext and directors independent directors may not be or ability of its U.S. Regulated Subsidiaries of affiliates of member organizations have been within the last year, and may to (i) foster cooperation and must together comprise no more than a not have an immediate family member coordination with persons engaging in minority of the total board, would be who is or within the last year was, a regulating, clearing, settling and eliminated; (4) references to certain member of the Exchange, NYSE Arca or processing information with respect to, European regulatory authorities would NYSE Amex. In addition, if and to the and facilitating transactions in extent that a matter concerning a listed be updated, because their names have securities, and (ii) remove impediments changed; (5) references to NYSE company whose executive is a Holdco to and perfect the mechanisms of a free director were ever to come before the Alternext, Inc. would refer instead to and open market in securities and a U.S. NYSE Amex, because of this entity’s Holdco board for consideration, such national securities market system. director would be required to be recused name change; (6) footnote 2 of the In addition, the Exchange believes from acting on such matter pursuant to current Independence Policy of NYSE that the per se disqualification of listed the Holdco board’s conflicts of interest Euronext would be deleted because the company executives from being deemed policy. Holdco Independence Policy would not independent should not be applicable to be applicable to NYSE Regulation, Inc., Holdco. The per se disqualification was Finally, the current Independence the Exchange, NYSE Amex or NYSE initially adopted by the New York Stock Policy of NYSE Euronext provides that Market, which would have their own Exchange, Inc. in early 2005 in the the sum of (a) executive officers of director independence policy in the context of its unique circumstances and foreign private issuers, (b) executive form attached to this Proposed Rule history and its management structure officers of NYSE Euronext and (c) directors of affiliates of ‘‘members’’ (as Change as Exhibit 5K; and (7) references and board composition at that time.61 defined in Sections 3(a)(A)(3)(ii), to the independence standards and The Exchange submits that those 3(a)(A)(3)(iii) and 3(a)(A)(3)(iv) of the criteria in the Dutch Corporate circumstances are no longer applicable Exchange Act) of NYSE, NYSE Arca or Governance Code would be added, and, following the proposed NYSE Amex, may not constitute more because such standards and criteria will combination of NYSE Euronext and than a minority of the total number of apply to Holdco, a Dutch company, and Deutsche Bo¨rse, the disqualification of directors of NYSE Euronext. The will supplement (rather than supersede listed company executives would purpose of this requirement is to ensure or limit) the other independence impede rather than facilitate Holdco’s that, although executives of listed standards and criteria set forth in the efforts to ensure a qualified and companies who are foreign private Holdco Independence Policy. balanced board composition and The Exchange believes that a majority issuers are not disqualified from serving promote various other important independence standard is appropriate to on the board, such executives may not, corporate governance objectives, such as ensure that Holdco’s board as a whole together with NYSE Euronext executives ensuring appropriate expertise and consists of individuals with and directors of affiliates of members, experience on its board, as well as independent, objective perspectives, constitute more than a minority of the representation of the interests of a while at the same time affording Holdco board. In light of the Exchange’s diverse range of market constituencies sufficient flexibility to include persons proposal to eliminate the and local European and U.S. interests. A with expertise and qualifications that disqualification of listed company per se disqualification would narrow will contribute meaningfully to the executives from the Holdco the pool of potential Holdco director board’s performance of its oversight Independence Policy, this requirement candidates and arbitrarily eliminate function. The importance of allowing would serve no purpose because the from consideration a large number of highly qualified individuals to serve on exception to such disqualification for highly qualified, experienced the board is underscored by the fact that foreign private issuer executives would individuals who have proven track Holdco will serve as the holding also be eliminated. The Exchange records as business leaders. In addition, company for a complex, global business further notes that under the proposed because the listed companies of the U.S. with highly specialized operations and Holdco Independence Policy, executives regulatory functions. Although Holdco 61 See Securities Exchange Act Release No. 34– of Holdco and directors of affiliates of has unique responsibilities and 51217 (February 16, 2005) (File No. SR–NYSE– exchange members would not be functions as the holding company for 2004–54), 70 FR 9688. deemed independent and, accordingly,

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could not in any event constitute more widely held and actively traded amend or repeal certain provisions of than a minority of the Holdco board. shares; 62 the NYSE Euronext Certificate would be • The restrictions on transfers of eliminated and replaced with a majority 6. Proposed Amendments to Certain NYSE Euronext shares contained in vote requirement, because a Public-Company-Related and Other Section 4 of Article IV of the NYSE supermajority vote requirement would Provisions of NYSE Euronext Euronext Certificate have now expired no longer serve any purpose after NYSE Organizational and Corporate in accordance with their terms and Euronext becomes wholly owned by a Governance Documents would accordingly be deleted; single shareholder and a majority voting Pursuant to the Combination, NYSE • Sections 2(A) and 2(B) of Article VI standard is consistent with the standard Euronext will merge with Merger Sub, a of the NYSE Euronext Certificate, and generally applicable for actions by wholly owned subsidiary of Holdco. Section 2.2 of the NYSE Euronext shareholders under the Delaware NYSE Euronext, as the surviving Bylaws, would be amended to allow General Corporation Law and for actions corporation in the Merger, will become shareholders to call special meetings of by the parent entity of other wholly a wholly owned subsidiary of Holdco. shareholders and to postpone such owned subsidiaries of NYSE Euronext Following the Merger, the current meetings, in order to give Holdco such as NYSE Group; organizational documents of NYSE additional flexibility to take actions in • Section 2.3 of the NYSE Euronext Euronext will remain in effect, except its capacity as the sole shareholder of Bylaws would be amended to clarify that the Exchange is proposing that, in NYSE Euronext following completion of that notice of shareholder meetings is addition to the aforementioned the Combination; not required if waived in accordance revisions relating to voting and • Section 6 of Article VI of the NYSE with Section 10.3 of the NYSE Euronext ownership limitations, certain Euronext Certificate, and Section 3.6 of Bylaws; provisions will be amended to reflect the NYSE Euronext Bylaws (which • The requirement in Section 2.6 of the fact that, after the Combination, would be renumbered as Section 3.5), the NYSE Euronext Bylaws for the NYSE Euronext will be an intermediate would be amended to allow appointment of an inspector of elections holding company and will no longer be shareholders to fill board vacancies in for shareholders meetings would be a public company traded on the order to give Holdco additional deleted, because the requirement for an Exchange, and the registration of its flexibility to take actions in its capacity inspector of elections pursuant to capital stock under Section 12 of the as the sole shareholder of NYSE Section 231 of the Delaware General Exchange Act will be terminated upon Euronext following completion of the Corporation Law would no longer apply application to the Commission. As a Combination; to NYSE Euronext after completion of result, NYSE Euronext will no longer be • Section 1 of Article VIII of the the Combination; 63 subject to the Exchange’s listing NYSE Euronext Certificate, and Section • The requirement in Section 2.7 standards or to the corporate governance 2.11 of the NYSE Euronext Bylaws (which would be renumbered as Section requirements applicable to publicly (which would be renumbered as Section 2.6) of the NYSE Euronext Bylaws that traded companies. As summarized 2.9), would be amended to allow directors be elected by a majority of the below, the following revisions to the shareholders to take actions without a votes cast (and that they must tender NYSE Euronext Certificate and NYSE meeting and without prior notice if their resignation if such a majority vote Euronext Bylaws are proposed in order written consents are signed by the is not received), except in the case of to (1) simplify and provide for a more minimum number of votes that would contested elections, and that the NYSE efficient governance and capital be required to approve the action at a Euronext board of directors may fill any structure that is appropriate for a wholly meeting, in order to give Holdco resulting vacancy or may decrease the owned subsidiary; (2) conform certain additional flexibility to take actions in size of the board, would be deleted and provisions to analogous provisions of its capacity as the sole shareholder of a plurality voting standard would be the organizational documents of NYSE NYSE Euronext following completion of adopted for all director elections, Group, which will likewise be an the Combination, and the reference at because these requirements would no indirect wholly owned subsidiary of the end of Section 3.5 of the NYSE longer serve any purpose after NYSE Holdco following completion of the Euronext Bylaws to a special meeting of Euronext becomes wholly owned by a Combination; and (3) make certain shareholders would be deleted because single shareholder and a plurality voting clarification and technical edits (for the NYSE Euronext shareholder may act standard is consistent with the standard example, to conform the use of defined by written consent to fill board generally applicable for elections of terms and other provisions, and to vacancies; directors under the Delaware General update cross-references to sections, to • The supermajority shareholder vote Corporation Law and for actions by the reflect the other amendments to the requirements pursuant to Article X to parent entity of other wholly owned NYSE Euronext Certificate and the subsidiaries of NYSE Euronext such as NYSE Euronext Bylaws set forth in this 62 Effective as of the time that NYSE Euronext NYSE Group; Proposed Rule Change): merges with Pomme Merger Corporation, the • The requirements in Section 2.10 of • The NYSE Euronext Certificate Second Amended and Restated Certificate of the NYSE Euronext Bylaws requiring would be revised to provide that the Incorporation of NYSE Euronext (as the surviving corporation in the merger) will provide that certain advance notice from registered office and agent of NYSE 800,000,000 shares of common stock will be shareholders of director nominations Euronext in Delaware will be the authorized and 100 shares of preferred stock will and shareholder proposals, and the Corporation Trust Company, which is be authorized. All of the outstanding shares of requirement that only business brought the registered agent of other subsidiaries NYSE Euronext will be held by Alpha Beta Netherlands Holding N.V. Promptly thereafter, (1) before a special meeting of stockholders of NYSE Euronext; pursuant to NYSE Euronext’s notice of • NYSE Euronext will conduct a reverse stock split The number of authorized shares of so that Alpha Beta Netherlands Holding N.V. will the meeting may be brought before the NYSE Euronext common stock and hold a substantially reduced number of NYSE meeting, would be eliminated, because preferred stock will be reduced to 1,000 Euronext shares (e.g., 1,000 common shares), and (2) the Second Amended and Restated Certificate of these requirements would no longer and 100, respectively, because it would Incorporation of NYSE Euronext will accordingly be no longer be necessary for NYSE amended to reduce the total number of authorized 63 See Section 231(e) of the Delaware General Euronext to have a large number of shares of common stock to 1,000. Corporation Law.

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serve any purpose after NYSE Euronext of directors and the chief executive the NYSE Euronext Certificate and the becomes wholly owned by a single officer or the deputy chief executive NYSE Euronext Bylaws set forth above. shareholder; officer, in light of the fact that there are In addition, the current Independence • Section 3.1 of the NYSE Euronext not expected to be any independent, Policy of the NYSE Euronext board of Bylaws would be amended to clarify non-executive directors of NYSE directors would, effective as of the that the right of the NYSE Euronext Euronext and in order to simplify the Combination, cease to apply. board of directors to fix and change the governance requirements for NYSE 7. Proposed Amendments to the NYSE number of directors on such board is Euronext as a wholly owned subsidiary Group Certificate and NYSE Group subject to any rights of holders of any of Holdco; Bylaws preferred stock to elect additional • Certain aspects of the directors, in order to make this indemnification and expense Under the Proposed Rule Change, the provision consistent with Section 2 of advancement provisions in Section 10.6 revisions summarized below to the Article IV of the NYSE Euronext of the NYSE Euronext Bylaws, including NYSE Group Certificate and the NYSE Certificate, which provides that the terms of any insurance policy Group Bylaws are proposed in order to: preferred stock may be issued which maintained by NYSE Euronext, would (1) Conform certain provisions to the may have voting rights; analogous provisions of the • be simplified in light of the fact that Sections 3.2(B) and 4.4 of the NYSE there are not expected to be any organizational documents of NYSE Euronext Bylaws would be amended to independent, non-executive directors of Euronext, which would likewise be a add ‘‘if any’’ after the references therein NYSE Euronext, and, therefore, a more wholly owned subsidiary of Holdco to the Nominating and Governance streamlined process for indemnification following completion of the Committee, because NYSE Euronext claims is appropriate; Combination; and (2) make certain clarification and technical edits (for would become a wholly owned • The supermajority shareholder vote example, to conform the use of defined subsidiary of Holdco and, as such, may requirements in Section 10.10(B) of the terms and other provisions to reflect the not have a Nominating and Governance NYSE Euronext Bylaws would be Committee; other amendments set forth in this changed to a majority vote requirement, • The requirement in Section 3.4 of Proposed Rule Change): because a supermajority vote the NYSE Euronext Bylaws that at least • Section 2 of Article IV of the NYSE 75% of the board must be independent requirement would no longer serve any Group Certificate would be amended to would be deleted, because NYSE purpose after NYSE Euronext becomes clarify that (1) preferred stock may be Euronext would be a wholly owned wholly owned by a single shareholder issued ‘‘from time to time,’’ and (2) the subsidiary of Holdco after completion of and a majority voting standard is certificate of designations for such stock the Combination and, therefore, it may consistent with the standard generally would fix, among other things, the be appropriate for executives of Holdco applicable for actions by shareholders ‘‘relative, participating, optional and and its subsidiaries to serve on this under the Delaware General Corporation other’’ rights of such shares including board, and the reference to Section 3.4 Law and for actions by the parent entity the qualifications and restrictions of any in Section 3.2(A) would accordingly be of other wholly owned subsidiaries of series of preferred stock, which is NYSE Euronext such as NYSE Group; deleted; • consistent with the analogous • Section 3.9 (which would be In light of the fact that NYSE provisions in Section 2 of Article IV of renumbered as Section 3.8) of the NYSE Alternext US LLC formally changed its the NYSE Euronext Certificate; Euronext Bylaws would be amended to name to NYSE Amex LLC, references to • Section 3 of Article V of the NYSE clarify that notice of board meetings is NYSE Alternext US LLC in the NYSE Group Certificate would be revised to not required if waived in accordance Euronext Bylaws would be amended to clarify that the number of directors will with Section 10.3 of the NYSE Euronext refer instead to NYSE Amex LLC; be fixed ‘‘from time to time,’’ which is • Bylaws; Section 10.13 of the NYSE Euronext consistent with the analogous provision • The advance notice period in Bylaws—which requires that, for so long in Section 3 of Article VI of the NYSE Section 3.9 (which would be as NYSE Euronext directly or indirectly Euronext Certificate; renumbered as Section 3.8) of the NYSE controls NYSE Amex, any amendments • Section 5 of Article V of the NYSE Euronext Bylaws for electronic or to the NYSE Euronext Certificate must Group Certificate would be amended to telephonic notices of board meetings be approved by the Commission— clarify that the right of the NYSE Group would be reduced from 24 hours to 12 would be deleted and Article X of the board of directors to remove directors is hours, in order to simplify the NYSE Euronext Certificate would be subject to any rights of holders of any requirements for board meetings and to amended to incorporate this preferred stock, in order to make this be consistent with the analogous 12- requirement; and provision consistent with Section 2 of hour time period currently required for • Certain clarifying, conforming or Article IV of the NYSE Group notices pursuant to Section 3.7 of the other technical edits would be made to Certificate, which provides that NYSE Group Bylaws; Sections 1(B), 1(C), 1(L), 2(C) and 2(E) preferred stock may be issued that may • Section 3.12 (which would be of Article V, Article X and Article XIII have voting rights, and also to make it renumbered as Section 3.11) of the of the NYSE Euronext Certificate and to consistent with the analogous provision NYSE Euronext Bylaws would be Sections 3.7 (which would be in Section 5 of Article VI of the NYSE amended to delete the requirement that, renumbered as Section 3.6) and Euronext Certificate; if the chairman or deputy chairman of 3.15(A)(2) and 3.15(B) (which would be • Section 2.3 of the NYSE Group the board of directors is also the chief renumbered as Section 3.14(A)(2) and Bylaws would be amended to clarify executive officer or deputy chief 3.14(B), respectively) of the NYSE that notice of shareholder meetings is executive officer, he or she may not Euronext Bylaws. In addition, the not required if waived in accordance participate in executive sessions of the numbering of certain sections of the with Section 7.3 of the NYSE Group board of directors, and if the chairman NYSE Euronext Certificate and NYSE Bylaws; is not the chief executive officer or Euronext Bylaws, and cross-references • A new Section 2.8 would be added deputy chief executive officer, he or she to such sections, would be deleted or to the NYSE Group Bylaws to clarify will act as a liaison between the board updated to reflect the amendments to that a list of shareholders entitled to

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vote will be open to examination by either (1) the NYSE Group board of NYSE Regulation or, in the event there shareholders, because this is required by directors or (2) subject to any vote of are Petition Candidates (as such term is Section 219 of the Delaware General holders of any class or series of NYSE defined in the Exchange Operating Corporation Law and is consistent with Group stock required by law or the Agreement), the candidates that emerge the analogous provision in Section 2.9 NYSE Group Certificate, the affirmative from a specified process will be (which would be renumbered as Section vote of holders of a majority of the votes designated as the Non-Affiliated 2.8) of the NYSE Euronext Bylaws; entitled to be cast by holders of Exchange Directors.65 • The reference at the end of Section outstanding shares of NYSE Group Under the Proposed Rule Change, 3.4 of the NYSE Group Bylaws to a entitled to vote generally in the election these provisions would be amended (1) special meeting of shareholders would of directors, voting together as a single to provide that the independent be deleted because the shareholder of class; members of the Exchange’s board of NYSE Group may act by written consent • In light of the fact that NYSE directors, rather than the nominating to fill board vacancies pursuant to Alternext US LLC formally changed its and governance committee of the NYSE Section 2.9 of the NYSE Group Bylaws; name to NYSE Amex LLC, references to Euronext board of directors, will • Section 3.7 of the NYSE Group NYSE Alternext US LLC in the NYSE designate the Non-Affiliated Exchange Bylaws would be amended to clarify Group Bylaws would be amended to Directors and make the other related that notice of any special meeting of refer instead to NYSE Amex LLC, and determinations that were previously to directors is not required if waived in the definition of ‘‘Regulated Subsidiary’’ be made by the nominating and accordance with Section 7.3 of the in the NYSE Group Certificate would be governance committee of the NYSE NYSE Group Bylaws, and the methods amended to include NYSE Amex; and Euronext board of directors; (2) to of delivery of notices would be updated • Certain other clarifying, conforming provide that instead of using the to delete references to telegrams, or other technical edits would be made independence policy of the NYSE provide certain requirements for notices to Sections 4(a), 4(b)(1)(A)(w), Euronext board of directors to assess the sent to non-U.S. addresses and add a 4(b)(1)(A)(y), 4(b)(1)(A)(z), 4(b)(1)(E)(iv), independence of the Exchange’s board reference to e-mail or other electronic 4(b)(1)(E)(vi), 4(b)(1)(E)(x), members, the Exchange will have its transmission of notices, in each case to 4(b)(1)(E)(xii), 4(b)(2)(C) and 4(b)(2)(E) own independence policy in the form be consistent with the analogous of Article IV, Sections 6 and 8 of Article attached to this Proposed Rule Change provisions in Section 3.9 (which would V, Article X, Article XII and Article XIV as Exhibit 5K (the ‘‘SRO Director be renumbered as Section 3.8) of the of the NYSE Group Certificate and to Independence Policy’’); (3) in light of NYSE Euronext Bylaws; Sections 2.3, 2.9, 5.1 and 7.9 of the the fact that the board of directors of • The reference in Section 3.8 of the NYSE Group Bylaws. In addition, the NYSE Euronext will be decreased in NYSE Group Bylaws to restrictions on numbering of certain sections of the size once it becomes a wholly owned telephonic participation in meetings NYSE Group Certificate and NYSE subsidiary of Holdco, the requirement would be deleted, because the NYSE Group Bylaws would be updated to that a majority of the members of the Group Bylaws and the NYSE Group reflect the amendments set forth above. Certificate do not contain any such Exchange’s board of directors must be restrictions, and the wording of this 8. Proposed Amendments to Board members of the board of directors of provision would be amended to be Composition Requirements for the NYSE Euronext would be eliminated; consistent with the analogous language Exchange, NYSE Amex, NYSE Market and (4) to provide that at least 20% of in Section 3.10 (renumbered as Section and NYSE Regulation the Exchange’s directors must be persons who are not members of the 3.9) of the NYSE Euronext Bylaws; The Third Amended and Restated • board of directors of Holdco (rather than Section 7.4 would be revised to Operating Agreement, dated as of April provide that the persons who are referring to the board of directors of 1, 2009, of the Exchange (the ‘‘Exchange NYSE Euronext). Substantially the same authorized to execute contracts and Operating Agreement’’), currently other instruments on behalf of NYSE revisions would be made to the provides that (1) a majority of the analogous provisions of the Amended Group would include the Chief members of the Exchange’s board of Executive Officer, which is consistent and Restated Operating Agreement of directors must be U.S. persons and 66 with the analogous provision in Section NYSE Amex, the Amended and members of the board of directors of 67 10.4 of the NYSE Euronext Bylaws; Restated Bylaws of NYSE Market and • NYSE Euronext who satisfy the the Third Amended and Restated Certain aspects of the independence requirements of the indemnification and expense Bylaws of NYSE Regulation.68 NYSE Euronext board, and (2) at least The Amended and Restated Bylaws of advancement provisions in Section 7.6 20% of the Exchange’s board members of the NYSE Group Bylaws, including NYSE Market and the Third Amended must be persons who are not board and Restated Bylaws of NYSE the terms of any insurance policy members of NYSE Euronext but who maintained by NYSE Group, would be Regulation would also be amended to qualify as independent under the change the registered office of these simplified in light of the fact that there independence policy of the NYSE are not expected to be any independent, entities from National Registered Agents Euronext board of directors (the ‘‘Non- to The Corporation Trust Company and non-executive directors of NYSE Group Affiliated Exchange Directors’’).64 The and, therefore, a more streamlined CT Corporation, respectively. In nominating and governance committee addition, references to NYSE Alternext process for indemnification claims is of the NYSE Euronext board of directors appropriate, and these revisions would US LLC in the Third Amended and is required to designate as Non- Restated Bylaws of NYSE Regulation be consistent with the revisions to the Affiliated Exchange Directors the analogous provisions of the NYSE candidates recommended jointly by the Euronext Bylaws set forth in this 65 See id. Director Candidate Recommendation 66 See Amended and Restated Operating Proposed Rule Change; Committees of each of NYSE Market and • Section 7.9 of the NYSE Group Agreement of NYSE Amex LLC, Section 2.03(a). 67 See Amended and Restated Bylaws of NYSE Bylaws would be amended to clarify 64 See Third Amended and Restated Operating Market, Inc., Article III Section 1. that they may be amended or repealed, Agreement of New York Stock Exchange LLC, 68 See Third Amended and Restated Bylaws of and new bylaws may be adopted, by Section 2.03(a). NYSE Regulation, Inc., Article III Section 1.

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would be changed to refer instead to conflicting language providing an Holdco and, as such, its board of NYSE Amex. exception applicable only to NYSE directors will likely be reduced in size The SRO Director Independence Euronext directors would be deleted. In and may not include directors who Policy to be adopted by each of the addition, the ‘‘additional independence satisfy the independence criteria that Exchange, NYSE Market, NYSE requirements’’ at the end of the current are currently applicable. Accordingly, Regulation and NYSE Amex under the Independence Policy of NYSE Euronext, under the Proposed Rule Change, the Proposed Rule Change would be which provides that executive officers functions currently performed by the substantially similar to the current of foreign private issuers, executive nominating and governance committee Independence Policy of the NYSE officers of NYSE Euronext and directors of NYSE Euronext in connection with Euronext board of directors, except that of affiliates of member organizations reviewing and appointing trustees certain conforming changes would be must together comprise no more than a pursuant to the Trust Agreement, dated made, including the deletion of minority of the total board, would be as of April 4, 2007, by and among NYSE provisions that currently apply only to eliminated. This provision is designed Euronext, NYSE Group and the other NYSE Euronext directors and expressly to ensure that although persons who are parties thereto, would be transferred to do not apply to directors of these NYSE directors of an affiliate of a Member the Holdco Nominating, Governance U.S. Regulated Subsidiaries. In Organization or who are executive and Corporate Responsibility particular, (1) references to NYSE officers of a ‘‘foreign private issuer’’ Committee. References in such trust Euronext would refer instead to the listed on a NYSE Exchange may in some agreement to the nominating and relevant NYSE U.S. Regulated circumstances qualify as independent governance committee of NYSE Subsidiary or Holdco, as applicable; (2) for purposes of NYSE Euronext board Euronext would be replaced with the requirement that at least three- membership, such persons may not, references to the Holdco Nominating, fourths of the directors must be together with executive officers of NYSE Governance and Corporate independent would be deleted, since Euronext, constitute more than a Responsibility Committee, as indicated the organizational documents of these minority of the total NYSE Euronext in Exhibit 5O attached to this Proposed NYSE U.S. Regulated Subsidiaries directors. Under the proposed SRO Rule Change. contain the independence and other Director Independence Policy, such persons could not be deemed to be 11. Listing of Holdco Shares on the qualification requirements for directors; Exchange (3) the requirement in the Independence independent directors of the relevant Holdco intends to list its shares on the Policy of NYSE Euronext that the board NYSE U.S. Regulated Subsidiary and, Exchange, and to apply for admission of consider the special responsibilities of a accordingly, this limitation on the its shares to trading on the regulated director in light of NYSE Euronext’s number of such persons who may serve market of the Frankfurt Stock Exchange ownership of NYSE U.S. Regulated on the board is unnecessary. and the regulated market segment of the Subsidiaries and European regulated 9. Proposed Amendments to the Euronext Paris. Pursuant to Rule 497, entities would be deleted, because Exchange Rules, NYSE Amex Rules and any security of Holdco and its affiliates unlike NYSE Euronext, these NYSE U.S. NYSE Arca Equities Rules will not be approved for listing on the Regulated Subsidiaries are not holding Under the Proposed Rule Change, Exchange unless NYSE Regulation finds companies; (4) the requirement for certain technical amendments would be that such securities satisfy the directors to inform the Chairman of the made to the Exchange Rules, as Exchange’s rules for listing, and such Nominating and Governance Committee summarized below: finding is approved by the NYSE of certain relationships and interests • References therein to ‘‘NYSE Regulation board of directors. would be deleted, since the boards of Euronext’’ would be replaced with NYSE Regulation will be responsible these NYSE U.S. Regulated Subsidiaries references to Holdco, except that for all Exchange listing-compliance do not have a Nominating and references to NYSE Euronext in Rule 22 decisions with respect to Holdco as an Governance Committee, except that in and Rule 422 would be retained and issuer.69 NYSE Regulation will prepare the SRO Director Independence Policy references to Holdco would be added; a quarterly report, as described in Rule to be adopted by NYSE Regulation, this and 497(c)(1) summarizing its monitoring of provision would reference the • Rule 2 would be revised to delete Holdco’s compliance with such listing Nominating and Governance Committee the definitions of ‘‘member’’ and standards. This report will be provided of NYSE Regulation, Inc.; (5) references ‘‘member organization’’ relating to to the NYSE Regulation board of to NYSE Alternext, Inc. would refer NYSE Amex which are set forth in Rule directors and a copy will be forwarded instead to NYSE Amex, because of this 2 for purposes of Section 1(L) of Article promptly to the Commission. Once a entity’s name change; (6) because the 5 of the NYSE Euronext Certificate, year, an independent accounting firm current Independence Policy of NYSE because under the Proposed Rule will review Holdco’s compliance with Euronext provides that a director of an Change, that section of the NYSE the Exchange’s listing standards and a affiliate of a Member Organization Euronext Certificate will be revised to copy of its report will be forwarded cannot qualify as an independent incorporate this language, promptly to the Commission. If NYSE director of these NYSE U.S. Regulated In addition, certain technical Regulation determines that Holdco is Subsidiaries, the conflicting language amendments would be made to the not in compliance with any applicable stating that a director of an affiliate of NYSE Amex Rules and NYSE Arca listing standard of the Exchange, NYSE a Member Organization shall not per se Equities Rules to replace references Regulation will notify Holdco promptly fail to be independent would be deleted; therein to ‘‘NYSE Euronext’’ with and request a plan for compliance. and (7) because language in the current references to Holdco. Within five business days of providing Independence Policy of NYSE Euronext such notice to Holdco, NYSE Regulation provides that an executive officer of an 10. Proposed Technical Amendment to will file a report with the Commission issuer whose securities are listed on a the NYSE Trust Agreement Following completion of the NYSE Exchange cannot qualify as an 69 Certain aspects of NYSE Regulation’s independent director of these NYSE Combination, NYSE Euronext will responsibilities are performed by FINRA, subject to U.S. Regulated Subsidiaries, the become a wholly owned subsidiary of oversight by NYSE Regulation.

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identifying the date on which Holdco is processing information with respect to, to determine whether the proposed rule not in compliance with the listing and facilitating transactions in change should be disapproved. standard at issue and any other material securities, to remove impediments to, information conveyed to Holdco in the and perfect the mechanism of a free and IV. Solicitation of Comments notice of non-compliance. Within five open market and a national market Interested persons are invited to business days of receiving a plan of system and, in general, to protect submit written data, views, and compliance from the issuer, NYSE investors and the public interest. The arguments concerning the foregoing, Regulation will notify the Commission Exchange expects that the Combination including whether the proposed rule of such receipt, whether the plan was will position the Holdco Group to be a change is consistent with the Act. accepted by NYSE Regulation or what leader in a diverse set of large and Comments may be submitted by any of other action was taken with respect to growing businesses, including the following methods: the plan, and the time period provided derivatives, listings, cash equities, post- to regain compliance with the trade settlement and asset servicing, Electronic Comments Exchange’s listing standard, if any. market data and technology servicing. The Exchange believes this will enable • Use the Commission’s Internet 12. Statutory Basis the Holdco Group to leverage comment form (http://www.sec.gov/ The Exchange believes that this filing technology and a unique collection of rules/sro.shtml); or 70 is consistent with Section 6(b) of the markets to create a mutually reinforcing • Send an e-mail to rule- Exchange Act in general, and furthers capital markets community driving [email protected]. Please include File 71 the objectives of Section 6(b)(1) in efficiencies and innovation for clients Number SR–NYSE–2011–51 on the particular, in that it enables the and efficient, transparent and well- subject line. Exchange to be so organized as to have regulated markets for issuers and the capacity to be able to carry out the clients. As a true pacesetter across the Paper Comments purposes of the Exchange Act and to spectrum of capital markets services, the • Send paper comments in triplicate comply, and to enforce compliance by Holdco Group would be positioned to to Elizabeth M. Murphy, Secretary, its exchange members and persons offer clients global scale, product Securities and Exchange Commission, associated with its exchange members, innovation, operational and capital 100 F Street, NE., Washington, DC with the provisions of the Exchange Act, efficiencies and an enhanced range of 20549–1090. the rules and regulations thereunder, technology and market information and the rules of the Exchange. With solutions. All submissions should refer to File respect to the ability of the Commission In addition, the Exchange expects that Number SR–NYSE–2011–51. This file to enforce the Exchange Act as it applies the Holdco Group would be positioned number should be included on the to the U.S. Regulated Subsidiaries after to serve as a benchmark regulatory subject line if e-mail is used. To help the the Combination, the U.S. Regulated model, facilitating transparency and Commission process and review your Subsidiaries will operate in the same standardization in capital markets comments more efficiently, please use manner following the Combination as globally, while continuing to operate all only one method. The Commission will they operate today. Thus, the national exchanges under local post all comments on the Commission’s Commission will continue to have regulatory frameworks. Internet Web site (http://www.sec.gov/ plenary regulatory authority over the rules/sro.shtml). Copies of the U.S. Regulated Subsidiaries, as is the B. Self-Regulatory Organization’s submission, all subsequent case currently with these entities. The Statement on Burden on Competition amendments, all written statements Proposed Rule Change is consistent The Exchange does not believe that with respect to the proposed rule with and will facilitate an ownership the Proposed Rule Change will impose change that are filed with the structure that will provide the any burden on competition that is not Commission, and all written Commission with appropriate oversight necessary or appropriate in furtherance communications relating to the tools to ensure that the Commission will of the purposes of the Exchange Act. proposed rule change between the have the ability to enforce the Exchange C. Self-Regulatory Organization’s Commission and any person, other than Act with respect to each U.S. Regulated Statement on Comments on the those that may be withheld from the Subsidiary, its direct and indirect parent Proposed Rule Change Received From public in accordance with the entities and its directors, officers, Members, Participants or Others provisions of 5 U.S.C. 552, will be employees and agents to the extent they available for Web site viewing and are involved in the activities of such The Exchange has neither solicited printing in the Commission’s Public U.S. Regulated Subsidiary. nor received written comments on the Reference Room, 100 F Street, NE., The Exchange also believes that this Proposed Rule Change. Washington, DC 20549, on official filing furthers the objectives of Section III. Date of Effectiveness of the business days between the hours of 10 6(b)(5) 72 of the Exchange Act because Proposed Rule Change and Timing for a.m. and 3 p.m. Copies of such filing the Proposed Rule Change summarized Commission Action also will be available for inspection and herein would be consistent with and copying at the principal office of the facilitate a governance and regulatory Within 45 days of the date of Exchange. All comments received will structure that is designed to prevent publication of this notice in the Federal be posted without change; the fraudulent and manipulative acts and Register or within such longer period (i) Commission does not edit personal practices, to promote just and equitable as the Commission may designate up to identifying information from principles of trade, to foster cooperation 90 days of such date if it finds such submissions. You should submit only and coordination with persons engaged longer period to be appropriate and information that you wish to make in regulating, clearing, settling, publishes its reasons for so finding or (ii) as to which the Exchange consents, available publicly. All submissions should refer to File Number SR–NYSE– 70 15 U.S.C. 78(f)(b). the Commission shall: (a) by order 71 15 U.S.C. 78(f)(b)(1). approve or disapprove such proposed 2011–51 and should be submitted on or 72 15 U.S.C. 78(f)(b)(5). rule change, or (b) institute proceedings before November 10, 2011.

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For the Commission, by the Division of non-lead market makers to provide in adjusted series that may not be Trading and Markets, pursuant to delegated continuous two-sided quotations published to OPRA unless otherwise authority.73 throughout the trading day in their requested.8 Elizabeth M. Murphy, appointed issues for 60% of the time the In its filing, the Exchange states that Secretary. Exchange is open for trading in each market makers, including Lead Market [FR Doc. 2011–27190 Filed 10–19–11; 8:45 am] such issue. Makers, that have recently withdrawn BILLING CODE 8011–01–P Rule 6.4(e)(i), relating to LEAPS open from assignments in classes have for trading, currently provides that informed the Exchange that the Exchange Rules regarding continuous withdrawals were based in part on the SECURITIES AND EXCHANGE quoting obligations do not apply to obligation to continuously quote COMMISSION index option series until the time to adjusted options series whereby the [Release No. 34–65573; File No. SR– expiration is less than 12 months and do quoting obligations on such less NYSEArca–2011–59] not apply to equity options or option on frequently traded option series impacted Exchange Traded Fund Shares until the the risk parameters acceptable to the Self-Regulatory Organizations; NYSE time to expiration is less than nine market makers.9 The Exchange noted Arca, Inc.; Order Granting Approval of months.4 that market makers have also expressed Proposed Rule Change Adding The Exchange now proposes to add concern that the adjusted nature of these Commentary .01 to Rule 6.37B Commentary .01 to Rule 6.37B (the rule series complicates the calculation of an Concerning Market Maker Continuous applicable to market maker quotations) appropriate quote.10 As a result of Quoting Obligations and Adjusted to reflect the exception for LEAPS that withdrawals from such assignments by Option Series is currently provided for in Rule market makers, the Exchange states that 6.4(e)(i) to the continuous quoting liquidity, as well as volume, has been October 14, 2011. obligations contained in Rule 6.37B. In negatively impacted in the affected I. Introduction other words, without altering the options classes listed on the Exchange.11 substance of the exception, the On August 16, 2011, NYSE Amex LLC The Exchange now proposes to add an Exchange is proposing to include text exception to Rule 6.37B to relieve (‘‘Exchange’’ or ‘‘NYSE Arca’’) filed that already appears in Rule 6.4(e)(i) with the Securities and Exchange market makers from the obligation to into Rule 6.37B in order to reference continuously quote in adjusted option Commission (‘‘Commission’’), pursuant that exception in the rule that addresses to Section 19(b)(1) of the Securities series in order to encourage market 1 market maker quoting obligations. makers, including Lead Market Makers, Exchange Act of 1934 (‘‘Act’’) and Rule In addition, the Exchange proposes to 2 to continue their appointments in 19b–4 thereunder, a proposed rule extend the exception from the change to add Commentary .01 to Rule option classes that include adjusted continuous quoting obligations to series. 6.37B to indicate that market makers certain ‘‘adjusted series.’’ The Exchange will not be obligated to quote in proposes to define an ‘‘adjusted series’’ III. Discussion and Commission’s adjusted option series and to reference for purposes of Rule 6.37B as ‘‘an option Findings an existing exception to the quoting series wherein, as a result of a corporate After careful review, the Commission obligations. The proposed rule change action by the issuer of the underlying finds that the proposed rule change is was published for comment in the security, one option contract in the Federal Register on September 1, 2011.3 consistent with the requirements of series represents the delivery of other Section 6 of the Act 12 and the rules and The Commission received no comment than 100 shares of underlying stock or letters on the proposed rule change. regulations thereunder applicable to a Exchange-Traded Fund Shares.’’ 5 national securities exchange.13 In This order approves the proposed rule In its filing, the Exchange notes that change. particular, the Commission finds that adjusted series are generally active for a the proposed rule change is consistent II. Description of the Proposed Rule short period of time following with Section 6(b)(5) of the Act,14 which Change adjustment and thereafter become requires, among other things, that the inactive as new orders to open options The Exchange proposes to add Exchange’s rules be designed to prevent positions in the underlying are almost Commentary .01 to Rule 6.37B (i) To fraudulent and manipulative acts and exclusively placed in the new standard add an exception to relieve market practices, to promote just and equitable contracts.6 The Exchange noted that makers from the obligation to principles of trade, to foster cooperation adjusted series may not meet the continuously quote in adjusted option standards to be considered ‘‘active’’ and 8 series, and (ii) to reflect in Rule 6.37B Commentary .03 to Rule 6.86 states, in part, thereby, under Commentary .03 to ‘‘The Exchange may determine that a series has an exception from the continuous quote NYSE Arca Rule 6.86, the Exchange may become active intraday if (i) the series trades at any requirements for Long-Term Equity no longer disseminate quotes in such options exchange; (ii) NYSE Arca receives an order Option Series (‘‘LEAPS’’) that is in the series; or (iii) NYSE Arca receives a request series.7 Consequently, market makers currently provided for in Rule 6.4(e)(i). for quote from a customer in that series. If a series Rule 6.37B, relating to market maker are currently required to submit quotes becomes active intraday, the Exchange will immediately disseminate quotes in the series to quotations, requires a Lead Market 4 In addition, Rule 6.4(e)(1) provides that trading OPRA, and continue to disseminate quotes for the Maker to provide continuous two-sided in such LEAPS will commence either when there balance of the trading day.’’ quotations throughout the trading day in is buying or selling interest, or forty minutes prior 9 See Notice, supra note 3, at 54517. See also Rule its appointed issues for 90% of the time to the close of trading for the day, whichever occurs 6.35 (providing for market maker appointments by the Exchange is open for trading in each first. Further, the rule provides that quotations will class). not be posted for extended far term option series 10 See Notice, supra note 3, at 54517. such issue. Rule 6.37B also requires until trading in such series is commenced on the 11 See id. day. 12 15 U.S.C. 78f. 73 17 CFR 200.30–3(a)(12). 5 The Exchange provided additional background 13 In approving this proposed rule change, the 1 15 U.S.C. 78s(b)(1). regarding adjusted series options in its Notice. See Commission has considered the proposed rule’s 2 17 CFR 240.19b–4. Notice, supra note 3, at 54517. impact on efficiency, competition, and capital 3 See Securities Exchange Act Release No. 65210 6 See id. formation. See 15 U.S.C. 78c(f). (August 26, 2011), 76 FR 54516 (‘‘Notice’’). 7 See id. 14 15 U.S.C. 78f(b)(5).

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and coordination with persons engaged contained in Rule 6.37B, is not a new the Commission’s Public Reference in facilitating transactions in securities, substantive provision, but rather Room. to remove impediments to and perfect references the exception currently II. Self-Regulatory Organization’s the mechanism of a free and open provided for in Rule 6.4(e)(i). In so Statement of the Purpose of, and market and a national market system, doing, the proposed change clarifies the Statutory Basis for, the Proposed Rule and, in general, to protect investors and exception by referencing it in the rule Change the public interest. applicable to market maker quoting The Exchange’s proposal to relieve obligations generally. In its filing with the Commission, market makers from the obligation to NASDAQ included statements continuously quote in adjusted series IV. Conclusion concerning the purpose of and basis for would not affect market makers’ other It Is Therefore Ordered, pursuant to the proposed rule change and discussed obligations. For example, the Section 19(b)(2) of the Act,17 that the any comments it received on the Commission notes that the proposal proposed rule change (SR–NYSEArca– proposed rule change. The text of these does not excuse a market maker from 2011–59) be, and hereby is, approved. statements may be examined at the the obligations to respond with a two- For the Commission, by the Division of places specified in Item IV below. sided, legal width market to a call for a Trading and Markets, pursuant to delegated NASDAQ has prepared summaries, set market by a floor broker.15 The authority.18 forth in Sections A, B, and C below, of Commission also notes that the proposal Elizabeth M. Murphy, the most significant aspects of such does not excuse a market maker from Secretary. statements. the obligation to submit a single quote [FR Doc. 2011–27137 Filed 10–19–11; 8:45 am] or maintain continuous quotes in one or A. Self-Regulatory Organization’s BILLING CODE 8011–01–P more series of an option issue within Statement of the Purpose of, and the the market maker’s appointment Statutory Basis for, the Proposed Rule Change whenever, in the judgment of such SECURITIES AND EXCHANGE Trading Official, it is necessary to do so COMMISSION 1. Purpose in the interest of maintaining fair and orderly markets.16 Accordingly, the [Release No. 34–65575; File No. SR– NASDAQ is modifying its Exchange’s proposal concerning NASDAQ–2011–141] interpretation and practices related to adjusted series is narrowly tailored to, certain language contained in Rule Self-Regulatory Organizations; The 4120(a)(11) which generally allows for among other things, remove NASDAQ Stock Market LLC; Notice of impediments to and perfect the the pausing of trading in individual Filing and Immediate Effectiveness of mechanism of a free and open market securities should that security Proposed Rule Change To Modify and a national market system, and, in experience a significant percentage Interpretation of Rule 4120(a)(11) general, to protect investors and the price increase or decline. Once a stock is halted pursuant to the rule, a five- public interest. To the extent such October 14, 2011. minute halt period commences, after series, shortly after the adjustment, Pursuant to Section 19(b)(1) of the which trading is re-commenced using become inactive as a result of a lack of Securities Exchange Act of 1934 prices determined by NASDAQ’s halt- interest in the series by market (‘‘Act’’),1 and Rule 19b–4 thereunder,2 cross process. participants who have instead focused notice is hereby given that on October Currently, NASDAQ interprets their trading in the new standard 6, 2011, the NASDAQ Stock Market, language in Rule 4120(a) that states contracts, the Exchange’s proposal LLC (‘‘NASDAQ’’ or ‘‘Exchange’’) filed ‘‘[p]rice moves under this paragraph would reduce the burden on market with the Securities and Exchange will be calculated by changes in each makers to submit continuous quotes that Commission (‘‘Commission’’) the consolidated last-sale price the Exchange may not submit to OPRA. proposed rule change as described in disseminated by a network processor In so doing, the proposal may Items I, II, and III below, which Items over a five minute rolling period incentivize market makers to continue have been prepared by NASDAQ. The measured continuously[.]’’ as requiring appointments in classes that have Commission is publishing this notice to a continuous look back of five adjusted option series, and thereby solicit comments on the proposed rule minutes—even when a stock is should help maintain liquidity in these change from interested persons. classes to the benefit of the Exchange, currently halted for a previous triggering its OTP Holders, and investors. In I. Self-Regulatory Organization’s price increase or decline. In this addition, the obligation to continuously Statement of the Terms of Substance of situation, trade reports for transactions quote in such illiquid series, for which the Proposed Rule Change taking place immediately before, or there may be little or no trading interest, NASDAQ proposes to modify its contemporaneous with, the halt can be is a minor part of a market maker’s interpretation of Rule 4120(a)(11) submitted and disseminated, and thus overall obligations and thus requiring a regarding at what price level to initiate set a new ‘‘within five minutes’’ continuous quote may not justify the a subsequent trading halts for any comparison price level with any system resources necessary to security that has been previously halted. subsequent opening price coming out of accommodate them. NASDAQ will implement the proposed the halt-cross process. Should a Further, the proposed new change immediately upon filing. There resulting price decline differential Commentary .01 to Rule 6.37B (the rule is no new proposed rule text, and a copy between the late intra-halt disseminated applicable to market maker quotations) of the proposed rule change is available price and any new opening price to reflect the exception for LEAPS at http://nasdaqomx.cchwallstreet.com, coming out of the cross halt be great provided for in Rule 6.4(e)(i) to the at NASDAQ’s principal office, and at enough, another disruptive halt can be continuous quoting obligations triggered. 17 15 U.S.C. 78s(b)(2). In response, NASDAQ proposes to 15 See NYSE Arca Rule 6.37B. 18 17 CFR 200.30–3(a)(12). modify its interpretation of what price 16 See NYSE Arca Rule 6.37(b)(5) and 1 15 U.S.C. 78s(b)(1). its systems will for [sic] consider for Commentary .05. 2 17 CFR 240.19b–4. evaluating the need for any subsequent

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halt during the initial time period when NASDAQ does not believe that the submission, all subsequent a stock is coming out of a halt proposed rule change will result in any amendments, all written statements commenced pursuant to Rule burden on competition that is not with respect to the proposed rule 4120(a)(11). Under the proposed change, necessary or appropriate in furtherance change that are filed with the NASDAQ systems will not look back for of the purposes of the Act, as amended. Commission, and all written any prices disseminated during a halt communications relating to the C. Self-Regulatory Organization’s and instead will use the opening price proposed rule change between the Statement on Comments on the determined by its halt-cross process as Commission and any person, other than Proposed Rule Change Received From the initial price level against which those that may be withheld from the Members, Participants, or Others subsequent price increases or declines public in accordance with the will be measured. As before, any Written comments were neither provisions of 5 U.S.C. 552, will be subsequent triggering price increases or solicited nor received. available for Web site viewing and declines within any continuous five- III. Date of Effectiveness of the printing in the Commission’s Public minute period, even one immediately Proposed Rule Change and Timing for Reference Room, 100 F Street, NE., triggering a halt in comparison to the Commission Action Washington, DC 20549, on official halt-cross process, will initiate a halt in business days between the hours of 10 conformity with Rule 4120(a)(11). The foregoing rule change has become a.m. and 3 p.m. Copies of such filing NASDAQ believes that the above effective pursuant to Section also will be available for inspection and 5 interpretation will ensure that prices 19(b)(3)(A)(ii) of the Act. At any time copying at the principal office of the determined and submitted at a period of within 60 days of the filing of the Exchange. All comments received will time around the start of a trading halt do proposed rule change, the Commission be posted without change; the not carry over and inappropriately summarily may temporarily suspend Commission does not edit personal impact attempts to re-start trading after such rule change if it appears to the identifying information from that halt. NASDAQ also understands Commission that such action is submissions. You should submit only that this approach to initial pricing necessary or appropriate in the public information that you wish to make coming out of a halt is already in effect interest, for the protection of investors, available publicly. All submissions at other listing markets likewise subject or otherwise in furtherance of the should refer to File No. SR–NASDAQ– to uniform percentage increase or purposes of the Act. If the Commission 2011–141 and should be submitted on decline stock halt rules. takes such action, the Commission shall or before November 10, 2011. institute proceedings to determine 2. Statutory Basis whether the proposed rule should be For the Commission, by the Division of Trading and Markets, pursuant to delegated NASDAQ believes that the proposed approved or disapproved. 6 rule change is consistent with the authority. provisions of Section 6 of the Act,3 in IV. Solicitation of Comments Elizabeth M. Murphy, general, and with Section 6(b)(5) of the Interested persons are invited to Secretary. Act 4 in particular, in that the proposal submit written data, views, and [FR Doc. 2011–27136 Filed 10–19–11; 8:45 am] is designed to prevent fraudulent and arguments concerning the foregoing, BILLING CODE 8011–01–P manipulative acts and practices, to including whether the proposed rule promote just and equitable principles of change is consistent with the Act. trade, to foster cooperation and Comments may be submitted by any of SECURITIES AND EXCHANGE coordination with persons engaged in the following methods: COMMISSION regulating, clearing, settling, processing Electronic Comments [Release No. 34–65568; File No. SR–FINRA– information with respect to, and 2011–058] facilitating transactions in securities, to • Use the Commission’s Internet remove impediments to and perfect the comment form (http://www.sec.gov/ Self-Regulatory Organizations; mechanism of a free and open market rules/sro.shtml); or Financial Industry Regulatory • and a national market system, and, in Send an e-mail to rule- Authority, Inc.; Notice of Filing of general, to protect investors and the [email protected]. Please include File Proposed Rule Change To Amend public interest. NASDAQ believes that No. SR–NASDAQ–2011–141 on the FINRA Rule 6433 (Minimum Quotation the change will result in the adoption of subject line. Size Requirements for OTC Equity a clear policy with respect to the Paper Comments Securities) meaning, administration, and • enforcement of Rule 4120(a)(11), Send paper comments in triplicate October 14, 2011. thereby promoting members’ to Elizabeth M. Murphy, Secretary, Pursuant to Section 19(b)(1) of the understanding of the parameters of the Securities and Exchange Commission, Securities Exchange Act of 1934 rule and the efficiency of its 100 F Street, NE., Washington, DC (‘‘Act’’),1 and Rule 19b–4 thereunder,2 administration. 20549–1090. notice is hereby given that on October All submissions should refer to File 6, 2011, the Financial Industry B. Self-Regulatory Organization’s No. SR–NASDAQ–2011–141. This file Regulatory Authority, Inc. (‘‘FINRA’’) Statement on Burden on Competition number should be included on the filed with the Securities and Exchange As all listing markets are subject to subject line if e-mail is used. To help the Commission (‘‘SEC’’ or ‘‘Commission’’) uniform halt rules, and it is NASDAQ’s Commission process and review your the proposed rule change as described understanding that its proposed comments more efficiently, please use in Items I, II, and III below, which Items approach to evaluating prices coming only one method. The Commission will have been prepared by FINRA. The out of a halt is similar to that already post all comments on the Commission’s Commission is publishing this notice to being used by other listing markets, Internet Web site (http://www.sec.gov/ rules/sro.shtml). Copies of the 6 17 CFR 200.30–3(a)(12). 3 15 U.S.C. 78f. 1 15 U.S.C. 78s(b)(1). 4 15 U.S.C. 78f(b)(5). 5 15 U.S.C. 78s(b)(3)(A)(ii). 2 17 CFR 240.19b–4.

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solicit comments on the proposed rule ‘‘limit order display rule’’) 5 and expand display better-priced customer limit change from interested persons. the scope of the rule, as further orders (or same-priced customer limit discussed below.6 orders that are at the best bid or offer I. Self-Regulatory Organization’s Under the proposed approach, the and that increase the OTC Market Statement of the Terms of the Substance minimum quotation size required for Maker’s size by more than a de minimis of the Proposed Rule Change display of a quotation in an OTC Equity amount).10 OTC Market Makers are not FINRA is proposing to amend FINRA Security would fall into one of six tiers required to display a customer limit Rule 6433 (Minimum Quotation Size rather than nine tiers. Specifically, for order unless doing so would comply Requirements for OTC Equity OTC Equity Securities priced between with the minimum quotation sizes Securities). $0.51 and $0.9999/share, the minimum applicable to the display of quotations The text of the proposed rule change quotation size would be 200 shares; on an inter-dealer quotation system.11 is available on FINRA’s Web site at between $0.26 and $0.5099/share, the Therefore, although a customer limit http://www.finra.org, at the principal minimum quotation size would be 500 order may otherwise have been required office of FINRA and at the shares; between $0.02 and $0.2599/ to be displayed under the limit order Commission’s Public Reference Room. share, the minimum quotation size display rule because it improved price would be 1,000 shares; and between or size more than a de minimis amount, II. Self-Regulatory Organization’s $0.0001 and $0.0199/share, the if the order is less than the minimum Statement of the Purpose of, and minimum quotation size would be quotation size set forth in this Rule, the Statutory Basis for, the Proposed Rule 10,000 shares.7 For quotations in member is not required to display the Change securities priced at least $1.00/share, order. In its filing with the Commission, the proposed rule generally would FINRA believes that the proposed FINRA included statements concerning parallel the approach taken by the modifications to the Rule’s tiers will the purpose of and basis for the exchanges by setting the minimum result in the display of a larger number proposed rule change and discussed any quotation size at a round lot of 100 of customer limit orders because more comments it received on the proposed shares,8 except that, with respect to limit orders should meet the revised rule change. The text of these statements OTC Equity Securities priced at or minimums than those currently in place may be examined at the places specified above $175.00/share, the minimum under the Rule. Based upon a review of in Item IV below. FINRA has prepared quotation size would equal the round a sample of Order Audit Trail System summaries, set forth in sections A, B, lot size applicable to those securities, data submitted over the past year in and C below, of the most significant which is one (1) share.9 OTC Equity Securities, only aspects of such statements. In addition to simplifying the tier approximately 50% of customer limit structure, FINRA believes that the orders in the sample met the current A. Self-Regulatory Organization’s proposed revisions will benefit Rule’s thresholds and would have been Statement of the Purpose of, and investors by facilitating display of eligible to be displayed. For example, Statutory Basis for, the Proposed Rule customer limit orders under the limit the existing tiers apply a 2,500 share Change order display rule, which generally minimum to OTC Equity Securities 1. Purpose requires that OTC Market Makers fully priced between $0.51 and $1.00/share, resulting in minimum dollar FINRA Rule 6433 (Minimum 5 See Securities Exchange Act Release No. 62359 commitments to the market that range Quotation Size Requirements For OTC (June 22, 2010), 75 FR 37488 (June 29, 2010) (File from $1,275.00 (for 2,500 shares priced No. SR–FINRA–2009–054; Order Approving NMS– Equity Securities) (the ‘‘Rule’’) requires at $0.51/share) to $2,500.00 (for 2,500 every member functioning as an OTC Principled Rules for OTC Equity Securities) (‘‘NMS–Principled Rules Approval Order’’). FINRA shares priced at $1.00/share). In 3 Market Maker in an OTC Equity Rule 6460 became effective on May 9, 2011. contrast, the proposed minimum 4 Security that enters firm quotations 6 The proposal also would incorporate the quotation size of 200 shares applicable into any inter-dealer quotation system requirements of FINRA Rule 6434 (Minimum to quotes priced between $0.51 and that permits quotation updates on a real- Pricing Increments for OTC Equity Securities) which, among other things, prohibits members from $0.9999/share would have resulted in a time basis to honor those quotations for displaying a bid or offer in an OTC Equity Security significant increase in the number of certain minimum sizes (‘‘minimum in an increment smaller than $0.01 if the bid or limit orders that would have been quotation sizes’’). Under the Rule, offer is priced $1.00 or greater per share, or in an eligible to be displayed—over 90% of different minimum quotation sizes increment smaller than $0.0001 if the bid or offer is priced below $1.00. See FINRA Rule 6460(b)(8). the orders comprising the sample. apply depending upon the price level of 7 Under the proposed revisions, securities priced FINRA also is proposing to expand the bid or offer and, therefore, a under $0.02/share would be subject to a larger the scope of the Rule to apply to all different minimum quotation size can minimum quotation size than the current Rule. quotations or orders displayed in an apply to each side of the market being Increasing the minimum for quotations in this lower-priced tier should result in more substantive inter-dealer quotation system, including quoted by the member in a given dollar-value commitments to the market. For quotations displayed by alternative security. securities priced at or above $0.02/share, the FINRA is proposing changes to the minimum quotation size requirements would be 10 The limit order display rule was adopted as minimum quotation sizes to, among reduced so that a greater percentage of customer part of a broader effort to extend certain protections limit orders priced in this range would be eligible other things, simplify the tier structure, in place for NMS stocks to quoting and trading in for display, while continuing to recognize the OTC Equity Securities. See NMS–Principled Rules facilitate the display of customer limit utility of requiring that displayed quotations Approval Order. As stated in the proposal for the orders under new FINRA Rule 6460 represent a minimum aggregate dollar value limit order display rule, FINRA believes that (Display of Customer Limit Orders) (the commitment to the market. applying the display requirements to OTC Equity 8 A round lot of 100 shares applies to most Securities will improve transparency in the OTC NASDAQ and NYSE listed securities. equity market and advances the goal of the public 3 See FINRA Rule 6420(f). 9 The unit of trade for OTC Equity Securities availability of quotation information, as well as fair 4 ‘‘OTC Equity Security’’ means any equity traded at or above $175.00/share is one (1) Share competition, market efficiency, best execution and security that is not an ‘‘NMS stock’’ as that term is (i.e., transactions in these securities for fewer than disintermediation. See Securities Exchange Act defined in Rule 600(b)(47) of SEC Regulation NMS; 100 shares no longer are considered ‘‘odd-lot Release No. 60515 (August 17, 2009), 74 FR 43207 provided, however, that the term OTC Equity transactions’’ for dissemination purposes). See (August 26, 2009) (Notice of Filing File No. SR– Security shall not include any Restricted Equity Trade Reporting Notice, OTC Equity Security FINRA–2009–054). Security. See FINRA Rule 6420(e). Transactions (April 21, 2008). 11 See Regulatory Notice 10–42 (September 2010).

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trading systems (ATSs) or those of Section 15A(b)(6) of the Act,15 which 90 days of such date if it finds such representing customer trading interest. requires, among other things, that longer period to be appropriate and The scope of the current rule is limited FINRA rules must be designed to publishes its reasons for so finding or to quotations where the member prevent fraudulent and manipulative (ii) as to which the self-regulatory ‘‘functions as a market maker in OTC acts and practices, to promote just and organization consents, the Commission Equity Securities.’’ Therefore, the Rule equitable principles of trade, and, in will: does not currently apply to quotes by general, to protect investors and the (A) By order approve or disapprove ATSs (because they are not market public interest. FINRA also believes that such proposed rule change, or makers) and quotes representing the proposed rule change is consistent (B) institute proceedings to determine customer trading interest (e.g., customer with the provisions of Section whether the proposed rule change limit orders). However, ATSs have 15A(b)(11) of the Act.16 Section should be disapproved. become increasingly active in the over- 15A(b)(11) requires that FINRA rules IV. Solicitation of Comments the-counter market and FINRA believes include provisions governing the form that the minimum quotation size and content of quotations relating to Interested persons are invited to requirements should apply uniformly securities sold otherwise than on a submit written data, views, and for any trading interest displayed on an national securities exchange which may arguments concerning the foregoing, inter-dealer quotation system by be distributed or published by any including whether the proposed rule members, whether submitted by an OTC member or person associated with a change is consistent with the Act. Market Maker or an ATS.12 In addition, member, and the persons to whom such Comments may be submitted by any of FINRA believes that expanding the quotations may be supplied. the following methods: scope of the Rule to include quotations FINRA believes that the proposed rule Electronic Comments representing customer limit orders will change meets these requirements by • Use the Commission’s Internet ensure that minimum quotation sizes simplifying the tier structure and comment form (http://www.sec.gov/ are observed consistently by all facilitating display of customer limit rules/sro.shtml); or members displaying quotations on an orders consistent with Rule 6460, while • inter-dealer quotation system. Send an e-mail to rule- still recognizing the utility of requiring [email protected]. Please include File Of course, each member would that quotes in lower-priced securities continue to be required to honor its Number SR–FINRA–2011–058 on the represent a minimum dollar-value subject line. quotations to the full quantity displayed commitment to the market. FINRA in accordance with Rule 5220 (Offers at believes that the proposed revisions to Paper Comments Stated Prices), which generally provides the minimum quotation sizes should • Send paper comments in triplicate that no member shall make an offer to benefit investors by increasing the to Elizabeth M. Murphy, Secretary, buy or sell any security at a stated price percentage of customer limit orders that unless such member is prepared to Securities and Exchange Commission, will be eligible for display under Rule 100 F Street, NE., Washington, DC purchase or sell the security at such 6460. This should improve transparency price and under such conditions as are 20549–1090. and enhance execution of customer All submissions should refer to File stated at the time of such offer to buy limit orders. Finally, FINRA believes or sell.13 Likewise, member obligations Number SR–FINRA–2011–058. This file that the applicability of the minimum number should be included on the pursuant to Rule 5210 (Publication of quotation sizes to all members posting Transactions and Quotations) continue subject line if e-mail is used. quotations in an inter-dealer quotation To help the Commission process and to apply. Among other things, Rule 5210 system will promote consistency in the generally prohibits members from review your comments more efficiently, minimum quotation sizes displayed on please use only one method. The publishing, circulating, or causing to be an inter-dealer quotation system. published or circulated, any quotation Commission will post all comments on which purports to quote the bid price or B. Self-Regulatory Organization’s the Commission’s Internet Web site asked price for any security, unless such Statement on Burden on Competition (http://www.sec.gov/rules/sro.shtml). Copies of the submission, all subsequent member believes that such quotation FINRA does not believe that the amendments, all written statements represents a bona fide bid for, or offer proposed rule change will result in any with respect to the proposed rule of, such security.14 burden on competition that is not change that are filed with the FINRA will announce the effective necessary or appropriate in furtherance Commission, and all written date of the proposed rule change in a of the purposes of the Act. Regulatory Notice. The effective date communications relating to the will be no later than 180 days following C. Self-Regulatory Organization’s proposed rule change between the Commission approval. Statement on Comments on the Commission and any person, other than Proposed Rule Change Received From those that may be withheld from the 2. Statutory Basis Members, Participants, or Others public in accordance with the FINRA believes that the proposed rule Written comments were neither provisions of 5 U.S.C. 552, will be change is consistent with the provisions solicited nor received. available for Web site viewing and printing in the Commission’s Public 12 While ATS quotes and quotes representing III. Date of Effectiveness of the Reference Room on official business customer trading interest currently are not captured Proposed Rule Change and Timing for days between the hours of 10 a.m. and within the scope of the Rule, as a practical matter, Commission Action members displaying any quotation on an inter- 3 p.m. Copies of such filing also will be dealer quotation system often must post a size that Within 45 days of the date of available for inspection and copying at is at least equal to this Rule’s minimums due to the publication of this notice in the Federal the principal office of FINRA. All systems requirements of inter-dealer quotation Register or within such longer period (i) comments received will be posted systems that program the size field consistent with this Rule. As the Commission may designate up to without change; the Commission does 13 See also Rule 5220.01 (Firmness of Quotations). not edit personal identifying 14 See also Rule 5210.01 (Manipulative and 15 15 U.S.C. 78o–3(b)(6). information from submissions. You Deceptive Quotations). 16 15 U.S.C. 78o–3(b)(11). should submit only information that

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you wish to make available publicly. All Rule 925.1NY, relating to market contracts.6 The Exchange noted that submissions should refer to File maker quotations, requires Specialists to adjusted series may not meet the Number SR–FINRA–2011–058, and provide continuous two-sided standards to be considered ‘‘active’’ and should be submitted on or before quotations throughout the trading day in thereby, under NYSE Amex Rule November 10, 2011. its appointed issues for 90% of the time 970.1NY, the Exchange may no longer 7 For the Commission, by the Division of the Exchange is open for trading in each disseminate quotes in such series. Trading and Markets, pursuant to delegated such issue. Rule 925.1NY also requires Consequently, market makers are authority.17 non-specialist market makers to provide currently required to submit quotes in Elizabeth M. Murphy, continuous two-sided quotations adjusted series that may not be Secretary. throughout the trading day in their published to OPRA unless otherwise appointed issues for 60% of the time the requested.8 [FR Doc. 2011–27135 Filed 10–19–11; 8:45 am] Exchange is open for trading in each In its filing, the Exchange states that BILLING CODE 8011–01–P such issue. market makers, including Specialists, Commentary .03(a) to Rule 903, that have recently withdrawn from relating to LEAPS open for trading, SECURITIES AND EXCHANGE assignments in classes have informed currently provides that Exchange Rules COMMISSION the Exchange that the withdrawals were regarding continuous quoting based in part on the obligation to [Release No. 34–65572; File No. SR– obligations do not apply to index option continuously quote adjusted options NYSEAmex–2011–61] series until the time to expiration is less series whereby the quoting obligations than 12 months and do not apply to on such less frequently traded option Self-Regulatory Organizations; NYSE equity options or option on Exchange series impacted the risk parameters Amex LLC; Order Granting Approval of Traded Fund Shares until the time to acceptable to the market makers.9 The Proposed Rule Change Adding 4 expiration is less than nine months. Exchange noted that market makers Commentary .01 to Rule 925.1NY The Exchange now proposes to add have also expressed concern that the Concerning Market Maker Continuous Commentary .01 to Rule 925.1NY (the adjusted nature of these series Quoting Obligations and Adjusted rule applicable to market maker complicates the calculation of an Option Series quotations) to reflect the exception for appropriate quote.10 As a result of LEAPS that is currently provided for in October 14, 2011. withdrawals from such assignments by Commentary .03(a) to Rule 903 to the market makers, the Exchange states that I. Introduction continuous quoting obligations liquidity, as well as volume, has been On August 16, 2011, NYSE Amex LLC contained in Rule 925.1NY. In other negatively impacted in the affected (‘‘Exchange’’ or ‘‘NYSE Amex’’) filed words, without altering the substance of options classes listed on the Exchange.11 with the Securities and Exchange the exception, the Exchange is The Exchange now proposes to add an Commission (‘‘Commission’’), pursuant proposing to include text that already exception to Rule 925.1NY to relieve to Section 19(b)(1) of the Securities appears in Commentary .03(a) to Rule market makers from the obligation to Exchange Act of 1934 (‘‘Act’’) 1 and Rule 903 into Rule 925.1NY in order to continuously quote in adjusted option 19b–4 thereunder,2 a proposed rule reference that exception in the rule that series in order to encourage market change to add Commentary .01 to Rule addresses market maker quoting makers, including Specialists, to 925.1NY to indicate that market makers obligations. continue their appointments in option In addition, the Exchange proposes to will not be obligated to quote in classes that include adjusted series. extend the exception from the adjusted option series and to reference continuous quoting obligations to III. Discussion and Commission’s an existing exception to the quoting certain ‘‘adjusted series.’’ The Exchange Findings obligations. The proposed rule change proposes to define an ‘‘adjusted series’’ After careful review, the Commission was published for comment in the for purposes of Rule 925.1NY as ‘‘an 3 finds that the proposed rule change is Federal Register on September 1, 2011. option series wherein, as a result of a The Commission received no comment consistent with the requirements of corporate action by the issuer of the Section 6 of the Act 12 and the rules and letters on the proposed rule change. underlying security, one option contract This order approves the proposed rule regulations thereunder applicable to a in the series represents the delivery of national securities exchange.13 In change. other than 100 shares of underlying stock or Exchange-Traded Fund II. Description of the Proposed Rule 6 See id. 5 Change Shares.’’ 7 See id. In its filing, the Exchange notes that 8 NYSE Amex Rule 970.1NY states, in part, ‘‘The The Exchange proposes to add adjusted series are generally active for a Commentary .01 to Rule 925.1NY (i) To Exchange may determine that a series has become short period of time following active intraday if (i) The series trades at any options add an exception to relieve market adjustment and thereafter become exchange; (ii) NYSE Amex receives an order in the makers from the obligation to inactive as new orders to open options series; or (iii) NYSE Amex receives a request for continuously quote in adjusted option quote from a customer in that series. If a series positions in the underlying are almost becomes active intraday, the Exchange will series, and (ii) to reflect in Rule exclusively placed in the new standard immediately disseminate quotes in the series to 925.1NY an exception from the OPRA, and continue to disseminate quotes for the balance of the trading day.’’ continuous quote requirements for 4 In addition, Commentary .03(a) to Rule 903 9 Long-Term Equity Option Series provides that trading in such LEAPS will See Notice, supra note 3, at 54519. See also Rule (‘‘LEAPS’’) that is currently provided for commence either when there is buying or selling 925NY (providing for market maker appointments by class). in Commentary .03(a) to Rule 903. interest, or forty minutes prior to the close of trading for the day, whichever occurs first. Further, 10 See Notice, supra note 3, at 54519. the rule provides that quotations will not be posted 11 See id. 17 17 CFR 200.30–3(a)(12). for extended far term option series until trading in 12 15 U.S.C. 78f. 1 15 U.S.C. 78s(b)(1). such series is commenced on the day. 13 In approving this proposed rule change, the 2 17 CFR 240.19b–4. 5 The Exchange provided additional background Commission has considered the proposed rule’s 3 See Securities Exchange Act Release No. 65209 regarding adjusted series options in its Notice. See impact on efficiency, competition, and capital (August 26, 2011), 76 FR 54518 (‘‘Notice’’). Notice, supra note 3, at 54519. formation. See 15 U.S.C. 78c(f).

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particular, the Commission finds that system resources necessary to I. Self-Regulatory Organization’s the proposed rule change is consistent accommodate them. Statement of the Terms of Substance of 14 with Section 6(b)(5) of the Act, which Further, the proposed new the Proposed Rule Change requires, among other things, that the Commentary .01 to Rule 925.1NY (the Exchange’s rules be designed to prevent NASDAQ is filing with the Securities rule applicable to market maker fraudulent and manipulative acts and and Exchange Commission quotations) to reflect the exception for practices, to promote just and equitable (‘‘Commission’’) a proposed rule change principles of trade, to foster cooperation LEAPS provided for in Commentary to accept inbound orders routed by and coordination with persons engaged .03(a) to Rule 903 to the continuous Nasdaq Execution Services LLC (‘‘NES’’) in facilitating transactions in securities, quoting obligations contained in Rule from both the NASDAQ OMX PSX to remove impediments to and perfect 925.1NY, is not a new substantive facility (‘‘PSX’’) of NASDAQ OMX the mechanism of a free and open provision, but rather references the PHLX (‘‘PHLX’’) as well as from the market and a national market system, exception currently provided for in NASDAQ OMX BX Equities Market of and, in general, to protect investors and Commentary .03(a) to Rule 903. In so NASDAQ OMX BX, Inc. (‘‘BX’’), as the public interest. doing, the proposed change clarifies the described further below, on a one year The Exchange’s proposal to relieve exception by referencing it in the rule pilot basis. market makers from the obligation to applicable to market maker quoting The text of the proposed rule change continuously quote in adjusted series obligations generally. is available at http:// would not affect market makers’ other nasdaq.cchwallstreet.com, at obligations. For example, the IV. Conclusion NASDAQ’s principal office, and at the Commission notes that the proposal Commission’s Public Reference Room. It Is Therefore Ordered, pursuant to does not excuse a market maker from Section 19(b)(2) of the Act,17 II. Self-Regulatory Organization’s the obligations to respond with a two- that the Statement of the Purpose of, and sided, legal width market to a call for a proposed rule change (SR–NYSEAmex– Statutory Basis for, the Proposed Rule market by a floor broker.15 The 2011–61) be, and hereby is, approved. Change Commission also notes that the proposal For the Commission, by the Division of does not excuse a market maker from Trading and Markets, pursuant to delegated In its filing with the Commission, the obligation to submit a single quote authority.18 NASDAQ included statements or maintain continuous quotes in one or Elizabeth M. Murphy, concerning the purpose of and basis for more series of an option issue within Secretary. the proposed rule change and discussed the market maker’s appointment [FR Doc. 2011–27134 Filed 10–19–11; 8:45 am] any comments it received on the whenever, in the judgment of such proposed rule change. The text of these Trading Official, it is necessary to do so BILLING CODE 8011–01–P statements may be examined at the in the interest of maintaining fair and places specified in Item IV below. orderly markets.16 Accordingly, the NASDAQ has prepared summaries, set Exchange’s proposal concerning SECURITIES AND EXCHANGE COMMISSION forth in Sections A, B, and C below, of adjusted series is narrowly tailored to, the most significant aspects of such among other things, remove statements. impediments to and perfect the [Release No. 34–65554; File No. SR– mechanism of a free and open market NASDAQ–2011–142] A. Self-Regulatory Organization’s and a national market system, and, in Statement of the Purpose of, and general, to protect investors and the Self-Regulatory Organizations; The Statutory Basis for, the Proposed Rule public interest. To the extent such NASDAQ Stock Market LLC; Notice of Change series, shortly after the adjustment, Filing and Immediate Effectiveness of 1. Purpose become inactive as a result of a lack of Proposed Rule Change To Accept interest in the series by market Inbound Orders Routed From Its NES provides all routing functions for participants who have instead focused Affiliates The NASDAQ Stock Market their trading in the new standard (‘‘NASDAQ’’) as well as, pursuant to contracts, the Exchange’s proposal October 13, 2011. recent proposed rule changes, for BX 3 would reduce the burden on market Pursuant to Section 19(b)(1) of the and PHLX. Accordingly, NASDAQ now makers to submit continuous quotes that Securities Exchange Act of 1934 proposes that NES be permitted to route the Exchange may not submit to OPRA. (‘‘Act’’),1 and Rule 19b–4 thereunder,2 orders from BX and PSX to the Exchange on a one year pilot basis. In so doing, the proposal may notice is hereby given that on October incentivize market makers to continue 6, 2011, The NASDAQ Stock Market NES is a broker-dealer and member of appointments in classes that have LLC (the ‘‘Exchange’’ or ‘‘NASDAQ’’), NASDAQ, PHLX and BX. BX, NASDAQ, adjusted option series, and thereby filed with the Securities and Exchange PHLX and NES are affiliates. This raises should help maintain liquidity in these the issue of an exchange’s affiliation Commission (‘‘Commission’’) the classes to the benefit of the Exchange, with a member of such exchange. proposed rule change as described in its ATP Holders, and investors. In Specifically, in connection with prior Items I and II below, which Items have addition, the obligation to continuously filings, the Commission has expressed quote in such illiquid series, for which been prepared by NASDAQ. The concern that the affiliation of an there may be little or no trading interest, Commission is publishing this notice to exchange with one of its members raises is a minor part of a market maker’s solicit comments on the proposed rule the potential for unfair competitive overall obligations and thus requiring a change from interested persons. advantage and potential conflicts of continuous quote may not justify the interest between an exchange’s self- 17 15 U.S.C. 78s(b)(2). 18 14 15 U.S.C. 78f(b)(5). 17 CFR 200.30–3(a)(12). 3 See Securities Exchange Act Release Nos. 65470 15 See NYSE Amex Rule 925NY(b)(6). 1 15 U.S.C. 78s(b)(1). (October 3, 2011) (SR–BX–2011–048); and 65469 16 See NYSE Amex Rule 925.1NY(d). 2 17 CFR 240.19b–4. (October 3, 2011) (SR–Phlx–2011–108).

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regulatory obligations and its lists all investigations that identify NES because of its affiliation with the commercial interests.4 as a participant that has potentially Exchange to its advantage. Recognizing that the Commission has violated Commission or Exchange rules. previously expressed concern regarding • B. Self-Regulatory Organization’s Fourth, the Exchange will adopt Statement on Burden on Competition the potential for conflicts of interest in Rule 2160(c), which requires NASDAQ instances where a member firm is OMX, as the holding company owning NASDAQ does not believe that the affiliated with an exchange of which it both the Exchange and NES, to establish proposed rule change will result in any is a member, the Exchange previously and maintain procedures and internal burden on competition that is not proposed, and the Commission controls reasonably designed to ensure necessary or appropriate in furtherance approved, limitations and conditions on that NES does not develop or implement of the purposes of the Act, as amended. 5 NES’s affiliation with the NASDAQ. changes to its system, based on non- C. Self-Regulatory Organization’s The Commission has also expressed public information obtained regarding Statement on Comments on the concern regarding the potential for planned changes to the Exchange’s Proposed Rule Change Received From conflicts of interest in instances where systems as a result of its affiliation with Members, Participants, or Others a member firm is affiliated with an the Exchange, until such information is 6 Written comments were neither exchange to which it is routing orders. available generally to similarly situated solicited nor received. To address the Commission’s concerns, Exchange members, in connection with NASDAQ proposes to accept inbound the provision of inbound order routing III. Date of Effectiveness of the orders that NES routes from PHLX and to the Exchange. Proposed Rule Change and Timing for BX, respectively, in its capacity as a • Fifth, the Exchange proposes that Commission Action facility of PHLX and BX, subject to the routing of orders from NES to the Because the foregoing proposed rule certain limitations and conditions: Exchange, in NES’s capacity as a facility • First, the Exchange and the change does not significantly affect the of PHLX as well as BX, be authorized for protection of investors or the public Financial Industry Regulatory Authority a pilot period of one year. (‘‘FINRA’’) will maintain a Regulatory interest, does not impose any significant The Exchange believes that the above- Contract, as well as an agreement burden on competition, and, by its listed conditions protect the pursuant to Rule 17d–2 under the Act terms, does not become operative for 30 independence of the Exchange’s (‘‘17d–2 Agreement’’).7 Pursuant to the days from the date on which it was regulatory responsibility with respect to Regulatory Contract and the 17d–2 filed, or such shorter time as the NES, and that these mitigate the Agreement, FINRA will be allocated Commission may designate, it has aforementioned concerns about regulatory responsibilities to review become effective pursuant to Section potential conflicts of interest and unfair 12 NES’s compliance with certain 19(b)(3)(A) of the Act and Rule 19b– competitive advantage. 13 Exchange rules.8 Pursuant to the 4(f)(6) thereunder. Regulatory Contract, however, NASDAQ 2. Statutory Basis The Exchange has requested that the retains ultimate responsibility for Commission waive the 30-day operative The Exchange believes that the enforcing its rules with respect to NES. delay. The Exchange believes that the • proposed rule change is consistent with waiver of the 30-day operative delay is Second, FINRA will monitor NES 10 for compliance with the Exchange’s the provisions of Section 6 of the Act, consistent with the protection of in general, and with Sections 6(b)(5) of investors and the public interest trading rules, and will collect and 11 maintain certain related information.9 the Act, in particular, in that the because it would benefit users by • Third, FINRA will provide a report proposal is designed to prevent offering more opportunities for their to the Exchange’s chief regulatory fraudulent and manipulative acts and orders to be executed.14 The officer (‘‘CRO’’), on a quarterly basis, practices, to promote just and equitable Commission notes that the proposed that: (i) Quantifies all alerts (of which principles of trade, to foster cooperation rule change is consistent with rules of FINRA is aware) that identify NES as a and coordination with persons engaged other national securities exchanges, and participant that has potentially violated in regulating, clearing, settling, does not raise any new substantive Commission or Exchange rules, and (ii) processing information with respect to, issues.15 For these reasons, the and facilitating transactions in Commission believes that waiving the 4 See Securities Exchange Act Release Nos. 59153 securities, to remove impediments to 30-day operative delay is consistent (December 23, 2008), 73 FR 80485 (SR–NASDAQ– and perfect the mechanism of a free and with the protection of investors and the 2008–098); and 62736 (August 17, 2010), 75 FR open market and a national market public interest, and designates the 51861 (August 23, 2010) (SR–NASDAQ–2010–100). system, and, in general, to protect proposal to be operative upon filing 5 Id. investors and the public interest, 16 6 See Securities Exchange Act Release No. 62877 with the Commission. (September 9, 2010), 75 FR 56633 (September 16, because the proposed rule change will 2010) (SR–PHLX–2010–79). allow the Exchange to receive inbound 12 15 U.S.C. 78s(b)(3)(A). 7 17 CFR 240.17d–2. routes of orders from NES, acting in its 13 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– 8 NES is also subject to independent oversight by capacity as a facility of PHLX or BX, in 4(f)(6)(iii) requires the Exchange to give the Commission written notice of the Exchange’s intent FINRA, its designated examining authority, for a manner consistent with prior compliance with financial responsibility to file the proposed rule change, along with a brief requirements. approvals and established protections. description and text of the proposed rule change, 9 Pursuant to the Regulatory Contract, both The Exchange believes that the at least five business days prior to the date of filing FINRA and the Exchange will collect and maintain proposed conditions establish of the proposed rule change, or such shorter time as designated by the Commission. The Exchange all alerts, complaints, investigations and mechanisms that protect the enforcement actions in which NES (in its capacity has satisfied this requirement. as a facility of PHLX or BX routing orders to the independence of the Exchange’s 14 See SR–NASDAQ–2011–142, Item 7. Exchange) is identified as a participant that has regulatory responsibility with respect to 15 See, e.g., Securities Exchange Act Release Nos. potentially violated applicable Commission or NES, as well as ensure that NES cannot 62901 (September 13, 2010), 75 FR 57097 Exchange rules. The Exchange and FINRA will use any information it may have (September 17, 2010) (SR–BATS–2010–024); and retain these records in an easily accessible manner 64729 (June 23, 2011), 76 FR 38232 (June 29, 2011) in order to facilitate any potential review conducted (SR–NYSE–2011–24). by the Commission’s Office of Compliance 10 15 U.S.C. 78f. 16 For purposes only of waiving the 30-day Inspections and Examinations. 11 15 U.S.C. 78f(b)(5). operative delay, the Commission has considered the

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At any time within 60 days of the Commission does not edit personal a TRACE-Eligible Security that is an filing of the proposed rule change, the identifying information from Agency Pass-Through Mortgage-Backed Commission summarily may submissions. You should submit only Security traded ‘‘to be announced’’ and temporarily suspend such rule change if information that you wish to make to incorporate minor technical it appears to the Commission that such available publicly. All submissions amendments. action is necessary or appropriate in the should refer to File Number SR– The text of the proposed rule change public interest, for the protection of NASDAQ–2011–142 and should be is available on FINRA’s Web site at investors, or otherwise in furtherance of submitted on or before November 10, http://www.finra.org, at the principal the purposes of the Act. 2011. office of FINRA, on the Commission’s Web site at http://www.sec.gov, and at IV. Solicitation of Comments For the Commission, by the Division of Trading and Markets, pursuant to delegated the Commission’s Public Reference Interested persons are invited to authority.17 Room. submit written data, views, and Elizabeth M. Murphy, II. Self-Regulatory Organization’s arguments concerning the foregoing, Secretary. Statement of the Purpose of, and including whether the proposed rule [FR Doc. 2011–27133 Filed 10–19–11; 8:45 am] Statutory Basis for, the Proposed Rule change is consistent with the Act. BILLING CODE 8011–01–P Change Comments may be submitted by any of the following methods: In its filing with the Commission, FINRA included statements concerning Electronic Comments SECURITIES AND EXCHANGE COMMISSION the purpose of and basis for the • Use the Commission’s Internet proposed rule change and discussed any comment form (http://www.sec.gov/ [Release No. 34–65551; File No. SR–FINRA– comments it received on the proposed 2011–056] rules/sro.shtml); or rule change. The text of these statements • Send an e-mail to rule- Self-Regulatory Organizations; may be examined at the places specified [email protected]. Please include File Financial Industry Regulatory in Item IV below. FINRA has prepared Number SR–NASDAQ–2011–142 on the Authority, Inc.; Notice of Filing and summaries, set forth in sections A, B, subject line. Immediate Effectiveness of Proposed and C below, of the most significant aspects of such statements. Paper Comments Rule Change To Amend Rule 7730 Regarding TRACE Reporting Fees For • A. Self-Regulatory Organization’s Send paper comments in triplicate Transactions in Agency Pass-Through Statement of the Purpose of, and to Elizabeth M. Murphy, Secretary, Mortgage-Backed Securities Traded Statutory Basis for, the Proposed Rule Securities and Exchange Commission, ‘‘To Be Announced’’ Change 100 F Street, NE., Washington, DC 20549–1090. October 13, 2011. 1. Purpose All submissions should refer to File Pursuant to Section 19(b)(1) of the On May 16, 2011, amendments to the Securities Exchange Act of 1934 Number SR–NASDAQ–2011–142. This 1 2 FINRA Rule 6700 Series (the TRACE file number should be included on the (‘‘Act’’) and Rule 19b–4 thereunder, rules) and Rule 7730 (TRACE fees) notice is hereby given that on subject line if e-mail is used. To help the became effective.5 The amendments September 30, 2011, the Financial Commission process and review your defined Asset-Backed Securities Industry Regulatory Authority, Inc. comments more efficiently, please use (‘‘ABS’’) as TRACE-Eligible Securities (‘‘FINRA’’) filed with the Securities and only one method. The Commission will and extended TRACE reporting Exchange Commission (‘‘SEC’’ or post all comments on the Commission’s requirements to transactions in ABS in ‘‘Commission’’) the proposed rule Internet Web site (http://www.sec.gov/ the TRACE rules.6 In addition, the change as described in Items I, II, and rules/sro.shtml). Copies of the TRACE reporting fees in effect for III below, which Items have been submission, all subsequent transactions in corporate bonds and prepared by FINRA. FINRA has amendments, all written statements Agency Debt Securities were extended designated the proposed rule change as with respect to the proposed rule to transactions in ABS in Rule 7730.7 ‘‘establishing or changing a due, fee or change that are filed with the As a result, currently the reporting fee other charge’’ under Section Commission, and all written for transactions in ABS, including 19(b)(3)(A)(ii) of the Act 3 and Rule 19b– communications relating to the 4 Agency Pass-Through Mortgage-Backed proposed rule change between the 4(f)(2) thereunder, which renders the Securities (‘‘Agency Pass-Through Commission and any person, other than proposal effective upon receipt of this MBS’’) traded to-be-announced those that may be withheld from the filing by the Commission. The Commission is publishing this notice to public in accordance with the 5 solicit comments on the proposed rule See Securities Exchange Act Release No. 61566 provisions of 5 U.S.C. 552, will be (February 22, 2010), 75 FR 9262 (March 1, 2010) available for Web site viewing and change from interested persons. (order approving File No. SR–FINRA–2009–065) (‘‘TRACE ABS filing’’); Securities Exchange Act printing in the Commission’s Public I. Self-Regulatory Organization’s Release No. 64364 (April 28, 2011), 76 FR 25385 Reference Room, 100 F Street, NE., Statement of the Terms of Substance of (May 4, 2011) (order approving File No. SR– Washington, DC 20549, on official the Proposed Rule Change FINRA–2011–012) (‘‘supplemental TRACE ABS business days between the hours of 10 filing’’); Regulatory Notice 10–55 (October 2010) FINRA is proposing to amend FINRA (establishing May 16, 2011 as the effective date for a.m. and 3 p.m. Copies of such filing Rule 7730 to establish a transaction the TRACE ABS filing); and Regulatory Notice 11– also will be available for inspection and reporting fee of $1.50 per transaction for 20 (May 2011) (establishing May 16, 2011 as the copying at the principal office of the effective date for the supplemental TRACE ABS filing). Exchange. All comments received will 17 17 CFR 200.30–3(a)(12). 6 ‘‘Asset-Backed Security’’ and ‘‘TRACE-Eligible be posted without change; the 1 15 U.S.C. 78s(b)(1). Security’’ are defined in, respectively, Rule 6710(m) 2 17 CFR 240.19b–4. and Rule 6710(a). proposed rule’s impact on efficiency, competition, 3 15 U.S.C. 78s(b)(3)(A)(ii). 7 ‘‘Agency Debt Security’’ is defined in Rule and capital formation. See 15 U.S.C. 78c(f). 4 17 CFR 240.19b–4(f)(2). 6710(l).

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(‘‘TBA’’),8 is based upon a sliding scale Agency Pass-Through MBS are the adjustment to TRACE reporting fees in and ranges from $0.475 to $2.375 per most liquid sector among all ABS, and that, currently, for TBA transactions, transaction depending upon the size transactions in Agency Pass-Through members are subject to the highest (volume) of the reported transaction.9 MBS are a significant share of the TRACE reporting fee for almost all such Most ABS transactions, including volume of all ABS transactions. Many transactions, and the proposed Agency Pass-Through MBS traded TBA Agency Pass-Through MBS are TBA amendment will reduce the reporting (‘‘TBA transactions’’), are in excess of transactions. The proposed amendment fee for 95 percent of such transactions, $1,000,000 par value (or, in the case of to Rule 7730 to modify the reporting fee and will result in a more equitable certain ABS, in excess of $1,000,000 as from multiple rates based upon allocation among members for ABS measured by the original face value or transaction size (volume) to a flat rate of reporting fees. Remaining Principal Balance of the $1.50 per transaction for TBA B. Self-Regulatory Organization’s security, as applicable).10 Thus, for most transactions regardless of transaction Statement on Burden on Competition ABS transactions, the highest reporting size (volume) would reduce the fee, $2.375 per transaction, applies. reporting fee for approximately 95 FINRA does not believe that the FINRA proposes to amend the percent of all TBA transactions.12 In proposed rule change will result in any transaction reporting fee in Rule 7730 addition, the proposed fee reduction burden on competition that is not applicable to TBA transactions. would substantially reduce reporting necessary or appropriate in furtherance Specifically, FINRA proposes to charge fees that members pay in connection of the purposes of the Act. a member a flat fee of $1.50 per TBA with ABS transactions in general, as C. Self-Regulatory Organization’s transaction in lieu of the current TBA transactions account for Statement on Comments on the reporting fee that is based upon a approximately 85 percent of the total Proposed Rule Change Received From sliding scale depending on the size volume (size) traded in ABS and Members, Participants or Others (volume) of the transaction.11 approximately 51 percent of all ABS transactions.13 Written comments were neither 8 As provided in Rule 6710(v), ‘‘Agency Pass- FINRA has filed the proposed rule solicited nor received. Through Mortgage-Backed Security’’ means change for immediate effectiveness. The III. Date of Effectiveness of the ‘‘a mortgage-backed security issued by an Agency implementation date will be November or a Government-Sponsored Enterprise, for which Proposed Rule Change and Timing for the timely payment of principal and interest is 1, 2011. Commission Action guaranteed by an Agency or a Government- Sponsored Enterprise, representing ownership 2. Statutory Basis The foregoing rule change has become interests in a pool or pools of residential mortgage FINRA believes that the proposed rule effective pursuant to Section 19(b)(3)(A) loans with the security structured to ‘‘pass through’’ change is consistent with the provisions of the Act 15 and paragraph (f)(2) of Rule the principal and interest payments made by the 14 19b–4 thereunder.16 At any time within mortgagees to the owners of the pool(s) on a pro rata of Section 15A(b)(5) of the Act, which basis.’’ requires, among other things, that 60 days of the filing of the proposed rule ‘‘Agency’’ and ‘‘Government-Sponsored FINRA rules provide for the equitable change, the Commission summarily may Enterprise’’ (‘‘GSE’’) are defined in, respectively, allocation of reasonable dues, fees and temporarily suspend such rule change if Rule 6710(k) and Rule 6710(n). other charges among members and it appears to the Commission that such As provided in Rule 6710(u), ‘‘TBA’’ means action is necessary or appropriate in the ‘‘ ‘to be announced’ and refers to a transaction in issuers and other persons using any an Agency Pass-Through Mortgage-Backed Security facility or system that FINRA operates public interest, for the protection of * * * where the parties agree that the seller will or controls. FINRA believes that the investors, or otherwise in furtherance of deliver to the buyer an Agency Pass-Through proposed amendment, which will the purposes of the Act. If the Mortgage-Backed Security of a specified face Commission takes such action, the amount and coupon from a specified Agency or establish a flat fee per transaction for Government-Sponsored Enterprise program reporting TBA transactions regardless of Commission shall institute proceedings representing a pool (or pools) of mortgages (that are the size (volume) of the TBA to determine whether the proposed rule not specified by unique pool number).’’ transaction, is a reasonable and fair should be approved or disapproved. In a transaction traded TBA, the parties agree on a price for delivering a given volume of Agency IV. Solicitation of Comments Rule 7730(b)(1)(A). The provision indicating that, Pass-Through MBS at a specified future date. Interested persons are invited to 9 As set forth in Rule 7730(b)(1)(A), for trades up for ABS where par value is not used to determine to and including $200,000 par value, the reporting the size (volume) of a transaction, for purposes of submit written data, views, and fee is $0.475 per trade; for trades over $200,000 and trade reporting fees, the size (volume) of a arguments concerning the foregoing, up to and including $999,999.99 par value, the transaction is the lesser of the original face value including whether the proposed rule or the Remaining Principal Balance would be reporting fee is $0.000002375 times par value (i.e., change is consistent with the Act. $0.002375 per $1000 par value) per trade; and for incorporated in Rule 7730(b)(1)(A) and deleted in trades of $1,000,000 par value or more, the Rule 7730(b)(1)(B). In addition, the final sentence Comments may be submitted by any of reporting fee is $2.375 per trade. (Trade reporting of current Rule 7730(b)(1)(B) would be deleted. the following methods: and other TRACE fees are also summarized in a fee 12 A review of ABS transaction data reported to chart in Rule 7730.) TRACE between May 16, 2011 and July 31, 2011, Electronic Comments 10 For some ABS transactions, including TBA indicates that more than 95 percent of all TBA • Use the Commission’s Internet transactions, par value is not the correct term to transactions are larger than $1 million and, thus, are describe the size (volume) of a transaction. When billed at the rate of $2.375 per transaction. comment form (http://www.sec.gov/ calculating reporting fees for transactions in such Reducing the reporting fee to a flat fee of $1.50 per rules/sro.shtml); or securities, Rule 7730(b)(1)(B) provides that the size transaction will raise fees on approximately five • Send an e-mail to rule- (volume) of a transaction is the lesser of the original percent of TBA transactions, and lower fees on [email protected]. Please include File face value or the Remaining Principal Balance. approximately 95 percent of such transactions. ‘‘Remaining Principal Balance’’ and ‘‘Time of 13 A review of ABS transaction data reported to Number SR–FINRA–2011–056 on the Execution’’ are defined in, respectively, Rule TRACE between May 16, 2011 and July 31, 2011, subject line. 6710(aa) and Rule 6710(d). showed that TBAs trade in a liquid market. The 11 The proposed TBA transaction fee would be set average daily volume of TBA transactions is Paper Comments forth in Rule 7730(b)(1)(B). FINRA also proposes approximately $219 billion. The average daily • Send paper comments in triplicate three minor technical amendments to Rule number of trades is slightly more than 7,000. The to Elizabeth M. Murphy, Secretary, 7730(b)(1). The provision regarding the sliding average daily volume of TBA transactions is scale, which determines a reporting fee based on approximately ten times the average daily volume the size (volume) of a transaction, would be of all corporate bonds. 15 15 U.S.C. 78s(b)(3)(A). incorporated in Rule 7730(b)(1)(B) and deleted in 14 15 U.S.C. 78o–3(b)(5). 16 17 CFR 240.19b–4(f)(2).

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Securities and Exchange Commission, submitted on or before November 10, (OMB), Office of Management and 100 F Street, NE., Washington DC 2011. Budget, Attn: Desk Officer for SSA. 20549–1090. For the Commission, by the Division of Fax: 202–395–6974. E-mail address: [email protected]. All submissions should refer to File Trading and Markets, pursuant to delegated authority.17 Number SR–FINRA–2011–056. This file (SSA), Social Security Administration, Elizabeth M. Murphy, DCBFM, Attn: Reports Clearance number should be included on the Officer, 107 Altmeyer Building, 6401 subject line if e-mail is used. To help the Secretary. Security Blvd., Baltimore, MD 21235. Commission process and review your [FR Doc. 2011–27132 Filed 10–19–11; 8:45 am] Fax No.: 410–966–2830. E-mail comments more efficiently, please use BILLING CODE 8011–01–P address: [email protected]. only one method. The Commission will post all comments on the Commission’s I. The information collections below Internet Web site (http://www.sec.gov/ SOCIAL SECURITY ADMINISTRATION are pending at SSA. SSA will submit rules/sro.shtml). Copies of the them to OMB within 60 days from the submission, all subsequent Agency Information Collection date of this notice. To be sure we amendments, all written statements Activities: Proposed Request and consider your comments, we must with respect to the proposed rule Comment Request receive them no later than December 19, change that are filed with the The Social Security Administration 2011. Individuals can obtain copies of Commission, and all written (SSA) publishes a list of information the collection instruments by calling the communications relating to the collection packages requiring clearance SSA Reports Clearance Officer at 410– proposed rule change between the by the Office of Management and 965–8783 or by writing to the above e- Commission and any person, other than Budget (OMB) in compliance with mail address. those that may be withheld from the Public Law (Pub. L.) 104–13, the 1. Medical Report on Adult with public in accordance with the Paperwork Reduction Act of 1995, Allegation of Human Immunodeficiency provisions of 5 U.S.C. 552, will be effective October 1, 1995. This notice Virus Infection; Medical Report on Child available for Web site viewing and includes revisions to OMB-approved with Allegation of Human printing in the Commission’s Public information collections. Immunodeficiency Virus Infection—20 Reference Room, 100 F Street, NE., SSA is soliciting comments on the CFR 416.933–20; CFR 416.934 —0960– Washington, DC 20549, on official accuracy of the agency’s burden 0500. SSA uses Forms SSA–4814–F5 business days between the hours of 10 estimate; the need for the information; and SSA–4815–F6 to collect a.m. and 3 p.m. Copies of the filing will its practical utility; ways to enhance its information necessary to determine if an also be available for inspection and quality, utility, and clarity; and ways to individual with human copying at the principal office of minimize burden on respondents, immunodeficiency virus infection, who FINRA. All comments received will be including the use of automated is applying for Supplemental Security posted without change; the Commission collection techniques or other forms of Income (SSI) disability benefits, meets does not edit personal identifying information technology. Mail, e-mail, or the requirements for presumptive information from submissions. You fax your comments and disability payments. The respondents should submit only information that recommendations on the information are the medical sources of the you wish to make available publicly. All collection(s) to the OMB Desk Officer applicants for SSI disability payments. submissions should refer to File No. and SSA Reports Clearance Officer at Type of Request: Revision of an OMB- SR–FINRA–2011–056 and should be the following addresses or fax numbers. approved information collection.

Average burden Estimated total Collection instrument Number of Frequency of per response annual burden responses response (minutes) (hours)

SSA–4814–F5 ...... 46,200 1 10 7,700 SSA–4815–F6 ...... 12,900 1 10 2,150

Totals ...... 59,100 ...... 9,850

2. Supplement to Claim of Person the information to determine eligibility U.S. The respondents are individuals Outside the United States—20 CFR for U.S. Social Security benefits for entitled to Social Security benefits who 404.463, 20 CFR 422.505(b) and 20 CFR those months a beneficiary or claimant are, will be, or have been residing 407.27(c)—0960–0051. Claimants or is outside the U.S., and to determine if outside the U.S. for three months or beneficiaries (both United States (U.S.) tax withholding applies. In addition, longer. citizens and aliens entitled to benefits) SSA uses the information to terminate Type of Request: Revision of an OMB- living outside the U.S. complete Form Supplemental Medical Insurance SSA–21 as a supplement to an coverage for recipients who request it, approved information collection. application for benefits. SSA collects because they are or will be out of the

Average burden Estimated total Collection instrument Number of Frequency of per response annual burden responses response (minutes) (hours)

SSA–21 (non-residents) ...... 36,874 1 5 3,073

17 17 CFR 200.30–3(a)(12).

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Average burden Estimated total Collection instrument Number of Frequency of per response annual burden responses response (minutes) (hours)

SSA–21 (U.S. citizens and residents) ...... 1,941 1 15 485

Totals ...... 38,815 ...... 3,559

3. Credit Card Payment Form—0960– agreements; and (3) credit card reimbursable agreements with SSA, and 0648. SSA uses form SSA–1414 to payments for all Freedom of Information individuals who request information process: (1) Credit card payments from Act (FOIA) requests requiring payment. through FOIA. former employees and vendors with The respondents are former employees Type of Request: Revision of an OMB- outstanding debts to the agency; (2) and vendors who have outstanding approved information collection. advance payments for reimbursable debts to the agency, entities who have

Average Number of Frequency of burden Estimated total Collection instrument responses response per response annual burden (minutes) (hours)

SSA–1414 ...... 6,000 1 2 200

4. Benefit Offset National earnings above the BOND threshold, beneficiaries’ work efforts and earnings. Demonstration—0960–0785. In an effort resulting in a gradual reduction in Ultimately, these data will benefit to produce strong evidence about the benefits as earnings increase. researchers, policy analysts, policy effectiveness of potential solutions that BOND tests a benefit offset alone and makers, and the United States Congress would improve the historically very low in conjunction with enhanced work in a wide range of program areas. rate of return to work among SSDI incentives counseling. The central The effects of BOND on the well-being beneficiaries, SSA is currently research questions include: of SSDI beneficiaries could manifest • What is the effect of the benefit conducting the Benefit Offset National themselves in many dimensions and offset alone on employment and other Demonstration (BOND) project. The could be relevant to an array of other demonstration project will evaluate the outcomes? • What is the effect of the benefit public programs. This project offers the result of policy changes and services on offset in combination with enhanced opportunity to obtain reliable measures the Social Security Disability Insurance work incentives counseling on of these effects based upon a nationally (SSDI) program. employment and other outcomes? representative sample. The long-term Under current law, Social Security The public survey data collections for indirect benefits of this research are beneficiaries lose their SSDI benefit if BOND have four components—an likely to be substantial. Respondents are they have earnings and/or work activity impact study, a cost-benefit analysis, a SSDI beneficiaries and concurrent SSDI above the threshold of substantial participation analysis, and a process and SSI recipients who we randomly gainful activity (SGA) after completing study. The data collections are a assign to the study (Stage 1), and SSDI the trial work period and two-month primary source for data to measure the beneficiaries who agree to participate in grace period. The benefit-offset effects of a more generous benefit offset the study (Stage 2). component of this demonstration and the provision of enhanced work Type of Request: Revision of an OMB- reduces benefits by $1 for each $2 in incentives counseling on SSDI approved information collection.

Average Estimated Number Frequency of Number burden per total annual Survey of respondents response of responses response burden (minutes) (hours)

Participation Agreement ...... 12,600 1 12,600 20 4200 Baseline Survey ...... 12,600 1 12,600 41 8,610 Interim Survey ...... 10,080 1 10,080 29 4,872 Stage 1 36-month Survey ...... 8,000 1 8,000 49 6,533 Stage 2 36-month Survey ...... 10,080 1 10,080 60 10,080 Enhanced Work Incentives Assessment ...... 3,000 1 3,000 35 1,750 Key Informant Interviews ...... 100 7 700 60 700 Stage 2 Participant Focus Groups ...... 600 1 600 90 900 Stage 1 First Contact Letter Survey ...... 500 1 500 3 25

Totals ...... 57,560 ...... 58,160 ...... 37,670

II. SSA submitted the information within 30 days from the date of this OMB clearance package by calling the collection below to OMB for clearance. publication. To be sure we consider SSA Reports Clearance Officer at 410– Your comments regarding the your comments, we must receive them 965–8783 or by writing to the above e- information collection would be most no later than November 21, 2011. mail address. useful if OMB and SSA receive them Individuals can obtain copies of the

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Claimant’s Work Background—20 administrative law judge (ALJ) may ask HA–4633 becomes part of the CFR 404.1565(b) and 20 CFR individuals to provide background documentary evidence of record. The 416.965(b)—0960–0300. Sections 205(a) information on Form HA–4633 about respondents are claimants for disability and 1631(e) of the Social Security Act work they performed in the past 15 benefits under title II or title XVI who provide the Commissioner of Social years. The ALJ uses the information to requested a hearing before an ALJ. Security with the authority to establish assess an individual’s disability based Type of Request: Revision of an OMB- procedures for determining if a claimant on an updated summary of the is entitled to disability benefits. The individual’s relevant work history. The approved information collection.

Average burden Estimated total Collection instrument Number of Frequency of per response annual burden responses response (minutes) (hours)

HA–4633 ...... 200,000 1 15 50,000

Dated: October 17, 2011. • E-mail: [email protected]. Methodology: Faye Lipsky, • Mail (paper, disk, or CD–ROM The State Department, is Reports Clearance Officer, Center for Reports submissions): U.S. Department of State, implementing a Risk Analysis and Clearance, Social Security Administration. 2201 C St., NW., SA–15 Room 3200, Management Program to vet potential Washington, DC 20520. contractors and grantees seeking [FR Doc. 2011–27222 Filed 10–19–11; 8:45 am] • BILLING CODE 4191–02–P Fax: 703–812–2307. funding from the Department of State to You must include the DS form number mitigate the risk that such funds might (if applicable), information collection benefit terrorists or their supporters. To DEPARTMENT OF STATE title, and OMB control number in any conduct this vetting program the correspondence. Department envisions collecting [Public Notice 7662] FOR FURTHER INFORMATION CONTACT: information from contractors, sub- contractors, grantees and sub-grantees 60-Day Notice of Proposed Information Direct requests for additional information regarding the collection regarding their directors, officers or key Collection: DS–4184, Risk Management employees. The information collected and Analysis (RAM) listed in this notice, including requests for copies of the proposed information will be compared to information gathered from commercial, public, and ACTION: Notice of request for public collection and supporting documents, to U.S. government databases to determine comments. Edward H. Vazquez, U.S. Department of State who may be reached by the the risk that the applying organization, SUMMARY: The Department of State is following methods: Mail: U.S. entity or individual might use seeking Office of Management and Department of State, 2201 C St., NW., Department funds or programs to benefit Budget (OMB) approval for the SA–15 Room 3200, Washington, DC terrorist entities. This program will information collection described below. 20520; Tel: 703–812–2308 or e-mail: initially be conducted as a pilot program The purpose of this notice is to allow 60 [email protected]. as directed by Congress in the FY 2010 days for public comment in the Federal If you have access to the internet you Department of State, Foreign Register preceding submission to OMB. may submit comments online by going Operations, and Related Programs We are conducting this process in to: http://www.regulations.gov/search/ Appropriations Act, as carried forward accordance with the Paperwork Regs/home.html#home. in the FY 2011 Full-Year Continuing Appropriations Act. Reduction Act of 1995. SUPPLEMENTARY INFORMATION: We are • Methodology: We will collect this Title of Information Collection: Risk soliciting public comments to permit Analysis and Management. information either through mail, fax or • the Department to: electronic submission. OMB Control Number: None. • Evaluate whether the proposed • Type of Request: New. Dated: October 14, 2011. • information collection is necessary for Originating Office: Bureau of the proper performance of our Catherine I. Ebert-Gray, Administration, Office of Logistics functions. Deputy Assistant Secretary, Bureau of Management (A/LM). • Evaluate the accuracy of our Administration, Department of State. • Form Number: DS–4184. • estimate of the burden of the proposed [FR Doc. 2011–27191 Filed 10–19–11; 8:45 am] Respondents: Potential contractors collection, including the validity of the and grantees. BILLING CODE 4710–24–P • methodology and assumptions used. Estimated Number of Respondents: • Enhance the quality, utility, and 1250. • clarity of the information to be DEPARTMENT OF STATE Estimated Number of Responses: collected. 6250. • [Public Notice 7661] • Minimize the reporting burden on Average Hours per Response: 1 those who are to respond, including the hour 15 minutes. Determination Under the Foreign • use of automated collection techniques Assistance Act and the Department of Total Estimated Burden: 7813 or other forms of technology. hours. State, Foreign Operations, and Related • Abstract of proposed collection: Programs Appropriations Acts Frequency: On occasion. The information collected from • Obligation to Respond: Voluntary. individuals and organizations is Pursuant to Section 654(c) of the DATES: The Department will accept specifically used to conduct screening Foreign Assistance Act of 1961, as comments from the public up to 60 days to ensure that State funded activities do amended (FAA), notice is hereby given from October 20, 2011. not provide support to entities or that the Deputy Secretary of State has ADDRESSES You may submit comments individuals deemed to be a risk to made a determination pursuant to by any of the following methods: national security. Section 620H of the FAA, and Section

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7021 of the Department of State, Foreign DEPARTMENT OF STATE meeting in person but would like to Operations, and Related Programs participate by teleconferencing can [Public Notice 7606] Appropriations, 2010 (Div. F, Pub. L. contact Kim McClure at 202–647–7059 111–117), and similar provisions in ‘‘100,000 Strong’’ Initiative Federal to receive the conference call-in number prior-year appropriations acts, and has Advisory Committee: Notice of Meeting and the relevant information. concluded that publication of the Dated: October 4, 2011. determination would be harmful to the Summary: The Bureau of East Asian and Pacific Affairs of the Department of Carola McGiffert, national security of the United States. State hereby gives notice of a public Deputy Director—100,000 Thousand Strong This notice shall be published in the meeting of the ‘‘100,000 Strong’’ Initiative, Department of State. Federal Register. Initiative Federal Advisory Committee. [FR Doc. 2011–27214 Filed 10–19–11; 8:45 am] Dated: October 4, 2011. The ‘‘100,000 Strong’’ Federal Advisory BILLING CODE 4710–30–P Committee, composed of prominent William J. Burns, China experts and leaders in business, Deputy Secretary of State. academic, and non-profit organizations, DEPARTMENT OF STATE [FR Doc. 2011–27217 Filed 10–19–11; 8:45 am] serves a critical advisory role in [Public Notice 7651] BILLING CODE 4710–27–P achieving the Administration’s goal, announced in May 2010, of seeing U.S. Department of State Advisory 100,000 Americans study in China by Committee on Private International STATE DEPARTMENT 2014. Law (ACPIL)—Online Dispute Agenda: Implementation of the Resolution Study Group Meeting [Public Notice 7605] 100,000 Strong Initiative in the private (ODR) sector. Overseas Security Advisory Council Time and Place: The meeting will The Department of State, Office of (OSAC) Meeting Notice; Closed take place on Friday, November 4, 2011, Legal Adviser, Office of Private International Law ACPIL online dispute Meeting from 1 p.m. to 4 p.m. EDT at the Department of State, Washington, DC. resolution (ODR) study group would The Department of State announces a Participants should arrive by 12:30 p.m. like to give notice of a public meeting on Friday October 28 from 10 a.m. to 1 meeting of the U.S. State Department— at 2201 C Street, NW., C Street Lobby, p.m. EDT. The ACPIL ODR Study Group Overseas Security Advisory Council on and will be directed to the meeting will meet to discuss the upcoming November 15, 16, and 17. Pursuant to room. Public Participation: This Advisory meeting of the UNCITRAL ODR Section 10(d) of the Federal Advisory Committee meeting is open to the Working Group that will take place Committee Act (5 U.S.C. Appendix), 5 public, subject to the capacity of the November 14–18 in Vienna. The U.S.C. 552b(c)(4), and 5 U.S.C. meeting room. Access to the building is UNCITRAL ODR Working Group is 552b(c)(7)(E), it has been determined controlled; persons wishing to attend charged with the development of legal that the meeting will be closed to the should contact Kim McClure of the instruments for resolving both business public. The meeting will focus on an Department of State’s Bureau of East to business and business to consumer examination of corporate security Asian and Pacific Affairs at cross-border electronic commerce policies and procedures and will [email protected] and provide their disputes. At the November meeting, the involve extensive discussion of trade name, affiliation, date of birth, country Working Group will continue to secrets and proprietary commercial of citizenship, government consider inter alia ODR procedural rules information that is privileged and identification type and number, e-mail for resolution of cross-border electronic confidential, and will discuss law address, and mailing address no later commerce disputes. enforcement investigative techniques than October 28, 2011. Data from the For the report of the first two sessions and procedures. The agenda will public is requested pursuant to Public of the UNCITRAL ODR Working Group include updated committee reports, a Law 99–399 (Omnibus Act of 1986) as (December 13–17, 2010 in Vienna (A/ global threat overview, and other amended; Public Law 107–56 (USA CN.9/716) and May 23–27, 2011 in New matters relating to private sector PATRIOT ACT); and Executive Order York (A/CN.9/721)) please follow the security policies and protective 13356. The primary purpose for following link: http://www.uncitral.org/ collecting this information is to validate uncitral/commission/working_groups/ programs and the protection of U.S. _ _ business information overseas. the identity of individuals who enter 3Online Dispute Resolution.html. Department facilities. Please see the We expect that a revised draft text of For more information, contact Marsha Privacy Impact Assessment for VACS–D online procedural rules that will be Thurman, Overseas Security Advisory at http://www.state.gov/documents/ considered at the upcoming UNCITRAL Council, U.S. Department of State, organization/100305.pdf for additional ODR Working Group session will be Washington, DC 20522–2008, phone: information. Persons who cannot available on the same link before the 571–345–2214. participate in the meeting but who wish meeting. Dated:October 11, 2011. to comment are welcome to do so by e- Time and Place: The public meeting mail to Kim McClure at will take place at the Office of the Justine M. Sincavage, [email protected]. A member of the Assistant Legal Adviser for Private Director of the Diplomatic, Security Service, public needing reasonable International Law, Department of State, Acting, U.S. Department of State. accommodation should advise the Washington, DC. Participants should [FR Doc. 2011–27206 Filed 10–19–11; 8:45 am] contact person identified above not later appear by 9:45 a.m. at the C Street gate BILLING CODE 4710–24–P than October 21, 2011. Requests made to Navy Hill, corner of C Street, NW., after that date will be considered, but and 23rd Street, NW., at the gate to the might not be able to be fulfilled. Navy Hill compound. If you are unable Members of the public who are unable to attend the public meeting and would to attend the Advisory Committee like to participate from a remote

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location, teleconferencing will be representative of Native American tribal and became effective as FAA Order No. available. concerns and invites interested persons 1110–138A, on January 20, 2006. Public Participation: This study group to apply to fill the vacancy. The current NPOAG ARC is made up meeting is open to the public, subject to DATES: Persons interested in serving on of one member representing general the capacity of the meeting room. the NPOAG ARC should contact Mr. aviation, three members representing Access to the meeting building is Barry Brayer in writing and postmarked the air tour industry, four members controlled; persons wishing to attend or e-mailed on or before November 30, representing environmental concerns, should contact Tricia Smeltzer or 2011. and two members representing Native Niesha Toms of the Department of State FOR FURTHER INFORMATION CONTACT: American interests. Current members of Legal Adviser’s Office at Barry Brayer, AWP–1SP, Special the NPOAG ARC are: Heidi Williams, [email protected] or Programs Staff, Federal Aviation Aircraft Owners and Pilots Association; [email protected] and provide your Administration, Western-Pacific Region Alan Stephen, fixed-winged air tour name, address, date of birth, citizenship, Headquarters, P.O. Box 92007, Los operator representative; Elling driver’s license or passport number, e- Angeles, CA 90009–2007, telephone: Halvorson, Papillon Airways, Inc.; mail address, and mailing address to get (310) 725–3800, e-mail: Matthew Zuccaro, Helicopter admission into the meeting. Persons [email protected]. Association International; Chip who cannot attend but who wish to Dennerlein, Siskiyou Project; Gregory comment are welcome to do so by e- SUPPLEMENTARY INFORMATION: Miller, American Hiking Society; Dick mail to Michael Dennis at Background Hingson, Sierra Club; Bryan Faehner, [email protected]. A member of the National Parks Conservation The National Parks Air Tour public needing reasonable Association; Rory Majenty, Hualapai Management Act of 2000 (the Act) was accommodation should advise those Nation; and Ray Russell, Navajo Parks enacted on April 5, 2000, as Public Law same contacts not later than October 21, and Recreation. Rory Majenty of the 106–181. The Act required the 2011. Requests made after that date will Hualapai Nation is the current NPOAG establishment of the advisory group be considered, but might not be able to member with the expiring term on April within 1 year after its enactment. The be fulfilled. If you are unable to attend 2, 2012. advisory group was established in the public meeting and you would like In order to retain balance within the March 2001, and is comprised of a to participate by teleconferencing, NPOAG ARC, the FAA and NPS invite balanced group of representatives of please contact Tricia Smeltzer 202–776– persons interested in serving on the general aviation, commercial air tour 8423 or Niesha Toms at 202–776–8420 ARC to represent Native American operations, environmental concerns, to receive the conference call-in number tribes, to contact Mr. Barry Brayer and Native American tribes. The and the relevant information. (contact information is written above in Administrator of the FAA and the FOR FURTHER INFORMATION CONTACT). Dated: October 6, 2011. Director of NPS (or their designees) Requests to serve on the ARC must be Michael Dennis, serve as ex officio members of the made to Mr. Brayer in writing and Attorney-Adviser, Office of Private group. Representatives of the postmarked or e-mailed on or before International Law, Office of the Legal Adviser, Administrator and Director serve November 30, 2011. The request should Department of State. alternating 1-year terms as chairman of indicate whether or not you are a [FR Doc. 2011–27216 Filed 10–19–11; 8:45 am] the advisory group. BILLING CODE 4710–28–P The advisory group provides ‘‘advice, member of an association or group information, and recommendations to related to Native American tribal issues the Administrator and the Director— or concerns or have another affiliation DEPARTMENT OF TRANSPORTATION (1) On the implementation of this title with issues relating to aircraft flights [the Act] and the amendments made by over national parks. The request should Federal Aviation Administration this title; also state what expertise you would (2) On commonly accepted quiet bring to the NPOAG ARC as related to Membership Availability in the National aircraft technology for use in tribal concerns. The term of service for Parks Overflights Advisory Group commercial air tour operations over a NPOAG ARC members is 3 years. Aviation Rulemaking Committee— national park or tribal lands, which will Issued in Hawthorne, CA on October 11, Representative of Native American receive preferential treatment in a given 2011. Tribes air tour management plan; Barry Brayer, ACTION: Notice. (3) On other measures that might be NPOAG Co-Chairman, Manager, Special taken to accommodate the interests of Programs Staff, Western-Pacific Region. SUMMARY: The National Park Service visitors to national parks; and [FR Doc. 2011–27091 Filed 10–19–11; 8:45 am] (NPS) and the Federal Aviation (4) At the request of the Administrator BILLING CODE 4910–13–P Administration (FAA), as required by and the Director, safety, environmental, the National Parks Air Tour and other issues related to commercial Management Act of 2000, established air tour operations over a national park DEPARTMENT OF TRANSPORTATION the National Parks Overflights Advisory or tribal lands.’’ Group (NPOAG) in March 2001. The Members of the advisory group may Surface Transportation Board NPOAG was formed to provide be allowed certain travel expenses as [Docket No. AB 290 (Sub-No. 333X)] continuing advice and counsel with authorized by section 5703 of Title 5, respect to commercial air tour United States Code, for intermittent Norfolk Southern Railway Company— operations over and near national parks. Government service. Discontinuance of Service This notice informs the public of a By FAA Order No. 1110–138, signed Exemption—in Forsyth County, NC vacancy (due to completion of by the FAA Administrator on October membership on April 2, 2012) on the 10, 2003, the NPOAG became an Norfolk Southern Railway Company NPOAG (now the NPOAG Aviation Aviation Rulemaking Committee (ARC). (NSR) has filed a verified notice of Rulemaking Committee (ARC)) for a FAA Order No. 1110–138, was amended exemption under 49 CFR pt. 1152

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subpart F-Exempt Abandonments and Pennsylvania Ave., NW., Suite 300, 1. Christopher Meade, Principal Discontinuances of Service to Washington, DC 20037. Deputy General Counsel (Department of discontinue service over approximately If the verified notice contains false or Treasury). 10.0 miles of rail line between mileposts misleading information, the exemption 2. Faris R. Fink, Commissioner (Small L–0.0 (near Trade Street in Winston- is void ab initio. Business/Self Employed). Salem) and L–10.0 (near the intersection Board decisions and notices are 3. Joseph H. Grant, Deputy of Hampton Road and Idols Road in available on our Web site at http:// Commissioner (Tax Exempt and Clemmons), in Forsyth County, N.C. www.stb.dot.gov. Government Entities). The line traverses United States Postal Decided: October 17, 2011. This publication is required by 5 U.S.C. 4314(c)(4). Service Zip Codes 27012, 27101, 27103, By the Board. 27104, 27105, and 27127. Rachel D. Campbell, Dated: October 11, 2011. NSR has certified that: (1) No local Director, Office of Proceedings. William J. Wilkins, traffic has moved over the line for at Chief Counsel, Internal Revenue Service. least 2 years; (2) there is no overhead Jeffrey Herzig, [FR Doc. 2011–27187 Filed 10–19–11; 8:45 am] traffic on the line; (3) no formal Clearance Clerk. complaint filed by a user of rail service [FR Doc. 2011–27220 Filed 10–19–11; 8:45 am] BILLING CODE 4830–01–P on the line (or by a state or local BILLING CODE 4915–01–P government entity acting on behalf of DEPARTMENT OF THE TREASURY such user) regarding cessation of service over the line either is pending with the DEPARTMENT OF THE TREASURY Internal Revenue Service Surface Transportation Board (Board) or with any U.S. District Court or has been Appointment of Members of the Legal Proposed Collection; Comment decided in favor of complainant within Division to the Performance Review Request for Form 4029 the 2-year period; and (4) the Board, Internal Revenue Service AGENCY: Internal Revenue Service (IRS), requirements at 49 CFR 1105.12 Under the authority granted to me as (newspaper publication) and 49 CFR Treasury. Chief Counsel of the Internal Revenue ACTION: Notice and request for 1152.50(d)(1) (notice to governmental Service by the General Counsel of the 1 comments. agencies) have been met. Department of the Treasury by General As a condition to this exemption, any Counsel Directive 15, pursuant to the SUMMARY: The Department of the employee adversely affected by the Civil Service Reform Act, I have Treasury, as part of its continuing effort discontinuance shall be protected under appointed the following persons to the to reduce paperwork and respondent Oregon Short Line Railroad— Legal Division Performance Review burden, invites the general public and Abandonment Portion Goshen Branch Board, Internal Revenue Service Panel: other Federal agencies to take this Between Firth & Ammon, in Bingham & 1. Chairperson, Christopher Sterner, opportunity to comment on proposed Bonneville Counties, Idaho, 360 I.C.C. Deputy Chief Counsel (Operations). and/or continuing information 91 (1979). To address whether this 2. Drita Tonuzi, Deputy Division collections, as required by the condition adequately protects affected Counsel (Large Business and Paperwork Reduction Act of 1995, employees, a petition for partial International). Public Law 104–13 (44 U.S.C. revocation under 49 U.S.C. 10502(d) 3. Frances F. Regan, Area Counsel 3506(c)(2)(A)). Currently, the IRS is must be filed. (Small Business/Self Employed). soliciting comments concerning Form Provided no formal expression of 4. Mark S. Kaizen, Associate Chief 4029, Application for Exemption from intent to file an offer of financial Counsel (General Legal Services). Social Security and Medicare Taxes and assistance (OFA) has been received, this 5. Steven A. Musher, Associate Chief Waiver of Benefits. exemption will become effective on Counsel (International). November 19, 2011, unless stayed DATES: Written comments should be This publication is required by 5 received on or before December 19, 2011 pending reconsideration. Petitions to U.S.C. 4314(c)(4). stay that do not involve environmental to be assured of consideration. issues and formal expressions of intent Dated: October 11, 2011. ADDRESSES: Direct all written comments to file an OFA for continued rail service William J. Wilkins, to Yvette B. Lawrence, Internal Revenue under 49 CFR 1152.27(c)(2),2 must be Chief Counsel, Internal Revenue Service. Service, Room 6129, 1111 Constitution filed by October 31, 2011.3 Petitions to [FR Doc. 2011–27185 Filed 10–19–11; 8:45 am] Avenue, NW., Washington, DC 20224. reopen must be filed by November 9, BILLING CODE 4830–01–P FOR FURTHER INFORMATION CONTACT: 2011, with the Surface Transportation Requests for additional information or Board, 395 E Street, SW., Washington, copies of the form and instructions DC 20423–0001. DEPARTMENT OF THE TREASURY should be directed to Elaine Christophe A copy of any petition filed with the at Internal Revenue Service, room 6129, Board should be sent to NSR’s Appointment of Members of the Legal 1111 Constitution Avenue, NW., representative: Robert A. Wimbish, 2401 Division to the Performance Review Washington, DC 20224, or at (202) 622– Board, Internal Revenue Service 3179, or through the Internet at 1 Because this is a discontinuance proceeding and Under the authority granted to me as [email protected]. not an abandonment, the proceeding is exempt from the requirements of 49 CFR 1105.7 (environmental Chief Counsel of the Internal Revenue SUPPLEMENTARY INFORMATION: reports), 49 CFR 1105.8 (historic reports), and 49 Service by the General Counsel of the Title: Application for Exemption from CFR 1105.11 (transmittal letter). Department of the Treasury by General Social Security and Medicare Taxes and 2 Each OFA must be accompanied by the filing Counsel Directive 15, pursuant to the Waiver of Benefits. fee, which is currently set at $1,500. See 49 CFR Civil Service Reform Act, I have OMB Number: 1545–0064. 1002.2(f)(25). 3 Because this is a discontinuance proceeding and appointed the following persons to the Form Number: 4029. not an abandonment, trail use/rail banking and Legal Division Performance Review Abstract: Form 4029 is used by public use conditions are not appropriate. Board, Internal Revenue Service Panel: members of recognized religious groups

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to apply for exemption from social information; (c) ways to enhance the comments through http:// security and Medicare taxes under quality, utility, and clarity of the www.regulations.gov; written comments Internal Revenue Code sections 1402(g) information to be collected; (d) ways to may be submitted through mail or hand- and 3127. The information is used to minimize the burden of the collection of delivery to the Director, Regulations approve or deny exemption from social information on respondents, including Management (02REG), Department of security and Medicare taxes. through the use of automated collection Veterans Affairs, 810 Vermont Ave., Current Actions: There are no changes techniques or other forms of information NW., Room 1068, Washington, DC being made to the Form 4029 at this technology; and (e) estimates of capital 20420 or by fax to (202) 273–9026. time. or start-up costs and costs of operation, Please view and/or download the Gulf Type of Review: Extension of a maintenance, and purchase of services War Veterans’ Illnesses Task Force Draft currently approved collection. to provide information. Report for Public Comment at http:// Affected Public: Individuals or Approved: October 5, 2011. www.va.gov/opa/publications/ households. Yvette B. Lawrence, Draft_2011_GWVI-TF_Report.pdf. Estimated Number of Respondents: IRS Reports Clearance Officer. Please write: ‘‘Gulf War Veterans’ 3,754. [FR Doc. 2011–27188 Filed 10–19–11; 8:45 am] Illnesses Task Force Draft Written Estimated Time per Respondent: 1 BILLING CODE 4830–01–P Report or GWVI–TF Report’’ in the hour. subject line of your letter or e-mail. Estimated Total Annual Burden Copies of all comments received will be Hours: 3,792. available for public inspection in the The following paragraph applies to all DEPARTMENT OF VETERANS AFFAIRS Office of Regulation Policy and of the collections of information covered Management, Room 1063B, between the by this notice: Gulf War Veterans’ Illnesses Task hours of 8 a.m. and 4:30 p.m., Monday An agency may not conduct or Force through Friday (except holidays). Please sponsor, and a person is not required to call (202) 461–4902 for an appointment. respond to, a collection of information AGENCY: Department of Veterans Affairs Comments may also be viewed online unless the collection of information (VA). during the comment period, through the displays a valid OMB control number. ACTION: Notice with request for Federal Docket Management System Books or records relating to a collection comments. (FDMS) at http://www.regulations.gov. of information must be retained as long You can also submit ideas on improving as their contents may become material SUMMARY: The Secretary, Department of Veterans Affairs (VA) established the VA services to Gulf War Veterans at in the administration of any internal http:// revenue law. Generally, tax returns and Gulf War Veterans’ Illnesses Task Force (GWVI–TF) in August 2009 to conduct vagulfwartaskforce.uservoice.com/. tax return information are confidential, Please subscribe to our quarterly Gulf as required by 26 U.S.C. 6103. a comprehensive review of VA’s approach to and programs addressing War Veterans Newsletter by including Request for Comments: Comments your e-mail address with your comment. submitted in response to this notice will 1990–1991 Gulf War Veterans’ illnesses. be summarized and/or included in the The second Gulf War Veterans’ Illnesses FOR FURTHER INFORMATION CONTACT: John request for OMB approval. All Task Force Draft Written Report is now Kent, GWVI–TF Secretary, OSVA, comments will become a matter of complete. VA is inviting public Department of Veterans Affairs, 810 public record. Comments are invited on: comments on the Gulf War Veterans’ Vermont Avenue, NW., Washington, DC (a) Whether the collection of Illnesses Task Force Draft Report for 20420, at (202) 461–4814. Public Comment. information is necessary for the proper Approved: October 14, 2011. performance of the functions of the DATES: Written comments must be agency, including whether the received on or before November 21, John R. Gingrich, information shall have practical utility; 2011. Chief of Staff, Department of Veterans Affairs. (b) the accuracy of the agency’s estimate ADDRESSES: Although VA prefers [FR Doc. 2011–27082 Filed 10–19–11; 8:45 am] of the burden of the collection of electronic submission of public BILLING CODE 8320–01–P

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Part II

Department of Commerce

National Oceanic and Atmospheric Administration 50 CFR Part 226 Endangered and Threatened Species; Designation of Critical Habitat for the Southern Distinct Population Segment of Eulachon; Final Rule

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DEPARTMENT OF COMMERCE SUPPLEMENTARY INFORMATION: 3 percent). However the total estimated economic impact of the preferred Background National Oceanic and Atmospheric alternative would be approximately Administration On March 18, 2010, we listed the $487,300 (discounted at 7 percent) or southern DPS of eulachon as threatened $506,300 (discounted at 3 percent). We 50 CFR Part 226 under the ESA (75 FR 13012). A determined that the exclusion of Indian proposed critical habitat rule for the [Docket No. 101027536–1591–03] lands would not significantly impede southern DPS of eulachon was the conservation of the southern DPS of RIN 0648–BA38 published in the Federal Register on eulachon nor result in extinction of the January 5, 2011 (76 FR 515). The present species. We selected this as the Endangered and Threatened Species; rule describes the final critical habitat preferred alternative because it results Designation of Critical Habitat for the designation, including responses to in a critical habitat designation that Southern Distinct Population Segment public comments and peer reviewer supports the conservation of the of Eulachon comments, and supporting information southern DPS of eulachon while on eulachon biology, distribution, and AGENCY: reducing other relevant impacts. This National Marine Fisheries habitat use, and the methods used to Service (NMFS), National Oceanic and alternative also meets the requirements develop the final designation. under the ESA and our joint NMFS–U.S. Atmospheric Administration (NOAA), We considered various alternatives to Commerce. Fish and Wildlife Service (USFWS) the critical habitat designation for the regulations concerning critical habitat at ACTION: Final rule. southern DPS of eulachon. The 50 CFR 424.19. alternative of not designating critical SUMMARY: We, the National Marine habitat for the southern DPS of eulachon Section 3 of the ESA (16 U.S.C. Fisheries Service (NMFS), issue a final would impose no economic, national 1532(5)(A)) defines critical habitat as rule to designate critical habitat for the security, or other relevant impacts, but ‘‘(i) the specific areas within the southern Distinct Population Segment would not provide any conservation geographical area occupied by the (DPS) of Pacific eulachon (Thaleichthys benefit to the species. This alternative species, at the time it is listed * * * on pacificus), pursuant to section 4 of the was considered and rejected because which are found those physical or Endangered Species Act (ESA). We such an approach does not meet the biological features (I) essential to the designate 16 specific areas as critical legal requirements of the ESA and conservation of the species and (II) habitat within the states of California, would not provide for the conservation which may require special management Oregon, and Washington. The of the southern DPS of eulachon. The considerations or protection; and (ii) designated areas are a combination of alternative of designating all potential specific areas outside the geographical freshwater creeks and rivers and their critical habitat areas (i.e., no areas area occupied by the species at the time associated estuaries, comprising excluded) also was considered and it is listed * * * upon a determination approximately 539 km (335 mi) of rejected because for some areas the by the Secretary that such areas are habitat. The Tribal lands of four Indian benefits of exclusion from designation essential for the conservation of the Tribes are excluded from designation outweighed the benefits of inclusion. species.’’ Section 3 of the ESA (16 after evaluating the impacts of An alternative to designating all U.S.C. 1532(3)) also defines the terms designation and benefits of exclusion potential critical habitat areas is the ‘‘conserve,’’ ‘‘conserving,’’ and associated with Tribal land ownership designation of critical habitat within a ‘‘conservation’’ to mean: ‘‘to use, and and management by the Tribes. No areas subset of these areas. Under section the use of, all methods and procedures were excluded from designation based 4(b)(2) of the ESA, NMFS must consider which are necessary to bring any on economic impacts. the economic impact, impacts on endangered species or threatened This final rule responds to and national security, and any other relevant species to the point at which the incorporates public comments received impact of specifying any particular area measures provided pursuant to this on the proposed rule and supporting as critical habitat. The Secretary of chapter are no longer necessary.’’ We documents, as well as peer reviewer Commerce (Secretary) has the discretion may not designate critical habitat in comments received on our draft to exclude an area from designation as areas outside of U. S. jurisdiction (50 biological report and draft economic critical habitat if the benefits of CFR 424.12(h)). Section 4 of the ESA report. exclusion (i.e., the impacts that would requires that, before designating critical DATES: This rule will take effect on be avoided if an area were excluded habitat, we consider economic impacts, December 19, 2011. from the designation) outweigh the impacts on national security, and other benefits of designation (i.e., the relevant impacts of specifying any ADDRESSES: Reference materials conservation benefits to the southern particular area as critical habitat. The regarding this rulemaking can be DPS of eulachon if an area were Secretary may exclude an area from obtained via the Internet at: http:// designated), as long as exclusion of the critical habitat if he determines that the www.nwr.noaa.gov or by submitting a area will not result in extinction of the benefits of exclusion outweigh the request to the Protected Resources species. We prepared an analysis benefits of designation, unless Division, Northwest Region, National describing our exercise of discretion, excluding an area from critical habitat Marine Fisheries Service, 1201 NE which is contained in our Final Section will result in the extinction of the Lloyd Blvd., Suite 1100, Portland, OR 4(b)(2) Report (NMFS, 2011a). Under species concerned. Once critical habitat 97232. this preferred alternative we have is designated, section 7(a)(2) of the ESA FOR FURTHER INFORMATION CONTACT: excluded Indian lands in California and requires that each federal agency, in Marc Romano, NMFS, Northwest Washington from designation as critical consultation with NMFS and with our Region, 503–231–2200, or Jim habitat. The total estimated economic assistance, ensure that any action it Simondet, NMFS, Southwest Region, impact of designating all specific areas authorizes, funds, or carries out is not 707–825–5171, or Dwayne Meadows, (without any exclusions) is $512,000 likely to result in the destruction or NMFS, Office of Protected Resources, (discounted at 7 percent) or $532,000 adverse modification of critical habitat. 301–427–8403. (discounted at This requirement is additional to the

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section 7 requirement that federal some river systems (Hay and McCarter, age distribution of eulachon in a agencies ensure their actions do not 2000; Willson et al., 2006). spawning run varies considerably, but jeopardize the continued existence of typically consists of fish that are 2 to 5 Early Life History and Maturation listed species. years old. Eulachon eggs commonly Eulachon eggs can vary considerably adhere to sand (Langer et al., 1977) or Eulachon Natural History in size but typically are approximately pea-sized gravel (Smith and Saalfeld, Eulachon are an anadromous fish, 1 mm (0.04 in) in diameter and average 1955), though eggs have been found on meaning adults migrate from the ocean about 43 mg (0.002 oz) in weight (Hay silt, gravel to cobble sized rock, and to spawn in freshwater creeks and rivers and McCarter, 2000). Eggs are enclosed organic detritus (Smith and Saalfeld, where their offspring hatch and migrate in a double membrane; after fertilization 1955; Langer et al., 1977; Lewis et al., back to the ocean to forage until in the water, the outer membrane breaks 2002). Eggs found in areas of silt or maturity. Although they spend 95 to 98 and turns inside out, creating a sticky organic debris reportedly suffer much percent of their lives at sea (Hay and stalk which acts to anchor the eggs to higher mortality than those found in McCarter, 2000), current data only the substrate (Hart and McHugh, 1944; sand or gravel (Langer et al., 1977). provides an incomplete picture Hay and McCarter, 2000). Eulachon eggs In many rivers, spawning is limited to concerning their saltwater existence. hatch in 20 to 40 days with incubation the part of the river that is influenced The species is endemic to the time dependent on water temperature by tides (Lewis et al., 2002), but some northeastern Pacific Ocean, ranging (Smith and Saalfeld, 1955; Langer et al., exceptions exist. In the Berners Bay from northern California to the 1977). Shortly after hatching, the larvae system of Alaska, the greatest southeastern Bering Sea in Bristol Bay, are carried downstream and dispersed abundance of eulachon are observed in Alaska (McAllister, 1963; Scott and by estuarine, tidal, and ocean currents. tidally-influenced reaches, but some Crossman, 1973; Willson et al., 2006). Larval eulachon may remain in low fish ascend well beyond the tidal This distribution coincides closely with salinity, surface waters of estuaries for influence (Willson et al., 2006). In the the distribution of the coastal temperate several weeks or longer (Hay and Kemano River, Canada, water velocity rain forest ecosystem on the west coast McCarter, 2000) before entering the greater than 0.4 meters/second begins to of North America (with the exception of ocean. Similar to salmon, juvenile limit the upstream movements of populations spawning west of Cook eulachon are thought to imprint on the eulachon (Lewis et al., 2002). Inlet, Alaska). chemical signature/smell of their natal Entry into the spawning rivers river basin. However, juvenile eulachon appears to be related to water In the portion of the species’ range spend less time in freshwater temperature and the occurrence of high that lies south of the United States– environments than do juvenile salmon tides (Ricker et al., 1954; Smith and Canada border, most eulachon and researchers believe that this may Saalfeld, 1955; Spangler, 2002). production originates in the Columbia cause returning eulachon to stray Spawning generally occurs in January, River basin. Within the Columbia River between spawning sites at higher rates February, and March in the Columbia basin, the major and most consistent than salmon (Hay and McCarter, 2000). River, the Klamath River, and the spawning runs return to the mainstem Once juvenile eulachon enter the coastal rivers of Washington and of the Columbia River and the Cowlitz ocean, they move from shallow Oregon, and April and May in the Fraser River (Gustafson et al., 2010). Spawning nearshore areas to deeper areas over the River (Gustafson et al., 2010). Eulachon also occurs in other tributaries to the continental shelf. Larvae and young runs in central and northern British Columbia River, including the Grays, juveniles become widely distributed in Columbia typically occur in late Elochoman, Kalama, Lewis, and Sandy coastal waters, where they are typically February and March or late March and Rivers (WDFW and ODFW, 2001). found near the ocean bottom in waters early April. Attempts to characterize Historically, the only other large river 20 to 150 m deep (66 to 292 ft) (Hay and eulachon run timing are complicated by basins in the contiguous United States McCarter, 2000) and sometimes as deep marked annual variation in timing. where large, consistent spawning runs as 182 m (597 ft) (Barraclough, 1964). Willson et al. (2006) give several of eulachon have been documented are There is currently little information examples of spawning run timing the Klamath River in northern California available about eulachon movements in varying by a month or more in rivers in and the Umpqua River in Oregon. nearshore marine areas and the open British Columbia and Alaska. Climate Eulachon have been found in numerous ocean. However, eulachon occur as change, especially as it affects ocean coastal rivers in northern California bycatch in the ocean shrimp (Pandalus conditions, is considered a significant (including the Mad River and Redwood jordani) fishery (Hay et al., 1999; Olsen threat to eulachon and their habitats and Creek), Oregon (including Tenmile et al., 2000; Northwest Fishery Science may also be a factor in run timing Creek south of Yachats, OR) and Center (NWFSC), 2008; Hannah and (Gustafson et al., 2010). Most rivers Washington (including the Quinault and Jones, 2009), indicating that the supporting spawning runs of eulachon Elwha Rivers) (Emmett et al., 1991; distribution of these two species may are fed by extensive snowmelt or glacial Willson et al., 2006). overlap in the ocean. runoff, so elevated temperatures and Major eulachon production areas in changes in snow pack and the timing Canada are the Fraser and Nass rivers Spawning Behavior and intensity of stream flows will likely (Willson et al., 2006). Numerous other Eulachon typically spend several impact eulachon run timing. There are river systems in central British years in salt water before returning to already indications, perhaps in response Columbia and Alaska have consistent fresh water as a ‘‘run’’ to spawn from to warming conditions and/or altered yearly runs of eulachon and historically late winter through early summer. stream flow timing, that spawning runs supported significant levels of harvest Eulachon are semelparous, meaning that are occurring earlier in several rivers (Willson et al., 2006; Gustafson et al., they spawn once and then die within the range of the southern DPS 2010). Many sources note that runs (Gustafson et al., 2010; Hay et al., 2002). (Moody, 2008). occasionally occur in other rivers and Spawning grounds are typically in the Water temperature at the time of streams, although these tend to be lower reaches of larger rivers fed by spawning varies across the range of the sporadic, appearing in some years but snowmelt (Hay and McCarter, 2000). species. Although spawning generally not others, and appearing only rarely in Willson et al. (2006) concluded that the occurs at temperatures from 4 to 7 °C (39

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to 45 °F) in the Cowlitz River (Smith and types of information disseminated by a portion of the life history. In the case Saalfeld, 1955), and at a mean the Federal Government. The peer of eulachon, there are no observations of temperature of 3.1 °C (37.6 °F) in the review requirements of the OMB eulachon migration that would allow us Kemano and Wahoo Rivers, peak Bulletin apply to influential or highly to infer the presence of migratory eulachon runs occur at noticeably influential scientific information pathways in specific areas of the ocean. colder temperatures (between 0 and 2 °C disseminated on or after June 16, 2005. Absent information on the detailed [32 and 36 °F]) in the Nass River. The Two documents supporting this final characteristics that would allow Nass River run is also earlier than the designation of critical habitat for the delineation of a specific area, or eulachon run that occurs in the Fraser southern DPS of eulachon are information that eulachon actually use a River, which typically has warmer considered influential scientific defined area, we were unable to identify temperatures than the Nass River information and subject to peer review. ‘specific areas’ in the ocean that contain (Langer et al., 1977). In accordance with the OMB policies, migratory pathways. we solicited technical review of the Eulachon biology and habitat use Prey draft Biological Report (NMFS, 2010a) differ from other species for which we Eulachon larvae and juveniles eat a and the draft Economic Analysis have identified migratory pathways as variety of prey items, including (NMFS, 2010b). Each of these reports an essential feature in marine waters. phytoplankton, copepods, copepod was reviewed by three independent For example, green sturgeon (Acipenser eggs, mysids, barnacle larvae, and worm experts selected from the academic and medirostris) are primarily associated larvae (Barraclough, 1967; Barraclough scientific communities. with bottom habitats in the ocean and and Fulton, 1967; Robinson et al., There was substantial overlap travel along the coast in a migration 1968a, 1968b). Eulachon adults feed on between the comments from the peer corridor that is delimited by bathymetry zooplankton, chiefly eating crustaceans reviewers and the substantive public (specifically, we identified the 60 such as copepods and euphausiids comments. The comments were fathom contour as the seaward extent of (Hart, 1973; Scott and Crossman, 1973; sufficiently similar that we have a green sturgeon migration feature) (74 Hay, 2002; Yang et al., 2006), responded to the peer reviewer’s FR 52300; October 9, 2009). Green unidentified malacostracans comments through our general sturgeon adherence to a migration (Sturdevant, 1999), and cumaceans responses below. Revisions resulting corridor shoreward of this depth (Smith and Saalfeld, 1955). Adults and from peer review and public comments contour is documented through tagging juveniles commonly forage at moderate have been made to the documents studies and bycatch in fisheries depths (20–150 m [66–292 ft]) in supporting this designation (i.e., (Erickson and Hightower, 2007). While nearshore marine waters (Hay and Biological Report, Economic Analysis, we do have some limited information McCarter, 2000). Eulachon adults do not and Section 4(b)(2) Report) and the final about areas where eulachon are present feed during spawning (McHugh, 1939; versions of those documents can be either through fisheries bycatch reports Hart and McHugh, 1944). found on our Web site at: http:// or fisheries-independent research, this Summary of Comments Received and www.nwr.noaa.gov/Other-Marine- information suggests only that eulachon Responses Species/Eulachon.cfm. are present in these areas. It does not shed light on a feature, such as a Physical or Biological Features Essential We solicited public comment for a migratory pathway, that is essential to for Conservation total of 60 days on the proposed eulachon conservation. Additional designation of critical habitat for the Comment 1: One commenter contrasting examples include bull trout southern DPS of eulachon. In addition, suggested that nearshore and marine (Salvelinus confluentus) and Puget we held a public hearing on the waters are essential as a migratory Sound Chinook (Oncorhynchus proposal in Portland, Oregon on January corridor for the passage of eulachon, tshawytscha), which migrate in marine 26, 2011 at which one member of the and passage should be included as a waters along the shoreline. Their critical public provided oral testimony. This feature in nearshore and marine waters. habitat areas are delineated along a testimony was recorded and our Response: Eulachon migrate from depth contour based on the penetration responses to comments address their natal streams to marine waters of of light, which creates specific physical substantive comments from that the continental shelf, and likely migrate and biological conditions essential for individual. We received written throughout coastal waters until they their conservation. For Southern comments from eight commenters, and return as adults to spawn. There are two Resident killer whales (Orcinus orca) these are available online at: http:// difficulties with relying on a passage we also identified a passage feature in www.regulations.gov/ feature in the ocean for a species such marine waters, among other features. #!docketDetail;rpp=10;po=10;D=NOAA- as eulachon: (1) There is no information The three specific areas designated as NMFS-2011-0013. Summaries of the regarding the characteristics or killer whale critical habitat in inland substantive comments received, and our conditions in coastal waters that would marine waters of Washington State responses, are organized by category make a specific area suitable for contained all of the identified features. and provided below. passage, and (2) there is no evidence The one specific area primarily defined In December 2004, the Office of that eulachon use specific marine areas by the passage feature was the Strait of Management and Budget (OMB) issued for migration. Regarding the first point, Juan de Fuca, a relatively narrow marine a Final Information Quality Bulletin for there is no information to indicate that corridor through which killer whales Peer Review pursuant to the Information eulachon rely on habitat features to pass on their migrations between coastal Quality Act (IQA). The Bulletin was guide migration, such as a particular waters and inland waters. published in the Federal Register on type of current, temperature gradient, Comment 2: One commenter believed January 14, 2005 (70 FR 2664). The bathymetry, coastline, etc. Since there that our reliance on evidence of Bulletin established minimum peer are no known characteristics of an area spawning or spawning migration to review standards, a transparent process that would aid in delineation, one must designate critical habitat may be for public disclosure of peer review consider whether there is some other considered ‘‘arbitrary,’’ and they cited planning, and opportunities for public evidence of a migration corridor or site, Alliance for Wild Rockies v. Lyder, 728 participation with regard to certain such as documented use for completing F. Supp. 1126, 1134 (D. Mont. 2010) in

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support of their argument. The of the best scientific data available.’’ In Response: Although some data are commenter stated that ‘‘NMFS must the proposed rule, and supporting available on the ocean distribution of consider other elements besides Biological Report (NMFS, 2011b), we eulachon (from fisheries bycatch and spawning when determining whether an outlined the evidence that we used to fishery-independent surveys area should be designated as critical identify specific areas as critical habitat. [summarized in Gustafson et al., 2010]) habitat.’’ We stated in the proposed rule that we we cannot identify specific marine Response: Eulachon are an ‘‘relied on data from published foraging areas that meet the definition of anadromous species that spend 95–98 literature, field observations (including critical habitat under the ESA. The ESA percent of their lives in the marine river sampling with a variety of net defines critical habitat as ‘‘the specific environment (Hay and McCarter, 2000). types), opportunistic sightings, areas within the geographical area The best available scientific evidence commercial and recreational harvest, occupied by the species, at the time it suggests that adult eulachon are and anecdotal information.’’ This final is listed on which are found those semelparous and enter freshwater and rule incorporates the findings in the physical or biological features essential estuarine areas only to spawn, and after proposed rule and the Biological Report, to the conservation of the species and spawning the adult fish die (Hay et al., as well as peer review of the Biological which may require special management 2002; Gustafson et al., 2010). Eulachon Report and the Economic Analysis considerations or protection’’. In the eggs develop at or near the point they (NMFS, 2011c) and public comments on Pacific Ocean, we identified nearshore were spawned, and larval eulachon the proposed rule. Taken together, this and offshore foraging habitat as an typically outmigrate via the same routes information represents the best available essential feature for the conservation of that adult spawners took to reach the scientific data available to inform our eulachon, and we determined that spawning area. Because eulachon are critical habitat decision. abundant forage species and suitable semelparous and the best available We relied on the most recent water quality are components of this evidence suggests that freshwater and scientific information available to us to habitat feature. Given the wide estuarine areas are only used by determine which areas were eligible for distribution of eulachon prey items, we eulachon for spawning activities (i.e. designation. For a limited number of could not associate them with ‘‘specific spawning migration, spawning, egg creeks and rivers, opportunistic areas’’ within the marine environment incubation and larval outmigration) we sightings are the only information that occupied by eulachon. Moreover, these used spawning data to determine if is available to identify the distribution prey species move or drift great essential features are present. Our of the essential features. Where the only distances throughout the ocean and approach was not the same as the available information was opportunistic would be difficult to link to any approach used by the USFWS to sightings, we consulted agency and ‘‘specific’’ areas as discussed in designate critical habitat for the Canada Tribal biologists familiar with the area response to Comment 1. The concern is lynx that is the subject of Alliance for to confirm the information and identify not that ‘‘specific areas’’ must be small, Wild Rockies v. Lyder. The Canada lynx the extent of the essential features. but rather in order to meet the definition utilizes its habitat for a variety of life Where such information was the only of ‘‘critical habitat’’ under the ESA, they cycle activities beyond reproduction. information available, and was must be identifiable and connected to There the USFWS used reproduction, confirmed by the best professional the essential feature found there. We one of several life functions, as the sole judgment of biologists knowledgeable could not discern such a linkage in test to rule out the presence of essential about the species and the area, we marine areas occupied by eulachon. features. In the Alliance for Wild consider it the ‘‘best available scientific While we acknowledge that eulachon Rockies decision, the court noted, information,’’ and adequate to inform need foraging habitat in nearshore and ‘‘[w]hile it is rational to conclude areas our decisions. Our actions are thus in offshore marine waters, we cannot with evidence of reproduction contain accordance with section 4(b)(2) of the identify any specific areas as required the primary constituent elements and ESA and our implementing regulations under section 3(5)(A) of the ESA. should be designated as critical habitat, (50 CFR 424.12). Some activities (e.g. trawling), may the Service could not flip that logic and occur in the marine environment that Specific Areas Within the Geographical so it means that critical habitat only affect eulachon prey, such that the prey Area Occupied by the Species exists where there is evidence of may require special management reproduction.’’ As a result, our reliance Comment 4: Two commenters agreed considerations or protections. However, on evidence of spawning and spawning with our decision not to designate the steps we follow in designating migration to identify critical habitat critical habitat in nearshore and offshore critical habitat include first identifying within freshwater and estuarine areas is marine areas, and a third commenter the essential features, then identifying not ‘‘arbitrary’’ according to the Alliance recognized the problem in identifying the specific areas where those features for Wild Rockies decision. critical habitat in these areas. In occur, then considering whether the Comment 3: One commenter stated contrast, several commenters disagreed features in those areas may require that in making our decision on which with our decision and some of these special management consideration or specific areas qualified as critical cited the availability of eulachon protection. We did not discuss the habitat, we relied on ‘‘extremely limited harvest and bycatch data as evidence of second prong of the definition of critical sampling’’ and, for some rivers and eulachon distribution in marine waters. habitat for marine foraging areas in the creeks, only ‘‘opportunistic sightings’’ One commenter questioned why we did proposed rule because we did not and the ‘‘best professional judgment of not discuss in the proposed rule identify any specific areas within the agency and Tribal biologists familiar whether nearshore and marine waters marine environment that meet the first with the area.’’ The commenter believes may require special management prong of the definition of critical habitat that this is ‘‘insufficient to satisfy the considerations or protection. A separate (specific areas on which the features are requirements of the ESA and may make commenter stated that there is a wide found). it more difficult to recover this DPS.’’ range of literature on the effects of Comment 5: One commenter provided Response: Section 4(b)(2) of the ESA trawling on seafloor habitat, and that the information documenting eulachon use requires the Secretary of Commerce to effects of trawling on eulachon foraging of Redwood Creek, upstream of the area designate critical habitat ‘‘on the basis habitat need to be considered. proposed.

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Response: We proposed to designate Elochoman and Kalama Rivers, which a natural barrier to eulachon migration approximately 6.1 km (3.8 mi) of critical are the agencies responsible for in the Columbia River prior to the habitat in Redwood Creek upstream to eulachon management in the respective construction of Bonneville Dam (Oregon the confluence with Prairie Creek, based states. We do not know whether the Fish Commission, 1953; Gustafson et on reports from the California information provided by the agencies al., 2010). A ship lock constructed at Department of Fish and Game (CDFG; was based on points that are Cascade Locks in 1896 allowed fish to Moyle et al., 1995). However, the advantageous survey sites. However, the circumvent the rapids and subsequently commenter provided a copy of a CDFG commenter presents no credible eulachon were reported as far upstream memorandum that describes an attempt information that would allow us to as Hood River, Oregon at river kilometer by three experienced biologists familiar identify alternative end points of (RKm) 272 (river mile [RM] 169) (Smith with eulachon who were purposely eulachon spawning areas. and Saalfeld, 1955). Following seeking to determine the upstream limit Comment 7: One commenter completion of Bonneville Dam, both of eulachon spawning migration in questioned why the upstream limit of Cascade Rapids and Cascade Locks were Redwood Creek during April 1973. critical habitat on rivers where passage submerged, removing the rapids as a Eulachon were observed passing Tom is blocked by hydropower dams is passage barrier. Currently, passage for McDonald Creek, a tributary located established at the point of blockage. anadromous fish at Bonneville Dam is 19.4 km (12.5 mi) upstream from the Response: We proposed as critical maintained via fish ladders, but it is mouth of Redwood Creek. The CDFG habitat four specific areas with an highly unlikely that eulachon can biologists also checked Redwood Creek upstream limit that terminates at a ascend the ladders due to the high for eulachon 6.4 km (4.0 mi) upstream passage barrier formed by a dam. Three gradient and water velocities within. of the confluence with Tom McDonald of these dams are hydropower dams However, eulachon have been Creek but they did not find any (Bonneville Dam on the Columbia River, documented passing through the eulachon at that location. This field Merwin Dam on the Lewis River, and shipping locks at the dam (Oregon Fish observation documented fish at least as Elwha Dam on the Elwha River) and one Commission, 1953). Eulachon have been far upstream as Tom McDonald Creek is a barrier dam for a salmon hatchery reported upstream of the dam in several and presents a credible observation of (Cowlitz River). Of the four dams, two years, including significant numbers in eulachon ascending Redwood Creek were unlikely to have had eulachon 1945 and 1953 (Oregon Fish during the spawning run beyond the above the dam site prior to dam Commission, 1953; Smith and Saalfeld, upstream limit that we proposed as construction due to natural barriers 1955) and more recently in 1988 critical habitat. As a result, we have (Merwin and Elwha Dams); one may (Johnsen et al., 1988), 2003 (U.S. Army extended critical habitat on Redwood have had eulachon above the dam site Corps of Engineers [USACE], 2003), and Creek, upstream to the confluence with before dam construction, but there is no 2005 (Martinson et al., 2010). Tom McDonald Creek. Although the evidence to support that conclusion The area upstream of Bonneville Dam CDFG biologists speculated that (hatchery dam on the Cowlitz); and one does not meet the definition of critical eulachon ascended Redwood Creek has had confirmed eulachon presence habitat because it does not contain the beyond this point, we have no evidence upstream of the dam site both before to confirm that claim. and after construction (Bonneville physical or biological features essential Comment 6: One commenter believed Dam). for conservation of eulachon. The that eulachon may ascend beyond the Both Merwin Dam and Elwha Dam physical and biological features specific areas identified and asserted were built in areas where the river is essential for conservation of eulachon in that the upstream limits of critical constrained, with high gradient and freshwater and estuarine areas include: habitat proposed for Ten Mile Creek, the water velocities. Prior to dam (1) Spawning and incubation sites with Elochoman River, and the Kalama River construction these areas were likely a water flow, quality and temperature appear to be established at points that natural barrier for eulachon. In addition, conditions and substrate supporting were simply advantageous survey sites we were unable to find information spawning and incubation; and (2) and not reflective of the species’ actual supporting eulachon presence above migration corridors free of obstruction distribution. these dam sites prior to dam and with water flow, quality and Response: The upstream limits of the construction. We were unable to find temperature conditions supporting proposed critical habitat were any historical accounts of eulachon larval and adult mobility, and with established using the best available ascending the Cowlitz River beyond the abundant prey items supporting larval information on eulachon distribution at site of the salmon hatchery barrier dam feeding. Although they are separate the time of our proposed rule and prior to dam construction in 1968, features, spawning and incubation sites informed by public and peer review. We (Mark Larivie, personal communication, for eulachon cannot functionally exist relied on data from published literature, April 15, 2011). We did not propose without a migratory corridor to access field observations (from a variety of critical habitat upstream of the Merwin them. In the proposed rule we agency and Tribal biologists), Dam, Elwha Dam, or the Cowlitz River acknowledged this relationship between opportunistic sightings, commercial and salmon hatchery dam because we could the essential features when we stated recreational harvest, and anecdotal not find evidence that eulachon used that the migration corridor features are information. Information on eulachon these areas prior to dam construction. ‘‘essential to [eulachon] conservation distribution is limited for some creeks There have been reports of adult because they allow adult fish to swim and rivers, particularly those that don’t eulachon ascending the Columbia River upstream to reach spawning areas’’. have a history of commercial or beyond the Bonneville Dam site, both However, in the proposed rule we recreational harvest of eulachon. The before and after construction of the identified specific areas in freshwater upstream limit of proposed critical Bonneville Dam, with some runs large and estuarine areas for designation as habitat for Ten Mile Creek, the enough to support recreational harvest critical habitat ‘‘which contain one or Elochoman River, and the Kalama River (OFC, 1953; Smith and Saalfeld, 1955; more of the essential physical or were determined based on the most Stockley, 1981). Cascade Rapids biological features’’ without making it current information provided by ODFW (approximately 4 km [2.5 mi] upstream clear that spawning and incubation sites for Ten Mile Creek and WDFW for the of the current Bonneville Dam site) was require a migration corridor to provide

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access to the sites. The commenters’ or tertiary streams within watersheds criteria we used in our proposed rule to question allows us to further explain the assessed in the proposed rule are identify specific areas where the functional relationship between the included or excluded from critical essential physical and biological essential features. habitat. features occur. As a result, these specific Bonneville Dam is a major obstruction Response: We used watersheds areas meet the statutory definition of to eulachon passage. Eulachon access to containing stream reaches occupied by critical habitat and we have included the area upstream of Bonneville Dam is eulachon as a basis for conducting our them in this final rule. Additional limited to opportunistic transport analysis of economic impacts associated information on these two areas can be through the ship locks. Due to this with critical habitat designation. found below. passage barrier, the migration corridor However, the specific areas identified as Comment 11: One commenter essential feature in the Columbia River critical habitat were limited to the questioned the proposed designation of does not extend beyond Bonneville portions of individual creeks and rivers the lower Elwha River as critical habitat Dam. In order for the spawning and that contain the physical and biological on several points. First, the commenter incubation site essential feature to exist features essential for eulachon noted that although eulachon have been upstream of Bonneville Dam, the conservation. The specific areas that are captured in the lower Elwha River in migration corridor essential feature being designated as critical habitat are small numbers, this may be consistent would have to extend upstream of listed in this final rule (including the with straying. Second, the commenter Bonneville Dam as well. Due to the lack accompanying maps) and will appear in asserted that there is a likely velocity of a migration corridor to access the area part 226, title 50 of the Code of Federal barrier for eulachon located at upstream of Bonneville Dam, the Regulations. Secondary or tertiary approximately RKm 0.8 (RM 0.5). And spawning and incubation essential streams within the watersheds used for finally, the commenter reasoned that feature cannot exist upstream of the the economic analysis are not once the Lower Elwha Tribal land is dam. Because neither the migration designated as critical habitat unless they excluded from critical habitat corridor nor spawning and incubation are specifically described in this rule designation, very little of the remaining essential features occur upstream of and in part 226, title 50 of the Code of river below the Elwha Dam that is Bonneville Dam, this area does not meet Federal Regulations. accessible to eulachon would be eligible the ESA section 3(5)(A) definition of Comment 10: One commenter for designation as critical habitat. critical habitat. proposed that two locations in Response: Eulachon were Comment 8: One commenter did not Washington State (the Toutle River in documented in the Elwha River in 2005, agree with the use of the COLREGS line the Cowlitz Basin and Skamokawa although anecdotal observations suggest (or equivalent) to demarcate the Creek in the Elochoman Basin) be that eulachon ‘‘were a regular, downstream boundary of critical habitat included in the critical habitat predictable feature in the Elwha until for rivers that directly enter the ocean. designation. the mid 1970s’’ (Shaffer et al., 2007, p. The commenter believes that this Response: In our proposed rule we 80). Other Olympic Peninsula rivers boundary was established as a identified criteria to determine if a draining into the Strait of Juan de Fuca convenient management tool but does specific area contained either one of the have been extensively surveyed over not make sense as an ecologically-based essential features of freshwater many years for salmonid migrations; boundary. The commenter suggested spawning and incubation sites and however, eulachon have not been that if freshwater delivery to the ocean freshwater and estuarine migration observed in any of these other systems is the key feature, then the boundary corridors (76 FR 515; January 5, 2011). (Shaffer et al., 2007; Peter Toppings, could be established at the edge of the These criteria are sites that contain: (1) WDFW, 2011; Lower Elwha Tribe, river plume. Larval fish or pre-/post-spawn adults 2011). Since 2005, eulachon in Response: As we stated previously, that have been positively identified and spawning condition have been observed our regulations require that ‘‘Each documented; or (2) commercial or nearly every year in the Elwha River by critical habitat will be defined by recreational catches that have been Lower Elwha Tribe Fishery Biologists specific limits using reference points documented over multiple years. Prior (Lower Elwha Tribe, 2011). After only and lines as found on standard to publishing the proposed rule, we one year of catch data, Shaffer et al. topographic maps of the area’’ (50 CFR were unable to identify information that (2007; p. 80) concluded that 424.12(c)). In order for critical habitat to would satisfy these criteria for either the ‘‘observations of eulachon in the Elwha be a useful tool for conservation and Toutle River or Skamokawa Creek. lead us to surmise that the Elwha management of the species, Federal In the proposed rule we eulachon are likely a remnant stock of agencies that are proposing actions in acknowledged that many areas within the Elwha River rather than stray.’’ We the vicinity of critical habitat need to be the geographical area occupied by the believe that the consistent spawning able to identify where critical habitat southern DPS have not been surveyed to returns to the Elwha River in occurs. An ephemeral boundary, such as determine the extent of eulachon subsequent years supports the the maximum extent of freshwater spawning and migration (76 FR 515; conclusion of Shaffer et al. (2007) that delivery into the marine environment January 5, 2011). To address this eulachon in the Elwha River are a self- from a creek or river, would be difficult information need we funded several sustaining population and not stray fish to identify. The COLREGS lines (where eulachon monitoring studies and from nearby rivers. defined) were chosen as the surveys currently being undertaken by Mike McHenry (Fishery Biologist, downstream extent of freshwater and ODFW, WDFW, the Cowlitz Indian Lower Elwha Tribe, personal estuarine critical habitat because they Tribe, and the Yurok Indian Tribe. communication April 4, 2011) has are a clearly defined federal standard During April 2011 biologists from the confirmed reports that eulachon have which incorporates landmarks that are Cowlitz Indian Tribe documented the ascended the Elwha River to at least found on standard topographic maps to presence of eulachon larvae in the RKm 4.0 (RM 2.5). This would place uniformly depict an area of transition Toutle River and Skamokawa Creek, eulachon well upstream of the potential between freshwater and marine areas. confirming eulachon spawning in these velocity barrier at RKm 0.9 (RM 0.5) that Comment 9: One commenter stated two systems (Cowlitz Indian Tribe, the commenter believes may limit their that it was unclear if smaller secondary 2011). This information satisfies the upstream movement. Studies from the

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Kemano River indicate that many Unoccupied Areas of southern DPS eulachon from creeks eulachon are unable to maintain long- Comment 14: One commenter or rivers outside of the geographical area term position in the river at flow suggested that we should give greater occupied by the species have been velocities greater than 0.3 m/s (1.0 ft/s; consideration to the potential extremely infrequent, and have Lewis et al., 2002). However, when designation of unoccupied habitats. The consisted of very few fish (Gustafson et water velocities were high in the mid- commenter stated that NMFS ‘‘must al., 2010). Due to such an overwhelming channel, eulachon travelled near the consider physical and biological proportion of the historical and current shore (Lewis et al., 2002) where water features of historically occupied areas, abundance and production of the velocities are likely lower. Research not just presence and production, before southern DPS of eulachon occurring conducted in the lower Elwha River has determining that these areas are not within the geographical area occupied by the species, we could not determine shown that water velocities can be essential for the conservation of the significantly lower nearshore and along that currently occupied areas are species.’’ the bottom of the river, when compared Response: Section 3(5)(A)(ii) of the inadequate to conserve the species. We to the mid-channel (USGS, 2008). It is ESA authorizes the Secretary of received no new information on this likely that eulachon ascend beyond Commerce to designate ‘‘specific areas subject during the comment and peer review process of the Proposed Critical RKm 0.8 (RM 0.5) in the Elwha River by outside the geographical area occupied migrating in the lower velocity water of Habitat Designation (76 FR 515; January at the time [the species] is listed’’ if the the nearshore or river bottom. 5, 2011). Therefore, we are not Secretary determines that these areas are The Lower Elwha Tribe controls over designating any unoccupied areas as essential for the conservation of the 1,000 acres of land in the lower Elwha critical habitat for the DPS. This is an species. Section 4(b)(2) of the ESA River watershed that are eligible for issue that we will continue to directs the Secretary to designate critical exclusion from this critical habitat investigate during the recovery planning habitat ‘‘on the basis of the best designation. From the mouth of the process and we will update the critical scientific data available’’ Regulations at river, upstream to the Elwha Dam at habitat designation if needed. RKm 7.6 (RM 4.7), the Lower Elwha 50 CFR 424.12(e) emphasize that the Tribe lands include approximately 2.3 agency ‘‘shall designate as critical Economic Impacts of Critical Habitat km (1.4 mi) of this area. This leaves habitat areas outside the geographical Designation approximately 5.3 km (3.3 mi) of river area presently occupied by a species Comment 15: One commenter put that does not overlap Tribal land and only when a designation limited to its forth the argument that contemporary thus is not excluded from critical present range would be inadequate to forest management activities have little habitat. Although federal actions ensure the conservation of the species.’’ impact on aquatic organisms such as conducted on Lower Elwha Tribe land The commenter states that NMFS eulachon. The commenter also believes would not require section 7 consultation must base its decision to designate that ‘‘it is troubling that forest to determine the effects on critical critical habitat in unoccupied areas on management is listed as the activity habitat, federal activities on non-Tribal whether those areas might contain the likely to have the second most section lands would. physical or biological features essential 7 actions as a result of the critical to the conservation of the species. habitat designation.’’ Special Management Considerations However, the ESA’s definition of critical Response: In the proposed rule we Comment 12: One commenter wanted habitat in unoccupied areas does not identified a number of activities that to know why dams and water diversions rely on the presence of physical or may affect the physical and biological were listed as an activity that may biological features, but on the features essential to conservation of the require special management determination that the area is essential southern DPS of eulachon (76 FR 515; considerations in Redwood Creek given for the conservation of the species. Our January 5, 2011). One of the major types that there are no dams or surface water implementing regulations provide that of activity was pollution and runoff diversions on Redwood Creek. we may only designate unoccupied from point and non-point sources Response: Although summer seasonal areas if we determine that currently including industrial activities, dams have existed on the mainstem of occupied areas are not adequate for urbanization, grazing, agriculture, and Redwood Creek in the past, they have conservation (50 CFR 424.12(e)). In the forestry operations. Nearly all of the been removed and are no longer case of the southern DPS of eulachon, watersheds that contain specific areas allowed. The commenter rightly points we are unable to make such a proposed as critical habitat for eulachon out that dams and water diversions are determination at this time. In the have been or are still subject to forest not activities in Redwood Creek that process of recovery planning we may management activities. While we may require special management determine that additional areas are acknowledge that modern forest practice considerations and we have removed necessary for conservation and revise rules have greatly reduced the impact of them from the list of special the designation. forest management activities on aquatic management considerations for In addition, the commenter environments (Cafferata and Spittler, Redwood Creek. incorrectly states that we based our 1998), there is a large body of Comment 13: One commenter decision to not designate critical habitat information demonstrating that such suggested that the construction and in unoccupied areas ‘‘on a lack of activities continue to require special maintenance of the Redwood Creek documentation of the presence of management considerations to ensure Flood Control Project levees (that line eulachon in those areas.’’ Based on the they do not impair eulachon habitat. For the lower 5.5 km [3.4 miles] of Redwood best available science, we determined example, Rashin et al. (2006) state that Creek), should be considered in-water that nearly all of the historical and ‘‘[t]imber harvest activities have the construction or alteration and listed as current presence and production of the potential to increase sediment loading an activity that may require special southern DPS of eulachon comes from to streams from harvest site erosion and management consideration. within the geographical area occupied at to cause direct physical disturbance of Response: We agree and have updated the time the species was listed (and stream channels and riparian zones.’’ our report to include this category of particularly the Klamath, Umpqua, Gomi et al. (2005) report that ‘‘[f]orest activity. Columbia and Fraser Rivers). Sightings management practices can increase fine

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sediment supply though soil Comment 16: One commenter Response: Section 4(b)(2) of the ESA disturbance and accelerated believed designating ocean areas as provides the Secretary with discretion landsliding.’’ These authors go on to critical habitat would have an adverse to exclude areas from the designation of state ‘‘[s]oil disturbance and sediment economic impact on shrimp fisheries off critical habitat if the Secretary delivery to streams are commonly the Pacific Coast. determines that the benefits of exclusion associated with construction of roads Response: We did not propose to outweigh the benefits of designation, and landings, slash burning, and log designate critical habitat in marine and the Secretary finds that exclusion of skidding (Reid and Dunne, 1984; waters because we were unable to the area will not result in extinction of Christie and Fletcher, 1999; Jordan, identify specific areas in the marine the species. Tribal lands are managed by 2001; Kreutzwiser et al., 2001). The environment that meet the definition of Indian Tribes in accordance with Tribal hydrologic and geomorphic effects of critical habitat under section 3(5)(A). goals and objectives within the forest roads in particular have been the Therefore we did not assess the framework of applicable treaties and focus of many studies, given their economic impact of designating marine laws. Executive Order 13175, demonstrated potential for negative areas as critical habitat, including any Consultation and Coordination with impacts (Luce and Wemple, 2001).’’ economic impacts to ocean shrimp Indian Tribal Governments, outlines the As part of our estimate of the fisheries. policies and responsibilities of the potential economic impact of critical Comment 17: One commenter Federal Government in matters affecting habitat designation for the southern DPS expressed concern that the designation Tribal interests (recently confirmed by of eulachon we projected the future of critical habitat in the Elwha River Presidential Memorandum; 74 FR administrative costs of engaging in ESA could lead to changes in the timing of 57879; November 9, 2009). In addition section 7 consultations. In our Draft the upcoming removal of the Elwha and to Executive Order 13175, we have Economic Analysis (NMFS, 2010b), we Glines Canyon Dams. The commenter Department of Commerce policy provided a forecast of the annual believes that any changes in the timing direction, via Secretarial Order 3206, number of future section 7 actions, of dam removal could potentially have stating that Indian lands shall not be organized by affected watershed and high associated costs that were not designated as critical habitat, nor areas activity, that may require consultation factored into NMFS’ economic analysis. where the ‘‘Tribal trust resources * * * with NMFS. Forest management was Response: In 2010, we completed our or the exercise of Tribal rights’’ will be one of the ten broad activity groups that consultation with the National Park impacted, unless such lands or areas are were identified that may require some Service on removal of the Elwha and determined ‘‘essential to conserve a form of section 7 consultation in the Glines Canyon Dams and their effects on listed species.’’ In such cases we ‘‘shall future. We have an extensive eulachon (NMFS, 2010c). Removal of evaluate and document the extent to consultation history for other the dams will result in the release of which the conservation needs of the anadromous species (including West accumulated sediment that is likely to listed species can be achieved by Coast salmon and steelhead) in the harm eulachon and their habitat. In our designating only other lands.’’ watersheds that we proposed as consultation we considered the direct In our proposed rule, we determined eulachon critical habitat. Estimates of effects to eulachon as well as the that excluding Tribal lands from critical the future annual number of section 7 indirect effects that would result from habitat designation would have the actions related to eulachon were based habitat alteration. The Biological benefit of promoting federal policies on the average number of past actions Opinion contains terms and conditions regarding Tribal sovereignty and self- that required consultation for these that require the Park Service to maintain governance (e.g., Executive Order species in these watersheds between consistent sediment loads during March 13175). In addition, we determined that 2000 and 2009. through May to minimize impacts to exclusion of Tribal lands would have While forest management is the spawning eulachon. Designation of the benefit of promoting a positive activity that we forecast to have the critical habitat in the Elwha River will working relationship between NMFS second-most section 7 actions as a result require reinitiation of consultation with and the Tribes (in accordance with of eulachon critical habitat designation, the Park Service. It is possible that Secretarial Order 3206), with a very it is important to keep the estimates in during the course of the consultation small reduction in the benefits of perspective. We chose the individual our analysis may lead to additional designation (primarily the loss of watersheds that encompass each stream terms and conditions, but at this time section 7 consultation to consider reach proposed as eulachon critical there are none that we can reasonably adverse modification of critical habitat). habitat as our assessment area for anticipate (NMFS 2010c; Zach Hughes, Although these specific areas have a economic impacts (specifically, we used NMFS, Washington State Habitat Office, high conservation value for eulachon, 5th field hydrologic units as designated personal communication, 9/12/2011). their extent is relatively small by the U.S. Geological Survey). The total Our economic analysis therefore (approximately 5% of the total area land area included in our assessment includes as a cost of designation only designated). In the decision Center for area is approximately 9,500 km2 (2.3 the added administrative cost of Biological Diversity, v. Norton, 240 F. million acres). We estimate that forest completing a new consultation. Supp. 2d 1090 (D. Ariz. 2003), the court management activities will result in held that a positive working Indian Lands Exclusions approximately seven ESA section 7 relationship with Indian Tribes is a consultations per year as a result of Comment 18: One commenter relevant impact that can be considered eulachon critical habitat designation, believed that Tribal lands should not be when weighing the relative benefits of a and of these, only one will require excluded from critical habitat because critical habitat designation. formal consultation. Given that forest doing so would diminish the The Tribes affected by this critical management is one of the most conservation value of the designation. A habitat designation have played and dominant land uses across our separate commenter believed that Tribal continue to play an active role in the assessment area, the estimated number lands should only be excluded if the conservation and management of this of related consultations that may need affected Tribes agree to address species. These Tribal governments are to address eulachon critical habitat is eulachon protections in their also co-managers of a variety of other comparatively small for an area so large. conservation plans. freshwater and marine species and

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resources throughout the region. The co- received and new scientific information supporting documents: The Eulachon manager relationship crosses Tribal, that became available following Biological Report (NMFS, 2011b); the Federal, and state boundaries, due to the publication of the proposed rule. Eulachon Economic Analysis (NMFS, migratory characteristics of these Specifically, we added Skamokawa 2011c); and, the Eulachon Section species. As we move forward with Creek, and the Toutle River (both in 4(b)(2) Report (NMFS, 2011a). eulachon recovery planning, a positive Washington State) to the list of specific We used this information to identify working relationship with the Tribes areas. specific areas that qualify as critical will be crucial to the management and (2) We extended the upstream extent habitat for the southern DPS. We recovery of eulachon. of critical habitat for three specific areas followed a five-step process in order to While it is possible that exclusion of based on comments received and new identify these specific areas: (1) Indian lands may result in a small scientific information. Critical habitat Determine the geographical area reduction in the conservation benefits of was extended on Redwood Creek, occupied by the species, (2) identify the designation, the species is still California, and the Elochoman and physical or biological habitat features protected under the jeopardy standard Kalama Rivers in Washington. In essential to the conservation of the of ESA section 7, and activities that addition we revised the Lewis River species, (3) delineate specific areas occur on non-Tribal lands near or specific area to include the East Fork of within the geographical area occupied adjacent to excluded Tribal lands will the Lewis River. by the species on which are found the still be subject to section 7 consultation (3) We further explained and clarified physical or biological features, (4) for adverse modification of critical the functional relationship between the determine whether the features in a habitat. In addition, there are several spawning and incubation essential specific area may require special management plans that guide Tribal feature and the migration corridor management considerations or activities in the affected watersheds essential feature based on comments protections, and (5) determine whether (e.g., the Quinault Reservation Forest received. any unoccupied areas are essential for Management Plan, Elwha River Fish (4) We revised our economic analysis conservation. Our evaluation and Restoration Plan, and the Lower based on additions to the specific areas conclusions are described in detail in Klamath River Sub-Basin Watershed included in the critical habitat the following sections. Restoration Plan) and provide designation. Specifically, we added a Geographical Area Occupied by the protection to eulachon habitat. new 5th field hydrologic unit to our Comment 19: One commenter analysis (HUC 1708000205: East Fork Species believed that we should not exclude Lewis River). As described in the proposed rule, the lands covered by a Habitat Conservation (5) We have designated critical habitat first step in designating critical habitat Plan (HCP) unless the plan contains in the Quinault River, Washington, and is to identify the geographical area adequate protections for eulachon. the Klamath River, California. These occupied by the species at the time of Response: We agree that adequate specific areas were excluded entirely listing. In our proposed critical habitat protections for eulachon within an from the proposed critical habitat rule. designation we interpreted the existing HCP should be a requirement Upon further review, based on more ‘‘geographical area occupied’’ in ESA for any landowner seeking to have land complete information on land section 3(3) as equivalent to the range of excluded from critical habitat ownership, we determined that only the the species at the time of listing. In our designation. There are two existing portions of these rivers that overlap March 2010 final ESA listing rule, and HCPs that overlap areas that were with Indian lands are eligible for in the proposed critical habitat proposed as critical habitat for the exclusion. Critical habitat does not designation, we identified the range of southern DPS of eulachon; the Green include any Tribal lands of the Lower the southern DPS of eulachon as Diamond Timber HCP (covering the Elwha Tribe, Quinault Tribe, Resighini extending from the Skeena River in company’s operations in northern Rancheria, or Yurok Tribe. British Columbia, Canada, to the Mad California, including portions of the River in California (Gustafson et al., Methods and Criteria Used To Identify 2010). We cannot designate areas Klamath River), and the Humboldt Bay Critical Habitat Municipal Water District HCP (covering outside U.S. jurisdiction as critical their operations in the Mad River, In accordance with section 4(b)(2) of habitat (see above), thus, we limited our California). Neither of these HCPs the ESA and our implementing consideration of the range of the address conservation of eulachon, and it regulations (50 CFR 424.12), this final southern DPS of eulachon to the is unclear what, if any, conservation rule is based on the best scientific geographical area from the international benefits they might provide to eulachon. information available concerning the border with Canada to the Mad River in In addition, neither of the HCP holders southern DPS’s present and historical California. We did not attempt to further requested that their lands be excluded range, habitat, and biology, as well as refine our identification of the from critical habitat. Therefore, we have threats to its habitat. In preparing this ‘‘geographical area occupied by the decided not to exclude any land covered rule, we reviewed and summarized species’’ at the time of listing because of by these HCPs from this critical habitat current information on eulachon, the process we followed in the designation. including recent biological surveys and subsequent steps of our designation. As reports, peer-reviewed literature, NMFS explained more fully below, we Summary of Revisions status reviews for the southern DPS of identified freshwater spawning and We evaluated the comments and new eulachon (Gustafson et al., 2010), the incubation sites as a ‘‘physical or information received on the proposed proposed rule to list eulachon biological feature essential to rule to ensure that they represented the (74 FR 10857; March 13, 2009), and the conservation’’ of the species. In best scientific data available and made final listing determination for eulachon determining the ‘‘specific areas’’ that a number of changes to the critical (75 FR 13012; March 18, 2010) and contain those sites, we confirmed that habitat designations, including: information provided during the eulachon were documented using the (1) We revised the number of specific comment process. All of the information sites for spawning. Thus our process of areas included in our critical habitat gathered to create this final rule has confirming that a specific area contains designation based on comments been collated and analyzed in three the essential features also allowed us to

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confirm that the area was indeed allow adult fish to swim upstream to to 36 °F] in the Nass River; Willson et occupied. Given the highly migratory reach spawning areas and they allow al., 2006). High water temperatures can nature of eulachon and limited marine larval fish to proceed downstream and lead to adult mortality and spawning sampling, we do not know how far reach the ocean. failure (Blahm and McConnell, 1971). offshore the southern DPS of eulachon (3) Nearshore and offshore marine Substrate: Spawning substrates for are distributed and thus how far foraging habitat with water quality and eulachon egg deposition and offshore the geographical area occupied available prey, supporting juveniles and development. Spawning substrates by the species extends. We consider the adult survival. Eulachon prey on a wide typically consist of silt, sand, gravel, marine extent of the geographical area variety of species including crustaceans cobble, or detritus (Gustafson et al., occupied by the species as such as copepods and euphausiids (Hay 2010). However, pea-sized gravel (Smith undeterminable at this time. and McCarter, 2000; WDFW and ODFW, and Saalfeld, 1955) and coarse sand 2001), unidentified malacostracans (Langer et al., 1977) are the most Physical or Biological Features (Sturdevant, 1999), cumaceans (Smith commonly used. Water depth for Essential for Conservation and Saalfeld, 1955) mysids, barnacle spawning can range from 8 cm (3 in) to Joint NMFS–USFWS regulations at 50 larvae, and worm larvae (WDFW and at least 7.6 m (25 ft) (Willson et al., CFR 424.12(b) state that in determining ODFW, 2001). These features are 2006). what areas are critical habitat, the essential to conservation because they The components of the freshwater and agencies ‘‘shall consider those physical allow juvenile fish to survive, grow, and estuarine migration corridor essential and biological features that are essential reach maturity, and they allow adult feature include: to the conservation of a given species fish to survive and return to freshwater Migratory Corridor: Safe and and that may require special systems to spawn. unobstructed migratory pathways for management considerations or The components of the freshwater eulachon adults to pass from the ocean protection.’’ These physical and spawning and incubation sites include: through estuarine areas to riverine biological features include, but are not Flow: A flow regime (i.e., the habitats in order to spawn, and for limited to: ‘‘(1) Space for individual and magnitude, frequency, duration, larval eulachon to access rearing population growth, and for normal seasonality, and rate-of-change of habitats within the estuaries and behavior; (2) Food, water, air, light, freshwater discharge over time) that juvenile and adults to access habitats in minerals, or other nutritional or supports spawning, and survival of all the ocean. Lower reaches of larger river physiological requirements; (3) Cover or life stages. Most spawning rivers systems (e.g., the Columbia River) are shelter; (4) Sites for breeding, experience a spring freshet used as migration routes to upriver or reproduction, rearing of offspring, characteristic of rivers draining large tributary spawning areas. Out-migrating germination, or seed dispersal; and snow packs or glaciers (Hay and larval eulachon are distributed generally; (5) Habitats that are protected McCarter, 2000). In general, eulachon throughout the water column in some from disturbance or are representative of spawn at lower water levels before rivers (e.g., the Fraser River) but are the historic geographical and ecological spring freshets (Lewis et al., 2002). In more abundant in mid-water and bottom distributions of a species.’’ the Kemano River, British Columbia, portions of the water column in others Based on the best available scientific eulachon preferred water velocities from (e.g., the Columbia River; Smith and information, we developed a list of 0.1 to 0.7 m/s (Lewis et al., 2002). Saalfeld, 1955; Howell et al., 2001). physical and biological features Sufficient flow may also be needed to Flow: A flow regime (i.e., the essential to the conservation of flush silt and debris from spawning magnitude, frequency, duration, eulachon and relevant to determining substrate surfaces to prevent suffocation seasonality, and rate-of-change of whether occupied areas are consistent of developing eggs. freshwater discharge over time) that with the above regulations and the ESA Water Quality: Water quality suitable supports spawning migration of adults section (3)(5)(A) definition of ‘‘critical for spawning and viability of all and outmigration of larval eulachon habitat.’’ The physical or biological eulachon life stages. Sublethal from spawning sites. Most eulachon features essential to the conservation of concentrations of contaminants affect spawning rivers experience a spring the southern DPS fall into three major the survival of aquatic species by freshet (Hay and McCarter, 2000) that categories reflecting key life history increasing stress, predisposing may influence the timing of spawning phases of eulachon: organisms to disease, delaying adult migration. In general, eulachon (1) Freshwater spawning and development, and disrupting spawn at low water levels before spring incubation sites with water flow, quality physiological processes, including freshets (Lewis et al., 2002). In the and temperature conditions and reproduction. Adult eulachon can take Kemano River water velocity greater substrate supporting spawning and up and store pollutants from their than 0.4 m/s (1.3 ft/s) begins to limit incubation, and with migratory access spawning rivers, despite the fact that upstream movements (Lewis et al., for adults and juveniles. These features they do not feed in fresh water and 2002). are essential to conservation because remain there only a few weeks (Rogers Water Quality: Water quality suitable without them the species cannot et al., 1990; WDFW and ODFW, 2001). for survival and migration of spawning successfully spawn and produce Eulachon have also been shown to avoid adults and larval eulachon. Adult offspring. polluted waters when possible (Smith eulachon can take up and store (2) Freshwater and estuarine and Saalfeld, 1955). pollutants from their spawning rivers, migration corridors associated with Water Temperature: Suitable water despite the fact that they do not feed in spawning and incubation sites that are temperatures, within natural ranges, in fresh water and remain there only a few free of obstruction and with water flow, eulachon spawning reaches. Water weeks (Rogers et al., 1990; WDFW and quality and temperature conditions temperature between 4 °C and 10 °C ODFW, 2001). Eulachon avoid polluted supporting larval and adult mobility, (39 °F and 50 °F) in the Columbia River waters when possible (Smith and and with abundant prey items is preferred for spawning (WDFW and Saalfeld, 1955). supporting larval feeding after the yolk ODFW, 2001) although temperatures Water Temperature: Water sac is depleted. These features are during spawning can be much colder in temperature suitable for survival and essential to conservation because they northern rivers (e.g., 0 °C to 2 °C [32 °F migration. Eulachon run timing may be

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influenced by water temperature the ESA as the ‘‘specific areas within The Eulachon Biological Report (NMFS, (Willson et al., 2006), and high water the geographical area occupied by the 2011b) provides more detailed temperatures can increase adult species * * * on which are found those information on each specific area, mortality (Blahm and McConnell, 1971). physical and biological features (I) including a description of the essential Given the range of temperatures in essential to the conservation of the physical and biological features, special which eulachon spawn, Langer et al. species and (II) which may require management considerations or (1977) suggested that the contrast special management considerations or protection that may be needed, and the between ocean and river temperatures protection’’. All of the essential physical presence and distribution of the might be more critical than absolute and biological features we identified for southern DPS of eulachon. river or ocean temperatures. freshwater and estuarine habitat occur (1) Mad River, CA: The Mad River is Food: Prey resources to support larval within either spawning and incubation located in northwestern California. It eulachon survival. Eulachon larvae need areas, or migratory corridors. In order to flows for approximately 150 km (95 mi) abundant prey items (especially identify specific areas where the in a roughly northwest direction copepod larvae; Hart, 1973) when they essential features occur, we developed through Trinity and Humboldt Counties, begin exogenous feeding after the yolk criteria to determine if an area draining a 1,290 km2 (497 mi2) basin sac is depleted. The eulachon yolk sac contained either spawning and into the Pacific Ocean near can be depleted between 6 and 21 days incubation sites, or a migratory corridor. McKinleyville, California. The river’s after hatching (Howell, 2001), and These criteria are areas that contain: headwaters are in the Coast Range larvae may be retained in low salinity, (1) Larval fish or pre-/post-spawn adults mountains near South Kelsey Ridge. surface waters of the natal estuary for that have been positively identified and Eulachon consistently spawned in several weeks or longer (Hay and documented; or (2) commercial or large numbers in the Mad River as McCarter, 2000), making this an recreational eulachon fishery that has recently as the 1960s and 1970s (Moyle important component in migratory been documented over multiple years. et al., 1995; Moyle, 2002; Gustafson et corridor habitat. There are 42 creeks and rivers with al., 2010). However, in recent years The components of the nearshore and known or possible eulachon spawning eulachon numbers have declined, and offshore marine foraging essential within the U.S. range of the southern they are now considered rare feature include: DPS of eulachon (Gustafson et al., 2010; (Sweetnam et al., 2001). Based on Food: Prey items, in a concentration NMFS, 2011b). Of these, we identified that supports foraging leading to observations by the California 16 that meet at least one of the criteria Department of Fish and Game (CDFG), adequate growth and reproductive for the presence of the physical or development for juveniles and adults in spawning occurs as far upstream as the biological features essential for confluence with the North Fork of the the marine environment. Eulachon eulachon conservation. We then larvae and juveniles eat a variety of prey Mad River (CDFG, 2009). The river determined the distribution of the below this point contains overlapping items, including phytoplankton, essential features within these creeks or copepods, copepod eggs, mysids, spawning and incubation sites and rivers. We relied on evidence of adult migration corridor features. barnacle larvae, and worm larvae and larval eulachon presence to (2) Redwood Creek, CA: Redwood (Barraclough, 1967; Barraclough and delineate the extent of the specific areas Creek is located entirely in Humboldt Fulton, 1967; Robinson et al., 1968a, where the spawning and incubation County, in northwestern California. The 1968b). Eulachon adults feed on sites and migration corridors are found. zooplankton, chiefly eating crustaceans We used the most recent scientific basin is approximately 105 km (65 mi) 2 such as copepods and euphausiids information available to us (including long, and drains approximately 738 km 2 (Hart, 1973; Scott and Crossman, 1973; data from published literature, field (285 mi ), most of which is forested and Hay, 2002; Yang et al., 2006), observations, opportunistic sightings, mountainous terrain (Cannata et al., unidentified malacostracans commercial and recreational harvest, 2006). (Sturdevant, 1999), and cumaceans and anecdotal information) to determine Eulachon have been reported from (Smith and Saalfeld, 1955). the presence and distribution of the Redwood Creek by a variety of sources Water Quality: Water quality suitable essential features within the creeks and (Young, 1984; Ridenhour and Hofstra, for adequate growth and reproductive rivers with known or possible presence 1994; Moyle et al., 1995; Larson and development. The water quality of eulachon. For a limited number of Belchik, 1998), and runs large enough to requirements for eulachon in marine areas, opportunistic sightings are the be noted in available local newspaper habitats are largely unknown, but they only information that is available to accounts occurred in 1963 and 1967. would likely include adequate dissolved identify the presence and distribution of Eulachon returns to Redwood Creek oxygen levels, adequate temperature, the essential features. Where the only have declined drastically in recent and lack of contaminants (such as available information was opportunistic years, and they are now considered rare pesticides, organochlorines, elevated sightings, we consulted agency and (Sweetnam et al., 2001). CDFG reported levels of heavy metals) that may disrupt Tribal biologists familiar with the area that during the early 1970s eulachon behavior, growth, and viability of to confirm the information and identify regularly spawned between the ocean eulachon and their prey. the presence and extent of the essential and the mouth of Prairie Creek (the first features. For these areas we consider major tributary on Redwood Creek; Specific Areas Within the Geographical this the ‘‘best available scientific Moyle et al., 1995). During April 1973, Area Occupied by the Species information,’’ necessary to inform our a spawning run of eulachon were After determining the geographical decisions. observed passing Tom McDonald Creek area occupied by the southern DPS of The 16 specific freshwater and (CDFG, 1973), a tributary located eulachon, and identifying the physical estuarine areas which contain one or approximately 19.7 km (12.2 miles) and biological features essential to their more of the essential physical or upstream from the mouth of Redwood conservation, we next identified the biological features are described below Creek, indicating that this area contains specific areas that meet the statutory and summarized in Table 1, which the essential features of spawning and definition of critical habitat. Critical appears at the end of the Special incubation, and a migration corridor. habitat is defined in Section 3(5)(A)(i) of Management Considerations section. Spawning also occurred in the lower 0.5

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km (0.3 mi) of Prairie Creek (Moyle et 19 km (12 mi) are designated Wild, 39 ODFW. During previous sampling al., 1995), sporadically up to the 1970s. km (24 mi) are designated Scenic, and efforts, 80–90 percent of the eulachon The lower reach of Redwood Creek 402 km (250 mi) are designated captured in the traps were spawned out alternates between an open estuary and Recreational. and several fish were found dead a closed coastal lagoon depending on (4) Umpqua River/Winchester Bay, (Williams, 2009). Given the timing of the season. During early summer a sand OR: The Umpqua River Basin consists of the sampling (February to May), it is bar typically forms across the river a 10,925 km2 (4,220 mi2) drainage area very likely that spawning occurs mouth creating a lagoon. Rains during comprised of the main Umpqua River, regularly in Tenmile Creek. It is not the fall typically clear the sand bar away the North Umpqua River, the South known how far adult eulachon ascend and open up the river mouth to the Umpqua River, and associated tributary the creek to spawn, but the location of ocean (Cannata et al., 2006). streams (Snyder et al., 2006). The the ODFW trap (just upstream of the (3) Klamath River, CA: The Klamath Umpqua River drains a varied Highway 101 bridge) is the confirmed River basin drains approximately 25,100 landscape, from steep-sloped uplands, upstream extent of adult eulachon in km2 (9,690 mi2) in southern Oregon and to low gradient broad floodplains. spawning condition, and we conclude northern California, making it the Upstream, the Umpqua River collects that the specific area containing second largest river in California (after water from tributaries as far east as the spawning and incubation sites extends the Sacramento River). Historically, the Cascade Mountains. upstream at least to this point (ODFW, Klamath River has been a major Historically, a large and consistent 2009). producer of anadromous fish, and once run of eulachon returned to the Umpqua (6) Sandy River, OR: The Sandy River was the third most productive salmon River, and both recreational and and its tributaries drain 1,316 km2 (508 and steelhead fishery in the continental commercial fisheries occurred. The mi2). Most of the headwaters of the United States, prior to recent significant Umpqua River eulachon sport fishery Sandy River are within Clackamas declines (Powers et al., 2005). was active for many years during the County, while the lower mainstem of Historically, large aggregations of 1970s and 1980s, with the majority of the river lies within Multnomah County. eulachon consistently spawned in the fishing activity centered near the town The Sandy River originates from glaciers Klamath River (Fry, 1979; Moyle et al., of Scottsburg. A commercial fishery also on Mount Hood and flows for 90 km (56 1995; Larson and Belchik, 1998; Moyle, harvested eulachon during that time. mi) to join the Columbia River near the 2002; Hamilton et al., 2005), and a Approximately 1,800 to 2,300 kg (4,000 City of Troutdale (Sandy River Basin commercial fishery occurred there in to 5,000 lbs) of eulachon were landed by Watershed Council, 1999). The segment 1963 (Odemar, 1964). During the two commercial fishermen in the of the Sandy River from Dodge Park to spawning run, fish were regularly Umpqua River during 31 days of drift Dabney State Park was designated as a caught from the mouth of the river gill net fishing from late December 1966 National Wild and Scenic River in upstream to Brooks Riffle, near the to mid-March 1967 (OFC, 1970). October 1988. confluence with Omogar Creek (Larson Numbers of fish returning to the Large commercial and recreational and Belchik, 1998), indicating that this Umpqua seem to have declined in the fisheries have occurred in the Sandy area contains the spawning and 1980s and do not appear to have River in the past. The most recent incubation, and migration corridor rebounded to previous levels. Johnson commercial harvest in the Sandy River essential features. et al. (1986) list eulachon as occurring was in 2003 and resulted in a catch of The only reported commercial catch in trace amounts in their trawl and 10,400 kg (23,000 lbs) (Joint Columbia of eulachon in Northern California beach-seine samples from April 1977 to River Management Staff [JCRMS], 2009). occurred in 1963 when a combined total January 1986. Williams (2009) reported During spawning, eulachon extent in of 25 metric tons (56,000 lbs) was on the results of seine collections the Sandy River is typically upstream to landed from the Klamath River, the Mad conducted during March to November the confluence with Gordon Creek River, and Redwood Creek (Odemar, from 1995 to 2003 in Winchester Bay (Anderson, 2009), indicating that this 1964). Since 1963, the run size has estuary on the Lower Umpqua River, area contains the spawning and declined to the point that only a few which confirmed the presence of incubation, and migration corridor individual fish have been caught in eulachon in four of the years in which essential features. recent years. According to accounts of sampling occurred. (7) Lower Columbia River, OR and Yurok Tribal elders, the last noticeable Eulachon have been documented in WA: The lower Columbia River and its runs of eulachon were observed in the the lower Umpqua River during tributaries support the largest known Klamath River in 1988 and 1989 by spawning, from the mouth upstream to spawning run of eulachon. The Tribal fishers (Larson and Belchik, the confluence of Mill Creek, just below mainstem of the lower Columbia River 1998). However, in January 2007, and Scottsburg (Williams, 2009). This provides spawning and incubation sites, again in February 2011, a small number indicates that the area downstream from and a large migratory corridor to of eulachon were reportedly caught by this confluence contains the spawning spawning areas in the tributaries. Major Tribal fishers on the Klamath River and incubation, and migration corridor tributaries of the Columbia River that (Yurok Tribe, 2008; McCovey, 2011). essential features. have supported eulachon runs in the Larson and Belchik (1998) report that (5) Tenmile Creek, OR: The Tenmile past include the Grays, Elochoman, eulachon have not been of commercial Creek watershed lies entirely within Cowlitz, Kalama and Lewis Rivers in importance in the Klamath in recent Lane County, Oregon and encompasses Washington and the Sandy River in years and are unstudied as to their approximately 60 km2 (23 mi2) on the Oregon (WDFW and ODFW, 2001; current run strengths. central Oregon Coast (Johnson, 1999). Gustafson et al., 2010; the Columbia Approximately 68 km (42 mi) of the The watershed is in a unique location, River tributaries in Washington State are lower Klamath River is bordered by the between the Cummins Creek and Rock discussed below as separate specific Yurok Indian Reservation. The lower Creek wilderness areas, which are areas). Klamath River is listed as a National protected from development. Although direct estimates of adult Wild and Scenic River from the mouth, Eulachon are regularly caught in spawning stock abundance in the upstream to just below Iron Gate Dam, salmonid smolt traps operated in the Columbia River are unavailable, records for a total of 460 km (286 mi). Of these, lower reaches of Tenmile Creek by of commercial fishery landings begin in

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1888 and continue as a nearly landings declined to the very low levels River. Sampling of outmigrating larval uninterrupted data set to 2010 observed in the mid-1990s (JCRMS, eulachon by WDFW has confirmed (Gustafson et al., 2010). A large 2009), and the fishery operated at the spawning in the river 7 times in the last recreational dipnet fishery, for which most conservative level allowed in the 15 years (JCRMS, 2011), most recently catch records have not been maintained, Joint State Eulachon Management Plan in 2011 (Chris Wagemann, WDFW, has taken place concurrent with the from 2005 to 2010 (JCRMS, 2009). All personal communication, 4/18/2011). In commercial fishery (WDFW and ODFW, commercial and recreational fisheries the past, WDFW has observed spawning 2001). However, the dipnet fishery took for eulachon were closed in Oregon and eulachon in the Elochoman River as far place almost entirely within the Washington for 2011. the Washington State Highway 4 bridge tributaries. During spawning, adult (8) Grays River, WA: The Grays River crossing (Anderson, 2009). However, in eulachon are found in the lower watershed is located in Pacific and April 2011, biologists from the Cowlitz Columbia River from the mouth of the Wahkiakum counties, in Washington Indian Tribe documented the presence river to immediately downstream of State. The Grays River is a tributary of of larval eulachon in the Elochoman Bonneville Dam (WDFW and ODFW, the Columbia River, which it enters near River to the Monroe Drive bridge 2008), indicating that the area contains the town of Oneida, Washington. The crossing (Cowlitz Tribe, 2011), the essential feature of migration Grays River watershed encompasses 322 indicating that a more extensive area corridors. Eulachon eggs have been km2 (124 mi2) (May and Geist, 2007). contains the spawning and incubation, collected, and spawning presumed, From 1980 to 1989 the annual and migration corridor essential from river km 56 (river mi 35) to river commercial harvest of eulachon in the features. If eulachon ascend the river km 117 (river mi 73) (Romano et al., Grays River varied from 0 to 16 metric beyond this point, the water intake dam 2002) indicating that this area contains tons (0 to 35,000 lbs.). No commercial at the old Beaver Creek Hatchery the spawning and incubation essential harvest has been recorded for the Grays (located on the Elochoman River at river feature. However, due to the limited River from 1990 to the present, but km 11.5 [river mi 7.1]) may be a barrier range of the study, the entire range of larval sampling has confirmed to any further upstream migration of eulachon spawning in the mainstem of successful spawning in recent years eulachon (Wade, 2002). the Columbia River remains unknown (JCRMS, 2009). During spawning, (11) Cowlitz River, WA: The Cowlitz (Romano et al., 2002). As noted above in eulachon typically ascend the river as River flows from its source on the west response to Comment 7, eulachon have far as the covered bridge near the slope of the Cascade Mountains through historically been reported as far unincorporated town of Grays River, the towns of Kelso and Longview, upstream as Hood River but have rarely WA (Anderson, 2009), indicating that Washington, and empties into the passed Bonneville Dam since its this area contains the spawning and Columbia River about 109 km (68 mi) completion in 1937. incubation, and migration corridor upstream from the Pacific Ocean. The essential features. Cowlitz River drains approximately The Columbia River, estimated to (9) Skamokawa Creek, WA: 6,400 km2 (2,480 mi2) over a distance of have historically represented half of the Skamokawa Creek is a tributary of the 243 km (151 mi) (Dammers et al., 2002). species’ abundance, experienced a Columbia River located in southwest Principal tributaries to the Cowlitz River sudden decline in its commercial Washington. Skamokawa Creek drains a include the Coweeman, Toutle, Tilton, eulachon fishery landings in 1993–1994 relatively small (161 km2 [63 mi2]) and Cispus Rivers. (WDFW and ODFW, 2001; JCRMS, watershed that lies entirely within The Cowlitz River is likely the most 2009). Commercial catch levels were Wahkiakum County. productive and important spawning consistently high (usually greater than During April 2011, biologists from the river for eulachon within the Columbia 500 metric tons [550 tons] and often Cowlitz Indian Tribe documented the River system (Wydoski and Whitney, greater than 1,000 metric tons [1,100 presence of eulachon larvae in 2003). Spawning adults typically move tons]) for the three quarters of a century Skamokawa Creek, confirming eulachon upstream about 26 km (16 mi) to the from about 1915 to 1992. In 1993, spawning in this system (Cowlitz Indian town of Castle Rock, WA or beyond to catches declined greatly to 233 metric Tribe, 2011). These biologists used a the confluence with the Toutle River. tons (257 tons) and to an average of less systematic sampling protocol to Adults are regularly sighted from the than 40 metric tons (44 tons) between determine that the bridge crossing at mouth of the river to 55 km (34 mi) 1994 and 2000. From 2001 to 2004, the Petersen was the likely upstream limit upstream (near the town of Toledo, catches increased to an average of 266 of spawning. We consider this recent WA). Eulachon are occasionally sighted metric tons (293 tons), before falling to information as the best available as far as 80 km (50 mi) upstream, to the an average of less than 5 metric tons (5.5 indicating that this area contains the barrier dam at the Cowlitz Salmon tons) from 2005 to 2008. Some of this spawning and incubation, and migration Hatchery (WDFW and ODFW, 2008; pattern is due to fishery restrictions put corridor essential features for eulachon. Anderson, 2009), indicating that this in place in response to the apparent (10) Elochoman River, WA: The area contains the spawning and sharp declines in the species Elochoman River is a tributary of the incubation, and migration corridor abundance. Persistent low returns and Columbia River in southwest essential features. landings of eulachon in the Columbia Washington and it originates in the The Cowlitz River currently has 3 River from 1993 to 2000 prompted the Willapa Hills. The watershed lies within major hydroelectric dams and several states of Oregon and Washington to Lewis, Cowlitz, and Wahkiakum small-scale hydropower and sediment adopt a Joint State Eulachon counties and flows generally south to retention structures located on Management Plan in 2001 that provides the Columbia River. The Elochoman tributaries within the Cowlitz Basin. for restricted harvest management when watershed area is approximately 261 Mayfield Dam is located at river km 84 parental run strength, juvenile km2 (101 mi2) (Lower Columbia Fish (river mi 52) and is a complete barrier production, and ocean productivity Recovery Board [LCFRB], 2004a). to upstream migration of anadromous forecast a poor return (WDFW and Eulachon spawn occasionally in the fishes (LCFRB, 2004b) (although the ODFW, 2001). Despite a brief period of Elochoman River, although there is no salmon hatchery barrier dam at river km improved returns in 2001–2003, the history of commercial or recreational 80 (river mi 50) may also be a complete returns and associated commercial harvest of eulachon for the Elochoman barrier to eulachon).

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(12) Toutle River, WA: The Toutle essential features. Although the last Quinault Indian Reservation for another River is a tributary of the Cowlitz River, commercial harvest of eulachon in the 53 km (33 mi) to the Pacific Ocean. The and it occurs in portions of Lewis, Kalama River occurred in 1993, total watershed area is 1,190 km2 (460 Cowlitz, and Skamania Counties in sampling for larval eulachon has mi2) (Smith and Caldwell, 2001). southwestern Washington State. The confirmed spawning in the Kalama Although there is currently no Toutle River is one of the major River as recently as 2011 (Cowlitz monitoring for eulachon in the Quinault tributaries of the lower Cowlitz River Indian Tribe, 2011). River, WDFW and ODFW (2001) and their confluence occurs 32 km (20 (14) Lewis River, WA: The Lewis River reported that eulachon ‘‘were noted in mi) upstream of the mouth of the enters the Columbia River 104 km (87 large abundance in the Quinault’’ River Cowlitz River, just north of the town of mi) upstream from the mouth of the in 1993. A noticeable number of Castle Rock, Washington. The basin Columbia River, a few kilometers north eulachon make an appearance in the encompasses approximately 1,329 km2 of the town of Ridgefield, Washington. Quinault River, and to a lesser extent (513 mi2) of mostly forested land. The The majority of the 1,893 km2 (731 mi2) the Queets River, at 5 to 6 year intervals Toutle River drains the north and west watershed lies within Clark, Cowlitz and were last observed in the Quinault sides of Mount St. Helens and and Skamania Counties (LCFRB, 2004d). River in the winter of 2004–2005 elevations in the watershed range from Although generally not considered as (Quinault Indian Nation, 2008). There is near sea level at the mouth to 2,550 m large a eulachon run as the Cowlitz very little information on eulachon (8,365 ft) at the summit of Mount St. River, the Lewis River has produced spawning distribution in the Quinault Helens. The watershed contains three very large runs periodically. Nearly half River, but Tribal fishermen targeting main drainages: The North Fork Toutle, of the total commercial eulachon catch eulachon typically catch fish in the the South Fork Toutle, and the Green for the Columbia River Basin in 2002 lower three miles of the river (Quinault River. Most of the North and South Fork and 2003 came from the Lewis River. Indian Nation, 2008). It is reasonable to were impacted severely by the 1980 Larval eulachon have been caught in the conclude that this area contains the eruption of Mount St. Helens and the Lewis River during sampling efforts by spawning and incubation, and migration resulting massive debris torrents and WDFW and the Cowlitz Indian Tribe, corridor essential features. mudflows (LCFRB, 2004b). (JCRMS, 2009; Cowlitz Indian Tribe, Although eulachon are currently only During April 2011, biologists from the 2011). During spawning, eulachon occasionally recorded in the Quinault Cowlitz Indian Tribe documented the typically move upstream in the Lewis River, during the late 19th and early presence of eulachon larvae in the River about 16 km (10 mi; to Eagle 20th century eulachon were regularly Toutle River, confirming eulachon Island), but they have been observed caught by members of the Quinault spawning in this system (Craig Olds, upstream to the Merwin Dam (WDFW Indian Tribe (Willoughby, 1889; Olson, Cowlitz Indian Tribe, personal and ODFW, 2008; Anderson, 2009). 1936). Fish were typically taken in the communication, April 22, 2011). In the Larval eulachon have also been caught ocean surf but often ascended the river past, spawned out eulachon adults have in the East Fork of the Lewis River, up for several miles (Olson, 1936). Olson been collected in the Cowlitz River near to the confluence with Mason Creek, 9.2 (1936) reported that there was usually a the mouth of the Toutle River. But the km (5.7 mi) from the confluence with large run of eulachon in the Quinault recent surveys provide the first evidence the mainstem of the Lewis River River every three or four years, and the of spawning in the Toutle River. The (Cowlitz Indian Tribe, 2011). The run timing varied, usually occurring Cowlitz Tribe biologists captured capture of larval eulachon in the between January and April. The eulachon larvae in the Toutle River up mainstem and east fork of the Lewis Washington Department of Fisheries to the bridge crossing at Tower Road, River indicates that these areas contain annual report for 1960 (Starlund, 1960) which is 10.5 km (6.6 mi) upstream the spawning and incubation, and listed commercial eulachon landings in from the confluence with the Cowlitz migration corridor essential features. the Quinault River in 1936, 1940, 1953, River. We consider this recent Merwin Dam, completed in 1931, is 1958 and 1960. The commercial catches information as the best available 240 feet high and currently presents a ranged from a low of 61 kg (135 lbs.) in indicating that this area contains the passage barrier to all anadromous fish, 1960, to a high of 42,449 kg (93,387 lbs.) spawning and incubation, and migration including eulachon (LCFRB, 2004d). We in 1953. corridor essential features for eulachon. are unable to find information to Nearly half of the watershed lies (13) Kalama River, WA: The Kalama determine whether eulachon ascended within Olympic National Park, under River basin is a 531 km2 (205 mi2) the river beyond river km 31.4 (river mi the jurisdiction of the National Park watershed extending from the southwest 19.5) prior to construction of the dam. Service, while the Quinault Indian slopes of Mount St. Helens to the However, Merwin Dam was built in an reservation comprises about one third Columbia River (LCFRB, 2004e). The area where the Lewis River became (32 percent) of the watershed, including headwaters of the Kalama River begin in constricted, with increased gradient and most of the area downstream of Lake Skamania County, WA, but the majority higher water velocities. Prior to dam Quinault (Quinault Indian Nation and of the 72 km (45 mi) of river flows construction this area was likely a U.S. Forest Service, 1999). The U.S. within Cowlitz County. At river km 16 natural passage barrier for eulachon. For Forest Service manages 13 percent of (river mi 10), a concrete barrier dam and this reason, the area upstream of the the watershed, and private landholdings fish ladder prevent upstream movement current Merwin Dam site was not comprise only 4 percent of the lands in of all anadromous fishes with the considered for inclusion as critical the watershed (Smith and Caldwell, exception of summer steelhead and habitat. 2001). spring Chinook salmon (LCFRB, 2004c). (15) Quinault River, WA: The (16) Elwha River, WA: The Elwha The extent of spawning within the headwaters of the Quinault River River mainstem is approximately 72 km Kalama River is from the confluence originate in the Olympic Mountains (45 mi) long, and it drains 831 km2 (321 with the Columbia River to the within Olympic National Park. The river mi2) of the Olympic Peninsula. A confluence with Indian Creek (Cowlitz then crosses into the Quinault Indian majority of the drainage (83 percent) is Indian Tribe, 2011), indicating that this Reservation where it flows into Lake within Olympic National Park (Elwha- area contains the spawning and Quinault. Downstream of the lake, the Dungeness Planning Unit, 2005). The incubation, and migration corridor Quinault River remains within the historical condition of the river has been

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altered by two major hydroelectric the westernmost seaward extremity of one or more of the following: Stream developments: The Elwha Dam and the the mouth). Our regulations state that hydrology; water level and flow; water Glines Canyon Dam (located just ‘‘[e]ach critical habitat will be defined temperature; dissolved oxygen; erosion upstream of the Elwha Dam). by specific limits using reference points and sediment input/transport; physical In 2005, eulachon were observed in and lines as found on standard habitat structure; vegetation; soils; the Elwha River for the first time since topographic maps of the area’’ (50 CFR nutrients and chemicals; fish passage; the 1970s (Shaffer et al., 2007). Since 424.12 (c)). The COLREGS lines (where and estuarine/marine prey resources. 2005, adult eulachon have been defined) were chosen as the In the following paragraphs, we captured in the Elwha River every year downstream extent of freshwater and describe the potential effects of certain (2006–2010) (Lower Elwha Tribe, 2010). estuarine critical habitat because they activities on essential physical or Several of the fish captured in 2005 are a clearly defined federal standard, biological features, and we summarize were ripe (egg-extruding) females, separating marine and inland waters, the occurrence of these activities in the indicating that eulachon likely spawn in which incorporates landmarks that are specific areas in Table 1 below the Elwha River (Shaffer et al., 2007). found on standard topographic maps. (examples of activities that may require The Elwha Dam serves as a complete special management considerations for barrier to upstream fish migration, and Occupied Areas Not Designated at This each of the specific areas are listed in thus it is reasonable to assume that the Time the Eulachon Biological Report (NMFS, spawning and incubation, and migration In the Pacific Ocean, we identified 2011b)). This is not an exhaustive list of corridor essential features only extend nearshore and offshore foraging sites as potential effects, but rather a description to that point in the Elwha River. It is not an essential habitat feature for the of the primary concerns and potential known if eulachon ascended the Elwha conservation of eulachon, and we effects that we are aware of at this time River beyond the present site of the determined that abundant forage species and that should be considered in the Elwha Dam prior to construction. and suitable water quality are specific analysis of these activities under section However, the dam was built in an area components of this habitat feature. 7 of the ESA. where the Elwha River became However, we were unable to identify (1) Dams and Water Diversions: constricted, with increased gradient and any specific areas in marine waters that Physical structures associated with higher water velocities. Prior to dam meet the definition of critical habitat dams and water diversions may impede construction this area was likely a under section 3(5)(A)(i) of the ESA. or delay passage of eulachon. The natural passage barrier for eulachon. For Given the unknown, but potentially operation of dams and water diversions this reason, the area upstream of the wide, distribution of eulachon prey may also affect water flow, water quality current Elwha Dam site was not items, we could not identify ‘‘specific parameters, substrate quality, and considered for inclusion as critical areas’’ where either component of the depth, and further compromise the habitat. As part of a comprehensive essential features is found within ability of adult eulachon to reproduce restoration of the watershed’s ecosystem marine areas believed to be occupied by successfully. Optimum flow and and its fisheries, the Elwha and Glines eulachon. Moreover, prey species move temperature requirements for spawning Canyon dams were acquired by the or drift great distances throughout the and incubation are unclear, but effects Federal Government in 2000 and their ocean and would be difficult to link to on water flow and associated effects on removal began in September 2011. any ‘‘specific’’ areas. water quality (e.g., water temperature) All Areas: We delineated each and substrate composition may affect Special Management Considerations specific area as extending from the adult spawning activity, egg viability, mouth of the river or creek (or its Physical or biological features meet and larval growth, development, and associated estuary when applicable) the definition of critical habitat if they survival. Many uncertainties remain upstream to a fixed location. We ‘‘may require special management about how large-scale hydropower delineated the upstream extent based on considerations or protection.’’ Joint development (e.g., the Federal Columbia evidence of eulachon spawning or NMFS and USFWS regulations at 50 River Power System) affects eulachon presence, or the presence of an CFR 424.02(j) define ‘‘special habitat. impassable barrier. The boundary at the management considerations or (2) Dredging: Dredging activities, mouth of each specific area that flows protection’’ to mean ‘‘any methods or which include the disposal of dredged directly into marine waters was defined procedures useful in protecting physical material, may affect depth, sediment by the demarcation lines which and biological features of the quality, water quality, and prey delineate ‘‘those waters upon which environment for the conservation of resources for eulachon. Dredging and mariners shall comply with the listed species.’’ We identified a number the in-river disposal of dredged material International Regulations for Preventing of activities that may affect the physical may remove, and/or alter the Collisions at Sea, 1972 (72 COLREGS) and biological features essential to the composition of, substrate materials at and those waters upon which mariners southern DPS of eulachon such that the dredge site, as well as bury them at shall comply with the Inland Navigation special management considerations or the disposal site (potentially altering the Rules’’ (33 CFR 80.01). For those protection may be required. Major quality of substrate for use as a specific areas that do not have a categories of such activities include: (1) spawning site). In addition, dredging COLREGS line delineated, the boundary Dams and water diversions; (2) dredging operations and disposal of dredged at the mouth of those specific areas was and disposal of dredged material; (3) in- materials may result in the re- defined as a line drawn from the water construction or alterations; (4) suspension and spread of contaminated northernmost seaward extremity of the pollution and runoff from point and sediments, which may adversely affect mouth of the creek or river to the non-point sources; (5) tidal, wind, or eulachon migration and spawning, as southernmost seaward extremity of the wave energy projects; (6) port and well as larval growth and development. mouth (with the exception of the shipping terminals; and (7) habitat The effects of dredging and disposal boundary at the mouth of the Elwha restoration projects. All of these activities on critical habitat would River, which was defined as a line activities may have an effect on one or depend on factors such as the location, drawn from the easternmost seaward more of the essential physical and seasonality, scale, frequency, and extremity of the mouth of the river to biological features via their alteration of duration of these activities.

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(3) In-water Construction or projects generally require energy activities. Although the primary Alterations: This category consists of a generating equipment and supporting purpose of these activities is to improve broad range of activities associated with structures to be anchored on the bottom. natural habitats for the benefit of native in-water structures or activities that However, there are a wide range of species, these activities nonetheless alter habitat within rivers, estuaries, and designs currently being tested and modify the habitat and need to be coastal marine waters. The primary potential impacts of individual projects evaluated to ensure that they do not concerns are with activities that may will vary depending on the type of unit adversely affect the habitat features affect water quality, water flow, being deployed. Projects are typically essential to eulachon. While habitat sediment quality, substrate composition, proposed for location in coastal marine restoration activities would be or migratory corridors. Activities that waters or coastal estuaries. Some encouraged as long as they promote the may affect water quality include the designs may result in physical conservation of the species, project installation of in-water structures (such structures that impede or delay passage modifications in the form of spatial and as pilings) with protective coatings of eulachon. In addition, construction temporal restrictions may be required as containing chemicals that may leach and maintenance of these energy a result of this designation. into the water. Activities that affect projects may require in-water flow, sediment quality and substrate construction or alterations, which Unoccupied Areas composition include those that result in would include the potential effects increased erosion and sedimentation described above. Section 3(5)(A)(ii) of the ESA (such as road maintenance and (6) Port and Shipping Terminals: The authorizes the designation of ‘‘specific construction, bridge construction, operation of port and shipping terminals areas outside the geographical area construction of levees and other flood poses the risk of leaks, spills, or occupied at the time [the species] is control devices, construction or repair pipeline breakage and may affect water listed’’ if these areas are essential for the of breakwaters, docks, piers, pilings, quality. Vessel ballast water conservation of the species. Regulations bulkheads, and boat ramps) and those management (including the introduction at 50 CFR 424.12(e) emphasize that the that directly alter substrates (such as of competitors or parasites) may also agency ‘‘shall designate as critical sand and gravel mining or gravel affect water quality. In addition, habitat areas outside the geographical augmentation). Activities that may affect activities associated with the area presently occupied by a species migratory corridors include the construction, operation, and only when a designation limited to its construction of in-water structures, such maintenance of port and shipping present range would be inadequate to as docks, piers, pilings, and ramps. terminals may affect water quality, ensure the conservation of the species.’’ (4) Pollution and Runoff: The sediment quality, and prey resources for Nearly all of the documented discharge of pollutants and runoff from larval eulachon. For example, dredging historical and current presence and point and non-point sources (including operations and in-water and shoreline but not limited to: Industrial discharges, construction activities associated with production of the southern DPS of urbanization, grazing, agriculture, road the construction and operation of port eulachon comes from within the surfaces, road construction, and forestry and shipping terminals may result in geographical area occupied by the operations) may adversely affect the increased erosion and sedimentation, southern DPS at the time of listing, and water quality, sediment quality, and increased turbidity, and the re- no new information on this subject was substrate composition of eulachon suspension of contaminated sediments. received during the comment and peer critical habitat. Exposure to (7) Habitat Restoration Projects: review process of the Proposed Critical contaminants may disrupt eulachon Habitat restoration activities are efforts Habitat Designation (76 FR 515; January spawning migration patterns, and high undertaken to improve habitat, and can 5, 2011). Sightings of southern DPS concentrations may be lethal to young include the installation of fish passage eulachon from creeks or rivers outside fish (Smith and Saalfeld, 1955). structures and fish screens, in-stream of this area have been extremely Excessive runoff may increase turbidity barrier modification, bank stabilization, infrequent, and have consisted of very and alter the quality of spawning installation of instream structures (e.g., few fish (Gustafson et al., 2010). substrates. engineered log jams), placement of Therefore, we are not considering any (5) Tidal, Wind, or Wave Energy gravel, planting of riparian vegetation, unoccupied areas as critical habitat for Projects: Tidal, wind, or wave energy and many other habitat-related the DPS.

TABLE 1—SUMMARY OF OCCUPIED SPECIFIC AREAS THAT CONTAIN THE PHYSICAL OR BIOLOGICAL FEATURES ESSENTIAL TO THE CONSERVATION OF THE SOUTHERN DPS OF EULACHON [The river miles containing the essential physical and biological features present, and activities that may affect the essential features and neces- sitate the need for special management considerations or protection within each area are listed. DAM = dams and water diversions; DR = dredging and disposal of dredged material; CON = in-water construction or alterations, including channel modifications/diking; POLL = pollution and runoff from point and non-point sources; ENER = tidal energy or wave energy projects; PORT = operation of port and shipping terminals; REST = habitat restoration projects.]

River Specific area kilometers/ Physical or biological features Activities miles

(1) Mad River, CA ...... 21.0/13.0 Migration, Spawning ...... DAM, CON, POLL (2) Redwood Creek, CA ...... 19.7/12.2 Migration, Spawning ...... CON, POLL (3) Klamath River, CA ...... 17.2/10.7 Migration, Spawning ...... DAM, DR, CON, POLL (4) Umpqua River, OR ...... 39.0/24.2 Migration, Spawning ...... DAM, DR, POLL (5) Tenmile Creek, OR ...... 0.4/0.2 Migration, Spawning ...... CON, POLL (6) Sandy River, OR ...... 20.0/12.4 Migration, Spawning ...... DAM, CON, POLL (7) Columbia River, OR and WA ...... 230.5/143.2 Migration, Spawning ...... DAM, DR, CON, POLL, ENER, PORT, REST (8) Skamokawa Creek ...... 7.8/4.8 Migration, Spawning ...... CON, POLL

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TABLE 1—SUMMARY OF OCCUPIED SPECIFIC AREAS THAT CONTAIN THE PHYSICAL OR BIOLOGICAL FEATURES ESSENTIAL TO THE CONSERVATION OF THE SOUTHERN DPS OF EULACHON—Continued [The river miles containing the essential physical and biological features present, and activities that may affect the essential features and neces- sitate the need for special management considerations or protection within each area are listed. DAM = dams and water diversions; DR = dredging and disposal of dredged material; CON = in-water construction or alterations, including channel modifications/diking; POLL = pollution and runoff from point and non-point sources; ENER = tidal energy or wave energy projects; PORT = operation of port and shipping terminals; REST = habitat restoration projects.]

River Specific area kilometers/ Physical or biological features Activities miles

(9) Grays River, WA ...... 17.9/11.1 Migration, Spawning ...... DAM, DR, CON, POLL (10) Elochoman River, WA ...... 8.4/5.2 Migration, Spawning ...... CON, POLL (11) Cowlitz River, WA ...... 80.8/50.2 Migration, Spawning ...... DAM, DR, CON, POLL, PORT, REST (12) Toutle River ...... 10.5/6.6 Migration, Spawning ...... DAM, CON, POLL (13) Kalama River, WA ...... 12.6/7.8 Migration, Spawning ...... DAM, CON, POLL (14) Lewis River, WA ...... 31.1/19.3 Migration, Spawning ...... DAM, CON, POLL East Fork, Lewis River, WA ...... 9.2/5.7 Migration, Spawning ...... CON, POLL (15) Quinault River, WA ...... 4.8/3.0 Migration, Spawning ...... CON, POLL (16) Elwha River, WA ...... 7.6/4.7 Migration, Spawning ...... DAM, CON, POLL, REST

Military Lands available. In adopting this provision, information). Where we considered The ESA was amended by the Congress explained that, ‘‘[t]he impacts on Indian lands, however, we National Defense Authorization Act for consideration and weight given to any instead used a delineation of Fiscal Year 2004 (Pub. L. 108–136) to particular impact is completely within ‘‘particular’’ areas based on ownership address the designation of military the Secretary’s discretion.’’ H. R. Rep. or control of the area. Specifically, these lands as critical habitat. ESA section No. 95–1625, at 16–17 (1978). The particular areas consisted of occupied 4(a)(3)(B)(i) states: ‘‘The Secretary shall Secretary may not exclude an area from freshwater and estuarine areas that not designate as critical habitat any designation if exclusion will result in overlap with Indian lands. (We defined lands or other geographical areas owned the extinction of the species. Because Indian lands in accordance with our or controlled by the Department of the authority to exclude is discretionary, past practice, as described in the Defense, or designated for its use, that exclusion is not required for any area. Eulachon Section 4(b)(2) Report [NMFS, are subject to an integrated natural The first step in conducting an ESA 2011a].) This approach allowed us to resources management plan prepared section 4(b)(2) analysis is to identify the consider impacts and benefits under section 101 of the Sikes Act (16 ‘‘particular areas’’ to be analyzed. associated with Tribal land ownership U.S.C. 670a), if the Secretary determines Section 3(5) of the ESA defines critical and management by Indian Tribes. habitat as ‘‘specific areas,’’ while section in writing that such plan provides a Benefits of Designation benefit to the species for which critical 4(b)(2) requires the agency to consider habitat is proposed for designation.’’ certain factors before designating any The primary benefit of designation is Department of Defense lands do not ‘‘particular area.’’ Depending on the the protection afforded under the ESA overlap with, nor are adjacent to, any biology of the species, the section 7 requirement that all federal areas that we proposed for designation characteristics of its habitat, and the agencies ensure their actions are not as critical habitat for the southern DPS nature of the impacts of designation, likely to destroy or adversely modify so there are no known potential areas ‘‘specific’’ areas might be different from, designated critical habitat. This type of that would be removed from this final or the same as, ‘‘particular’’ areas. For benefit is sometimes referred to as an designation under ESA Section this designation, we analyzed two types incremental benefit because the 4(a)(3)(B)(i). of ‘‘particular’’ areas. Where we protections afforded to the species from considered economic impacts, and critical habitat designation are in Application of ESA Section 4(b)(2) weighed the economic benefits of addition to the requirement that all The foregoing discussion describes exclusion against the conservation federal agencies ensure their actions are the specific areas that fall within the benefits of designation, we used the not likely to jeopardize the continued ESA section 3(5) definition of critical same biologically based ‘‘specific’’ areas existence of the species. In addition, the habitat and are eligible for designation we had identified under section 3(5)(A). designation may enhance the as critical habitat. Specific areas eligible Specifically, these areas were the conservation of habitat by informing the for designation are not automatically occupied freshwater and estuarine areas public about areas and features designated as critical habitat. Section that contain the physical and biological important to species conservation. This 4(b)(2) of the ESA requires the Secretary features essential to the conservation of may help focus and contribute to to first consider the economic impact, the southern DPS of eulachon. Because conservation efforts for eulachon and impact on national security, and any upslope and upstream activities may their habitats. other relevant impact of designation. impact critical habitat, we chose to use With sufficient information, it may be The Secretary has the discretion to the watershed (specifically, individual possible to monetize these benefits of exclude an area from designation if he 5th field hydrologic units as designated designation by first quantifying the determines the benefits of exclusion by the U.S. Geological Survey) as our benefits expected from an ESA section (that is, avoiding the impact that would assessment area for economic impacts 7 consultation and translating that into result from designation) outweigh the (see the Eulachon Economic Analysis dollars. We are not aware, however, of benefits of designation based upon the Report [NMFS, 2011c] for definition of any available data to monetize the best scientific and commercial data the 5th field hydrologic units and more benefits of designation (e.g., estimates of

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the monetary value of the physical and survive and recover. Utilizing a Impacts of Designation biological features within specific areas diversity of stream/estuary sizes across Section 4(b)(2) of the ESA provides that meet the definition of critical a wide geographic area can be a useful that the Secretary shall consider ‘‘the habitat, or of the monetary value of strategy to buffer the species against economic impact, impact to national general benefits such as education and localized environmental catastrophes security, and any other relevant impact outreach). In an alternative approach (such as the Mount St. Helens eruption of specifying any particular area as that we have commonly used in the of May 18, 1980). For the above reasons, critical habitat.’’ The primary impact of past, we qualitatively assessed the we conclude that all of the specific areas a critical habitat designation stems from benefit of designation for each of the that we identified have a high the requirement under section 7(a)(2) of specific areas identified as meeting the conservation value. the ESA that federal agencies ensure definition of critical habitat for the There are many federal activities that their actions are not likely to result in southern DPS. Our qualitative occur within the specific areas that the destruction or adverse modification consideration began with an evaluation of critical habitat. Determining this of the conservation value of each area. could impact the conservation value of these areas. Regardless of designation, impact is complicated by the fact that We considered a number of factors to section 7(a)(2) contains the overlapping determine the conservation value of an federal agencies are required under section 7 of the ESA to ensure these requirement that federal agencies must area, including the quantity and quality ensure their actions are not likely to of physical or biological features, the activities are not likely to jeopardize the continued existence of the southern DPS jeopardize the species’ continued relationship of the area to other areas existence. The true impact of within the DPS, and the significance to of eulachon. For the specific areas designation is the extent to which the DPS of the population occupying designated as critical habitat, federal federal agencies modify their actions to that area. agencies are additionally required to To evaluate the quantity and quality ensure their actions are not likely to ensure their actions are not likely to of features of the specific areas, we adversely modify the critical habitat. In destroy or adversely modify the critical considered existing information on the order to conduct our economic analysis habitat of the species, beyond any consistency of spawning in each area, we grouped the potential federal modifications they would make because the typical size of runs in the area, and activities that may be subject to this of listing and the jeopardy requirement. the amount of habitat available to and additional protection into several broad Additional impacts of designation used by eulachon in the area. We found categories: Dams, water supply, include state and local protections that that eulachon habitat and habitat use agriculture, transportation, forest may be triggered as a result of the varies widely among the areas, and may management, mining, in-water designation. vary within the same area across construction and restoration, water In determining the impacts of different years. It is difficult to identify quality management/monitoring, and designation, we predicted the differences between the areas that could other activities. (The Eulachon incremental change in federal agency be driving variation in run size and Economic Analysis [NMFS, 2011c] actions as a result of critical habitat designation and the adverse frequency, and variation in habitat use. includes a detailed description of the modification prohibition, beyond the Eulachon spawn in systems as large as industry sectors associated with these changes predicted to occur as a result of the Columbia River (the largest river in activities). listing and the jeopardy provision. In the Pacific Northwest), and as small as The benefit of designating a particular Tenmile Creek (a watershed of critical habitat designations for salmon area depends upon the likelihood of a approximately 60 km2 [23 mi2]). While and steelhead (70 FR 52630; September section 7 consultation occurring in that some rivers consistently produce large 2, 2005) we considered the area and the degree to which a spawning runs of eulachon (e.g., the ‘‘coextensive’’ impact of designation, in consultation would yield conservation Columbia and Cowlitz Rivers), accordance with a Tenth Circuit Court benefits for the species. Based on past spawning can be sporadic in others (e.g. decision (New Mexico Cattle Growers Grays, Kalama, Sandy, and Quinault consultations for other migratory fish Association v. U.S. Fish and Wildlife Rivers). Still other areas, either species, we estimated that a total of 39 Service, 248 F.3d 1277 (10th Cir. 2001)). currently or in the past, produce small actions would require section 7 More recently, however, several courts yet consistent runs of eulachon (e.g., consultation annually within the (including the 9th Circuit Court of Tenmile Creek and Elwha River). particular areas designated as eulachon Appeals in Arizona Cattlegrowers v. Another factor we considered in critical habitat (NMFS, 2011c). The most Salazar, 606 F.3d 1160 (9th Cir. 2010); evaluating the conservation value of the common activity type subject to Homebuilders Association of Northern specific areas is the geographic consultation would be in-stream work California v. U.S. Fish and Wildlife, 616 distribution of the areas. Nearly the (estimated 13.3 consultations annually), F.3d 983 (9th Cir. 2010)) have approved entire production of eulachon in the followed by transportation projects an approach that examines only the conterminous United States originates (estimated 6.9 consultations annually) incremental impact of designation (see in the 16 specific areas we have and forest management (estimated 6.7 also: Cape Hatteras Access Preservation identified. These specific areas are consultations annually). A complete list Alliance v. Norton, 344 F. Supp. 2d widely distributed across the geographic of the estimated annual actions, divided 1080 (D.D.C. 2004)). In more recent extent of the DPS. Compared to salmon, by particular area, is included in the critical habitat designations, both NMFS steelhead, and other anadromous fishes, Eulachon Economic Analysis (NMFS, and the USFWS have considered the these relatively small areas historically 2011c). These activities have the incremental impact of critical habitat produced a very large biomass of potential to adversely affect water designation (for example, NMFS’ eulachon. The loss of any one of these quality, sediment quality, substrate designation of critical habitat for the areas could potentially leave a large gap composition, or migratory corridors for Southern DPS of green sturgeon (74 FR in the spawning distribution of the DPS, eulachon. Consultation would yield 52300; October 9, 2009); U.S. Fish and and the loss to eulachon production conservation benefits for the species by Wildlife’s designation of critical habitat could represent a significant impact on preventing or ameliorating such habitat for the Oregon chub (75 FR 11031; the ability of the southern DPS to effects. March 10, 2010)). Consistent with this

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more recent practice, we estimated the habitat. The greatest costs are associated water releases. This could change the incremental impacts of designation, with water supply, mining, and forest timing of energy production, with an beyond the impacts that would result management activities (see NMFS, associated decrease in revenue from from the listing and jeopardy provision. 2011c for more details). The lower Mad energy sales. We would expect any such To determine the impact of River and Columbia River—Hayden decreases to be small because the effect designation, we examined what the state Island 5th field hydrologic units have would be to change the timing of energy of the world would be with and without the largest estimated annual impacts production and not the total amount of the designation of critical habitat for ($63,500 and $32,200), due to mining energy produced. eulachon. The ‘‘without critical habitat’’ activities and water supply activities, Without conducting a complete scenario represents the baseline for the respectively (NMFS, 2011c). For 5th analysis on a specific project, it is analysis. It includes process field hydrologic units other than the difficult to evaluate the extent to which requirements and habitat protections lower Mad River and Columbia River— NMFS might recommend changes in already afforded eulachon under its Hayden Island, we estimate the any of these activities to avoid federal listing or under other Federal, incremental impacts of critical habitat destroying or adversely modifying state, and local regulations. Such designation would be less than $31,000/ critical habitat. Any changes required regulations include protections afforded year. solely to avoid destroying or adversely eulachon habitat from other co- For the second category of impacts, modifying critical habitat would be an occurring ESA listings and critical we identified three areas where critical impact of designation. habitat designations, such as for Pacific habitat designation for eulachon might Impacts to National Security salmon and steelhead (70 FR 52630; result in modifications to activities September 2, 2005), North American beyond those already resulting from the Department of Defense lands or green sturgeon (74 FR 52300; October 9, ESA listing of eulachon. Although we related activities do not overlap with, 2009), and bull trout (75 FR 63898; could not quantify the economic nor are adjacent to, any areas that we October 18, 2010) (see the Eulachon impacts, we anticipate these costs proposed for designation as critical Economic Analysis (NMFS, 2011c) for would be small, for the reasons habitat for the southern DPS. Thus, we examples of protections for other described below. did not identify any direct impacts to species that would benefit eulachon). (1) Disposal of dredge material in the national security for any of the specific The ‘‘with critical habitat’’ scenario Lower Columbia River. Eulachon areas that we have designated as critical describes the incremental impacts spawning habitat has the potential to be habitat. associated specifically with the modified by the disposal of dredge Other Relevant Impacts—Impacts to designation of critical habitat for material in the Lower Columbia River, Tribal Sovereignty and Self-Governance eulachon. The primary impacts of particularly if material is disposed in We identified three rivers with areas critical habitat designation we found shallow water. If we conclude that under consideration for critical habitat were: (1) The additional administrative disposing of dredge material in shallow designation that overlap with Indian effort of including a eulachon critical water could destroy or adversely modify lands—the Elwha and Quinault Rivers habitat analysis in section 7 critical habitat, the USACE or the party in Washington, and the Klamath River consultations, (2) the project seeking disposal may need to find in California (eulachon do not ascend modifications required solely to avoid alternative disposal sites, thereby into the Oregon portion of the Klamath destruction or adverse modification of incurring additional project costs. River). The federally-recognized Tribes eulachon critical habitat, and (3) the Because disposal of dredge material in (74 FR 40218; August 11, 2009) perception of Indian Tribes that shallow water is already quite limited in potentially affected are the Lower Elwha designation of Indian lands is an the Lower Columbia River and its cost Tribe, the Quinault Tribe, the Yurok unwarranted intrusion into Tribal is already relatively high, requiring Tribe, and the Resighini Rancheria. In sovereignty and self-governance. another disposal method may have minimal added costs. addition to the economic impacts Economic Impacts (2) Elwha River Dam removal. described above, designating these To quantify the economic impact of Removal of the Elwha and Glines Tribes’ Indian lands would have an designation, we employed the following Canyon dams on the Elwha River began impact on federal policies promoting three steps: in September 2011. Because protections Tribal sovereignty and self-governance. (1) Define the geographic study area are already in place (as a result of an The longstanding and distinctive for the analysis, and identify the units ESA section 7 consultation) to reduce relationship between the Federal and of analysis (the ‘‘particular areas’’). In the impact of the project on salmonid Tribal governments is defined by this case, we defined 5th field habitat, consideration of eulachon treaties, statutes, executive orders, hydrologic units that encompass critical habitat is unlikely to result in judicial decisions, and agreements, occupied stream reaches as the study recommendations to change the project. which differentiate Tribal governments area. (3) Mayfield Dam flow regime. As from the other entities that deal with, or (2) Identify potentially affected outlined in the eulachon final listing are affected by, the U.S. Government. economic activities and determine how determination (75 FR 13012; March 18, This relationship has given rise to a management costs may increase due to 2010), dams and water diversions are special federal trust responsibility the designation of eulachon critical moderate threats to eulachon in the involving the legal responsibilities and habitat, both in terms of project Columbia River Basin. To benefit obligations of the United States toward administration and project modification. salmon and steelhead species, Tacoma Indian Tribes with respect to Indian (3) Estimate the economic impacts Power Company currently follows a lands, Tribal trust resources, and the associated with these changes in flow regime for Mayfield Dam on the exercise of Tribal rights. Pursuant to management. Cowlitz River. If we conclude the these authorities, lands have been We estimated a total annualized existing flow regime could destroy or retained by Indian Tribes or have been incremental administrative cost of adversely modify eulachon critical set aside for Tribal use. These lands are approximately $512,000 for designating habitat, Tacoma Power Company may managed by Indian Tribes in accordance the 16 specific areas as eulachon critical need to change the timing or amount of with Tribal goals and objectives within

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the framework of applicable treaties and can through coercive methods (61 FR particular area, estimated economic laws. Executive Order 13175, 63854; December 2, 1996). impacts range from $13,600 to $63,500. Consultation and Coordination with Section 10(a)(1)(B) of the ESA We consider all 16 particular areas Indian Tribal Governments, outlines the authorizes us to issue to non-federal meeting the definition of critical habitat policies and the responsibilities of the entities a permit for the incidental take to have a high conservation value and Federal Government in matters affecting of endangered and threatened species. a high benefit of designation. When we Tribal interests (recently confirmed by This permit allows a non-federal listed eulachon as a threatened species Presidential Memorandum; 74 FR landowner to proceed with an activity we cited, among other reasons, the 57879; November 9, 2009). In addition that is legal in all other respects, but present or threatened destruction, to Executive Order 13175, we have that results in the incidental taking of a modification, or curtailment of its Department of Commerce policy listed species (i.e., take that is incidental habitat. Identified threats to eulachon direction, via Secretarial Order 3206, to, and not the purpose of, the carrying habitat include climate-induced change stating that Indian lands shall not be out of an otherwise lawful activity). The to freshwater habitats; dams and water designated as critical habitat, nor areas ESA specifies that an application for an diversions (particularly in the Columbia where the ‘‘Tribal trust resources * * * incidental take permit must be and Klamath Rivers); and degraded or the exercise of Tribal rights’’ will be accompanied by a conservation plan, water quality. Designating these areas as impacted, unless such lands or areas are and specifies the content of such a plan. critical habitat enhances our ability to determined ‘‘essential to conserve a The purpose of such an HCP is to address some of these threats through listed species.’’ In such cases we ‘‘shall describe and ensure that the effects of section 7 consultations and through evaluate and document the extent to the permitted action on covered species public outreach and education. We which the conservation needs of the are adequately minimized and concluded that the economic benefits of listed species can be achieved by mitigated, and that the action does not excluding each particular area do not designating only other lands.’’ appreciably reduce the likelihood of the outweigh the conservation benefits of Designation would also have impacts survival and recovery of the species. designating each particular area as In previous critical habitat to NMFS’ relationship with the affected critical habitat, given the following designations, we have exercised Tribes. In the decision Center for considerations: (1) The economic discretion to exclude some (but not all) Biological Diversity, v. Norton, 240 F. impact of designating all areas is small lands covered by an HCP from Supp. 2d 1090 (D. Ariz. 2003), the court (not more than $63,500 for any designation (e.g., for Pacific salmon (70 held that a positive working particular area); (2) eulachon are likely FR 52630; September 2, 2005)), after relationship with Indian Tribes is a to become endangered in the foreseeable concluding that benefits of exclusion future; (3) threats to freshwater habitat relevant impact that can be considered outweighed the benefits of designation. were a primary concern leading to our when weighing the relative benefits of a For lands covered by an HCP, the decision to list the species as critical habitat designation. We benefits of designation typically arise threatened; (4) there are a limited contacted the governments of each of from section 7 protections as well as number of spawning areas available the potentially affected Tribes to enhanced public awareness. The throughout the coast-wide range of determine what impact a critical habitat benefits of exclusion generally include eulachon; (5) the conservation value of designation on Indian lands would have relieving regulatory burdens on existing each area is high; and (6) designation on the working relationship between conservation partners, maintaining good enhances the ability of a section 7 NMFS and the Tribes. All four advised working relationships with them (thus consultation to protect the habitat us via e-mail that they would view enhancing implementation of existing through the identification of areas of critical habitat designation on their HCPs), and encouraging the particular concern and through the lands as an unwanted intrusion, which development of new partnerships. added protection of the adverse would have a negative impact on Tribal There are two landowners with modification provision. sovereignty and self-governance and on conservation agreements that overlap HCP Exclusions the relationship between the Tribe and areas we are designating as critical the agency. This response was habitat for the southern DPS of The conservation benefits of consistent with responses NMFS has eulachon; the Green Diamond Timber designating lands covered by an HCP received from Indian Tribes in past Company (covering the company’s are the same as the benefits of designations (for example, the operations in northern California, designating other lands, which are designation of critical habitat for 12 including portions of the Klamath public notice and the protection that ESUs of West Coast salmon and River), and the Humboldt Bay arises from the ESA section 7 steelhead (70 FR 52630; September 2, Municipal Water District (covering their requirement that Federal agencies 2005)). operations in the Mad River, California). ensure their actions do not adversely Other Relevant Impacts—Impacts to modify that habitat. Where an HCP Balancing Benefits of Designation covers the species in question, or a Landowners With Contractual Against Benefits of Exclusion Commitments to Conservation species with similar distribution and A final ESA section 4(b)(2) report habitat needs, these benefits might be Conservation agreements with non- (NMFS 2011a) describes in detail our reduced somewhat because the federal landowners (e.g., HCPs) enhance approach to weighing the benefit of landowner is already aware of the species conservation by extending designation against the benefit of importance of the habitat, and because species’ protections beyond those exclusion. The results of our analysis the HCP might already protect the available through section 7 contained in this report are summarized habitat beyond the section 7 consultations. We have encouraged non- below. requirements. federal landowners to enter into In the case of eulachon there are two conservation agreements, based on a Economic Exclusions HCPs that overlap with the proposed view that we can achieve greater As described above, the economic critical habitat in the Klamath and Mad species’ conservation on non-federal benefits of excluding particular areas are Rivers. We estimate that annually, 0.3 land through such partnerships than we small, totaling about $512,000. For each forest management actions in the

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Klamath River, and 0.2 water supply Balanced against these benefits of modifications would likely benefit actions in the Mad River, will require exclusion, a benefit of designating the eulachon habitat as well by limiting ESA section 7 consultations as a result Indian lands would be to achieve the runoff which can adversely affect water of this critical habitat designation. We added protection from ESA section 7’s quality, sediment quality, and substrate rated these areas as having a high critical habitat provisions for these composition. conservation value. The primary benefit specific areas, all of which have been Exclusion of the portion of the of designation is thus the protection determined to have a high conservation Quinault River that runs through Tribal afforded these high conservation areas value. The benefit of designating a lands would have the benefit of in a section 7 consultation. particular area depends on the promoting federal policies regarding Regarding the benefits of excluding likelihood of section 7 consultation Tribal sovereignty and self-governance these areas, we have considered two occurring in the area and the degree to (e.g., Executive Order 13175). It would primary impacts of designating critical which consultation would yield also have the benefit of promoting a habitat on lands covered by an HCP. conservation benefits for the species. positive relationship between NMFS The first is the additional cost incurred This protection would apply to all and the Tribe (in accordance with in an ESA section 7 consultation, either federal activities, which we expect Secretarial Order 3206), with a very an administrative cost or the cost of would include dam operations, water small reduction in the benefits of having to change the action to avoid supply, forest management, instream designation (primarily the loss of adverse modification of the habitat. In construction, mining, agriculture, water section 7 consultation to consider this case the administrative costs are quality, transportation projects, and adverse modification of critical habitat small for each specific area, and even habitat restoration. As described above, on 4.8 km (3 mi) of stream habitat). The smaller for the lands covered by the ESA section 7 consultations for Federal current FMP provides some protection HCPs, which represent only a portion of actions on Indian lands would still need for eulachon habitat and will provide a two specific areas. The second potential to consider whether the action structure for future coordination and impact of designation is the effect on jeopardized the continued existence of communication between the Quinault our relationship with the landowner. In the species, and Federal actions on non- Tribe, USFWS, and NMFS. For these past designations, some landowners Indian lands may still need to consider reasons, we conclude that the benefits of have indicated that they welcome designated critical habitat elsewhere in exclusion outweigh the benefits of designation, while others have opposed the watershed, thus some of the benefits designation. Lower Elwha Tribal Lands. Indian designation and expressed the view that of a section 7 consultation could still lands of the Lower Elwha Tribe overlap designation will harm their relationship apply even if the Indian lands were with approximately 2.3 km (1.4 mi), or with us and affect implementation of excluded. Another benefit of designation would 29 percent, of the areas occupied by the HCP. In the latter case, the benefit be to educate the public about the eulachon in the Elwha River. As of exclusion may therefore be a importance of these Indian lands to explained above, federal agencies would conservation benefit to the species. In eulachon conservation. Because these still need to consult on the effects of the present designation, we contacted are not public or private lands, and their actions on areas designated as both HCP holders. Neither requested because the Tribes themselves are critical habitat elsewhere in the basin. that their lands be excluded from keenly aware of the importance of their Exclusion of the portion of the lower critical habitat or otherwise indicated lands to eulachon conservation, we Elwha River that runs through Tribal that a designation of eulachon critical consider the education benefit of lands would have the benefit of habitat on their land would affect our designating these Indian lands to be promoting federal policies regarding relationship or their implementation of low. Tribal sovereignty and self-governance the HCP. Given that fact, we determined Quinault Indian Nation Lands. (e.g., Executive Order 13175). It would that our working relationship with the Although the lands of the Quinault also have the benefit of promoting a HCP holders would not be significantly Indian Nation encompass most of the positive relationship between NMFS impacted by this critical habitat area occupied by eulachon in the and the Tribe (in accordance with designation, thus the benefit of Quinault River, activities that occur on Secretarial Order 3206), with a very exclusion based on effects to a non-Indian lands would still require small reduction in the benefits of relationship do not outweigh the ESA section 7 consultation to consider designation (i.e., primarily, the loss of benefits of designation. adverse modification of critical habitat. section 7 consultation to consider Indian Lands Exclusions The Quinault Tribe has completed a adverse modification of critical habitat). Forest Management Plan (FMP), on For these reasons, we conclude that the The eulachon critical habitat Section which the USFWS prepared a benefits of exclusion outweigh the 4(b)(2) report (NMFS, 2011a) details our programmatic biological opinion. The benefits of designation. consideration of excluding Indian lands FMP takes into account significant Resighini Rancheria Lands. Indian in this critical habitat designation. The restrictions on in-water construction lands of the Resighini Rancheria overlap discussion here summarizes that activities imposed by the State of with approximately 0.5 km (0.3 mi), or consideration. Washington (USFWS, 2003; Washington 3 percent, of the areas occupied by The designation of critical habitat for State Law, Chapter 77.55). Project eulachon in the Klamath River. eulachon on Indian lands would have modifications included in the biological Exclusion of these Rancheria lands an impact on federal policies promoting opinion for the FMP include would have the benefit of promoting Tribal sovereignty and self-governance. requirements that in-water or near- federal policies regarding Tribal It would also have an impact on the stream activities may only be conducted sovereignty and self-governance. It relationship between NMFS and each of during specific timeframes outlined in would also foster a positive relationship the Tribes because of their perception the FMP, construction of new roads is between NMFS and the Tribe, with a that designation is an intrusion on to be minimized ‘‘to the maximum very small reduction in the benefits of Tribal sovereignty and self-governance. extent practicable,’’ and construction of designation (primarily the loss of ESA The benefit of excluding Indian lands fill roads is allowable only when section 7 consultation to consider would be to avoid these impacts. absolutely necessary. These project adverse modification of critical habitat).

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For these reasons, we conclude that the have economic benefits. It is difficult to area occupied by the southern DPS of benefits of exclusion outweigh the quantify those impacts (and eulachon. The designated critical benefits of designation. corresponding benefits) for Indian lands habitat areas contain one or more of the Yurok Tribal Lands. The boundaries on the Elwha River and the Klamath physical or biological features essential of the Yurok Indian Reservation River because Tribal lands do not to the conservation of the species that encompass the entire 17.5 km (10.9 mi) encompass the entire area that is being may require special management of the areas occupied by eulachon in the considered for designation for these two considerations or protection. We are Klamath River. However, land rivers. Some types of actions on non- excluding from designation all lands of ownership within the reservation Indian lands in these watersheds could the Lower Elwha Tribe, Quinault Tribe, boundary includes a mixture of Federal, affect areas that are not excluded from Yurok Tribe and Reshigini Rancheria, state, Tribal, and private ownerships. designation. Therefore, an ESA section upon a determination that the benefits Exclusion from critical habitat 7 consultation for non-Indian lands of exclusion outweigh the benefits of designation would only apply to Indian would still need to consider the effects designation (NMFS, 2011a). We lands. Federal agencies would still need on critical habitat. Administrative costs conclude that the exclusion of these to consult on the effects of their actions of designation would still be incurred, areas will not result in the extinction of on areas designated as critical habitat along with any costs associated with the southern DPS because the overall elsewhere in the basin. project modifications. The Quinault percentage of critical habitat on Indian As managers of the Klamath River Tribe’s lands encompass nearly the lands is so small (approximately 5% of fisheries and their resources, the Tribe entire watershed of the specific area the total are designated), and it is likely oversees and protects fish and fish identified as critical habitat on the that eulachon production on these lands habitat through various land and water Quinault River, thus exclusion would represents a very small percent of the management practices, plans, and relieve nearly all of the administrative total annual production for the DPS. We cooperative efforts. Tribal forest costs of considering effects of actions on have not identified any unoccupied practices and land management are the specific area. We estimated a total areas that are essential to conservation, guided by a Forest Management Plan annualized incremental administrative and thus we have not designated any (FMP), a primary objective of which is cost of approximately $512,000 for unoccupied areas as critical habitat at to protect and enhance Tribal trust designating all 16 specific areas as this time. fisheries. The Tribe has an established eulachon critical habitat. The exclusion Lateral Extent of Critical Habitat water quality control plan on the of Indian Lands from critical habitat Reservation (Yurok Tribe, 2004) with designation would decrease the total We describe the lateral extent of standards that have been approved by annualized incremental administrative critical habitat as the width of the the Environmental Protection Agency cost by at least $24,700. With Indian stream channel defined by the ordinary (EPA). In conjunction with Federal, Lands excluded, the total annualized high water line, as defined by the state, and private partners, the Yurok incremental administrative cost of USACE in 33 CFR 329.11. The ordinary Tribe has initiated a large-scale, designating eulachon critical habitat high water line on non-tidal rivers is coordinated watershed restoration effort would be no greater than $487,300. defined as ‘‘the line on the shore in the Lower Klamath sub-basin to established by the fluctuations of water protect and improve instream, Extinction Risk Due to Exclusions and indicated by physical intertidal, and floodplain habitats that Section 4(b)(2) of the ESA limits our characteristics such as a clear, natural support viable, self-sustaining discretion to exclude areas from line impressed on the bank; shelving; populations of native fishes. More designation if exclusion will result in changes in the character of soil; recently, the Yurok Tribe fisheries extinction of the species. The destruction of terrestrial vegetation; the program has started monitoring overwhelming majority of production presence of litter and debris, or other eulachon to determine their current for the southern DPS of eulachon occurs appropriate means that consider the abundance and distribution in the in the Columbia River (and tributaries) characteristics of the surrounding areas’’ Klamath River. and the Fraser River in Canada (33 CFR 329.11(a)(1)). In areas for which Exclusion of Yurok Tribal lands in the (Gustafson et al., 2010). While the ordinary high-water line has not Klamath River basin from critical abundance estimates are not available been defined pursuant to 33 CFR habitat designation would have the for the three rivers (Quinault, Elwha, 329.11, we define the width of the benefit of promoting federal policies and Klamath) that overlap Indian lands, stream channel by its bankfull elevation. regarding Tribal sovereignty and self- the runs on these rivers are believed to Bankfull elevation is the level at which governance. It would also have the be very small (Gustafson et al., 2010) water begins to leave the channel and benefit of promoting a positive and likely contribute only a small move into the floodplain (Rosgen, 1996) relationship between NMFS and the fraction to the total DPS abundance. and is reached at a discharge which Tribe. The current forest management Because the overall percentage of generally has a recurrence interval of 1 and water quality control plans provide critical habitat on Indian lands is small to 2 years on the annual flood series some protection for eulachon habitat and the likelihood that eulachon (Leopold et al., 1992). and will provide a structure for future production on these lands represents a As discussed in previous critical coordination and communication very small percent of the total annual habitat designations for Pacific salmon between the Yurok Tribe and NMFS. production for the DPS, we conclude and steelhead (70 FR 52630; September For these reasons, we conclude that the that exclusion will not result in 2, 2005) and North American green benefits of exclusion outweigh the extinction of the southern DPS of sturgeon (74 FR 52300; October 9, 2009), benefits of designation. eulachon. the quality of aquatic and estuarine All Indian lands. Although economic habitats within stream channels and impacts were not considered in our Critical Habitat Designation bays and estuaries is intrinsically decision to exclude Indian lands from We are designating approximately 539 related to the adjacent riparian zones critical habitat designation, designation km (335 mi) of riverine and estuarine and floodplain, to surrounding wetlands of these lands would have economic habitat in California, Oregon, and and uplands, and to non-fish-bearing impacts, and exclusion would therefore Washington within the geographical streams above occupied stream reaches.

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Human activities that occur outside of formal consultation has been completed, involved in or receives benefits from a designated critical habitat can destroy or if those actions may affect designated federal project. For example, private adversely modify the essential physical critical habitat. entities may have special use permits to and biological features within these Activities subject to the ESA section convey water or build access roads areas. In addition, human activities 7 consultation process include activities across federal land; they may require occurring within and adjacent to on federal lands and activities on federal permits to construct irrigation reaches upstream or downstream of private or state lands requiring a permit withdrawal facilities, or build or repair designated stream reaches or estuaries from a federal agency (e.g., a Clean docks; they may obtain water from can also destroy or adversely modify the Water Act, Section 404 dredge or fill federally funded and operated irrigation essential physical and biological permit from USACE) or some other projects; or they may apply pesticides features of these areas. This designation federal action, including funding (e.g., that are only available with federal will help to ensure that federal agencies Federal Highway Administration agency approval. These activities will are aware of these important habitat funding for transportation projects). need to be evaluated with respect to linkages. ESA section 7 consultation is not their potential to destroy or adversely required for federal actions that do not modify critical habitat for eulachon. Effects of Critical Habitat Designation affect listed species or critical habitat Changes to some activities, such as the Section 7(a)(2) of the ESA requires and for actions on non-Federal and operations of dams and dredging federal agencies to insure that any private lands that are not federally activities, may be necessary to minimize action authorized, funded, or carried out funded, authorized, or carried out. or avoid destruction or adverse by the agency (agency action) does not Activities That May Be Affected modification of designated critical jeopardize the continued existence of habitat. Transportation and utilities any threatened or endangered species or ESA section 4(b)(8) requires in any sectors may need to modify the destroy or adversely modify designated final regulation to designate critical placement of culverts, bridges, and critical habitat. When a species is listed habitat an evaluation and brief utility conveyances (e.g., water, sewer, or critical habitat is designated, federal description of those activities (whether and power lines) to avoid barriers to fish agencies must consult with NMFS on public or private) that may adversely migration. Developments (e.g., marinas, any agency actions to be conducted in modify such habitat or that may be residential, or industrial facilities) an area where the species is present and affected by such designation. A wide occurring in or near streams, estuaries, that may affect the species or its critical variety of activities may affect the or marine waters designated as critical habitat. During consultation, we designated critical habitat and may be habitat that require federal authorization evaluate the agency action to determine subject to the ESA section 7 or funding may need to be altered or whether the action may adversely affect consultation process when carried out, built in a manner to ensure that critical listed species or critical habitat and funded, or authorized by a federal habitat is not destroyed or adversely issue our findings in a biological agency. These include water and land modified as a result of the construction opinion or concurrence letter. If we management actions of federal agencies or subsequent operation of the facility. conclude in the biological opinion that (e.g., U.S. Forest Service (USFS), Bureau Questions regarding whether specific the agency action would likely result in of Land Management (BLM), USACE, activities will constitute destruction or the destruction or adverse modification U.S. Bureau of Reclamation (BOR), adverse modification of critical habitat of critical habitat, we would also Natural Resource Conservation Service should be directed to NMFS (see recommend any reasonable and prudent (NRCS), National Park Service (NPS), ADDRESSES and FOR FURTHER alternatives to the action. Reasonable Bureau of Indian Affairs (BIA), the INFORMATION CONTACT). and prudent alternatives (defined in 50 Federal Energy Regulatory Commission CFR 402.02) are alternative actions (FERC), and the Nuclear Regulatory Information Quality Act and Peer identified during formal consultation Commission (NRC)) and related or Review that can be implemented in a manner similar federally-regulated projects and The data and analyses supporting this consistent with the intended purpose of activities on federal lands, including action have undergone a pre- the action, that are consistent with the hydropower sites licensed by the FERC; dissemination review and have been scope of the federal agency’s legal nuclear power sites licensed by the determined to be in compliance with authority and jurisdiction, that are NRC; dams built or operated by the applicable information quality economically and technologically USACE or BOR; timber sales and other guidelines implementing the feasible, and that would avoid the vegetation management activities Information Quality Act (IQA) (Section destruction or adverse modification of conducted by the USFS, BLM and BIA; 515 of Pub. L. 106–554). In December critical habitat. irrigation diversions authorized by the 2004, the Office of Management and Regulations at 50 CFR 402.16 require USFS and BLM; and road building and Budget (OMB) issued a Final federal agencies that have retained maintenance activities authorized by the Information Quality Bulletin for Peer discretionary involvement or control USFS, BLM, NPS, and BIA. Other Review pursuant to the IQA. The over an action, or where such actions of concern include dredging and Bulletin was published in the Federal discretionary involvement or control is filling, mining, diking, and bank Register on January 14, 2005 (70 FR authorized by law, to reinitiate stabilization activities authorized or 2664). The Bulletin established consultation on previously reviewed conducted by the USACE, habitat minimum peer review standards, a actions in instances where: (1) Critical modifications authorized by the Federal transparent process for public habitat is subsequently designated; or Emergency Management Agency, and disclosure of peer review planning, and (2) new information or changes to the approval of water quality standards and opportunities for public participation action may result in effects to critical pesticide labeling and use restrictions with regard to certain types of habitat not previously considered in the administered by the EPA. information disseminated by the Federal biological opinion. Consequently, some Private entities may also be affected Government. The peer review federal agencies may request re- by this critical habitat designation if a requirements of the OMB Bulletin apply initiation of a consultation or federal permit is required, if federal to influential or highly influential conference with us on actions for which funding is received, or the entity is scientific information disseminated on

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or after June 16, 2005. Two documents While this provides a reasonable percent of average annual revenues, supporting this designation of critical estimate of future activities that may depending on the industry. habitat for the southern DPS of eulachon require section 7 consultation, In accordance with the requirements are considered influential scientific differences in life history between of the RFA (as amended by SBREFA of information and subject to peer review. eulachon and other listed anadromous 1996) this analysis considered various These documents are the Eulachon fish species will likely result in alternatives to the critical habitat Biological Report (NMFS, 2011b) and differences in the number and type of designation for the southern DPS. The Eulachon Economic Analysis (NMFS, activities that trigger consultation for alternative of not designating critical 2011c). We distributed drafts of the eulachon. With these limitations in habitat for the southern DPS of eulachon Biological Report and Economic mind, we considered which of the was considered and rejected because Analysis for independent peer review potential economic impacts we such an approach does not meet the and have addressed comments received analyzed might affect small entities. legal requirements of the ESA and in developing the final drafts of the two These estimates should not be would not provide for the conservation reports. Both documents are available considered exact estimates of the of the southern DPS of eulachon. A on our Web site at http://www.nwr. impacts of potential critical habitat to second alternative of designating all noaa.gov/, or upon request (see individual businesses. potential critical habitat areas (i.e., no ADDRESSES). The impacts to small businesses were areas excluded) also was considered and assessed for the following eight broad rejected because for some areas the Classification categories of activities: Dams and water benefits of exclusion from designation Regulatory Flexibility Act (5 U.S.C. 601 supply, agriculture and grazing, outweighed the benefits of inclusion et seq.) transportation, forest management, (NMFS, 2011a). mining, in-water construction and As an alternative to designating all Under the Regulatory Flexibility Act restoration, water quality management/ potential critical habitat areas, NMFS (RFA) (5 U.S.C. 601 et seq., as amended monitoring (and other activities considered the alternative of designating by the Small Business Regulatory resulting in non-point pollution), and critical habitat within a subset of these Enforcement Fairness Act (SBREFA) of other activities. Small entities were areas (preferred alternative). Under 1996), whenever an agency publishes a defined by the Small Business section 4(b)(2) of the ESA, NMFS must notice of rulemaking it must prepare Administration size standards for each consider the economic impact, impacts and make available for public comment activity type. The majority on national security, and any other a regulatory flexibility analysis (approximately 97 percent) of entities relevant impact of specifying any describing the effects of the rule on affected within each specific area would particular area as critical habitat. The small entities (i.e., small businesses, be considered a small entity. A total of Secretary has the discretion to exclude small organizations, and small approximately 607 small businesses an area from designation as critical government jurisdictions). We have involved in the activities listed above habitat if the benefits of exclusion (i.e., prepared a final regulatory flexibility would most likely be affected by the the impacts that would be avoided if an analysis (FRFA), which is part of the critical habitat designation. Total area were excluded from the Economic Analysis (NMFS, 2011c). The annualized impacts to small entities are designation) outweigh the benefits of FRFA incorporates the Initial Regulatory conservatively assumed to be $510,000, designation (i.e., the conservation Flexibility Analysis (IRFA), which was or approximately 99.6 percent of total benefits to the southern DPS of part of the draft economic analysis that incremental impacts anticipated as a eulachon if an area were designated), as accompanied the proposed rule to result of this rule. long as exclusion of the area will not designate critical habitat. The FRFA also We estimated the annualized costs result in extinction of the species. We incorporates comments received on the associated with section 7 consultations prepared an analysis describing our IRFA and on the economic impacts of incurred per small business under two exercise of discretion, which is the rule generally. The results of the different scenarios. These scenarios are contained in our Final Section 4(b)(2) IRFA are summarized below. intended to provide a measure of the Report (NMFS, 2011a). Under this A statement of the need for and range of potential impacts to small preferred alternative we have excluded objectives of this final rule is provided entities given the level of uncertainty Indian lands in California and earlier in the preamble and is not referred to above. Under the first Washington from designation as critical repeated here. This final rule will not scenario the analysis estimated the habitat. This preferred alternative impose any recordkeeping or reporting number of small entities located within reduces the number of small businesses requirements. areas affected by this critical habitat potentially affected from 607 to At the present time, little information designation (approximately 607), and approximately 591, and the total exists regarding the cost structure and assumes that incremental impacts are potential annualized economic impact operational procedures and strategies in distributed evenly across all entities in to small businesses would be reduced the sectors that may be directly affected each affected industry. Under this from $510,000 to approximately by the critical habitat designation. In scenario, a small entity may bear costs $485,300. addition, given the short consultation up to $3,372, representing between history for eulachon, there is significant < 0.01 and 0.10 percent of average Executive Order 12866 uncertainty regarding the activities that revenues (depending on the industry). This rule has been determined to be may trigger an ESA section 7 Under the second scenario, the analysis not significant under E.O. 12866. consultation or how those activities may assumes the costs of each anticipated be modified as a result of consultation. future consultation are borne by a Executive Order 13211 In order to estimate the number and distinct small business most likely to be On May 18, 2001, the President issued activity type of future ESA section 7 involved in a section 7 consultation an executive order on regulations that consultations for eulachon, we relied on (approximately 39 entities). Under this significantly affect energy supply, the past consultation history for other scenario, each small entity may bear distribution, and use. E.O. 13211 anadromous fish species in watersheds costs of between $1,900 and $158,200, requires agencies to prepare Statements being designated as critical habitat. representing between 0.01 and 4.57 of Energy Effects when undertaking any

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action that promulgates or is expected to binding duty on non-Federal survival of the southern DPS of lead to the promulgation of a final rule Government entities or private parties. eulachon. or regulation that (1) is a significant Under the ESA, the only regulatory Coastal Zone Management Act regulatory action under E.O. 12866 and effect is that federal agencies must (2) is likely to have a significant adverse ensure that their actions do not destroy Section 307(c)(1) of the Federal effect on the supply, distribution, or use or adversely modify critical habitat Coastal Zone Management Act of 1972 of energy. under section 7. While non-federal (16 U.S.C. 1456) requires that all federal We have considered the potential entities which receive federal funding, activities that affect the land or water impacts of this action on the supply, assistance, permits or otherwise require use or natural resource of the coastal distribution, or use of energy and find approval or authorization from a federal zone be consistent with approved state the designation of critical habitat will agency for an action may be indirectly coastal zone management programs to not have impacts that exceed the impacted by the designation of critical the maximum extent practicable. We thresholds identified above (NMFS, habitat, the legally binding duty to have determined that this designation of 2011a). avoid destruction or adverse critical habitat is consistent to the maximum extent practicable with the Unfunded Mandates Reform Act (2 modification of critical habitat rests enforceable policies of approved Coastal U.S.C. 1501 et seq.) squarely on the federal agency. Furthermore, to the extent that non- Zone Management Programs of In accordance with the Unfunded federal entities are indirectly impacted California, Oregon, and Washington. Mandates Reform Act, NMFS makes the because they receive federal assistance Federalism following findings: or participate in a voluntary federal aid (a) This final rule will not produce a program, the Unfunded Mandates In accordance with Executive Order federal mandate. In general, a federal Reform Act would not apply; nor would 13132, we determined that this final mandate is a provision in legislation, critical habitat shift the costs of the large rule does not have significant federalism statute or regulation that would impose entitlement programs listed above to effects and that a federalism assessment an enforceable duty upon state, local, state governments. is not required. In keeping with Tribal governments, or the private sector Department of Commerce policies, we and includes both ‘‘federal (b) Due to the existing protection will continue to coordinate with intergovernmental mandates’’ and afforded to the critical habitat from appropriate state resource agencies in ‘‘federal private sector mandates.’’ existing critical habitat designations for California, Oregon, and Washington These terms are defined in 2 U.S.C. salmon and steelhead (70 FR 52630; regarding this critical habitat 658(5)–(7). ‘‘Federal intergovernmental September 2, 2005), Southern DPS of designation. The designation may have mandate’’ includes a regulation that green sturgeon (74 FR 52300; October 9, some benefit to state and local resource ‘‘would impose an enforceable duty 2009), and/or bull trout (70 FR 56212; agencies in that the areas and habitat upon State, local, or Tribal September 26, 2005), we do not features essential to the conservation of governments’’ with two exceptions. It anticipate that this final rule will the southern DPS of eulachon are excludes ‘‘a condition of federal significantly or uniquely affect small specifically identified. It may also assist assistance.’’ It also excludes ‘‘a duty governments. As such, a Small local governments in long-range arising from participation in a voluntary Government Agency Plan is not planning (rather than waiting for case- federal program,’’ unless the regulation required. by-case ESA section 7 consultations to ‘‘relates to a then-existing federal Takings occur). program under which $500,000,000 or more is provided annually to state, Under Executive Order 12630, federal Civil Justice Reform local, and Tribal governments under agencies must consider the effects of The Department of Commerce has entitlement authority,’’ if the provision their actions on constitutionally determined that this final rule does not would ‘‘increase the stringency of protected private property rights and unduly burden the judicial system and conditions of assistance’’ or ‘‘place caps avoid unnecessary takings of property. meets the requirements of sections 3(a) upon, or otherwise decrease, the Federal A taking of property includes actions and 3(b)(2) of Executive Order 12988. Government’s responsibility to provide that result in physical invasion or We are designating critical habitat in funding’’ and the state, local, or Tribal occupancy of private property, and accordance with the provisions of the governments ‘‘lack authority’’ to adjust regulations imposed on private property ESA. This final rule uses standard accordingly. (At the time of enactment, that substantially affect its value or use. property descriptions and identifies the these entitlement programs were: In accordance with E.O. 12630, this essential features within the designated Medicaid; Aid to Families with final rule does not have significant areas to assist the public in Dependent Children work programs; takings implications. A takings understanding the habitat needs of the Child Nutrition; Food Stamps; Social implication assessment is not required. southern DPS of eulachon. Services Block Grants; Vocational The designation of critical habitat Rehabilitation State Grants; Foster Care, affects only federal agency actions. We Paperwork Reduction Act of 1995 (44 Adoption Assistance, and Independent do not expect the critical habitat U.S.C. 3501 et seq.) Living; Family Support Welfare designation to impose additional This final rule does not contain new Services; and Child Support burdens on land use or affect property or revised information collection Enforcement.) values. Additionally, the critical habitat requirements for which Office of ‘‘Federal private sector mandate’’ designation does not preclude the Management and Budget (OMB) includes a regulation that ‘‘would development of Habitat Conservation approval is required under the impose an enforceable duty upon the Plans and issuance of incidental take Paperwork Reduction Act. This rule will private sector, except (i) a condition of permits for non-federal actions. Owners not impose recordkeeping or reporting federal assistance; or (ii) a duty arising of areas included within the critical requirements on state or local from participation in a voluntary federal habitat designation will continue to governments, individuals, businesses, or program.’’ The designation of critical have the opportunity to use their organizations. Notwithstanding any habitat does not impose a legally property in ways consistent with the other provision of the law, no person is

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required to respond to, nor shall any analysis has led us to exclude all Indian (1) Mad River, California. From the person be subject to a penalty for failure lands from designation as critical mouth of the Mad River (40°57′37″ N./ to comply with, a collection of habitat for the southern DPS of 124°7′36″ W.) upstream to the information subject to the requirements eulachon. confluence with the North Fork Mad of the PRA, unless that collection of River (40°52′32″ N./123°59′30″ W.). References Cited information displays a currently valid (2) Redwood Creek, California. From OMB Control Number. A complete list of all references cited the mouth of Redwood Creek (41°17′35″ ° ′ ″ National Environmental Policy Act of in this rulemaking can be found on our N./124 5 30 W.) upstream to the 1969 (NEPA) Web site at http://www.nwr.noaa.gov/ confluence with Tom McDonald Creek and is available upon request from the (41°12′25″ N./124°0′39″ W.). We have determined that an NMFS office in Portland, Oregon (see (3) Klamath River, California. From environmental analysis as provided for ADDRESSES.) the mouth of the Klamath River under NEPA is not required for critical (41°32′52″ N./124°4′58″ W.) upstream to List of Subjects in 50 CFR Part 226 habitat designations made pursuant to the confluence with Omogar Creek the ESA. See Douglas County v. Babbitt, Endangered and threatened species. (41°29′13″ N./123°57′39″ W.) 48 F.3d 1495 (9th Cir. 1995), cert. Dated: October 12, 2011. (4) Umpqua River, Oregon. From the denied, 116 S.Ct. 698 (1996). ° ′ ″ Samuel D. Rauch III, mouth of the Umpqua River (43 40 7 N./124°13′6″ W.) upstream to the Government-to-Government Deputy Assistant Administrator for Relationship With Tribes confluence with Mill Creek (43°39′20″ Regulatory Programs, National Marine ° ′ ″ Executive Order 13175, Consultation Fisheries Service. N./123 52 35 W.). and Coordination with Indian Tribal (5) Tenmile Creek, Oregon. From the For the reasons set out in the mouth of Tenmile Creek (44°13′34″ N./ Governments, outlines the preamble, part 226, title 50 of the Code ° ′ ″ responsibilities of the Federal 124 6 45 W.) upstream to the Highway of Federal Regulations is amended to 101 bridge crossing (44°13′27″ N./ Government in matters affecting Tribal read as follows: ° ′ ″ interests. If NMFS issues a regulation 124 6 35 W.). with Tribal implications (defined as PART 226—DESIGNATED CRITICAL (6) Sandy River, Oregon. From the having a substantial direct effect on one HABITAT confluence with the Columbia River or more Indian Tribes, on the upstream to the confluence with Gordon ° ′ ″ ° ′ ″ relationship between the Federal ■ 1. The authority citation of part 226 Creek (45 29 45 N./122 16 41 W.). Government and Indian Tribes, or on continues to read as follows: (7) Columbia River, Oregon and the distribution of power and Washington. From the mouth of the Authority: 16 U.S.C. 1533. ° ′ ″ ° ′ ″ responsibilities between the Federal Columbia River (46 14 48 N./124 4 33 Government and Indian Tribes) we must ■ 2. Add § 226.222, to read as follows: W.) upstream to Bonneville Dam ° ′ ″ ° ′ ″ consult with those governments or the (45 38 40 N./121 56 28 W.). Federal Government must provide funds § 226.222 Critical habitat for the southern (8) Grays River, Washington. From the Distinct Population Segment of eulachon confluence with the Columbia River necessary to pay direct compliance costs (Thaleichthys pacificus). incurred by Tribal governments. upstream to Covered Bridge Road Pursuant to Executive Order 13175 Critical habitat is designated for the (46°21′18″ N./123°34′52″ W.). and Secretarial Order 3206, we southern Distinct Population Segment of (9) Skamokawa Creek, Washington. consulted with the affected Indian eulachon (southern DPS) as described in From the confluence with the Columbia Tribes when considering the this section. The textual descriptions of River upstream to Peterson Road Bridge designation of critical habitat in an area critical habitat in this section are the (46°18′52″ N./123°27′10″ W.). that may impact Tribal trust resources, definitive source for determining the (10) Elochoman River, Washington. Tribally owned fee lands or the exercise critical habitat boundaries. The From the confluence with the Columbia of Tribal rights. All of the Tribes we overview maps are provided for general River upstream to Monroe Road bridge consulted expressed concern about the guidance only and not as a definitive crossing (46°13′33″ N./123°21′34″ W.). intrusion into Tribal sovereignty that source for determining critical habitat (11) Cowlitz River, Washington. From critical habitat designation represents. boundaries. In freshwater areas, critical the confluence with the Columbia River The Secretarial Order defines Indian habitat includes the stream channel and upstream to the Cowlitz Salmon lands as ‘‘any lands title to which is a lateral extent as defined by the Hatchery barrier dam (46°30′45″ N./ either: (1) Held in trust by the United ordinary high-water line (33 CFR 122°38′0″ W.). States for the benefit of any Indian Tribe 329.11). In areas where the ordinary (12) Toutle River, Washington. From or (2) held by an Indian Tribe or high-water line has not been defined, the confluence with the Cowlitz River individual subject to restrictions by the the lateral extent will be defined by the upstream to Tower Road Bridge United States against alienation.’’ Our bankfull elevation. Bankfull elevation is (46°20′4″ N./122°50′26″ W.). conversations with the Tribes indicate the level at which water begins to leave (13) Kalama River, Washington. From that they view the designation of Indian the channel and move into the the confluence with the Columbia River lands as an unwanted intrusion into floodplain and is reached at a discharge upstream to the confluence with Indian Tribal self-governance, compromising which generally has a recurrence Creek (46°2′22″ N./122°46′7″ W.). the government-to-government interval of 1 to 2 years on the annual (14) Lewis River, Washington. Lewis relationship that is essential to flood series. In estuarine areas, critical River mainstem, from the confluence achieving our mutual goal of conserving habitat includes tidally influenced areas with the Columbia River upstream to eulachon and other anadromous as defined by the elevation of mean Merwin Dam (45°57′24″ N./122°33′22″ species. higher high water. W.); East Fork of the Lewis River, from For the general reasons described in (a) Critical habitat boundaries. the confluence with the mainstem of the the Other Relevant Impacts—Impacts to Critical habitat is designated to include Lewis River upstream to the confluence Tribal Sovereignty and Self-Governance the following areas in California, with Mason Creek (45°50′13″ N./ section above, the ESA section 4(b)(2) Oregon, and Washington: 122°38′37″ W.).

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(15) Quinault River, Washington. (1) Freshwater spawning and available prey, supporting juveniles and From the mouth of the Quinault River incubation sites with water flow, quality adult survival. (47°20′58″ N./124°18′2″ W.) upstream to and temperature conditions and (c) Indian lands. Critical habitat does 47°19′58″ N./124°15′1″ W. substrate supporting spawning and not include any Indian lands of the (16) Elwha River, Washington. From incubation. following Federally-recognized Tribes (2) Freshwater and estuarine in the States of California, Oregon, and the mouth of the Elwha River (48°8′51″ migration corridors free of obstruction Washington: N./123°34′1″ W.) upstream to Elwha ° ′ ″ ° ′ ″ and with water flow, quality and (1) Lower Elwha Tribe, Washington; Dam (48 5 42 N./123 33 22 W.). temperature conditions supporting (2) Quinault Tribe, Washington; (b) Physical or biological features larval and adult mobility, and with (3) Yurok Tribe, California; and essential for conservation. The physical abundant prey items supporting larval (4) Resighini Rancheria, California. or biological features essential for feeding after the yolk sac is depleted. (d) Maps of critical habitat for the conservation of the southern DPS of (3) Nearshore and offshore marine southern DPS of eulachon follow: eulachon are: foraging habitat with water quality and BILLING CODE 3510–22–P

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[FR Doc. 2011–26950 Filed 10–19–11; 8:45 am] BILLING CODE 3510–22–C

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Part III

The President

Notice of October 19, 2011—Continuation of the National Emergency With Respect To Significant Narcotics Traffickers Centered In Colombia

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Federal Register Presidential Documents Vol. 76, No. 203

Thursday, October 20, 2011

Title 3— Notice of October 19, 2011

The President Continuation of the National Emergency With Respect To Significant Narcotics Traffickers Centered In Colombia

On October 21, 1995, by Executive Order 12978, the President declared a national emergency pursuant to the International Emergency Economic Powers Act (50 U.S.C. 1701–1706) to deal with the unusual and extraordinary threat to the national security, foreign policy, and economy of the United States constituted by the actions of significant narcotics traffickers centered in Colombia and the extreme level of violence, corruption, and harm such actions cause in the United States and abroad. Because the actions of significant narcotics traffickers centered in Colombia continue to threaten the national security, foreign policy, and economy of the United States and cause an extreme level of violence, corruption, and harm in the United States and abroad, the national emergency declared on October 21, 1995, and the measures adopted pursuant thereto to deal with that emergency, must continue in effect beyond October 21, 2011. Therefore, in accordance with section 202(d) of the National Emergencies Act (50 U.S.C. 1622(d)), I am continuing for 1 year the national emergency with respect to significant narcotics traffickers centered in Colombia. This notice shall be published in the Federal Register and transmitted to the Congress.

THE WHITE HOUSE, October 19, 2011. [FR Doc. 2011–27422 Filed 10–19–11; 2:00 pm] Billing code 3295–F2–P

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Reader Aids Federal Register Vol. 76, No. 203 Thursday, October 20, 2011

CUSTOMER SERVICE AND INFORMATION CFR PARTS AFFECTED DURING OCTOBER

Federal Register/Code of Federal Regulations At the end of each month the Office of the Federal Register General Information, indexes and other finding 202–741–6000 publishes separately a List of CFR Sections Affected (LSA), which aids lists parts and sections affected by documents published since Laws 741–6000 the revision date of each title. Presidential Documents 3 CFR 8 CFR Executive orders and proclamations 741–6000 Proclamations: Proposed Rules: The United States Government Manual 741–6000 8723...... 62283 100...... 61622 Other Services 8724...... 62285 216...... 61288 Electronic and on-line services (voice) 741–6020 8725...... 62287 245...... 61288 Privacy Act Compilation 741–6064 8726...... 62289 9 CFR Public Laws Update Service (numbers, dates, etc.) 741–6043 8727...... 62291 TTY for the deaf-and-hard-of-hearing 741–6086 8728...... 62293 77...... 61251, 61253 8729...... 62295 Proposed Rules: 8730...... 63529 71...... 62313, 63210 ELECTRONIC RESEARCH 8731...... 63531 77...... 62313, 63210 World Wide Web 8732...... 63803 78...... 62313, 63210 Full text of the daily Federal Register, CFR and other publications 8733...... 63805 90...... 62313, 63210 is located at: www.fdsys.gov. 8734...... 63807 121...... 61228, 62312 8735...... 63809 Federal Register information and research tools, including Public 10 CFR Inspection List, indexes, and links to GPO Access are located at: 8736...... 63999 www.ofr.gov. 8737...... 65095 50...... 63541 52...... 63541 E-mail 8738...... 65097 8739...... 65099 1021...... 63764 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is Executive Orders: Proposed Rules: an open e-mail service that provides subscribers with a digital 13585...... 62281 26...... 61625 form of the Federal Register Table of Contents. The digital form 13586...... 63533 50...... 63565 of the Federal Register Table of Contents includes HTML and 13587...... 63811 430 ...... 61999, 62644, 63211 PDF links to the full text of each document. Administrative Orders: 431...... 61288, 63566 To join or leave, go to http://listserv.access.gpo.gov and select Memorandums: 11 CFR Online mailing list archives, FEDREGTOC-L, Join or leave the list Memorandum of (or change settings); then follow the instructions. September 28, 104...... 61254 PENS (Public Law Electronic Notification Service) is an e-mail 2011 ...... 61247 109...... 61254 service that notifies subscribers of recently enacted laws. Presidential Proposed Rules: To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Determination No. 110...... 63567 and select Join or leave the list (or change settings); then follow 2011–17 of 111...... 63570 September 30, the instructions. 12 CFR FEDREGTOC-L and PENS are mailing lists only. We cannot 2011 ...... 62597 309...... 63817 respond to specific inquiries. Presidential Determination No. 310...... 63817 Reference questions. Send questions and comments about the 2011–18 of Proposed Rules: Federal Register system to: [email protected] September 30, 204...... 64250 The Federal Register staff cannot interpret specific documents or 2011 ...... 62599 210...... 64259 regulations. Notices: 1310...... 64264 Reminders. Effective January 1, 2009, the Reminders, including Notice of October 19, Rules Going Into Effect and Comments Due Next Week, no longer 2011 ...... 65355 13 CFR appear in the Reader Aids section of the Federal Register. This 108...... 63542 information can be found online at http://www.regulations.gov. 5 CFR 120...... 63151, 63542 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 1201...... 63537 123...... 63542 longer appears in the Federal Register. This information can be Proposed Rules: 125...... 63542 found online at http://bookstore.gpo.gov/. Ch. XXXVI ...... 63206 Proposed Rules: 121 ...... 61626, 62313, 63216, 6 CFR FEDERAL REGISTER PAGES AND DATE, OCTOBER 63510 Proposed Rules: 124...... 62313 61033–61248...... 3 31...... 62311 125...... 61626, 62313 61249–61554...... 4 126...... 62313 7 CFR 61555–61932...... 5 127...... 62313 61933–62280...... 6 6...... 63538 62281–62596...... 7 52...... 64001 14 CFR 62597–63148...... 11 319...... 63149 21...... 64229 63149–63536...... 12 906...... 61249 23...... 65101 63537–63816...... 13 985...... 61933 25 ...... 62603, 63818, 63822, 63817–64000...... 14 Proposed Rules: 63823, 65103, 65105 64001–64228...... 17 331...... 61228, 62312 39 ...... 61033, 61036, 61255, 64229–64780...... 18 810...... 61287 61555, 61558, 61559, 61561, 64781–65094...... 19 1435...... 64839 62605, 63156, 63159, 63161, 65095–65356...... 20 1700...... 63846 63163, 63167, 63169, 63172,

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63177, 64001, 64003, 64781, 26 CFR 241...... 62694 46 CFR 64785, 64788, 64791, 64793 1 ...... 61946, 64816, 65110 251...... 62694 108...... 62962 64795, 64798, 64801 301...... 62607 254...... 62694 117...... 62962 61...... 63183 602...... 61946, 61947 292...... 62694 133...... 62962 71 ...... 61257, 61258, 64233, 160...... 62962 64234, 64235, 64236, 65106 Proposed Rules: 38 CFR 1 ...... 62327, 62684, 63574, 164...... 62962 73...... 64003 64879, 65138 1...... 65133 180...... 62962 97 ...... 61038, 61040, 64005, 199...... 62962 64006 39 CFR 27 CFR Proposed Rules: Proposed Rules: 122...... 61052 160...... 62714 21...... 61999 Proposed Rules: 9...... 63852 Proposed Rules: 530...... 63581 25...... 63851 111...... 62000 531...... 63581 39 ...... 61633, 61638, 61641, 28 CFR 61643, 61645, 62321, 62649, 40 CFR 104...... 65112 47 CFR 62653, 62656, 62658, 62661, 2...... 64010 Ch. I ...... 62309 62663, 62667, 62669, 62671, 29 CFR 9...... 61566 62673, 63229, 63571, 64038, 52 ...... 61054, 61057, 62635, 20...... 63561 104...... 63188 64283, 64285, 64287, 64289, 62640, 63549, 64015, 64017, 32...... 61279 500–899...... 64237 64291, 64293, 64844, 64847, 64020, 64237, 64240, 64823, 52...... 61279 1952...... 63188, 63190 64849, 64851, 64854, 64857, 64825 61...... 61279, 61956 4022...... 63836 65136 81...... 64825 64 ...... 61279, 61956, 63561 43...... 64859 Proposed Rules: 82...... 61269 69...... 61279 71 ...... 63235, 64041, 64295 570...... 61289 93...... 63554 73...... 62642 579...... 61289 112...... 64245 Proposed Rules: 15 CFR 1...... 61295, 63257 30 CFR 180...... 61587, 61592 744...... 63184 271...... 62303 15...... 61655 922...... 63824 Ch. II ...... 64432 372...... 64022 54...... 64882 Ch. V...... 64432 721...... 61566 73...... 62330 16 CFR Proposed Rules: Proposed Rules: 2...... 63833 75...... 63238 2...... 64055 48 CFR 915...... 64043 1450...... 62605 51...... 64059 212...... 61279 926...... 64045, 64047 Proposed Rules: 52 ...... 61062, 61069, 61291, 247...... 61279 938...... 64048 Ch. II...... 62678, 64865 62002, 62004, 63251, 63574, 252...... 61279, 61282 1700...... 64042 31 CFR 63859, 63860, 64065, 64186, Proposed Rules: 64880, 64881 24...... 63896 17 CFR 1...... 62297 60...... 63878, 65138 52...... 63896 31...... 61046 12...... 63187 63...... 65138 211...... 64885 538...... 63191, 63197 Proposed Rules: 82...... 65139 215...... 61296, 64297 560...... 63191, 63197 229...... 63573 93...... 63575 225...... 61296, 64297 1060...... 62607 249...... 63573 97...... 63251, 63860 252 ...... 61296, 64297, 64885 Proposed Rules: 98...... 61293 9903...... 61660 19 CFR 1010...... 64049 112...... 64296 201...... 61937 174...... 61647 32 CFR 49 CFR 206...... 61937 180...... 61647 207...... 61937 211...... 65112 257...... 63252 18...... 61597 210...... 61937, 64803 1902...... 62630 261...... 63252 19...... 61597 351...... 61042 1909...... 64237 264...... 63252 Proposed Rules: 265...... 63252 236...... 63849 20 CFR 33 CFR 268...... 63252 Ch. X...... 63276 404...... 65107 100...... 62298, 63837 271...... 63252 1241...... 63582 408...... 65107 117 ...... 63839, 63840, 64009, 302...... 63252 416...... 65107 65118, 65120 50 CFR 41 CFR 422...... 65107 165 ...... 61259, 61261, 61263, 17 ...... 61599, 61956, 62722 61947, 61950, 62301, 63199, 301–11...... 63844 23...... 61978 21 CFR 63200, 63202, 63547, 63841, 226...... 65324 42 CFR Ch. I ...... 61565 64818, 64820 600...... 61985 165...... 64810 334...... 62631 110...... 62306 622 ...... 61284, 61285, 62309, 558...... 65109 Proposed Rules: Proposed Rules: 63563, 64248 1300...... 64813 100...... 63239 5...... 61294 648 ...... 61059, 61060, 61061, 1301...... 61563 117...... 63858 71...... 63891 61995, 62642 1304...... 64813 334...... 62692 73...... 61206 679 ...... 61996, 63204, 63564 1306...... 64813 417...... 63018 Proposed Rules: 36 CFR 1309...... 61563 422...... 63018 17 ...... 61298, 61307, 61321, 1311...... 64813 7...... 61266 423...... 63018 61330, 61482, 61532, 61782, Proposed Rules: 230...... 65121 483...... 63018 61826, 61856, 61896, 62016, 316...... 64868 1258...... 62632 62165, 62213, 62259, 62504, 44 CFR 870...... 64224 Proposed Rules: 62740, 62900, 62928, 63094, 212...... 62694 64...... 61954 63360, 63420, 63444, 63480, 25 CFR 214...... 62694 67...... 61279 63720, 64996 Proposed Rules: 215...... 62694 Proposed Rules: 622...... 65324 514...... 62684 218...... 62694 67 ...... 61070, 61295, 61649, 635...... 62331 523...... 63236 222...... 62694 62006, 62329 648...... 61661 571...... 63237 228...... 62694 206...... 61070 660...... 65155

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pamphlet) form from the H.R. 1632/P.L. 112–39 subscribe, go to http:// Superintendent of Documents, To designate the facility of the listserv.gsa.gov/archives/ LIST OF PUBLIC LAWS U.S. Government Printing United States Postal Service publaws-l.html Office, Washington, DC 20402 located at 5014 Gary Avenue This is a continuing list of (phone, 202–512–1808). The in Lubbock, Texas, as the Note: This service is strictly public bills from the current text will also be made ‘‘Sergeant Chris Davis Post for E-mail notification of new session of Congress which available on the Internet from Office’’. (Oct. 12, 2011; 125 have become Federal laws. It GPO’s Federal Digital System Stat. 400) laws. The text of laws is not may be used in conjunction (FDsys) at http://www.gpo.gov/ available through this service. Last List October 11, 2011 with ‘‘P L U S’’ (Public Laws fdsys. Some laws may not yet PENS cannot respond to Update Service) on 202–741– be available. specific inquiries sent to this 6043. This list is also address. available online at http:// H.R. 771/P.L. 112–38 Public Laws Electronic www.archives.gov/federal- To designate the facility of the Notification Service register/laws. United States Postal Service (PENS) located at 1081 Elbel Road in The text of laws is not Schertz, Texas, as the published in the Federal ‘‘Schertz Veterans Post PENS is a free electronic mail Register but may be ordered Office’’. (Oct. 12, 2011; 125 notification service of newly in ‘‘slip law’’ (individual Stat. 399) enacted public laws. To

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