Vol. 76 Monday, No. 205 October 24, 2011

Pages 65609–65926

OFFICE OF THE FEDERAL REGISTER

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Contents Federal Register Vol. 76, No. 205

Monday, October 24, 2011

Agriculture Department Education Department See Forest Service NOTICES NOTICES List of Correspondence, 65703–65704 Meetings: Privacy Act; Systems of Records, 65704–65706 Advisory Committee on Minority Farmers, 65681 Energy Department Antitrust Division See Energy Efficiency and Renewable Energy Office NOTICES See Federal Energy Regulatory Commission National Cooperative Research and Production Act: PROPOSED RULES DVD Copy Control Association, 65749 Assistance to Foreign Atomic Energy Activities, 65634 Tai and Southwest Research Institute, 65749 Energy Conservation Program for Consumer Products: Test Procedures for Residential Central Air Conditioners Centers for Disease Control and Prevention and Heat Pumps, 65616–65631 Energy Conservation Program: NOTICES Framework Document for General Service Fluorescent Meetings: Lamps and Incandescent Reflector Lamps, 65633– Advisory Committee on Childhood Lead Poisoning 65634 Prevention; Correction, 65728–65729 Test Procedures for Microwave Ovens, 65631–65633 Board of Scientific Counselors, National Institute for NOTICES Occupational Safety and Health, 65729 Meetings: Environmental Management Site-Specific Advisory Centers for Medicare & Medicaid Services Board, Savannah River Site, 65706–65707 RULES Medicare Program: Energy Efficiency and Renewable Energy Office Changes to the Ambulatory Surgical Centers Patient NOTICES Rights Conditions for Coverage, 65886–65890 Waivers from Commercial Package Air Conditioner and PROPOSED RULES Heat Pump Test Procedures: Medicare and Medicaid Programs: LG Electronics, Inc., 65707–65710 Reform of Hospital and Critical Access Hospital Waivers from Commercial Package Air Conditioner and Conditions of Participation, 65891–65908 Heat Pump Test Procedures; Amendments: Regulatory Provisions to Promote Program Efficiency, Mitsubishi Electric and Electronics USA, Inc., 65710– Transparency, and Burden Reduction, 65909–65926 65713

Coast Guard Environmental Protection Agency RULES PROPOSED RULES Safety Zones: New Source Performance Standards Review, 65653–65661 Brandon Road Lock and Dam to Lake Michigan, Chicago, NOTICES IL, 65609–65610 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Commerce Department Protection of Stratospheric Ozone; Critical Use See Foreign-Trade Zones Board Exemption from the Phaseout of Methyl Bromide, See International Trade Administration 65721–65722 See National Oceanic and Atmospheric Administration Meetings: Clean Air Scientific Advisory Committee, 65722–65723 Consumer Product Safety Commission NPDES General Permits; Proposed Reissuances: Facilities Related to Oil and Gas Extraction in the NOTICES Territorial Seas of Texas, 65723–65725 Meetings; Sunshine Act, 65701 Export-Import Bank Defense Department NOTICES NOTICES Agency Information Collection Activities; Proposals, Arms Sales Notification, 65701–65703 Submissions, and Approvals, 65725–65726 Department of Transportation Federal Aviation Administration See Pipeline and Hazardous Materials Safety NOTICES Administration Airport Improvement Program: Modifications to Benefit Cost Analysis Threshold, 65769– Drug Enforcement Administration 65772 NOTICES Petitions for Exemption; Summaries of Petitions Received, Importers of Controlled Substances; Registrations, 65749– 65772–65773 65750 Procedures for the Reallocation of Slots at Ronald Reagan Manufacturers of Controlled Substances; Registrations, Washington National and LaGuardia Airports, 65773– 65750 65775

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Federal Communications Commission Federal Trade Commission NOTICES NOTICES Meetings: Meetings; Sunshine Act, 65727–65728 Consumer Advisory Committee, 65726 Fish and Wildlife Service Federal Deposit Insurance Corporation NOTICES NOTICES Environmental Assessments; Availability, etc.: Updated Listing of Financial Institutions in Liquidation, Draft Habitat Conservation Plan, Lower Colorado River 65726–65727 Authority Transmission Services Corp., Central Texas, 65744–65745 Federal Emergency Management Agency NOTICES Food and Drug Administration Emergency Declarations: NOTICES Pennsylvania; Amendment No. 1, 65739 Agency Information Collection Activities; Proposals, Major Disaster Declarations: Submissions, and Approvals: Iowa; Amendment No. 3, 65739–65740 Health and Diet Survey, 65732 Pennsylvania; Amendment No. 3, 65740 Registration of Producers of Drugs and Listing of Drugs in Pennsylvania; Amendment No. 4, 65740 Commercial Distribution, 65730–65732 Request for Designation as Country Not Subject to the Federal Energy Regulatory Commission Restrictions Applicable to Human Food, etc., NOTICES Manufactured From Cattle, 65729 Combined Filings, 65713–65716 Temporary Marketing Permit Applications, 65729–65730 Effectiveness of Exempt Wholesale Generator Status: Waiver of In Vivo Demonstration of Bioequivalence of Michigan Wind 2, LLC; Bishop Hill Energy LLC; Bishop Animal Drugs in Soluble Powder Oral Dosage Form Hill Energy III LLC; et al., 65716–65717 Products, etc., 65733–65734 Environmental Assessments; Availability, etc.: Guidance for Industry; Availability: City of Broken Bow, OK, 65717–65718 Evaluating the Safety of Flood-affected Food Crops for Erie Boulevard Hydropower, LP, 65717 Human Consumption, 65734–65735 Filings: Implementation of Acceptable Abbreviated Donor History Western Area Power Administration, 65718 Questionnaire, etc., 65735 Initial Market-Based Rate Filings Including Requests for Meetings: Blanket Section 204 Authorizations: Oncologic Drugs Advisory Committee, 65736 Owings Corning Sales, LLC, 65718–65719 Psychopharmacologic Drugs Advisory Committee, 65736– South Chesnut, LLC, 65719 65737 Tenaska Power Management, LLC, 65718 Preliminary Permit Applications: Foreign-Trade Zones Board Wyco Power and Water, Inc., 65719–65720 NOTICES Preliminary Permit Drawings: Expansion of Foreign-Trade Zone 276, Kern County, CA, Lock+ Hydro Friends Fund XXXV and Riverbank Hydro 65683 No. 4, LLC, 65720 Reorganizations Under Alternative Site Framework: Requests Under Blanket Authorizations: Foreign-Trade Zone 205, Port Hueneme, CA, 65683– Kern River Gas Transmission Co., 65720–65721 65684

Federal Highway Administration Forest Service NOTICES NOTICES Environmental Impact Statements; Availability, etc.: Environmental Impact Statements; Availability, etc.: North Houston Highway Improvement Project, Harris Calumet Project Area, Black Hills National Forest, Mystic County, TX, 65775–65776 Ranger District, South Dakota, 65681–65683 Final Federal Agency Actions on Proposed Highway Project in Wisconsin, 65776–65777 General Services Administration NOTICES Federal Mine Safety and Health Review Commission Agency Information Collection Activities; Proposals, NOTICES Submissions, and Approvals: Meetings; Sunshine Act, 65727 Information Specific to a Contract or Contracting Action, 65728 Federal Railroad Administration NOTICES Health and Human Services Department Agency Information Collection Activities; Proposals, See Centers for Disease Control and Prevention Submissions, and Approvals, 65777–65778 See Centers for Medicare & Medicaid Services See Food and Drug Administration Federal Reserve System See National Institutes of Health NOTICES Changes in Bank Control: Homeland Security Department Acquisitions of Shares of a Bank or Bank Holding See Coast Guard Company, 65727 See Federal Emergency Management Agency Formations of, Acquisitions by, and Mergers of Bank See Transportation Security Administration Holding Companies, 65727 See U.S. Customs and Border Protection

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Housing and Urban Development Department Mine Safety and Health Federal Review Commission NOTICES See Federal Mine Safety and Health Review Commission Agency Information Collection Activities; Proposals, Submissions, and Approvals: National Aeronautics and Space Administration Inspector Candidate Assessment Questionnaire, 65742 NOTICES Limited English Proficiency Initiative Program Grant Aerospace Safety Advisory Panel; Charter Renewal, 65750– Application, 65742–65743 65751 Announcement of Funding Awards: Intent to Grant Exclusive Licenses, 65751 Capital Fund Education and Training Community International Space Station National Laboratory Advisory Facilities Program Fiscal Year 2011, 65743–65744 Committee; Charter Renewal, 65752 National Credit Union Administration Interior Department NOTICES See Fish and Wildlife Service Meetings; Sunshine Act, 65752 See Land Management Bureau National Highway Traffic Safety Administration Internal Revenue Service RULES PROPOSED RULES Final Theft Data; Motor Vehicle Theft Prevention Standard, Redetermination of the Consolidated Net Unrealized Built- 65610–65615 In Gain and Loss, 65634–65639 NOTICES National Institute of Corrections Request for Nominations: NOTICES Advisory Committee on Tax Exempt and Government Meetings: Entities, 65781 Advisory Board, 65750

International Trade Administration National Institutes of Health NOTICES NOTICES Antidumping Duty Administrative Reviews; Results, Meetings: Amendments, Extensions, etc.: Center for Scientific Review, 65738–65739 Wooden Bedroom Furniture from the People’s Republic National Human Genome Research Institute, 65738– of China, 65684–65694 65739 Antidumping Duty New Shipper Review; Results, National Institute of Allergy and Infectious Diseases, Amendments, Extensions, etc.: 65737–65738 Uncovered Innerspring Units from the People’s Republic National Institute of Arthritis and Musculoskeletal and of China, 65695–65696 Skin Diseases, 65737 Applications For Duty-Free Entry Of Electron Microscopes: National Institute on Deafness and Other Communication Battelle Energy Alliance, et al., 65696 Disorders, 65738 Non-Market Economy Antidumping Proceedings; Assessment of Antidumping Duties, 65694–65695 National Oceanic and Atmospheric Administration Request for Applicants: PROPOSED RULES United States–Brazil CEO Forum, 65696–65697 Atlantic Highly Migratory Species: Atlantic Shark Management Measures; Correction, 65673 International Trade Commission Fisheries of the Caribbean, Gulf of Mexico, and South NOTICES Atlantic: Determination to Conduct Full Five-Year Reviews: Coastal Migratory Pelagic Resources in the Gulf of Certain Pipe and Tube From Brazil, India, Korea, Mexico, Mexico and Atlantic Region; Amendment 18, 65662– Taiwan, Thailand, and Turkey, 65748 65673 Fisheries Off West Coast States: West Coast Salmon Fisheries; Salmon Fishery Judicial Conference of the United States Management Plan, Amendment 16, 65673–65680 NOTICES NOTICES Meetings: Applications: Judicial Conference Committee on Civil Rules; Marine Mammals; File No. 16685, 65697 Cancellation, 65749 Fisheries of the Northeastern U.S.: Atlantic Surfclam and Ocean Quahog Fisheries; 2012 Justice Department Cage Tags, 65697–65698 See Antitrust Division General Provisions for Domestic Fisheries: See Drug Enforcement Administration Application for Exempted Fishing Permit, 65698–65699 See National Institute of Corrections Meetings: See Parole Commission South Atlantic Fishery Management Council, 65699– 65700 Land Management Bureau Request for Nominations: NOTICES Advisory Panel for Atlantic Highly Migratory Species Environmental Impact Statements; Availability, etc.: Southeast Data, Assessment, and Review Workshops, Tule Wind Project, California, 65746–65747 65700–65701 Meetings: Alaska Resource Advisory Council, 65747–65748 National Science Foundation Farmington District Resource Advisory Council, New NOTICES Mexico, 65747 Antarctic Conservation Act Permit Modifications, 65752

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Permit Modification Issued under the Antarctic Transportation Department Conservation Act of 1978, 65752 See Federal Aviation Administration See Federal Highway Administration Nuclear Regulatory Commission See Federal Railroad Administration NOTICES See National Highway Traffic Safety Administration Draft Regulatory Guides: See Pipeline and Hazardous Materials Safety Monitoring the Effectiveness of Maintenance at Nuclear Administration Power Plants, 65753 See Transportation Security Administration Environmental Assessments; Availability, etc.: NOTICES Westinghouse Electric Co., LLC, Hematite Applications For Commuter Authority: Decommissioning Project, Festus, MO, 65753–65755 Friendship Airways, Inc. d/b/a Yellow Air Taxi, 65769

Parole Commission Transportation Security Administration NOTICES NOTICES Meetings; Sunshine Act, 65750 Agency Information Collection Activities; Proposals, Submissions, and Approvals: Pension Benefit Guaranty Corporation Employment Standards, 65740–65741 NOTICES Agency Information Collection Activities; Proposals, Treasury Department Submissions, and Approvals: See Internal Revenue Service Survey of Nonparticipating Single Premium Group NOTICES Annuity Rates, 65755–65756 Meetings: President’s Advisory Council on Financial Capability, Pipeline and Hazardous Materials Safety Administration 65780 NOTICES Agency Information Collection Activities; Proposals, U.S. Customs and Border Protection Submissions, and Approvals, 65778–65779 NOTICES Applications for Modification of Special Permits, 65779– Customs Brokers User Fee Payment for 2012, 65741–65742 65780 Revocation of Customs Broker Licenses, 65742 Postal Service PROPOSED RULES Veterans Affairs Department International Mail: NOTICES Product Rate and Fee Changes, 65639–65640 Meetings: New Standards for Domestic Mailing Services, 65640– Clinical Science Research and Development Service 65653 Cooperative Studies Scientific Evaluation Committee, NOTICES 65781 Privacy Act; Systems of Records, 65756–65758

Securities and Exchange Commission Separate Parts In This Issue PROPOSED RULES Registration of Security-Based Swap Dealers and Major Part II Security-Based Swap Participants, 65784–65884 Securities and Exchange Commission, 65784–65884 NOTICES Meetings; Sunshine Act, 65758 Part III Self-Regulatory Organizations; Proposed Rule Changes: Financial Industry Regulatory Authority, Inc., 65758– Health and Human Services Department, Centers for 65763 Medicare & Medicaid Services, 65886–65926 ICE Clear Credit LLC, 65763–65765 NASDAQ OMX PHLX LLC, 65767–65768 NASDAQ Stock Market LLC, 65765–65767 Reader Aids Suspension of Trading Orders: Consult the Reader Aids section at the end of this page for ADS Media Group, Inc., et al., 65768 phone numbers, online resources, finding aids, reminders, and notice of recently enacted public laws. Social Security Administration NOTICES To subscribe to the Federal Register Table of Contents Agency Self-Evaluation under Section 504 of the LISTSERV electronic mailing list, go to http:// Rehabilitation Act of 1973: listserv.access.gpo.gov and select Online mailing list Accessibility for Individuals With Disabilities, 65768– archives, FEDREGTOC-L, Join or leave the list (or change 65769 settings); then follow the instructions.

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CFR PARTS AFFECTED IN THIS ISSUE

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

10 CFR Proposed Rules: 430 (3 documents) ...... 65616, 65631, 65633 810...... 65634 17 CFR Proposed Rules: 240...... 65784 249...... 65784 26 CFR Proposed Rules: 1...... 65634 33 CFR 165 (2 documents) ...... 65609 39 CFR Proposed Rules: 20...... 65639 111...... 65640 40 CFR Proposed Rules: 60...... 65653 42 CFR 416...... 65886 Proposed Rules: Ch. IV...... 65909 482...... 65891 485...... 65891 49 CFR 541...... 65610 50 CFR Proposed Rules: 622...... 65662 635...... 65673 660...... 65673

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Rules and Regulations Federal Register Vol. 76, No. 205

Monday, October 24, 2011

This section of the FEDERAL REGISTER Michigan, telephone 414–747–7188, Dated: September 30, 2011. contains regulatory documents having general e-mail address [email protected]. M.W. Sibley, applicability and legal effect, most of which Captain, U.S. Coast Guard, Captain of the SUPPLEMENTARY INFORMATION: The Coast are keyed to and codified in the Code of Port, Sector Lake Michigan. Federal Regulations, which is published under Guard will enforce a segment of the 50 titles pursuant to 44 U.S.C. 1510. Safety Zone; Brandon Road Lock and [FR Doc. 2011–27374 Filed 10–21–11; 8:45 am] Dam to Lake Michigan including Des BILLING CODE 9110–04–P The Code of Federal Regulations is sold by Plaines River, Chicago Sanitary and the Superintendent of Documents. Prices of Ship Canal, Chicago River, Calumet- new books are listed in the first FEDERAL DEPARTMENT OF HOMELAND Saganashkee Channel, Chicago, IL, REGISTER issue of each week. SECURITY listed in 33 CFR 165.930, on all waters of the Chicago Sanitary and Ship Canal Coast Guard DEPARTMENT OF HOMELAND from Mile Marker 296.1 to Mile Marker SECURITY 296.7 at the following times: 33 CFR Part 165 (1) On October 31, 2011, from 7 a.m. Coast Guard until 11 a.m. and from 1 p.m. until [Docket No. USCG–2011–0228] 5 p.m. 33 CFR Part 165 (2) On November 1–4, 2011, from Safety Zone, Brandon Road Lock and [Docket No. USCG–2011–0228] 7 a.m. until 5 p.m. Dam to Lake Michigan including Des Plaines River, Chicago Sanitary and Safety Zone, Brandon Road Lock and (3) On November 7, 2011, from 7 a.m. Ship Canal, Chicago River, and Dam to Lake Michigan Including Des until 5 p.m. Calumet-Saganashkee Channel, Plaines River, Chicago Sanitary and (4) On November 8, 2011, from 6 a.m. Chicago, IL Ship Canal, Chicago River, and until 6 p.m. AGENCY: Coast Guard, DHS. Calumet-Saganashkee Channel, This enforcement action is necessary Chicago, IL because the Captain of the Port, Sector ACTION: Notice of enforcement of regulation. AGENCY: Coast Guard, DHS. Lake Michigan has determined that the U.S. Army Corps of Engineers’ dispersal SUMMARY: The Coast Guard will enforce ACTION: Notice of enforcement of barrier maintenance operations pose regulation. a segment of the Safety Zone; Brandon risks to life and property. The Road Lock and Dam to Lake Michigan SUMMARY: The Coast Guard will enforce combination of vessel traffic and the including Des Plaines River, Chicago a segment of the Safety Zone; Brandon maintenance operations in the water Sanitary and Ship Canal, Chicago River, Road Lock and Dam to Lake Michigan makes the controlling of vessels through Calumet-Saganashkee Channel on all including Des Plaines River, Chicago the impacted portion of the Chicago waters of the Chicago Sanitary and Ship Sanitary and Ship Canal, Chicago River, Sanitary and Ship Canal necessary to Canal from Mile Marker 296.1 to Mile Calumet-Saganashkee Channel on all prevent injury and property loss. Marker 296.7 at various times from waters of the Chicago Sanitary and Ship In accordance with the general November 10, 2011 until November 11, Canal from Mile Marker 296.1 to Mile regulations in § 165.23 of this part, entry 2011. This action is necessary to protect Marker 296.7 at various times from into, transiting, mooring, laying up or the waterways, waterway users, and October 31, 2011 until November 8, anchoring within the enforced area of vessels from hazards associated with the 2011. This action is necessary to protect this safety zone by any person or vessel U.S. Army Corps of Engineers’ the waterways, waterway users, and is prohibited unless authorized by the simultaneous operation of dispersal vessels from hazards associated with the Captain of the Port, Sector Lake barriers IIA and IIB. U.S. Army Corps of Engineers’ dispersal Michigan, or his or her designated During the enforcement period, entry barrier maintenance operations. representative. into, transiting, mooring, laying-up or During the enforcement period, entry This notice is issued under authority anchoring within the enforced area of into, transiting, mooring, laying-up or of 33 CFR 165.930 and 5 U.S.C. 552(a). this safety zone by any person or vessel anchoring within the enforced area of In addition to this notice in the Federal is prohibited unless authorized by the this safety zone by any person or vessel Register, the Captain of the Port, Sector Captain of the Port, Sector Lake is prohibited unless authorized by the Lake Michigan, will also provide notice Michigan, or his or her designated Captain of the Port, Sector Lake through other means, which may representative. Michigan, or his or her designated include, but are not limited to, DATES: The regulations in 33 CFR representative. Broadcast Notice to Mariners, Local 165.930 will be enforced from 7 a.m. to DATES: The regulations in 33 CFR Notice to Mariners, local news media, 11 a.m. and from 1 p.m. to 5 p.m. on 165.930 will be enforced at various distribution in leaflet form, and on- November 10–11, 2011. times between 7 a.m. on October 31, scene oral notice. FOR FURTHER INFORMATION CONTACT: If 2011 until 6 p.m. on November 8, 2011. Additionally, the Captain of the Port, you have questions on this notice, call FOR FURTHER INFORMATION CONTACT: If Sector Lake Michigan, may notify or e-mail CWO Jon Grob, Prevention you have questions on this notice, call representatives from the maritime Department, Coast Guard Sector Lake or e-mail CWO Jon Grob, Prevention industry through telephonic and e-mail Michigan, telephone 414–747–7188, Department, Coast Guard Sector Lake notifications. e-mail address [email protected].

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SUPPLEMENTARY INFORMATION: The Coast DEPARTMENT OF TRANSPORTATION In calculating the 2009 theft rates, Guard will enforce a segment of the NHTSA followed the same procedures it Safety Zone; Brandon Road Lock and National Highway Traffic Safety used in calculating the MY 2008 theft Dam to Lake Michigan including Des Administration rates. (For 2008 theft data calculations, Plaines River, Chicago Sanitary and see 76 FR 2598, January 14, 2011). As Ship Canal, Chicago River, Calumet- 49 CFR Part 541 in all previous reports, NHTSA’s data Saganashkee Channel, Chicago, IL, [Docket No. NHTSA–2011–0075] were based on information provided to listed in 33 CFR 165.930, on all waters NHTSA by the National Crime of the Chicago Sanitary and Ship Canal Final Theft Data; Motor Vehicle Theft Information Center (NCIC) of the from Mile Marker 296.1 to Mile Marker Prevention Standard Federal Bureau of Investigation. The NCIC is a government system that 296.7 at the following times: AGENCY: National Highway Traffic receives vehicle theft information from (1) On November 10–11, 2011, from Safety Administration (NHTSA), nearly 23,000 criminal justice agencies 7 a.m. until 11 a.m. and from 1 p.m. Department of Transportation. and other law enforcement authorities until 5 p.m. ACTION: Publication of 2009 final theft throughout the United States. The NCIC data. This enforcement action is necessary data also include reported thefts of self- because the Captain of the Port, Sector SUMMARY: This document publishes the insured and uninsured vehicles, not all Lake Michigan has determined that the final data on thefts of model year (MY) of which are reported to other data U.S. Army Corps of Engineers’ dispersal 2009 passenger motor vehicles that sources. barrier maintenance and simultaneous occurred in calendar year (CY) 2009. The 2009 theft rate for each vehicle operations of Barriers IIA and IIB pose The final 2009 theft data indicated a line was calculated by dividing the risks to life and property. The decrease in the vehicle theft rate number of reported thefts of MY 2009 combination of vessel traffic and the experienced in CY/MY 2009. The final vehicles of that line stolen during maintenance operations in the water theft rate for MY 2009 passenger calendar year 2009 by the total number makes the controlling of vessels through vehicles stolen in calendar year 2009 is of vehicles in that line manufactured for MY 2009, as reported to the the impacted portion of the Chicago 1.33 thefts per thousand vehicles, a Environmental Protection Agency Sanitary and Ship Canal necessary to decrease of 21.3 percent from the rate of (EPA). prevent injury and property loss. 1.69 thefts per thousand in 2008. Publication of these data fulfills The final 2009 theft data show a In accordance with the general NHTSA’s statutory obligation to decrease in the vehicle theft rate when regulations in § 165.23 of this part, entry periodically obtain accurate and timely compared to the theft rate experienced into, transiting, mooring, laying up or theft data and publish the information in CY/MY 2008. The final theft rate for anchoring within the enforced area of for review and comment. MY 2009 passenger vehicles stolen in this safety zone by any person or vessel DATES: Effective date: October 24, 2011. calendar year 2009 decreased to 1.33 is prohibited unless authorized by the FOR FURTHER INFORMATION CONTACT: Ms. thefts per thousand vehicles produced, Captain of the Port, Sector Lake Deborah Mazyck, Office of International a decrease of 21.3 percent from the rate Michigan, or his or her designated Policy, Fuel Economy and Consumer of 1.69 thefts per thousand vehicles representative. Programs, NHTSA, 1200 New Jersey experienced by MY 2008 vehicles in CY 2008. A similar decreasing trend in This notice is issued under authority Avenue, SE., Washington, DC 20590. vehicle thefts was reported in the of 33 CFR 165.930 and 5 U.S.C. 552(a). Ms. Mazyck’s telephone number is (202) Federal Bureau of Investigation’s (FBI) In addition to this notice in the Federal 366–4139. Her fax number is (202) 493– 2990. 2009 Uniform Crime Report showing a Register, the Captain of the Port, Sector 17% reduction in motor vehicle thefts Lake Michigan, will also provide notice SUPPLEMENTARY INFORMATION: NHTSA administers a program for reducing (automobiles, trucks, buses and other through other means, which may vehicles) from 2008 to 2009. include, but are not limited to, motor vehicle theft. The central feature of this program is the Federal Motor For MY 2009 vehicles, out of a total Broadcast Notice to Mariners, Local Vehicle Theft Prevention Standard, 49 of 239 vehicle lines, 11 lines had a theft Notice to Mariners, local news media, CFR part 541. The standard specifies rate higher than 3.5826 per thousand distribution in leaflet form, and on- performance requirements for inscribing vehicles, the established median theft scene oral notice. and affixing vehicle identification rate for MYs 1990/1991. (See 59 FR Additionally, the Captain of the Port, numbers (VINs) onto certain major 12400, March 16, 1994). Of the 11 Sector Lake Michigan, may notify original equipment and replacement vehicle lines with a theft rate higher representatives from the maritime parts of high-theft lines of passenger than 3.5826, 11 are passenger car lines, industry through telephonic and email motor vehicles. none are multipurpose passenger notifications. The agency is required by 49 U.S.C. vehicle lines, and none are light-duty 33104(b)(4) to periodically obtain, from truck lines. Dated: October 6, 2011. the most reliable source, accurate and NHTSA’s data show that the MY 2009 M.W. Sibley, timely theft data and publish the data theft rate reduction is consistent with Captain, U.S. Coast Guard, Captain of the for review and comment. To fulfill this the general decreasing trend of theft Port, Sector Lake Michigan. statutory mandate, NHTSA has rates over the past 16 years as indicated [FR Doc. 2011–27373 Filed 10–21–11; 8:45 am] published theft data annually beginning by Figure 1. The agency attributes this BILLING CODE 9110–04–P with MYs 1983/84. Continuing to fulfill theft rate reduction to the effectiveness the § 33104(b)(4) mandate, this of combined measures used by federal document reports the final theft data for agencies, law enforcement, vehicle CY 2009, the most recent calendar year manufacturers and the insurance for which data are available. industry to help combat vehicle theft.

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The agency believes that the theft rate In its comments, VW informed the Class. As a result of this correction, the reduction could be the result of several agency that the production volume for Mercedes-Benz CLS-Class, previously factors including the increased use of the Volkswagen Eos is incorrect. In not listed, is ranked No. 76 with a theft standard antitheft devices (i.e., response to this comment, the rate of 1.3065. immobilizers), vehicle parts marking, production volume for the Volkswagen As a result of changes in the theft increased and improved prosecution Eos has been corrected and the final ranking, reanalysis of the theft rate data efforts by law enforcement organizations theft data has been revised accordingly. revealed that the number of vehicle and increased public awareness As a result of the correction, the lines reported with a theft rate higher measures. Volkswagen Eos previously ranked No. than 3.5826 was incorrect. The 154 with a theft rate of 0.5230 is now publication of preliminary theft data for On Wednesday, June 22, 2011, ranked No. 155 with a theft rate of CY 2009 erroneously reported that there NHTSA published the preliminary theft 0.5229. were 10 passenger cars, no rates for CY 2009 passenger motor In its comments, Mercedes-Benz multipurpose passenger vehicle lines vehicles in the Federal Register (76 FR informed the agency that the production and no light-duty truck lines with theft 36486). The agency tentatively ranked volume for the Mercedes-Benz CL-Class rates higher than 3.5826. NHTSA is each of the MY 2009 vehicle lines in was incorrect. The production volume correcting the final theft data to reflect descending order of theft rate. The for the Mercedes-Benz CL-Class has that 11 passenger car lines, no public was requested to comment on the been corrected and the final theft data multipurpose passenger vehicle lines, accuracy of the data and to provide final has been revised accordingly. As a and no light truck lines had a theft rate production figures for individual result of this correction, the Mercedes- higher than 3.5826. vehicle lines. The agency used written Benz CL-Class previously ranked No. 41 The following list represents comments to make the necessary with a theft rate of 1.9589 is now ranked NHTSA’s final calculation of theft rates adjustments to its data. As a result of the No. 10 with a theft rate of 3.9124. for all 2009 passenger motor vehicle adjustments, some of the final theft rates Mercedes-Benz also informed the lines. This list is intended to inform the and rankings of vehicle lines changed agency that its CLS-Class vehicle line public of calendar year 2009 motor from those published in the June 2011 was not listed in the agency’s June 2011 vehicle thefts of model year 2009 notice. The agency received written publication of preliminary data. NHTSA vehicles and does not have any effect on comments from Volkswagen Group of is correcting the final theft data to the obligations of regulated parties America, Inc. (VW) and Mercedes-Benz include the thefts and production under 49 U.S.C. Chapter 331, Theft USA, LLC (Mercedes-Benz). volume for the Mercedes-Benz CLS- Prevention.

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FINAL REPORT OF THEFT RATES FOR MODEL YEAR 2009 PASSENGER MOTOR VEHICLES STOLEN IN CALENDAR YEAR 2009

2009 Thefts Production (Mfr’s) Theft rate Manufacturer Make/model (line) 2009 2009 (per 1,000 vehi- cles produced)

1 ...... AUDI ...... AUDI S8 ...... 2 227 8.8106 2 ...... FORD MOTOR CO ...... SHELBY GT ...... 5 581 8.6059 3 ...... BMW ...... M5 ...... 2 264 7.5758 4 ...... CHRYSLER ...... DODGE CHARGER ...... 432 66,856 6.4616 5 ...... HONDA ...... S2000 ...... 2 357 5.6022 6 ...... MITSUBISHI ...... GALANT ...... 152 29,716 5.1151 7 ...... CHRYSLER ...... 300 ...... 143 31,287 4.5706 8 ...... NISSAN ...... INFINITI M35/M45 ...... 27 6,243 4.3248 9 ...... GENERAL MOTORS ...... CADILLAC STS ...... 31 7,239 4.2824 10 ...... MERCEDES-BENZ ...... CL-CLASS ...... 5 1,278 3.9124 11 ...... CHRYSLER ...... SEBRING CONVERTIBLE ...... 18 4,827 3.7290 12 ...... CHRYSLER ...... DODGE AVENGER ...... 107 31,667 3.3789 13 ...... CHRYSLER ...... SEBRING ...... 65 19,588 3.3184 14 ...... AUDI ...... AUDI A8 ...... 6 1,810 3.3149 15 ...... VOLVO ...... V70 ...... 3 996 3.0120 16 ...... GENERAL MOTORS ...... PONTIAC G5 ...... 60 20,623 2.9094 17 ...... GENERAL MOTORS ...... PONTIAC G6 ...... 281 99,226 2.8319 18 ...... CHRYSLER ...... DODGE CALIBER ...... 125 44,554 2.8056 19 ...... CHRYSLER ...... PT CRUISER ...... 69 24,876 2.7738 20 ...... GENERAL MOTORS ...... CHEVROLET IMPALA ...... 499 183,769 2.7154 21 ...... NISSAN ...... INFINITI FX35 ...... 35 13,375 2.6168 22 ...... CHRYSLER ...... DODGE CHALLENGER ...... 53 20,526 2.5821 23 ...... NISSAN ...... PATHFINDER ...... 13 5,076 2.5611 24 ...... BMW ...... M6 ...... 1 397 2.5189 25 ...... CHRYSLER ...... DODGE NITRO ...... 26 10,539 2.4670 26 ...... NISSAN ...... MAXIMA ...... 141 58,278 2.4194 27 ...... KIA ...... RONDO ...... 42 17,573 2.3900 28 ...... MAZDA ...... 5 ...... 53 22,248 2.3822 29 ...... GENERAL MOTORS ...... CHEVROLET MALIBU ...... 413 176,813 2.3358 30 ...... KIA ...... SPECTRA ...... 135 60,296 2.2390 31 ...... GENERAL MOTORS ...... CHEVROLET COBALT ...... 312 141,588 2.2036 32 ...... GENERAL MOTORS ...... SATURN AURA ...... 78 35,472 2.1989 33 ...... MERCEDES-BENZ ...... S-CLASS ...... 22 10,189 2.1592 34 ...... GENERAL MOTORS ...... CHEVROLET HHR ...... 172 80,781 2.1292 35 ...... TOYOTA ...... SCION TC ...... 57 27,179 2.0972 36 ...... JAGUAR LAND ROVER ...... XF ...... 27 12,953 2.0845 37 ...... MAZDA ...... 3 ...... 99 47,569 2.0812 38 ...... FORD MOTOR CO ...... LINCOLN TOWN CAR ...... 24 11,596 2.0697 39 ...... TOYOTA ...... AVALON ...... 45 22,030 2.0427 40 ...... NISSAN ...... 350Z ...... 1 503 1.9881 41 ...... VOLVO ...... C70 ...... 8 4,027 1.9866 42 ...... FORD MOTOR CO ...... MUSTANG ...... 81 41,354 1.9587 43 ...... GENERAL MOTORS ...... CADILLAC DTS ...... 32 16,566 1.9317 44 ...... MAZDA ...... 6 ...... 76 39,504 1.9239 45 ...... MITSUBISHI ...... ECLIPSE ...... 24 12,760 1.8809 46 ...... NISSAN ...... ALTIMA ...... 410 228,101 1.7974 47 ...... FORD MOTOR CO ...... MERCURY SABLE ...... 11 6,146 1.7898 48 ...... GENERAL MOTORS ...... CADILLAC CTS ...... 91 50,926 1.7869 49 ...... VOLVO ...... S60 ...... 12 6,837 1.7552 50 ...... TOYOTA ...... CAMRY/SOLARA ...... 781 447,882 1.7438 51 ...... TOYOTA ...... COROLLA ...... 632 363,515 1.7386 52 ...... HYUNDAI ...... SONATA ...... 270 159,775 1.6899 53 ...... GENERAL MOTORS ...... CHEVROLET TRAILBLAZER ...... 22 13,022 1.6894 54 ...... TOYOTA ...... 4RUNNER ...... 13 7,803 1.6660 55 ...... BMW ...... 6 ...... 4 2,420 1.6529 56 ...... GENERAL MOTORS ...... CHEVROLET AVEO ...... 94 58,439 1.6085 57 ...... NISSAN ...... SENTRA ...... 104 65,096 1.5976 58 ...... FORD MOTOR CO ...... FOCUS ...... 235 148,244 1.5852 59 ...... HYUNDAI ...... ACCENT ...... 92 59,709 1.5408 60 ...... NISSAN ...... VERSA ...... 159 104,658 1.5192 61 ...... MAZDA ...... B SERIES PICKUP ...... 1 660 1.5152 62 ...... CHRYSLER ...... DODGE JOURNEY ...... 124 82,331 1.5061 63 ...... KIA ...... RIO ...... 61 41,036 1.4865 64 ...... MERCEDES-BENZ ...... C-CLASS ...... 86 57,872 1.4860 65 ...... GENERAL MOTORS ...... CHEVROLET CORVETTE ...... 23 15,647 1.4699 66 ...... NISSAN ...... 370Z ...... 16 11,024 1.4514 67 ...... NISSAN ...... XTERRA ...... 19 13,106 1.4497 68 ...... JAGUAR LAND ROVER ...... XKR ...... 1 696 1.4368

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FINAL REPORT OF THEFT RATES FOR MODEL YEAR 2009 PASSENGER MOTOR VEHICLES STOLEN IN CALENDAR YEAR 2009—Continued

2009 Thefts Production (Mfr’s) Theft rate Manufacturer Make/model (line) 2009 2009 (per 1,000 vehi- cles produced)

69 ...... FORD MOTOR CO ...... MERCURY GRAND MARQUIS ..... 30 21,102 1.4217 70 ...... GENERAL MOTORS ...... PONTIAC TORRENT ...... 13 9,403 1.3825 71 ...... FORD MOTOR CO ...... TAURUS ...... 34 25,094 1.3549 72 ...... CHRYSLER ...... JEEP COMPASS ...... 14 10,346 1.3532 73 ...... NISSAN ...... FRONTIER PICKUP ...... 31 23,030 1.3461 74 ...... VOLVO ...... S40 ...... 9 6,743 1.3347 75 ...... AUDI ...... AUDI A3 ...... 5 3,761 1.3294 76 ...... MERCEDES-BENZ ...... CLS-CLASS ...... 5 3,827 1.3065 77 ...... FORD MOTOR CO ...... EDGE ...... 58 44,744 1.2963 78 ...... GENERAL MOTORS ...... BUICK LACROSSE/ALLURE ...... 24 18,532 1.2951 79 ...... TOYOTA ...... YARIS ...... 93 72,826 1.2770 80 ...... GENERAL MOTORS ...... GMC ENVOY ...... 7 5,661 1.2365 81 ...... MASERATI ...... QUATTROPORTE ...... 1 817 1.2240 82 ...... KIA ...... OPTIMA ...... 43 35,610 1.2075 83 ...... NISSAN ...... GT–R ...... 3 2,505 1.1976 84 ...... GENERAL MOTORS ...... SATURN VUE ...... 47 39,342 1.1947 85 ...... TOYOTA ...... LEXUS LS ...... 11 9,418 1.1680 86 ...... CHRYSLER ...... JEEP LIBERTY ...... 36 31,272 1.1512 87 ...... GENERAL MOTORS ...... BUICK LUCERNE ...... 36 31,751 1.1338 88 ...... KIA ...... SEDONA VAN ...... 21 18,684 1.1240 89 ...... KIA ...... AMANTI ...... 1 931 1.0741 90 ...... TOYOTA ...... LEXUS IS ...... 34 31,875 1.0667 91 ...... TOYOTA ...... SCION XB ...... 39 37,039 1.0529 92 ...... FORD MOTOR CO ...... FLEX ...... 44 42,100 1.0451 93 ...... GENERAL MOTORS ...... PONTIAC VIBE ...... 59 56,730 1.0400 94 ...... MAZDA ...... RX–8 ...... 3 3,000 1.0000 95 ...... VOLKSWAGEN ...... GOLF/RABBIT/GTI ...... 19 19,005 0.9997 96 ...... AUDI ...... AUDI R8 ...... 1 1,022 0.9785 97 ...... KIA ...... SORENTO ...... 12 12,435 0.9650 98 ...... AUDI ...... AUDI S4/S5 ...... 3 3,112 0.9640 99 ...... MITSUBISHI ...... LANCER ...... 37 38,655 0.9572 100 .... TOYOTA ...... SIENNA VAN ...... 61 63,797 0.9562 101 .... KIA ...... SPORTAGE ...... 34 35,892 0.9473 102 .... HONDA ...... ACCORD ...... 297 315,205 0.9422 103 .... GENERAL MOTORS ...... PONTIAC G8 ...... 24 25,556 0.9391 104 .... HONDA ...... ACURA TSX ...... 35 37,306 0.9382 105 .... FORD MOTOR CO ...... FUSION ...... 96 103,268 0.9296 106 .... TOYOTA ...... MATRIX ...... 54 58,240 0.9272 107 .... SUZUKI ...... SX4 ...... 23 24,859 0.9252 108 .... GENERAL MOTORS ...... CHEVROLET EQUINOX ...... 30 32,555 0.9215 109 .... MERCEDES-BENZ ...... E-CLASS ...... 17 18,803 0.9041 110 .... MASERATI ...... GRANTURISMO ...... 1 1,123 0.8905 111 .... NISSAN ...... MURANO ...... 96 108,188 0.8873 112 .... CHRYSLER ...... JEEP WRANGLER ...... 58 67,122 0.8641 113 .... VOLKSWAGEN ...... JETTA/GLI ...... 97 112,506 0.8622 114 .... NISSAN ...... QUEST VAN ...... 7 8,232 0.8503 115 .... FORD MOTOR CO ...... LINCOLN MKS ...... 22 26,153 0.8412 116 .... NISSAN ...... INFINITI G37 ...... 42 50,524 0.8313 117 .... BMW ...... M3 ...... 3 3,642 0.8237 118 .... VOLVO ...... C30 ...... 3 3,693 0.8123 119 .... SUBARU ...... LEGACY ...... 21 26,278 0.7991 120 .... SUBARU ...... IMPREZA ...... 34 42,551 0.7990 121 .... HYUNDAI ...... ELANTRA ...... 61 76,637 0.7960 122 .... MERCEDES-BENZ ...... SL-CLASS ...... 6 7,559 0.7938 123 .... TOYOTA ...... TACOMA PICKUP ...... 92 116,059 0.7927 124 .... HONDA ...... CIVIC ...... 218 278,426 0.7830 125 .... HYUNDAI ...... GENESIS ...... 15 19,504 0.7691 126 .... AUDI ...... AUDI Q5 ...... 5 6,531 0.7656 127 .... FORD MOTOR CO ...... ESCAPE ...... 113 148,860 0.7591 128 .... MERCEDES-BENZ ...... SLK-CLASS ...... 3 3,987 0.7524 129 .... HYUNDAI ...... SANTA FE ...... 57 77,857 0.7321 130 .... MAZDA ...... CX–9 ...... 10 14,024 0.7131 131 .... GENERAL MOTORS ...... CHEVROLET COLORADO PICK- 20 28,286 0.7071 UP. 132 .... CHRYSLER ...... JEEP PATRIOT ...... 23 32,611 0.7053 133 .... HONDA ...... ACURA RDX ...... 6 8,690 0.6904 134 .... FORD MOTOR CO ...... LINCOLN MKX ...... 8 11,626 0.6881 135 .... PORSCHE ...... BOXSTER ...... 1 1,460 0.6849

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FINAL REPORT OF THEFT RATES FOR MODEL YEAR 2009 PASSENGER MOTOR VEHICLES STOLEN IN CALENDAR YEAR 2009—Continued

2009 Thefts Production (Mfr’s) Theft rate Manufacturer Make/model (line) 2009 2009 (per 1,000 vehi- cles produced)

136 .... VOLVO ...... S80 ...... 5 7,409 0.6749 137 .... AUDI ...... AUDI TT ...... 2 2,989 0.6691 138 .... NISSAN ...... INFINITI FX50 ...... 1 1,510 0.6623 139 .... TOYOTA ...... RAV4 ...... 79 119,381 0.6617 140 .... BMW ...... 7 ...... 5 7,613 0.6568 141 .... TOYOTA ...... LEXUS RX ...... 42 64,266 0.6535 142 .... NISSAN ...... ROGUE ...... 47 73,877 0.6362 143 .... VOLKSWAGEN ...... TIGUAN ...... 12 19,076 0.6291 144 .... PORSCHE ...... CAYMAN ...... 1 1,591 0.6285 145 .... TOYOTA ...... FJ CRUISER ...... 2 3,185 0.6279 146 .... MAZDA ...... CX–7 ...... 8 12,906 0.6199 147 .... SUZUKI ...... VITARA/GRAND VITARA ...... 4 6,476 0.6177 148 .... AUDI ...... AUDI A4/A5 ...... 27 44,950 0.6007 149 .... HONDA ...... ACURA 3.2 TL ...... 20 33,690 0.5936 150 .... TOYOTA ...... HIGHLANDER ...... 33 57,166 0.5773 151 .... FORD MOTOR CO ...... TAURUS X ...... 3 5,209 0.5759 152 .... TOYOTA ...... SCION XD ...... 10 17,587 0.5686 153 .... MERCEDES-BENZ ...... SMART FORTWO ...... 8 14,169 0.5646 154 .... TOYOTA ...... LEXUS GS ...... 3 5,537 0.5418 155 .... VOLKSWAGEN ...... EOS ...... 5 9,562 0.5229 156 .... BMW ...... 3 ...... 44 84,350 0.5216 157 .... VOLKSWAGEN ...... PASSAT ...... 16 31,310 0.5110 158 .... GENERAL MOTORS ...... SATURN SKY ...... 2 4,078 0.4904 159 .... FORD MOTOR CO ...... LINCOLN MKZ ...... 8 16,676 0.4797 160 .... AUDI ...... AUDI A6 ...... 2 4,193 0.4770 161 .... GENERAL MOTORS ...... PONTIAC SOLSTICE ...... 2 4,202 0.4760 162 .... HONDA ...... PILOT ...... 40 84,089 0.4757 163 .... GENERAL MOTORS ...... GMC CANYON PICKUP ...... 4 8,614 0.4644 164 .... HONDA ...... ACURA MDX ...... 16 34,540 0.4632 165 .... HYUNDAI ...... TUCSON ...... 5 11,032 0.4532 166 .... VOLKSWAGEN ...... NEW BEETLE ...... 8 18,284 0.4375 167 .... MAZDA ...... TRIBUTE ...... 2 4,670 0.4283 168 .... BMW ...... 5 ...... 9 21,963 0.4098 169 .... HONDA ...... ODYSSEY VAN ...... 30 73,777 0.4066 170 .... BMW ...... 1 ...... 4 10,189 0.3926 171 .... FORD MOTOR CO ...... RANGER PICKUP ...... 19 49,466 0.3841 172 .... SUBARU ...... FORESTER ...... 34 88,771 0.3830 173 .... PORSCHE ...... 911 ...... 3 7,929 0.3784 174 .... FORD MOTOR CO ...... MERCURY MILAN ...... 7 18,556 0.3772 175 .... HONDA ...... ACURA 3.5 RL ...... 1 2,670 0.3745 176 .... BMW ...... X3 ...... 2 5,448 0.3671 177 .... HONDA ...... ELEMENT ...... 4 11,114 0.3599 178 .... MITSUBISHI ...... OUTLANDER ...... 4 11,904 0.3360 179 .... TOYOTA ...... PRIUS ...... 27 82,659 0.3266 180 .... TOYOTA ...... LEXUS ES ...... 13 42,833 0.3035 181 .... JAGUAR LAND ROVER ...... LAND ROVER LR2 ...... 1 3,443 0.2904 182 .... BMW ...... Z4/M ...... 1 3,637 0.2750 183 .... TOYOTA ...... VENZA ...... 15 58,897 0.2547 184 .... HONDA ...... FIT ...... 21 83,765 0.2507 185 .... SUBARU ...... OUTBACK ...... 9 36,410 0.2472 186 .... HONDA ...... CR–V ...... 40 171,943 0.2326 187 .... FORD MOTOR CO ...... CROWN VICTORIA ...... 8 36,101 0.2216 188 .... SAAB ...... 9–3 ...... 1 4,593 0.2177 189 .... NISSAN ...... CUBE ...... 6 28,243 0.2124 190 .... KIA ...... BORREGO ...... 3 14714 0.2039 191 .... MERCEDES-BENZ ...... CLK-CLASS ...... 3 15,654 0.1916 192 .... SUBARU ...... B9 TRIBECA ...... 1 6,806 0.1469 193 .... BMW ...... MINI COOPER ...... 6 51,935 0.1155 194 .... FORD MOTOR CO ...... MERCURY MARINER ...... 2 25,682 0.0779 195 .... ASTON MARTIN ...... DB9 ...... 0 741 0.0000 196 .... ASTON MARTIN ...... VANTAGE ...... 0 582 0.0000 197 .... AUDI ...... AUDI S6 ...... 0 100 0.0000 198 .... BENTLEY MOTORS ...... ARNAGE ...... 0 86 0.0000 199 .... BENTLEY MOTORS ...... AZURE ...... 0 66 0.0000 200 .... BENTLEY MOTORS ...... BROOKLANDS ...... 0 94 0.0000 201 .... BENTLEY MOTORS ...... CONTINENTAL ...... 0 930 0.0000 202 .... CHRYSLER ...... DODGE VIPER ...... 0 575 0.0000 203 .... FERRARI ...... 141 ...... 0 109 0.0000

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FINAL REPORT OF THEFT RATES FOR MODEL YEAR 2009 PASSENGER MOTOR VEHICLES STOLEN IN CALENDAR YEAR 2009—Continued

2009 Thefts Production (Mfr’s) Theft rate Manufacturer Make/model (line) 2009 2009 (per 1,000 vehi- cles produced)

204 .... FERRARI ...... 430 ...... 0 605 0.0000 205 .... FERRARI ...... 612 SCAGLIETTI ...... 0 29 0.0000 206 .... FERRARI ...... CALIFORNIA ...... 0 53 0.0000 207 .... GENERAL MOTORS...... CADILLAC FUNERAL COACH/ 0 714 0.0000 HEARSE. 208 .... GENERAL MOTORS ...... CADILLAC LIMOUSINE ...... 0 330 0.0000 209 .... GENERAL MOTORS ...... CADILLAC XLR ...... 0 858 0.0000 210 .... GENERAL MOTORS ...... PONTIAC G3 ...... 0 6,237 0.0000 211 .... GENERAL MOTORS ...... SATURN ASTRA ...... 0 851 0.0000 212 .... HYUNDAI ...... AZERA ...... 0 5,062 0.0000 213 .... HYUNDAI ...... VERACRUZ ...... 0 2,188 0.0000 214 .... JAGUAR LAND ROVER ...... VANDEN PLAS/SUPER V8 ...... 0 326 0.0000 215 .... JAGUAR LAND ROVER ...... XJ8/XJ8L ...... 0 358 0.0000 216 .... JAGUAR LAND ROVER ...... XJR ...... 0 11 0.0000 217 .... JAGUAR LAND ROVER ...... XK ...... 0 903 0.0000 218 .... LAMBORGHINI ...... GALLARDO ...... 0 281 0.0000 219 .... LAMBORGHINI ...... MURCIELAGO ...... 0 110 0.0000 220 .... LOTUS ...... ELISE ...... 0 120 0.0000 221 .... LOTUS ...... EXIGE ...... 0 27 0.0000 222 .... MAZDA ...... MX–5 MIATA ...... 0 4,293 0.0000 223 .... MERCEDES-BENZ ...... MAYBACH 57 ...... 0 27 0.0000 224 .... MERCEDES-BENZ ...... MAYBACH 62 ...... 0 18 0.0000 225 .... MERCEDES-BENZ ...... MAYBACH LANDAULET ...... 0 2 0.0000 226 .... MERCEDES-BENZ ...... SLR-CLASS ...... 0 69 0.0000 227 .... MITSUBISHI ...... ENDEAVOR ...... 0 50 0.0000 228 .... NISSAN ...... INFINITI EX35 ...... 0 2,169 0.0000 229 .... ROLLS ROYCE ...... PHANTOM ...... 0 409 0.0000 230 .... ROUSH PERFORMANCE ...... RPP MUSTANG ...... 0 395 0.0000 231 .... SAAB ...... 9–5 ...... 0 732 0.0000 232 .... SPYKER ...... C8 ...... 0 18 0.0000 233 .... SUZUKI ...... EQUATOR PICKUP ...... 0 2,380 0.0000 234 .... SUZUKI ...... XL7 ...... 0 1,290 0.0000 235 .... TESLA ...... ROADSTER ...... 0 900 0.0000 236 .... TOYOTA ...... LEXUS SC ...... 0 511 0.0000 237 .... VOLVO ...... V50 ...... 0 1,913 0.0000 238 .... VOLVO ...... XC70 ...... 0 4,614 0.0000 239 .... VOLVO ...... XC90 ...... 0 6,806 0.0000

Issued on: October 18, 2011. Christopher J. Bonanti, Associate Administrator for Rulemaking. [FR Doc. 2011–27370 Filed 10–21–11; 8:45 am] BILLING CODE 4910–59–P

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Proposed Rules Federal Register Vol. 76, No. 205

Monday, October 24, 2011

This section of the FEDERAL REGISTER 1. Federal eRulemaking Portal: on how to submit comments through contains notices to the public of the proposed http://www.regulations.gov. Follow the regulations.gov. issuance of rules and regulations. The instructions for submitting comments. For further information on how to purpose of these notices is to give interested 2. E-mail: RCAC-HP-2009-TP- submit or review public comments or persons an opportunity to participate in the [email protected]. Include the docket rule making prior to the adoption of the final view hard copies of the docket, contact rules. number EERE–2009–BT–TP–0004 and/ Ms. Brenda Edwards at (202) 586–2945 or RIN 1904–AB94 in the subject line of or e-mail: [email protected]. the message. FOR FURTHER INFORMATION CONTACT: DEPARTMENT OF ENERGY 3. Postal Mail: Ms. Brenda Edwards, Ashley Armstrong, U.S. Department of U.S. Department of Energy, Building Energy, Office of Energy Efficiency and 10 CFR Part 430 Technologies Program, Mailstop EE–2J, Renewable Energy, Building 1000 Independence Avenue, SW., Technologies Program, EE–2J, 1000 [Docket No. EERE–2009–BT–TP–0004] Washington, DC 20585–0121. If Independence Avenue, SW., possible, please submit all items on a Washington, DC 20585–0121. RIN 1904–AB94 compact disc (CD), in which case it is Telephone: (202) 586–6590. E-mail: not necessary to include printed copies. [email protected]. Ms. Energy Conservation Program for Otherwise, please submit one signed Jennifer Tiedeman, U.S. Department of Consumer Products: Test Procedures paper original. Energy, Office of the General Counsel, for Residential Central Air 4. Hand Delivery/Courier: Ms. Brenda GC–71, 1000 Independence Avenue, Conditioners and Heat Pumps Edwards, U.S. Department of Energy, SW., Washington, DC 20585. Telephone: Building Technologies Program, 950 AGENCY: Office of Energy Efficiency and (202) 287–6111. E-mail: L’Enfant Plaza, SW., Suite 600, [email protected]. Renewable Energy, Department of Washington, DC 20024. Telephone: Energy. (202) 586–2945. If possible, please SUPPLEMENTARY INFORMATION: ACTION: Supplemental notice of submit all items on a CD, in which case I. Authority and Background proposed rulemaking. it is not necessary to include printed A. Authority copies. Otherwise, please submit one B. Background SUMMARY: The U.S. Department of signed paper original. II. Summary of the Proposal Energy (DOE or the Department) Instructions: No telefacsimilies (faxes) III. Discussion proposed amendments to the DOE test will be accepted. All submissions must A. Testing Burden and Complexity B. Individual Component Testing procedure for residential central air include the docket number or RIN for conditioners and heat pumps in a June C. Length of Shoulder and Heating Seasons this rulemaking. For detailed D. Proposed Test Methods and 2010 notice of proposed rulemaking instructions on submitting comments (June 2010 NOPR) and in an April 2011 Calculations for Off-Mode Power and and additional information on the Energy Consumption of Residential supplemental notice of proposed rulemaking process, see section 0, Central Air Conditioners and Heat rulemaking (April 2011 SNOPR). The ‘‘Public Participation,’’ of this Pumps amendments proposed in this document. 1. Provisions for Large Tonnage Systems subsequent SNOPR would change the Docket: The docket is available for 2. Special Requirements for Multi- off-mode laboratory test steps and review at http://www.regulations.gov, Compressor Systems IV. Procedural Issues and Regulatory Review calculation algorithm to determine off- including Federal Register notices, mode power consumption for A. Review Under Executive Order 12866 framework documents, public meeting B. Review Under the Regulatory Flexibility residential central air conditioners and attendee lists and transcripts, heat pumps. DOE welcomes written Act comments, and other supporting C. Review Under the Paperwork Reduction comments from the public on any documents/materials. All documents in Act of 1995 subject within the scope of this test the docket are listed in the http:// D. Review Under the National procedure rulemaking for addressing the www.regulations.gov index. However, Environmental Policy Act of 1969 off-mode energy consumption of not all documents listed in the index E. Review Under Executive Order 13132 residential central air conditioners and may be publicly available, such as F. Review Under Executive Order 12988 heat pumps. G. Review Under the Unfunded Mandates information that is exempt from public Reform Act of 1995 DATES: DOE will accept comments, data, disclosure. H. Review Under the Treasury and General and other information regarding this A link to the docket web page can be Government Appropriations Act, 1999 supplemental notice of proposed found at: http://www1.eere.energy.gov/ I. Review Under Executive Order 12630 rulemaking (SNOPR) no later than buildings/appliance_standards/ J. Review Under the Treasury and General November 23, 2011. See section 0, residential/residential_cac_hp.html. Government Appropriations Act, 2001 ‘‘Public Participation,’’ of this SNOPR This web page will contain a link to the K. Review Under Executive Order 13211 for details. docket for this notice on the Web site L. Review Under Section 32 of the Federal Energy Administration Act of 1974 ADDRESSES: Interested parties may http://www.regulations.gov. The http:// V. Public Participation submit comments, identified by docket www.regulations.gov Web page will A. Submission of Comments number EERE–2009–BT–TP–0004 or contain simple instructions on how to B. Issues on Which DOE Seeks Comment Regulation Identifier Number (RIN) access all documents, including public 1. The Proposed Equation for the 1904–AB94, by any of the following comments, in the docket. See section 0, Calculation of a System’s Off-Mode methods: ‘‘Public Participation,’’ for information Rating

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2. An Appropriate Scaling Factor To offer the public an opportunity to of additional laboratory testing Account for Larger Units Requiring a present oral and written comments on conducted by DOE. 76 FR 18105, 18127. Larger Crankcase Heater Due to Bigger them. (42 U.S.C. 6293(b)(2)) Finally, in DOE received additional comments in Compressors and Larger Refrigerant any rulemaking to amend a test Volume response to the April 2011 SNOPR. In 3. The Proposed Equation To Adjust procedure, DOE must determine the today’s SNOPR, DOE addresses only Crankcase Heater Power Draw for extent to which the proposed test those comments not previously Systems With Multiple Compressors procedure would change, if at all, the addressed in the April 2011 SNOPR that 4. The Estimate of the Number of Small measured efficiency of a system which concern off-mode testing of central air Entities That May Be Impacted by the was tested under the existing test conditioners and heat pumps. DOE will Proposed Test Procedure procedure. (42 U.S.C. 6293(e)(1)) If DOE subsequently address the remainder of 5. The Estimate of the Impact of the determines that the amended test the unrelated comments in response to Proposed Test Procedure Amendments procedure would alter the measured on Small Entities and Its Conclusion efficiency of a covered product, DOE both the June 2010 NOPR and April That This Impact Is Not Significant 2011 SNOPR in the test procedure final VI. Approval of the Office of the Secretary must amend the applicable energy conservation standard accordingly. (42 rule. I. Authority and Background U.S.C. 6293(e)(2)) The amendments In the June 2010 NOPR, DOE A. Authority proposed in today’s SNOPR will not proposed new laboratory tests and alter the measured efficiency, as calculation algorithms for determining Title III, Part B of the Energy Policy represented in the regulating metrics of the off-mode power and off-mode and Conservation Act of 1975 (EPCA or seasonal energy efficiency ratio (SEER) energy consumption of residential the Act), Public Law 94–163 (42 U.S.C. and heating seasonal performance factor central air conditioners and heat pumps, 6291–6309, as codified), established the (HSPF) of residential central air Energy Conservation Program for which were subsequently modified in conditioners and heat pumps. Thus, the April 2011 SNOPR. 75 FR 31238–39; Consumer Products Other Than today’s proposed test procedure changes Automobiles, a program covering most 76 FR 18107–09. The off-mode rating can be adopted without amending the reflects those extended times of the year major household appliances, including existing standards. (42 U.S.C. during which a residential central air the single phrase residential central air 6293(e)(2)) conditioners and heat pumps with rated On December 19, 2007, the President conditioner or heat pump sits idle. The cooling capacities less than 65,000 signed the Energy Independence and energy consumed by these products British thermal units per hour (Btu/h) Security Act of 2007 (EISA 2007), Public during these extended times is not that are the focus of this notice.1 (42 Law 110–140, which contains numerous accounted for by the existing seasonal U.S.C. 6291(1)–(2), (21) and 6292(a)(3)) amendments to EPCA. Section 310 of rating metrics of SEER and HSPF. Under EPCA, the program consists of EISA 2007 established that the One of the extended off-mode four activities: (1) Testing; (2) labeling; Department’s test procedures for all intervals was designated the ‘‘shoulder and (3) Federal energy conservation covered products must account for season’’ in the June 2010 NOPR. 75 FR standards, and also (4) certification, standby mode and off-mode energy 31239. The shoulder season for central compliance, and enforcement. The consumption. (42 U.S.C. 6295(gg)(2)(A)) air conditioners is defined as the time testing requirements consist of test Today’s SNOPR includes proposals between the cooling and heating seasons procedures that manufacturers of relevant to these statutory provisions. when the unit provides no cooling and covered products must use as the basis DOE’s existing test procedures for when the unit is idle during the entire for certifying to DOE that their products residential central air conditioners and heating season. The shoulder season for comply with applicable energy heat pumps adopted pursuant to these residential heat pumps is defined as the conservation standards adopted provisions appear under Title 10 of the time between the cooling and heating pursuant to EPCA and for representing Code of Federal Regulations (CFR) part the efficiency of those products. (42 430, subpart B, appendix M (‘‘Uniform seasons when the unit provides neither U.S.C. 6293(c); 42 U.S.C. 6295(s)) Test Method for Measuring the Energy heating nor cooling. Similarly, DOE must use these test Consumption of Central Air The off-mode testing and calculations procedures in any enforcement action to Conditioners and Heat Pumps’’). These proposed in the June 2010 NOPR would determine whether covered products procedures establish the currently be used to determine the average power comply with these energy conservation permitted means for determining energy consumption of a residential central air standards. (42 U.S.C. 6295(s)) Under 42 efficiency and annual energy conditioner or heat pump during the U.S.C. 6293, EPCA sets forth criteria and consumption of these products. shoulder season (represented by the procedures for DOE’s adoption and B. Background variable P1) and, for residential central amendment of such test procedures. air conditioners, the unit’s average Specifically, EPCA provides that an DOE’s initial proposals for estimating power consumption during the heating amended test procedure shall produce off-mode energy consumption in the test season (represented by the variable P2). procedure for residential central air results which measure the energy 75 FR at 31238–39. The resulting conditioners and heat pumps were efficiency, energy use or estimated average power values may then be shared with the public in a notice of annual operating cost of a covered multiplied by the number of hours proposed rulemaking published in the product over an average or assigned to the shoulder and heating representative period of use, and shall Federal Register on June 2, 2010 (June 2010 NOPR; 75 FR 31224) and at a seasons to obtain the corresponding off- not be unduly burdensome to conduct mode energy values. In the June 2010 (42 U.S.C. 6293(b)(3)) In addition, if public meeting at DOE headquarters in Washington, DC on June 11, 2010. NOPR, DOE proposed an approach for DOE determines that a test procedure assigning the number of hours to the amendment is warranted, it must Subsequently, DOE published a shoulder and heating seasons, as publish proposed test procedures and supplemental notice of proposed rulemaking (SNOPR) on April 1, 2011 in specified in ASHRAE Standard 137– 2009. Id. For any given location or for 1 For editorial reasons, upon codification in the response to comments received on the U.S. Code, Part B was re-designated Part A. June 2010 NOPR, and due to the results each of the six DOE generalized climate

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2 regions, the sum of the hours in the provided for fixed-output heaters and calculation for PWOFF that is used to cooling, heating, and shoulder seasons self-regulating heaters. Id. at 18117–25. determine the overall off-mode rating equals 8,760 hours. See Figures 2 and 3 Additionally, calculations were for residential central air conditioners of 10 CFR part 430, subpart B, appendix proposed to account for use of local and heat pumps. M. As proposed in the June 2010 NOPR, control, global control or a combination DOE proposes to make the off-mode annual operating cost calculations of local and global control. Id. Other test procedure additions in today’s would represent operation of a calculation changes were proposed to SNOPR effective 180 days after residential central air conditioner or better balance test burden and test rigor. publication of the test procedure final heat pump over a complete 8,760-hour Id. at 18107–08. Specifically, a method rule in the Federal Register. By doing year, not just the cooling season (in the to extrapolate test data in lieu of actual so, DOE would not require case of a residential central air testing was proposed for certain manufacturers to publish the new rating conditioner) or just the cooling and crankcase heater controls which would metrics by this time, but rather, would heating seasons (in the case of a heat take the longest to physically test. Id. require that manufacturers use the pump). Id. at 31238–39. Finally, in light of the need for an amended test procedure as of this date DOE included off-mode testing and overall off-mode rating for residential only if they wish to make calculations among the issues revisited central air conditioners, DOE representations of the off-mode energy in the April 2011 SNOPR as a result of introduced an algorithm for weighting consumption of their central air comments received from interested the shoulder season off-mode rating, P1, conditioners and heat pumps. In parties in response to the originally with the heating season off-mode rating, addition, DOE proposes to require that proposed off-mode tests and P2. Id. at 18111. When P1 and P2 are the compliance date for these test calculations, and as a result of weighted based on the national average procedure amendments correspond to information gained from testing values for the lengths of the shoulder the January 1, 2015 compliance date for conducted by DOE after the close of the and heating seasons, the overall off- the amended energy conservation public comment period for the June mode rating is specifically designated standards for residential central air 2010 NOPR. 76 FR at 18107–09. Most of by the variable PW,OFF. Id. The amended conditioners and heat pumps. 76 FR the proposed revisions introduced in off-mode energy conservation standards 39245. the April 2011 SNOPR applied to the for central air conditioners are defined III. Discussion laboratory testing of units with in terms of PW,OFF and are set forth in compressor crankcase heaters. Id. Rather the recently published direct final rule This section provides discussion of than attempting to formulate a single (DFR) for amended energy conservation the revisions and additions to the test generic test that would apply to all units standards for these products. 76 FR procedure that DOE proposes in this with a crankcase heater, DOE proposed 37408, 37411(June 27, 2011). SNOPR, based in part on comments multiple product-specific tests. The Stakeholders raised significant issues DOE received in response to the April tests were structured to differentiate and suggested changes to the test 2011 SNOPR. Section 0 describes DOE’s between residential central air procedure proposals set forth in the proposed changes to test methods and conditioners and heat pumps, between April 2011 SNOPR, as further described calculations for off-mode power and fixed-output and self-regulating below. Based on these comments and energy consumption. Additionally, DOE crankcase heaters, between additional laboratory testing conducted provides the specific proposed revisions thermostatically controlled and by DOE, DOE’s position on these topics to 10 CFR 430, subpart B, appendix M, continuously on heater designs, and has evolved. Today’s SNOPR shares ‘‘Uniform Test Method for Measuring between local and global thermostatic DOE’s current position on the test the Energy Consumption of Central Air control options. Id. at 18109. procedure for residential central air Conditioners and Heat Pumps’’ as part As explained in the April 2011 conditioners and heat pumps, and of this SNOPR. SNOPR, ‘‘local’’ control refers to cases provides interested parties with an A. Testing Burden and Complexity in which the heater is regulated based additional opportunity to comment on on a measured or inferred temperature its proposed methodology. The majority of comments received of the compressor sump. Global control following publication of the April 2011 II. Summary of the Proposal refers to cases in which the heater’s SNOPR addressed the revised off-mode operation is regulated based on a Today’s SNOPR revisits the test testing requirements. In a joint measured or inferred temperature that is methods and calculations for off-mode comment, Northwest Energy Efficiency not influenced by the crankcase heater. power and energy consumption, which Alliance (NEEA) and Northwest Power Id. The most common example of global were originally proposed in the June Coordinating Council (NPCC) stated that control is a heater that is powered or 2010 NOPR and modified in the April the lack of test data precludes an unpowered based on the temperature 2011 SNOPR. DOE now proposes to interested party from evaluating measured by an outdoor air thermostat. revise the off-mode testing procedures whether the proposed off-mode test Id. and calculation algorithms set forth in method reasonably captures off-mode Most of the proposed revisions to the the April 2011 SNOPR to shorten the energy use. (NEEA and NPCC, No. 26 at off-mode calculations set forth in the duration and burden of the off-mode pp. 2–3) 3 In another joint comment, the April 2011 SNOPR specified which testing, while still adequately measuring Appliance Standards Awareness Project laboratory test to conduct based on the off-mode power consumption of the (ASAP), the American Council for an system characteristics (e.g., presence of tested residential central air conditioner crankcase heater controls). For example, or heat pump. Specifically, DOE 3 In the following discussion, comments will be presented along with a notation in the form ‘‘NEEA separate off-mode calculations were proposes that the applicable test and and NPCC, No. 26 at pp. 2–3,’’ which identifies a calculation combination will depend on written comment DOE received and included in the 2 Each of the regions, which is labeled with whether the tested unit is equipped docket of this rulemaking. DOE numbers all Roman numbers from I to VI, is representative of with a crankcase heater and whether or comments based on when the comment was a certain climate zone in the United States and submitted in the rulemaking process. This contains the typical season length for the area. not the crankcase heater operation is particular notation refers to a comment by (1) By Region IV is considered the average and is used for controlled by the unit during the test. NEEA and NPCC, (2) in document number 26 in the calculation of ratings. Furthermore, DOE proposes to alter the this docket, and (3) appearing on pages 2–3.

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Energy-Efficient Economy (ACEEE), and capture a unit’s off-mode power the off-mode tests specified in the April the Natural Resources Defense Council consumption. Consequently, in today’s 2011 SNOPR] and [that] the P1 and P2 (NRDC) encouraged DOE to capture notice, DOE is proposing additional values measured via section 3.13 and crankcase heater energy consumption in revisions to the off-mode test procedure calculated per section 3.14 [i.e., the the test procedure with minimal testing to reduce the burden and complexity of AHRI component-based method] are burden while providing a means to testing, while still achieving the within 10% of each other.’’ (AHRI, No. encourage innovative designs that intended purpose of accurately 28 at p. 35) DOE views this approach as minimize off-mode energy measuring off-mode power a variation of its alternative rating consumption. (ASAP, ACEEE, and consumption. The methodology of this method (ARM) or alternative energy NRDC, No. 27 at pp. 1–2) The California revised procedure is discussed in determination method (AEDM) 4 State Investor Owned Utilities (CAIOUs) section 0. approach used for rating untested split supported DOE’s proposal to account for B. Individual Component Testing different types of crankcase heaters and system combinations for SEER and crankcase heater controls. (CAIOUs, No. To reduce the testing burden and HSPF. 23 at p. 1) complexity, as discussed above, AHRI In response to AHRI’s proposals, DOE Both the American Heating and recommended a component-based is not considering changes to the Refrigeration Institute (AHRI) and Trane testing approach and questioned the definition of product family or, by stated that the proposed off-mode test amount of testing that should be extension, basic model, at this time. procedure is unnecessarily complex. required to determine off-mode ratings DOE recently clarified its definition of (AHRI, No. 24 at p. 1; Trane, No. 21 at accurately for a product family. (AHRI, a basic model in its March 2011 p. 1) AHRI further stated that it does not No. 28 at pp. 3–50) Specifically, AHRI certification, compliance, and recommended adding text to the Code of support DOE’s proposed off-mode test enforcement final rule. 76 FR 12422 Federal Regulations that would allow procedure because the procedure is too (March 7, 2011) Nonetheless, DOE expensive and will not achieve the off-mode ratings to be obtained in one agrees with AHRI’s contention that a desired result. (AHRI, No. 24 at p. 1) of two ways: (1) By testing a minimum manufacturer will need a sample of Trane submitted similar comments, of two units from each basic model noting that the off-mode proposal will group of a given product family; or (2) sufficient size, which is not less than significantly increase testing time, thus by bench testing a minimum of 10 two units, to determine the certified adding to the cumulative regulatory samples of each component that rating for the off-mode energy burden. (Trane, No. 21 at p. 1) In contributes to off-mode energy use (e.g., consumption of a given product. With exploring an alternative to the off-mode each type of crankcase heater, each type respect to AHRI’s second test method proposed in the April 2011 of controller, etc.) and then using the recommendation of using ARMs to SNOPR, AHRI questioned whether the data obtained to conduct off-mode calculate off-mode energy consumption, same or similar results could be calculations. With respect to the first DOE has an open rulemaking to address achieved with minimal testing and/or option, AHRI pointed out the need to many issues associated with alternate analysis. (AHRI, No. 24 at p. 1) AHRI define ‘‘product family’’ and offered the methods of determining the efficiency of went on to offer specific alternatives following proposed definition: ‘‘any set central air conditioners and heat and modifications to DOE’s proposed of basic model groups that have the pumps.5 DOE plans to address the off-mode test method, including same (or less) power consumption applicability of ARMs to the off-mode reducing the number of samples tested, devices, including but not limited to: consumption measurement in that using default values to reduce some of control board, crankcase heater, rulemaking. While DOE agrees that both the test burden, and adding an timer(s), switches, etc.’’ (AHRI, No. 28 at of AHRI’s recommendations provide alternative set of more component-based p. 4) According to AHRI’s potential mechanisms for obtaining off- off-mode tests (see Section 0). (AHRI, recommendation, two or more samples mode ratings for a manufacturer’s No. 28 at pp. 2, 6–7, and 35–38) would be tested using the full system, complete product line without requiring DOE agrees with the joint comment off-mode tests specified in the April excessive testing time and does not seek from ASAP, ACEEE and NRDC, and 2011 SNOPR. DOE believes that the to limit the use of ARMs or AEDMs, notes that one of the key objectives purpose of the AHRI proposal is to DOE believes that its own revised considered by DOE in amending the test identify a single off-mode rating for all procedure for residential central air central air conditioners or heat pumps procedure is not unduly burdensome conditioners and heat pumps is of the same product family. and that there is benefit to conducting obtaining a reasonable balance between The second AHRI recommendation of off-mode tests in conjunction with the test burden and off-mode ratings that testing a minimum of 10 samples of tests for SEER and HSPF. Consequently, sufficiently differentiate among each relevant component would need to DOE is proposing an off-mode test products. In response to the comment be done separately from the complete procedure, which is detailed in section by NEEA and NPCC regarding system testing conducted for 0, and comprises whole system testing, insufficient data, DOE conducted determining the SEER and HSPF of a not testing or simulation of individual additional testing for this SNOPR, particular unit. AHRI notes that this components. which is discussed in detail in section approach reduces the ‘‘overall testing 0, and collected additional data from burden by allowing non-psychometric 4 ARMs are computer simulations used to rate stakeholders. Based on consideration of room testing but yet increase[s] residential central air conditioners or heat pumps comments by AHRI and Trane, as well confidence in values by increasing in lieu of actual testing to determine the rating. AEDMs accomplish the same purpose as ARMs, but as results of additional laboratory sample size.’’ (AHRI, No. 28 at p. 4) are used for products other than residential central testing, DOE also concurs that the added According to AHRI, its proposed ‘‘short air conditioners and heat pumps and do not require complexity and burden resulting from cut,’’ or component-based testing DOE approval prior to use. proposed changes in the April 2011 approach, ‘‘may be used for rating 5 See Docket Number EERE–2011–BP–TP–00024 at regulations.gov for more information on the SNOPR would outweigh the benefits of products only after the manufacturer AEDM and ARM rulemaking. A request for distinguishing among different types of verifies a single sample using the information was published in the Federal Register off-mode systems to more specifically appropriate section 3.13 procedure [i.e., on April 18, 2011. 76 FR 21673 (April 18, 2011)

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C. Length of Shoulder and Heating Neither AHRI nor Trane explicitly longer planning to use T00 or T100, and Seasons suggested a method for updating the therefore does not intend to add DOE received several comments lengths of seasons, but both disagreed definitions for these terms in appendix regarding DOE’s approach proposed in with DOE’s definition of shoulder M. With respect to NRDC’s and CAIOUs’ the June 2010 NOPR and repeated in the season and opined that the number of comments regarding certification April 2011 SNOPR for assigning the hours assigned to the shoulder season requirements, DOE will consider those number of hours to the heating, cooling, was high and needed to be re-evaluated. issues as part of the regional standards and shoulder seasons based on cooling (AHRI, No. 24 at pp. 1–2; Trane, No. 21 enforcement rulemaking, through which and heating load hour maps. See Figures at p. 1) Further, Trane expressed it will address all of the reporting 2 and 3 from 10 CFR part 430, subpart concern that the off-mode hours requirements for central air conditioners B, appendix M. NRDC asserted that the reflected in the April 2011 SNOPR and heat pumps. Pursuant to EPCA, cooling load hour distribution is out of would be over-representative of several DOE will begin this rulemaking within date and recommended that new southern climates in particular. (Trane, 90 days of issuing a final rule for estimates be determined by simulating a No. 21 at p. 1) DOE agrees that the residential central air conditioners and reference home built to the 2009 shoulder season will vary with climate, heat pumps. (42 U.S.C. International Energy Conservation Code but notes that, under EPCA, DOE is not 6295(o)(6)(G)(ii)(I)) permitted to develop regional off-mode (IECC).6 (NRDC, No. 22 at p. 2) CAIOUs Further, both Trane and AHRI standards. (42 U.S.C. 6295(gg)(3)(B)) recommended that DOE update the questioned the need to consider Consequently, DOE must develop a season hours using Typical crankcase heater operation during the ‘‘typical’’ profile for allocating the hours Meteorological Year 3 (TMY3) 7 data shoulder season, which would be in a year to each of the seasons from 1952 to 2005, which more represented by the outdoor temperature considered. accurately reflects current climate bins of 57 °F, 62 °F, 67 °F, and 72 °F, conditions. (CAIOUs, No. 23 at p. 2) However, DOE believes that stakeholder concerns regarding the according to DOE’s proposal. (Trane, The commenters did not further No. 21 at p. 1; AHRI, No. 24 at p. 2) elaborate on how DOE would transition relative length of seasons and consequent over-representation for AHRI commented that off-mode power from hourly simulation results to a consumption at 57 ßF should be the only broader definition of ‘‘seasons;’’ did not certain areas have merit. Since EPCA does not allow for regional off-mode temperature set-point that matters. provide further detail on what (AHRI, No. 24 at p. 2) Additionally, specifically would constitute a reference standards, DOE is instead proposing a calculation method that is independent Trane and AHRI stated that DOE’s home; and did not elaborate on how proposed requirement for the crankcase DOE should most appropriately use the of the climate region and bin hours and will instead equally weight the two heater power measurement to begin five results of these simulations. minutes after the end of the compressor Stakeholders also did not provide different power measurements in calculating the off mode metric. This run-time will not measure crankcase results from either a previously heater power correctly for heaters that completed analysis of a 2009 IECC approach is discussed in further detail below. are thermostatically controlled or that residential building or a revised set of use a time delay relay. (Trane, No. 21 at season hours based on TMY3 data that D. Proposed Test Methods and p. 1; AHRI, No. 24 at p. 2) DOE could consider within the time Calculations for Off-Mode Power and frame of this rulemaking to substantiate Energy Consumption of Residential In response to comments by stakeholder concerns that the current Central Air Conditioners and Heat stakeholders, DOE conducted additional load distribution is out of date. Finally, Pumps testing on 2 central air conditioners and there is no assurance that if such a 3 heat pumps, all of which were one Interested parties also provided simulation were to be conducted by compressor systems. This testing was additional comments on specific DOE that the shoulder season hours done to according to the procedure elements of the off-mode test method calculated would meet stakeholder which is proposed in today’s notice and proposed in the April 2011 SNOPR. expectations. While DOE acknowledges complements the prior testing which Both NRDC and CAIOUs expressed their that a review of the load hour maps is DOE already conducted. DOE also preference that manufacturers be perhaps a useful exercise, DOE does not received off-mode data from AHRI for required to report both the central air intend to conduct this analysis during 80 heat pumps and 44 central air conditioner’s shoulder season off-mode this rulemaking because it believes that conditioners; 74 of these 124 systems rating, P1, and its heating season off- its proposed season lengths which are were two-compressor systems. (AHRI, mode rating, P2, rather than to report based on the DOE climate regions are No. 30 at p.1) A summary of AHRI’s the proposed combined off-mode rating, adequate to determine typical data, which were produced using the P (NRDC, No. 22 at p. 3; CAIOUs, performance of a tested system. w,off. procedure in the April 2011 SNOPR, is No. 23 at p. 1) AHRI proposed adding contained below in Table 0–1: definitions for T00, the temperature at 6 IECC standards are used to support the design which the crankcase heater begins to and construction of energy efficient buildings. TABLE 0–1—AHRI OFF-MODE DATA These standards vary by assigned climate zone, cycle on, and T100, the temperature at with the country divided into eight climate zones which the crankcase heater must Average and three climate types (dry, marine, moist). A operate continuously, within the Range summary of these standards and map of the climate PWOFF (W) zones is available at http://reca-codes.org/pages/ amended Appendix M. (AHRI, No. 28 at (W) iecc2009.html. p. 10) Trane stated that definitions for 7 TMY3 refers to a data set of hourly values of T00 and T100 should not be expressed Heat Pumps ...... 69 32–103 solar radiation and meteorological elements for a 1- in terms of ambient temperature, but Central Air Condi- year period recorded in 1,029 locations. This data tioners ...... 122 45–136 set is compiled by the National Renewable Energy rather, in terms of crankcase Laboratory (NREL) and allows for the simulation of temperature for those units that are Two Compressor building systems, such as central air conditioners thermostatically controlled. (Trane, No. Central Air Condi- or heat pumps in various locations. See http:// tioners and Heat rredc.nrel.gov/solar/old_data/nsrdb/1991–2005/ 21 at p. 1) Because of revisions Pumps ...... 120.1 103–136 tmy3/ for additional information. proposed in today’s notice, DOE is no

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While DOE appreciates AHRI’s effort, the off-mode contribution from 1. Provisions for Large Tonnage Systems DOE is concerned that it cannot components other than the crankcase For its off-mode analysis, DOE determine the types of systems which heater, while DOE believes that the analyzed units with a cooling capacity were used to produce these results and lower test point is sufficiently low that of three tons (36,000 Btu/h), which is that these results may not be the crankcase heater would be the capacity most representative of units representative of the entire market. No energized. However, for systems in the marketplace. However, DOE is explanation was provided as to why the without a crankcase heater or with an concerned that larger capacity units central air conditioner off-mode average uncontrolled crankcase heater, there have characteristics which could make is significantly higher than the heat would be no difference between it more difficult for them to achieve the pump off-mode average. In its measurements taken at the two different same standard as those at the submission, AHRI stated that ‘‘systems temperatures. Consequently, DOE representative three-ton capacity. with PWOFF greater than 100 are very proposes to only test these systems at Specifically, DOE believes that larger efficient (18–20 SEER) and have two 82 °F and use this measured value for units may require a larger crankcase compressors.’’ This statement indicates both P2 and P1. heater to ensure safe compressor that the average central air conditioner operation because four- and five-ton reflected in this data is a high efficiency units typically have larger compressors system with two compressors; DOE does as well as larger refrigerant volumes. not believe that such systems represent Where, ° These two characteristics could the average central air conditioner in the P1X = the overall system power draw at 82 F, necessitate a crankcase heater with a marketplace. Further, the label on the W, ° higher power than 40 W crankcase data submitted by AHRI for the two- PX = the power draw at 82 F of components heaters, which DOE observed in units at compressor systems indicates that the not associated with the residential the representative capacity. Based on data are representative of both central central air conditioner or heat pump, W, further research into system air conditioners and heat pumps. and However, the lower bound of the range specification sheets and teardown data is greater than the higher bound of the from the standards rulemaking for these heat pump range, which suggests that Where, products, DOE believes that larger ° the data only comprise central air P2X = the overall system power draw at 57 F, capacity units require a larger crankcase conditioners. DOE acknowledges W. heater and is now proposing a scaling AHRI’s concerns, but believes that its factor for units at capacities greater than P1 and P2 are then combined to the representative capacity of 36,000 own data are more representative of the calculate P : market and chose to base the analysis on W,OFF Btu/h. This scaling factor would be this data. directly proportional to the cooling Additionally, DOE disagrees with capacity and determined by the Trane and AHRI that crankcase heater following equation: operation may not need to be accounted To address concerns from AHRI and for during the shoulder season. While a Trane with respect to time delay crankcase heater with controls may not switches and the potential for turn on during the shoulder season, an inaccurate results due to a thermostat Where, uncontrolled crankcase heater would being placed on a warm compressor, Qc(95) = the total cooling capacity at the A run constantly during the shoulder DOE proposes to require the or A2 Test condition. This scaling factor season. Therefore, DOE believes that it manufacturer to specify the presence of would then be applied to the two power is important to consider crankcase these components in the installation measurements, P1 and P2, to determine heater operation during the shoulder manuals, so that the off-mode tests for PW,OFF as follows: season. these systems may be run prior to the Previously, DOE considered testing at tests for SEER and HSPF. Running off- four different temperatures (57 °F, 62 °F, ° ° mode tests first would ensure that the 67 F, 72 F), but believes that testing at time delay switch has not been activated four temperatures is unnecessary and However, in its analysis DOE also and also that the thermostat will not be does not provide sufficient benefit to found that units smaller than the influenced by any heat from the justify the additional test burden. With representative capacity still required the compressor because the unit would not four test temperatures, the intermediate same components and crankcase heater points will be equal to either the higher have yet been run. For units without as units at the representative capacity. test point or the lower test point, these components and for units with DOE does not want to unduly create a depending on when the crankcase time delay switches and for which there market constraint on the manufacture heater turns on (because it is always is no indication of their presence in and purchase of smaller central air either on or off). Based on this their installation manual, the off-mode conditioning systems that otherwise conclusion and the results of the tests would be done after the steady would be right-sized for smaller or more additional testing, DOE agrees with state ‘B’ test.8 DOE seeks comment on efficient homes by setting an stakeholder observations regarding test its equation for calculating a system’s exceedingly stringent off-mode temperatures, and proposes to base the off-mode rating. (See Issue 1 in section standard. Consequently, DOE is not off-mode rating,PW,OFF, for units with a 0, ‘‘Issues on Which DOE Seeks proposing to apply a scaling factor to cooling capacity of 36,000 Btu/h or less, Comment’’). units which have a cooling capacity that on an average of wattages, P1 and P2, is less than that of the representative which are recorded at two different 8 As specified in Appendix M of Subpart B to Part capacity. DOE seeks comment on both outdoor ambient temperatures: 82 °F for 430 of Title 10 in the Code of Federal Regulations, the necessity of a scaling factor for large ° the ‘B’ test is a steady state test conducted at an P1 and 57 F for P2. For systems with outdoor ambient dry bulb inlet temperature of 82 °F tonnage units, and its approach of crankcase heater controls, the higher and an indoor ambient dry bulb inlet temperature making this factor directly proportional temperature set point would measure of 80 °F. to capacity. (See Issue 2 in section 0,

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‘‘Issues on Which DOE Seeks achieve a higher efficiency rating than and the April 2011 SNOPR did not Comment’’). would be possible with a single account for this type of unit, and DOE 2. Special Requirements for Multi- compressor. Because there are two does not want to prevent these high Compressor Systems compressors in these units, it is likely efficiency products from being that the system would have two developed or being made available to DOE is also aware that certain high crankcase heaters (one for each the consumer. Therefore, in today’s efficiency residential central air compressor), which would result in notice, DOE is proposing a method for conditioners and heat pumps utilize a higher off-mode power consumption normalizing the crankcase heater power two compressor design to provide varying levels of cooling. With different because of the significant effect that consumption on a per compressor basis capacity compressors operating at close crankcase heaters have on a system’s for multi-compressor systems with to full load, the two-compressor unit is off-mode power consumption. However, controlled crankcase heaters using the able to operate more efficiently and DOE’s analysis for the June 2010 NOPR following equation:

Where, For systems with uncontrolled controls does not scale with the number

P1x = overall system measured power draw crankcase heaters, DOE recognizes that of compressors. Therefore, DOE at 82 °F, W; there is a need to isolate the crankcase proposes to require a slightly different P2x = overall system measured power draw heater power in order to normalize it on approach to determine the off mode at 57 °F, W. a per compressor basis. Multi- power consumption of these systems. In compressor systems with controls are such cases, DOE proposes that, first, the This equation isolates and averages the likely to have crankcase heaters off crankcase heater should be power draw associated with the during the P1 test and on during the P2 disconnected and then the overall crankcase heaters because, as mentioned test, which allows for the first term in system power draw with the previously, DOE believes that units with the equation above to determine the disconnected crankcase heater should controlled crankcase heaters would crankcase heater power. However, in be recorded as P1 Next, the average have the crankcase heater off at the P1 these cases, the P1 test would yield D. power draw on a per compressor basis temperature of 82 °F and on at the P2 incorrect results because the power temperature of 57 °F. This belief is consumption of the components not should be calculated by dividing the based on manufacturer interviews associated with the residential central difference between the overall system during the standards rulemaking, as air conditioner or heat pump would power draws (P1X andP1D). Then this well as on testing done following the have to be divided by the number of difference should be combined with the April 2011 SNOPR. compressors, while the number of previously recorded P1D:

Where, B. Review Under the Regulatory and heat pumps, under the provisions of P1D = the measured power draw with the Flexibility Act the Regulatory Flexibility Act and the crankcase heater disconnected, W. The Regulatory Flexibility Act (5 procedures and policies published on U.S.C. 601 et seq.) requires preparation February 19, 2003. DOE tentatively DOE seeks comment on the use of this concludes and certifies that the equation to calculate an average power of an initial regulatory flexibility analysis (IRFA) for any rule proposed proposed rule, if adopted, would not draw and for determining the off-mode result in a significant impact on a rating for multiple compressor units. for public comment, unless the agency certifies that the rule, if promulgated, substantial number of small entities. (See Issue 3 in section 0, ‘‘Issues on The factual basis for this certification is Which DOE Seeks Comment.’’) will not have a significant economic impact on a substantial number of small set forth below. IV. Procedural Issues and Regulatory entities. As required by Executive Order For the purpose of the regulatory Review 13272, ‘‘Proper Consideration of Small flexibility analysis for this rule, the DOE A. Review Under Executive Order 12866 Entities in Agency Rulemaking,’’ 67 FR adopts the Small Business 53461 (Aug. 16, 2002), DOE published Administration (SBA) definition of a The Office of Management and Budget procedures and policies on February 19, small entity within this industry as a (OMB) has determined that test 2003, so that the potential impacts of its manufacturing enterprise with 750 procedure rulemakings do not constitute rules on small entities are properly employees or fewer. DOE used the small ‘‘significant regulatory actions’’ under considered during the rulemaking business size standards published on section 3(f) of Executive Order 12866, process. 68 FR 7990. DOE has made its January 31, 1996, as amended, by the Regulatory Planning and Review, 58 FR procedures and policies available on the SBA to determine whether any small 51735 (Oct. 4, 1993). Accordingly, this Office of the General Counsel’s Web entities would be required to comply proposed action was not subject to site: http://www.gc.doe.gov. with the rule. 61 FR 3280, 3286, as review under the Executive Order by the DOE reviewed today’s proposed rule, amended at 67 FR 3041, 3045 (Jan. 23, Office of Information and Regulatory which would amend the test procedure 2002) and at 69 FR 29192, 29203 (May Affairs (OIRA) in the OMB. for residential central air conditioners 21, 2004); see also 65 FR 30836, 30850

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(May 15, 2000), as amended at 65 FR compared with large manufacturers that Given this data, and assuming the 53533, 53545 (Sept. 5, 2000). The size have many basic models. DOE high-end estimate of $1,500 for the standards are codified at 13 CFR part recognizes, however, that smaller additional testing costs, DOE concluded 121. The standards are listed by North manufacturers may have less capital that the additional costs for testing of a American Industry Classification available over which to spread the single basic model product under the System (NAICS) code and industry increased costs of testing. proposed requirements would be description and are available at http:// DOE compared the cost of the testing approximately 0.1 percent of annual www.sba.gov/idc/groups/public/ to the total value added by the value added for the 5 smallest firms, documents/sba_homepage/ manufacturers to determine whether the and approximately 0.02 percent of the serv_sstd_tablepdf.pdf. impact of the proposed test procedure average annual value added for all small Residential central air conditioner amendments is significant. The value residential central air conditioner or and heat pump equipment added represents the net economic heat pump manufacturers (15 firms). manufacturing is classified under value that a business creates when it DOE estimates that testing of basic NAICS 333415, ‘‘Air-Conditioning and takes manufacturing inputs (e.g., models may not have to be updated Warm Air Heating Equipment and materials) and turns them into more than once every 5 years, and Commercial and Industrial Refrigeration manufacturing outputs (e.g., therefore the average incremental Equipment Manufacturing.’’ 70 FR manufactured goods). Specifically, as burden of testing one basic model may 12395 (March 11, 2005). DOE reviewed defined by the U.S. Census, the value be one fifth of these values when the AHRI’s listing of residential central air added statistic is calculated as the total cost is spread over several years. conditioner and heat pump product value of shipments (products DOE requires that only the highest manufacturer members and surveyed manufactured plus receipts for services sales volume split system combinations the industry to develop a list of rendered) minus the cost of materials, be laboratory tested. 10 CFR 430.24(m). domestic manufacturers. As a result of supplies, containers, fuel, purchased The majority of residential central air this review, DOE identified 22 electricity, and contract work expenses. conditioners and heat pumps offered by a manufacturer are typically split manufacturers of residential central air DOE analyzed the impact on the conditioners and heat pumps, of which systems that are not required to be smallest manufacturers of residential 15 would be considered small laboratory tested but can be certified central air conditioners and heat pumps manufacturers with a total of using an alternative rating method that because these manufacturers would approximately 3 percent of the market does not require DOE testing of these likely be the most vulnerable to cost sales. DOE seeks comment on its units. DOE reviewed the available data increases. DOE calculated the additional estimate of the number of small entities for five of the smallest manufacturers to testing expense as a percentage of the that may be impacted by the proposed estimate the incremental testing cost average value added statistic for the five test procedure. (See Issue 4 in section 0, burden for those small firms that might individual firms in the 25 to 49 ‘‘Issues on Which DOE Seeks experience the greatest relative burden employee size category in NAICS Comment’’). from the revised test procedure. These Potential impacts of the proposed test 333415 as reported by the U.S. Census manufacturers had an average of 10 procedure on all manufacturers, (U.S. Bureau of the Census, American models requiring testing (AHRI including small businesses, come from Factfinder, 2002 Economic Census, Directory of Certified Product impacts associated with the cost of Manufacturing, Industry Series, Performance, http:// proposed additional testing. DOE Industry Statistics by Employment Size, www.ahridirectory.org/ahridirectory/ http://factfinder.census.gov/servlet/ estimates the incremental cost of the _ _ pages/home.aspx), while large proposed additional tests described in EconSectorServlet? lang=en&ds _ _ manufacturers will have well over 100 10 CFR part 430, subpart B, appendix M name=EC0200A1& SectorId=31& ts= such models. The additional testing cost (proposed section 3.13) to be an increase 288639767147). The average annual for final certification for 10 models was of $1,000 to $1,500 per unit tested. This value for manufacturers in this size estimated at $15,000. Meanwhile, these estimate is based on private testing range from the census data was $1.26 certifications would be expected to last services quoted on behalf of DOE in the million in 2001$, per the 2002 the product life, estimated to be at least last two years for residential central air Economic Census, or approximately 5 years based on the time frame conditioners and heat pumps. Typical $1.52 million per year in 2009$ after established in EPCA for DOE review of costs for running the cooling tests adjusting for inflation using the implicit residential central air conditioner appear to be approximately $5,000. DOE price deflator for gross domestic product efficiency standards. This test burden is estimated that the additional activities (U.S. Department of Commerce Bureau therefore estimated to be approximately required by the revised test procedure of Economic Analysis, http:// 0.2 percent of the estimated 5-year value would introduce a 20 to 30 percent www.bea.gov/national/nipaweb/ added for the smallest five increase in testing time, resulting in the SelectTable.asp). manufacturers. DOE believes that these additional cost. DOE also examined the average value costs are not significant given other, Because the incremental cost of added statistic provided by census for much more significant costs that the running the extra tests is the same for all manufacturers with fewer than 500 small manufacturers of residential all manufacturers, DOE believes that all employees in this NAICS classification central air conditioners and heat pumps manufacturers would incur comparable as the most representative value from incur in the course of doing business. costs for testing of individual basic the 2002 Economic Census data of the DOE seeks comment on its estimate of models as a result of the proposed test residential central air conditioner the impact of the proposed test procedure. DOE expects that small manufacturers with fewer than 750 procedure amendments on small manufacturers will incur less testing employees that are considered small entities and its conclusion that this expense compared with larger businesses by the SBA (15 impact is not significant. (See Issue 5 in manufacturers as a result of the manufacturers). The average annual section 0, ‘‘Issues on Which DOE Seeks proposed testing requirements because value added statistic for all small Comment’’). they have fewer basic models and thus manufacturers with fewer than 500 Accordingly, as stated above, DOE require proportionally less testing when employees was $7.88 million (2009$). tentatively concludes and certifies that

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this proposed rule would not have a nor an environmental impact statement while promoting simplification and significant economic impact on a is required. burden reduction; (4) specifies the substantial number of small entities. retroactive effect, if any; (5) adequately E. Review Under Executive Order 13132 Accordingly, DOE has not prepared an defines key terms; and (6) addresses initial regulatory flexibility analysis Executive Order 13132, ‘‘Federalism,’’ other important issues affecting clarity (IRFA) for this rulemaking. DOE will 64 FR 43255 (Aug. 4, 1999), imposes and general draftsmanship under any provide its certification and supporting certain requirements on agencies guidelines issued by the United States statement of factual basis to the Chief formulating and implementing policies Attorney General (Attorney General). Counsel for Advocacy of the SBA for or regulations that preempt State law or Section 3(c) of Executive Order 12988 review under 5 U.S.C. 605(b). that have Federalism implications. The requires Executive agencies to review Executive Order requires agencies to regulations in light of applicable C. Review Under the Paperwork examine the constitutional and statutory standards in sections 3(a) and 3(b) to Reduction Act of 1995 authority supporting any action that determine whether they are met or it is Manufacturers of residential central would limit the policymaking discretion unreasonable to meet one or more of air conditioners and heat pumps must of the States and to carefully assess the them. DOE has completed the required certify to DOE that their product necessity for such actions. The review and determined that, to the complies with any applicable energy Executive Order also requires agencies extent permitted by law, the proposed conservation standard. In certifying to have an accountable process to rule meets the relevant standards of compliance, manufacturers must test ensure meaningful and timely input by Executive Order 12988. their product according to the DOE test State and local officials in the procedure for residential central air development of regulatory policies that G. Review Under the Unfunded conditioners and heat pumps, including have Federalism implications. On Mandates Reform Act of 1995 any amendments adopted for that test March 14, 2000, DOE published a Title II of the Unfunded Mandates procedure. DOE has proposed statement of policy describing the Reform Act of 1995 (UMRA; Pub. L. regulations for the certification and intergovernmental consultation process 104–4, codified at 2 U.S.C. 1501 et seq.) recordkeeping requirements for all it will follow in the development of requires each Federal agency to assess covered consumer products and such regulations. 65 FR 13735. DOE has the effects of Federal regulatory actions commercial equipment, including examined today’s proposed rule and has on State, local, and Tribal governments residential central air conditioners and determined that it does not preempt and the private sector. For proposed heat pumps. 75 FR 56796 (Sept. 16, State law and does not have a regulatory actions likely to result in a 2010). The collection-of-information substantial direct effect on the States, on rule that may cause expenditures by requirement for the certification and the relationship between the national State, local, and Tribal governments in recordkeeping is subject to review and government and the States, or on the the aggregate or by the private sector of approval by OMB under the Paperwork distribution of power and $100 million or more in any one year Reduction Act of 1995 (PRA). This responsibilities among the various (adjusted annually for inflation), section requirement has been submitted to OMB levels of government. EPCA governs and 202 of UMRA requires a Federal agency for approval. Public reporting burden prescribes Federal preemption of State to publish estimates of the resulting for the certification is estimated to regulations as to energy conservation for costs, benefits, and other effects on the average 20 hours per response, the products that are the subjects of national economy. (2 U.S.C. 1532(a), (b)) including the time for reviewing today’s proposed rule. States can UMRA also requires a Federal agency to instructions, searching existing data petition DOE for a waiver of such develop an effective process to permit sources, gathering and maintaining the preemption to the extent, and based on timely input by elected officers of State, data needed, and completing and criteria, set forth in EPCA. (42 U.S.C. local, and Tribal governments on a reviewing the collection of information. 6297) No further action is required by proposed ‘‘significant intergovernmental Executive Order 13132. mandate’’ and requires an agency plan D. Review Under the National for giving notice and opportunity for Environmental Policy Act of 1969 F. Review Under Executive Order 12988 timely input to potentially affected In this proposed rule, DOE proposes With respect to the review of existing small governments before establishing amendments to test procedures that may regulations and the promulgation of any requirements that might be used to implement future energy new regulations, section 3(a) of significantly or uniquely affect small conservation standards for residential Executive Order 12988, ‘‘Civil Justice governments. On March 18, 1997, DOE central air conditioners and heat pumps. Reform,’’ 61 FR 4729 (Feb. 7, 1996), published a statement of policy on its DOE has determined that this rule falls imposes on Federal agencies the general process for intergovernmental into a class of actions that are duty to adhere to the following consultation under UMRA. 62 FR categorically excluded from review requirements: (1) Eliminate drafting 12820. (This policy is also available at under the National Environmental errors and ambiguity; (2) write http://www.gc.doe.gov.) Today’s Policy Act of 1969 (NEPA; 42 U.S.C. regulations to minimize litigation; (3) proposed rule contains neither an 4321 et seq.). The rule is covered by provide a clear legal standard for intergovernmental mandate nor a Categorical Exclusion A5, for affected conduct rather than a general mandate that may result in the rulemakings that interpret or amend an standard; and (4) promote simplification expenditure of $100 million or more in existing rule without changing the and burden reduction. Section 3(b) of any year, so these requirements do not environmental effect, as set forth in Executive Order 12988 specifically apply. DOE’s NEPA regulations in appendix A requires that Executive agencies make to subpart D, 10 CFR part 1021. This every reasonable effort so that the H. Review Under the Treasury and rule will not affect the quality or regulation: (1) clearly specifies the General Government Appropriations distribution of energy usage and, preemptive effect, if any; (2) clearly Act, 1999 therefore, will not result in any specifies any effect on existing Federal Section 654 of the Treasury and environmental impacts. Accordingly, law or regulation; (3) provides a clear General Government Appropriations neither an environmental assessment legal standard for affected conduct Act, 1999 (Pub. L. 105–277) requires

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Federal agencies to issue a Family alternatives to the action and their attached to your comment. Any Policymaking Assessment for any expected benefits on energy supply, information that you do not want to be proposed rule that may affect family distribution, and use. publicly viewable should not be well-being. Today’s proposed rule Today’s regulatory action would not included in your comment, nor in any would not have any impact on the have a significant adverse effect on the document attached to your comment. autonomy or integrity of the family as supply, distribution, or use of energy Persons viewing comments will see only an institution. Accordingly, DOE has and, therefore, it is not a significant first and last names, organization concluded that it is unnecessary to energy action. Accordingly, DOE has not names, correspondence containing prepare a Family Policymaking prepared a Statement of Energy Effects. comments, and any documents Assessment. submitted with the comments. L. Review Under Section 32 of the Do not submit to regulations.gov I. Review Under Executive Order 12630 Federal Energy Administration Act of information for which disclosure is DOE has determined, under Executive 1974 restricted by statute, such as trade Order 12630, ‘‘Governmental Actions Under section 301 of the Department secrets and commercial or financial and Interference with Constitutionally of Energy Organization Act (Pub. L. 95– information (hereinafter referred to as Protected Property Rights,’’ 53 FR 8859 91), DOE must comply with section 32 Confidential Business Information (March 15, 1988), that this proposed of the Federal Energy Administration (CBI)). Comments submitted through regulation, if promulgated as a final Act of 1974 (Pub. L. 93–275), as regulations.gov cannot be claimed as rule, would not result in any takings amended by the Federal Energy CBI. Comments received through the that might require compensation under Administration Authorization Act of Web site will waive any CBI claims for the Fifth Amendment to the U.S. 1977 (15 U.S.C. 788). Section 32 the information submitted. For Constitution. essentially provides, in relevant part, information on submitting CBI, see the J. Review Under the Treasury and that where a proposed rule contains or Confidential Business Information General Government Appropriations involves use of commercial standards, section. DOE processes submissions made Act, 2001 the notice of proposed rulemaking must inform the public of the use and through regulations.gov before posting Section 515 of the Treasury and background of such standards. In them online. Normally, comments will General Government Appropriations addition, section 32(c) requires DOE to be posted within a few days of being Act, 2001 (44 U.S.C. 3516, note) consult with the Attorney General and submitted. However, if large volumes of provides for agencies to review most the Chairman of the FTC concerning the comments are processed disseminations of information to the impact of the commercial or industry simultaneously, your comment may not public under guidelines established by standards on competition. be viewable for up to several weeks. each agency pursuant to general Today’s SNOPR does not incorporate Please keep the comment tracking guidelines issued by OMB. The OMB’s testing methods contained in number that regulations.gov provides guidelines were published in 67 FR commercial standards. after you have successfully uploaded 8452 (Feb. 22, 2002), and DOE’s your comment. guidelines were published at 67 FR V. Public Participation Submitting comments via e-mail, 62446 (Oct. 7, 2002). DOE has reviewed A. Submission of Comments hand delivery, or mail. Comments and today’s proposed rule under the OMB documents submitted via email, hand and DOE guidelines and has concluded DOE will accept comments, data, and delivery, or mail also will be posted to that it is consistent with applicable other information regarding the SNOPR regulations.gov. If you do not want your policies in those guidelines. no later than the date provided in the personal contact information to be DATES section at the beginning of this publicly viewable, do not include it in K. Review Under Executive Order 13211 notice. Interested parties may submit your comment or any accompanying Executive Order 13211, ‘‘Actions comments using any of the methods documents. Instead, provide your Concerning Regulations That described in the ADDRESSES section at contact information on a cover letter. Significantly Affect Energy Supply, the beginning of this rulemaking. Include your first and last names, email Distribution, or Use,’’ 66 FR 28355 (May Submitting comments via address, telephone number, and 22, 2001), requires Federal agencies to regulations.gov. The http:// optional mailing address. The cover prepare and submit to OIRA, Office of www.regulations.gov webpage will letter will not be publicly viewable as Management and Budget, a Statement of require you to provide your name and long as it does not include any Energy Effects for any proposed contact information. Your contact comments. significant energy action. A ‘‘significant information will be viewable to DOE Include contact information each time energy action’’ is defined as any action Building Technologies staff only. Your you submit comments, data, documents, by an agency that promulgated or is contact information will not be publicly and other information to DOE. E-mail expected to lead to promulgation of a viewable except for your first and last submissions are preferred. If you submit final rule, and that (1) is a significant names, organization name (if any), and via mail or hand delivery, please regulatory action under Executive Order submitter representative name (if any). provide all items on a CD, if feasible. It 12866, or any successor order; and (2) If your comment is not processed is not necessary to submit printed is likely to have a significant adverse properly because of technical copies. No telefacsimiles (faxes) will be effect on the supply, distribution, or use difficulties, DOE will use this accepted. of energy; or (3) is designated by the information to contact you. If DOE Comments, data, and other Administrator of OIRA as a significant cannot read your comment due to information submitted to DOE energy action. For any proposed technical difficulties and cannot contact electronically should be provided in significant energy action, the agency you for clarification, DOE may not be PDF (preferred), Microsoft Word or must give a detailed statement of any able to consider your comment. Excel, WordPerfect, or text (ASCII) file adverse effects on energy supply, However, your contact information format. Provide documents that are not distribution, or use should the proposal will be publicly viewable if you include secured, are written in English, and are be implemented, and of reasonable it in the comment or in any documents free of any defects or viruses.

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Documents should not contain special compressors and larger refrigerant Appendix M to Subpart B of Part 430— characters or any form of encryption volume; Uniform Test Method for Measuring the and, if possible, they should carry the 3. The proposed equation to adjust Energy Consumption of Central Air electronic signature of the author. crankcase heater power draw for Conditioners and Heat Pumps Campaign form letters. Please submit systems with multiple compressors; * * * * * campaign form letters by the originating 4. The estimate of the number of small 1.13 Blower coil unit means a residential organization in batches of between 50 entities that may be impacted by the central air conditioner or heat pump where and 500 form letters per PDF, or as one proposed test procedure; the indoor-side refrigerant-to-air heat form letter with a list of supporters’ exchanger coil is packaged in the same names compiled into one or more PDFs. 5. The estimate of the impact of the cabinet as the indoor blower. All single- This reduces comment processing and proposed test procedure amendments packaged units are blower coil units; split- posting time. on small entities and its conclusion that system units may be either blower coil units Confidential Business Information. this impact is not significant. or coil-only units. Pursuant to 10 CFR 1004.11, any person 1.14 CFR means Code of Federal VI. Approval of the Office of the Regulations. submitting information that he or she Secretary 1.15 Coefficient of Performance (COP) believes to be confidential and exempt means the ratio of the average rate of space by law from public disclosure should The Secretary of Energy has approved heating delivered to the average rate of submit via email, postal mail, or hand publication of this SNOPR. electrical energy consumed by the heat delivery two well-marked copies: one pump. These rate quantities must be List of Subjects in 10 CFR Part 430 copy of the document marked determined from a single test or, if derived confidential including all the Administrative practice and via interpolation, must be tied to a single set of operating conditions. COP is a information believed to be confidential, procedure, Confidential business dimensionless quantity. When determined and one copy of the document marked information, Energy conservation test for a ducted unit tested without an indoor fan non-confidential with the information procedures, Household appliances, installed, COP must include the section 3.7, believed to be confidential deleted. Imports, Intergovernmental relations, 3.8, and 3.9.1 default values for the heat Submit these documents via email or on Small businesses. output and power input of a fan motor. 1.16 Coil-only unit means a split-system a CD, if feasible. DOE will make its own Issued in Washington, DC, on September determination about the confidential residential central air conditioner or split- 29, 2011. system heat pump where the indoor section status of the information and treat it Kathleen B. Hogan, includes a refrigerant-to-air heat exchanger according to its determination. coil but not a blower (fan). Coil-only units are Factors of interest to DOE when Deputy Assistant Secretary for Energy Efficiency, Office of Technology designed to be installed and used in evaluating requests to treat submitted Development, Energy Efficiency and combination with a furnace or a modular information as confidential include: (1) Renewable Energy. blower. A description of the items; (2) whether 1.17 Constant-air-volume-rate indoor fan and why such items are customarily For the reasons set forth in the means a fan that varies its operating speed to treated as confidential within the preamble, DOE proposes to amend part provide a fixed air-volume-rate from a ducted 430 of chapter II, subchapter D, of title system. industry; (3) whether the information is 1.18 Continuously recorded, when generally known by or available from 10 of the Code of Federal Regulations, referring to a dry bulb measurement, means other sources; (4) whether the to read as set forth below: that the specified temperature must be information has previously been made sampled at regular intervals that are equal to available to others without obligation PART 430—ENERGY CONSERVATION or less than the maximum intervals specified concerning its confidentiality; (5) an PROGRAM FOR CONSUMER in section 4.3 part ‘‘a’’ of ASHRAE Standard explanation of the competitive injury to PRODUCTS 41.1–86 (RA 01). If such dry bulb the submitting person which would temperatures are used only for test room result from public disclosure; (6) when 1. The authority citation for Part 430 control, it means that one samples at regular continues to read as follows: intervals equal to or less than the maximum such information might lose its intervals specified in section 4.3 part ‘‘b’’ of confidential character due to the Authority: 42 U.S.C. 6291–6309; 28 U.S.C. the same ASHRAE Standard. Regarding wet passage of time; and (7) why disclosure 2461 note. bulb temperature, dew point temperature, or of the information would be contrary to Appendix M [Amended] relative humidity measurements, the public interest. continuously recorded means that the It is DOE’s policy that all comments 2. Appendix M to subpart B of part measurements must be made at regular may be included in the public docket, 430 is amended as follows: intervals that are equal to or less than 1 without change and as received, minute. a. In section 1, Definitions, by revising 1.19 Cooling load factor (CLF) means the including any personal information sections 1.13 through 1.51: ratio having as its numerator the total cooling provided in the comments (except b. In section 2, Testing Conditions, by delivered during a cyclic operating interval information deemed to be exempt from adding paragraph d. in section 2.2. consisting of one ON period and one OFF public disclosure). c. In section 3,Testing Procedures, by: period. The denominator is the total cooling that would be delivered, given the same B. Issues on Which DOE Seeks Comment i. Revising section 3.1; ambient conditions, had the unit operated Although comments are welcome on ii. Adding sections 3.13 through continuously at its steady-state space cooling all aspects of this rulemaking, DOE is 3.13.4.9. capacity for the same total time (ON + OFF) particularly interested in receiving interval. d. In section 4, Calculations of 1.20 Crankcase heater includes all comments on the following issues: Seasonal Performance Descriptors, by: 1. The proposed equation for the devices and mechanisms for intentionally i. Adding sections 4.2.6 through generating heat within and/or around the calculation of a system’s off-mode 4.2.6.2.4; compressor sump volume to minimize the rating; diluting of the compressor’s refrigerant oil by 2. An appropriate scaling factor to ii. Revising section 4.3.1. condensed refrigerant. account for larger units requiring a The additions and revisions read as 1.21 Cyclic Test means a test where the larger crankcase heater due to bigger follows: unit’s compressor is cycled on and off for

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specific time intervals. A cyclic test provides compressor ON-time when space heating. DHR are provided for six generalized U.S. half the information needed to calculate a One acceptable alternative to the criterion climatic regions in section 4.2. degradation coefficient. given in the prior sentence is a feedback 1.26 Dry-coil tests are cooling mode tests 1.22 Damper box means a short section of system that measures the length of the defrost where the wet-bulb temperature of the air duct having an air damper that meets the period and adjusts defrost frequency supplied to the indoor coil is maintained low performance requirements of section 2.5.7. accordingly.9 In all cases, when the frost enough that no condensate forms on this coil. 1.23 Degradation coefficient (CD) means a parameter(s) reaches a predetermined value, 1.27 Ducted system means an air parameter used in calculating the part load the system initiates a defrost. In a demand- conditioner or heat pump that is designed to be permanently installed equipment and factor. The degradation coefficient for cooling defrost control system, defrosts are is denoted by CDc. The degradation delivers conditioned air to the indoor space terminated based on monitoring a coefficient for heating is denoted by CDh . through a duct(s). The air conditioner or heat parameter(s) that indicates that frost has been 1.24 Demand-defrost control system pump may be either a split system or a means a system that defrosts the heat pump eliminated from the coil. single-packaged unit. outdoor coil only when measuring a A demand-defrost control system, which 1.28 Energy efficiency ratio (EER) means predetermined degradation of performance. otherwise meets the above requirements, may the ratio of the average rate of space cooling The heat pump’s controls monitor one or allow time-initiated defrosts if, and only if, delivered to the average rate of electrical more parameters that always vary with the such defrosts occur after 6 hours of energy consumed by the air conditioner or amount of frost accumulated on the outdoor compressor operating time. heat pump. These rate quantities must be coil (e.g., coil to air differential temperature, 1.25 Design heating requirement (DHR) determined from a single test or, if derived coil differential air pressure, outdoor fan predicts the space heating load of a residence via interpolation, must be tied to a single set power or current, optical sensors, etc.) at when subjected to outdoor design conditions. of operating conditions. EER is expressed in least once for every ten minutes of Estimates for the minimum and maximum units of

When determined for a ducted unit tested 1.32 Mini-split air conditioners and heat 1.37 Single-packaged unit means any without an indoor fan installed, EER must pumps means systems that have a single central air conditioner or heat pump that has include the section 3.3 and 3.5.1 default outdoor section and one or more indoor all major assemblies enclosed in one cabinet. values for the heat output and power input sections. The indoor sections cycle on and off 1.38 Small-duct, high-velocity system of a fan motor. in unison in response to a single indoor means a system that contains a blower and 1.29 Heating load factor (HLF) means the thermostat. indoor coil combination that is designed for, ratio having as its numerator the total heating 1.33 Multiple-split air conditioners and and produces, at least 1.2 inches (of water) delivered during a cyclic operating interval heat pumps means systems that have two or of external static pressure when operated at consisting of one ON period and one OFF more indoor sections. The indoor sections the full-loadair volume rate of 220–350 cfm period. The denominator is the total heating operate independently and can be used to per rated ton of cooling. When applied in the that would be delivered, given the same condition multiple zones in response to field, small-duct products use high-velocity ambient conditions, if the unit operated multiple indoor thermostats. room outlets (i.e., generally greater than 1000 continuously at its steady-state space heating 1.34 Non-ducted system means an air fpm) having less than 6.0 square inches of capacity for the same total time (ON plus conditioner or heat pump that is designed to free area. OFF) interval. be permanently installed equipment and 1.39 Split system means any air conditioner or heat pump that has one or 1.30 Heating seasonal performance factor directly heats or cools air within the conditioned space using one or more indoor more of the major assemblies separated from (HSPF) means the total space heating coils that are mounted on room walls and/ the others. required during the space heating season, or ceilings. The unit may be of a modular 1.40 Standard Air means dry air having a expressed in Btu’s, divided by the total design that allows for combining multiple mass density of 0.075 lb/ft3. electrical energy consumed by the heat pump outdoor coils and compressors to create one 1.41 Steady-state test means a test where system during the same season, expressed in overall system. Non-ducted systems covered the test conditions are regulated to remain as watt-hours. The HSPF used to evaluate by this test procedure are all split systems. constant as possible while the unit operates compliance with the Energy Conservation 1.35 Part-load factor (PLF) means the continuously in the same mode. Standards (see 10 CFR 430.32(c), subpart C) ratio of the cyclic energy efficiency ratio 1.42 Temperature bin means the 5 °F is based on Region IV, the minimum (coefficient of performance) to the steady- increments that are used to partition the standardized design heating requirement, state energy efficiency ratio (coefficient of outdoor dry-bulb temperature ranges of the and the sampling plan stated in 10 CFR performance). Evaluate both energy cooling (≥ 65 °F) and heating (< 65 °F) 430.24(m), subpart B. efficiency ratios (coefficients of performance) seasons. 1.31 Heat pump having a heat comfort based on operation at the same ambient 1.43 Test condition tolerance means the controller means equipment that regulates conditions. maximum permissible difference between the the operation of the electric resistance 1.36 Seasonal energy efficiency ratio average value of the measured test parameter elements to assure that the air temperature (SEER) means the total heat removed from and the specified test condition. leaving the indoor section does not fall below the conditioned space during the annual 1.44 Test operating tolerance means the a specified temperature. This specified cooling season, expressed in Btu’s, divided maximum permissible range that a temperature is usually field adjustable. Heat by the total electrical energy consumed by measurement may vary over the specified test pumps that actively regulate the rate of the air conditioner or heat pump during the interval. The difference between the electric resistance heating when operating same season, expressed in watt-hours. The maximum and minimum sampled values below the balance point (as the result of a SEER calculation in section 4.1 of this must be less than or equal to the specified second stage call from the thermostat) but do appendix and the sampling plan stated in 10 test operating tolerance. not operate to maintain a minimum delivery CFR 429.16, subpart B are used to evaluate 1.45 Time adaptive defrost control system temperature are not considered as having a compliance with the Energy Conservation is a demand-defrost control system (see heat comfort controller. Standards. (See 10 CFR 430.32(c), subpart C.) definition 1.24) that measures the length of

9 Systems that vary defrost intervals according to outdoor dry-bulb temperature are not demand defrost systems.

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the prior defrost period(s) and uses that 1.50 Two-capacity, northern heat pump pumps, the shoulder season is the only off- information to automatically determine when means a heat pump that has a factory or field- mode season. to initiate the next defrost cycle. selectable lock-out feature to prevent space * * * * * 1.46 Time delay switch or relay means, cooling at high-capacity. Two-capacity heat 3.13 Laboratory testing to determine off- with respect to off-mode testing, a device that pumps having this feature will typically have mode average power ratings. controls the crankcase heater and prevents two sets of ratings, one with the feature 3.13.1 Determine if the residential central the crankcase heater from turning on until disabled and one with the feature enabled. air conditioner or heat pump has a the unit has been off for a specified amount The indoor coil model number should reflect compressor crankcase heater (see definition of time. whether the ratings pertain to the lockout 1.20). If so equipped, determine from the 1.47 Time-temperature defrost control enabled option via the inclusion of an extra manufacturer if the compressor crankcase systems initiate or evaluate initiating a identifier, such as ‘‘+LO.’’ When testing as a heater’s on/off operation is regulated or is defrost cycle only when a predetermined two-capacity, northern heat pump, the unregulated, with the heater operating cumulative compressor ON-time is obtained. lockout feature must remain enabled for all continuously when the compressor is off. This predetermined ON-time is generally a tests. Also determine from the manufacturer if the fixed value (e.g., 30, 45, 90 minutes) although 1.51 Wet-coil test means a test conducted crankcase heater is regulated with a time it may vary based on the measured outdoor at test conditions that typically cause water delay relay (see definition 1.46) or has dry-bulb temperature. The ON-time counter vapor to condense on the test unit evaporator thermostat sensor located on the compressor accumulates if controller measurements (e.g., shell. Use Table 17 to determine the required outdoor temperature, evaporator coil. 2.2. * * * test methods based on the presence of a temperature) indicate that frost formation crankcase heater and how it is controlled. conditions are present, and it is reset/remains * * * * * 3.13.2 For residential central air at zero at all other times. In one application d. When testing coil-only residential conditioners or heat pumps not having a of the control scheme, a defrost is initiated central air conditioners and heat pumps, compressor crankcase heater or having a whenever the counter time equals the install a toroidal type transformer to power crankcase heating which is unregulated, predetermined ON-time. The counter is reset the low-voltage components of the coil-only conduct the following off-mode test. when the defrost cycle is completed. system. The manufacturer shall designate any 3.13.2.1 Configure the controls of the In a second application of the control additional specification for this transformer. residential central air conditioner or heat scheme, one or more parameters are If the manufacturer does not so designate, use pump to mimic the operating mode as if measured (e.g., air and/or refrigerant a transformer having the following features: connected to a building thermostat that is set temperatures) at the predetermined, a nominal V-amp rating that results in the to the OFF position. No requirements are cumulative, compressor ON-time. A defrost transformer being loaded from 25 and 90 placed on the ambient conditions within the is initiated only if the measured parameter(s) percent based on the highest power value indoor and outdoor test rooms. The room falls within a predetermined range. The ON- expected and then confirmed during the off- conditions are allowed to change for the time counter is reset regardless of whether a mode test; designed to operate with a duration of this particular test. defrost is initiated. If systems of this second primary input of 230 V, single phase, 60 Hz; 3.13.2.2 After the controls have been type use cumulative ON-time intervals of 10 and that provides an output voltage that is configured, wait at least 2 minutes. Then minutes or less, then the heat pump may within the allowed range for each low- integrate the power consumption of the qualify as having a demand defrost control voltage component. The power consumption residential central air conditioner or heat system (see definition 1.24). of the lab-added low-voltage transformer, and pump over a 5-minute interval. This 1.48 Triple-split system means an air the components connected to it, must be integrated power consumption must include conditioner or heat pump that is composed measured as part of the total system power the power consumed by the low-voltage of three separate components: An outdoor fan consumption during the off-mode tests. This transformer and the low-voltage components coil section, an indoor fan coil section, and total system power for the coil-only unit, connected to it. Calculate the average power an indoor compressor section. however, must then be reduced by the power consumption rate for the integration interval 1.49 Two-capacity (or two-stage) consumed by the lab-added transformer and designate it as P1x. compressor means an air conditioner or heat when no load is connected to it. 3.13.2.3 Coil-only system (see definition pump that has one of the following: 1.16) power adjustment: Disconnect all low- (1) A two-speed compressor, * * * * * voltage wiring from the low-voltage (2) Two compressors where only one 3.1 General Requirements. a. If, during transformer and integrate the power compressor ever operates at a time, the testing process, an equipment set-up consumption of the fully unloaded (3) Two compressors where one adjustment is made that would alter the transformer over a 5-minute interval. compressor (Compressor #1) operates at low performance of the unit when conducting an Calculate the average power consumption loads and both compressors (Compressors #1 already completed test, then repeat all tests rate for the integration interval and designate and #2) operate at high loads but Compressor affected by the adjustment. For cyclic tests, it as Px. #2 never operates alone, or instead of maintaining an air volume rate for 3.13.2.4 Blower-coil system (see (4) A compressor that is capable of cylinder each airflow nozzle, maintain the static definition 1.13) power adjustment: If tested or scroll unloading. pressure difference or velocity pressure and rated with a specific furnace or specific For such systems, low capacity means: during an ON period at the same pressure modular blower, measure only the power (1) Operating at low compressor speed, difference or velocity pressure as measured supplied to the furnace or modular blower (2) Operating the lower capacity during the steady-state test conducted at the while idle (e.g., disconnect the low-voltage compressor, same test conditions. wiring for the components housed in the (3) Operating Compressor #1, or b. Use the testing procedures in this residential central air conditioner parts of the (4) Operating with the compressor section to collect the data used for system from the transformer) and integrate unloaded (e.g., operating one piston of a two calculating: this power over a 5-minute interval. piston reciprocating compressor, using a 1. Performance metrics for residential Calculate the average power consumption of fixed fractional volume of the full scroll, central air conditioners and heat pumps the fully unloaded transformer, idle furnace, etc.). during the cooling season; or idle modular blower over the integration For such systems, high capacity means: 2. Performance metrics for heat pumps interval and designate it as Px. (1) Operating at high compressor speed, during the heating season; and 3.13.2.5 For both coil-only and blower- (2) Operating the higher capacity 3. Power consumption metric(s) for coil systems with a single compressor: To compressor, residential central air conditioners and heat calculate P1, the off-mode power solely (3) Operating Compressors #1 and #2, or pumps during the off-mode season(s). For attributable to the residential central air (4) Operating with the compressor loaded residential central air conditioners, the off- conditioner or heat pump, subtract this (e.g., operating both pistons of a two-piston mode seasons are the shoulder seasons that average power consumption (Px) from the reciprocating compressor, using the full separate the cooling and heating seasons and previously calculated overall system average volume of the scroll). the entire heating season. For residential heat power (P1x):

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attributable to the residential central air Next, calculate an average power draw on a ° 3.13.2.6 For both coil-only and blower- conditioner or heat pump at 82 F, first per compressor basis by dividing the disconnect the crankcase heater and then difference between the overall system power coil systems with multiple compressors: To record the overall system power draw with draws (P1X and P1D). Then combine this calculate P1, the off-mode power solely the disconnected crankcase heater as P1D. difference with the previous recorded P1D:

3.13.2.7 Round P1 to the nearest integer or idle modular blower over the integration compressor crankcase heater whose on/off wattage value and record this rounded value interval and designate it as PX. operation is regulated and, according to the as both P2 and P1. If the resulting P2 and P1 3.13.3.5 For both coil-only and blower- manufacturer, has either a time delay switch are each less than 1 watt, assign each of them coil systems with a single compressor: To (see definition 1.46) controlling the crankcase the value of zero. calculate P1, the off-mode power solely heater or a temperature sensor for the 3.13.3 For residential central air attributable to the residential central air crankcase heater located on the compressor conditioners or heat pumps having a conditioner or heat pump at 82 °F, subtract shell. compressor crankcase heater whose on/off this average power consumption (PX) from 3.13.4.1 Configure the controls of the operation is regulated, but according to the the previously calculated overall system residential central air conditioner or heat manufacturer does not have either a time average power (P1X) and round P1 to the pump to mimic the operating mode as if delay switch (see definition 1.46) controlling nearest integer wattage value: connected to a building thermostat that is set the crankcase heater or a temperature sensor to the OFF position. Position a lab-added for the crankcase heater located on the temperature sensor in the air between 2 and compressor shell. 3.13.3.6 Continue to maintain an indoor 6 inches from the crankcase heater 3.13.3.1 Configure the controls of the dry bulb temperature of between 75 °F and temperature sensor. For this off-mode test residential central air conditioner or heat 85 °F, but decrease the outdoor temperature and the one that follows at 57 °F, use this lab- pump to mimic the operating mode as if until the lab-added temperature sensor added temperature sensor to measure the connected to a building thermostat that is set achieves an outdoor ambient dry bulb outdoor dry bulb temperature. Conduct these to the OFF position. Position a lab-added temperature of 57 °F, +/¥ 2 °F for at least tests before any other tests and maintain an temperature sensor in the air between 2 and 5 minutes. Then integrate the power indoor dry bulb temperature of between 75 6 inches from the crankcase heater consumption of the residential central air °F and 85 °F during the off-mode tests. temperature sensor. For this off-mode test conditioner or heat pump over a 5-minute 3.13.4.2 After the controls have been and the one that follows at 57 °F, use this lab- interval. Calculate the average power configured, wait at least 2 minutes. Then added temperature sensor to measure the consumption rate for the integration interval integrate the power consumption of the outdoor dry bulb temperature. Conduct these and designate it as P2. residential central air conditioner or heat tests following the steady state ‘B’ test and 3.13.3.7 After the controls have been pump over a 5-minute interval. This maintain an indoor dry bulb temperature of configured, wait at least 2 minutes. Then integrated power consumption must include between 75 °F and 85 °F during the off-mode integrate the power consumption of the the power consumed by the low-voltage tests. residential central air conditioner or heat transformer and the low-voltage components 3.13.3.2 After the controls have been pump over a 5-minute interval. This connected to it. Calculate the average power configured, wait at least 2 minutes. Then integrated power consumption must include consumption rate for the integration interval integrate the power consumption of the the power consumed by the low-voltage and designate it as P1X. residential central air conditioner or heat transformer and the low-voltage components 3.13.4.3 Coil-only system (see definition pump over a 5-minute interval. This connected to it. Calculate the average power 1.16) power adjustment: Reduce the overall integrated power consumption must include consumption rate for the integration interval system off-mode power measurement, P1X, the power consumed by the low-voltage and designate it as P2X. by the power supplied to components not transformer and the low-voltage components 3.13.3.8 For both coil-only and blower- part of the residential central air conditioner connected to it. Calculate the average power coil systems with a single compressor: To or heat pump. Disconnect all low-voltage consumption rate for the integration interval calculate P2, the off-mode power solely wiring from the low-voltage transformer and and designate it as P1X. attributable to the residential central air integrate the power consumption of the fully 3.13.3.3 Coil-only system (see definition conditioner or heat pump at 57 °F, subtract unloaded transformer over a 5-minute 1.16) power adjustment: Reduce the overall this average power consumption (PX) from interval. Calculate the average power system off-mode power measurement, P1x, the previously calculated overall system consumption rate for the integration interval by the power supplied to components not average power (P2X) and round P2 to the and designate it as PX. part of the residential central air conditioner nearest integer wattage value: 3.13.4.4 Blower-coil system (see or heat pump. Disconnect all low-voltage definition 1.13) power adjustment: If tested wiring from the low-voltage transformer and and rated with a specific furnace or specific integrate the power consumption of the fully 3.13.3.9 For both coil-only and blower- modular blower, measure only the power unloaded transformer over a 5-minute coil systems with multiple compressors: To supplied to the furnace or modular blower interval. Calculate the average power calculate P2, the off-mode power solely while idle (e.g., disconnect the low-voltage consumption rate for the integration interval attributable to the residential central air wiring for the components housed in the and designate it as PX. conditioner or heat pump at 57 °F, first residential central air conditioner parts of the 3.13.3.4 Blower-coil system (see calculate an average power draw on a per system from the transformer) and integrate definition 1.13) power adjustment: If tested compressor basis by dividing the difference this power over a 5-minute interval. and rated with a specific furnace or specific Calculate the average power consumption of between the overall system power draws (P1X modular blower, measure only the power the fully unloaded transformer, idle furnace, and P2X). Then combine this value with the supplied to the furnace or modular blower previously determined P1, and round P2 to or idle modular blower over the integration while idle (e.g., disconnect the low-voltage the nearest integer wattage value: interval and designate it as PX. wiring for the components housed in the 3.13.4.5 For both coil-only and blower- residential central air conditioner parts of the coil systems: To calculate P1, the off-mode system from the transformer) and integrate power solely attributable to the residential this power over a 5-minute interval. central air conditioner or heat pump at 82 °F, Calculate the average power consumption of 3.13.4 For residential central air subtract this average power consumption (PX) the fully unloaded transformer, idle furnace, conditioners or heat pumps having a from the previously calculated overall system

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average power (P1X) round P1 to the nearest 3.13.4.7 After the controls have been the previously calculated overall system integer wattage value: configured, wait at least 2 minutes. Then average power (P2X) and round P2 to the integrate the power consumption of the nearest integer wattage value: residential central air conditioner or heat 3.13.4.6 Continue to maintain an indoor pump over a 5-minute interval. This dry bulb temperature of between 75 °F and integrated power consumption must include 3.13.4.9 For both coil-only and blower- the power consumed by the low-voltage 85 °F, but decrease the outdoor temperature coil systems with multiple compressors: To transformer and the low-voltage components until the lab-added temperature sensor connected to it. Calculate the average power calculate P2, the off-mode power solely achieves an outdoor ambient dry bulb consumption rate for the integration interval attributable to the residential central air temperature of 57 °F, +/¥2 °F for at least 5 conditioner or heat pump at 57 °F, first and designate it as P2X. minutes. Then integrate the power 3.13.4.8 For both coil-only and blower- calculate an average power draw on a per consumption of the residential central air coil systems with a single compressor: To compressor basis by dividing the difference conditioner or heat pump over a 5-minute calculate P2, the off-mode power solely between the overall system power draws (P1X interval. Calculate the average power attributable to the residential central air and P2X). Then combine this with the consumption rate for the integration interval conditioner or heat pump at 57 °F, subtract previously determined P1, and round P2 to and designate it as P2. this average power consumption (PX) from the nearest integer wattage value:

4. * * * capacity of greater than 36,000 Btu/h, * * * * * calculate the capacity scaling factor 4.2.6 Off-mode seasonal power and according to: energy consumption calculations. 4.2.6.2.1 For the shoulder seasons. 4.2.6.1.1 For residential central air Calculate the off-mode energy consumption conditioners and heat pumps with a cooling capacity of less than 36,000 Btu/h, determine for the shoulder season, E1, using a systems off-mode rating, PW,OFF, by using Where, the following equation: Qc(95) = the total cooling capacity at the A Where P1 is determined as specified in or A2 Test condition. section 3.13 and the SSH are provided in Then, average the off-mode power Table 19 for the six generalized climatic regions along with the national average rating 4.2.6.1.2 For residential central air ratings and divide by the scaling factor conditioners and heat pumps with a cooling to determine a system’s off-mode rating: values.

TABLE 19—REPRESENTATIVE COOLING AND HEATING LOAD HOURS AND THE CORRESPONDING SET OF SEASONAL HOURS FOR EACH GENERALIZED CLIMATIC REGION

Cooling load Heating load Cooling season Heating season Shoulder season Climatic region hours hours hours hours hours CLHR HLHR CSHR HSHR SSHR

I ...... 2400 750 6731 1826 203 II ...... 1800 1250 5048 3148 564 III ...... 1200 1750 3365 4453 942 IV ...... 800 2250 2244 5643 873 Rating Values ...... 1000 2080 2805 5216 739 V ...... 400 2750 1122 6956 682 VI ...... 200 2750 561 6258 1941

4.2.6.2.2 For the heating season— Table 19 for the six generalized climatic 4.2.6.2.4 For residential heat pumps only, residential central air conditioners only. regions along with the national average rating the annual off-mode energy consumption of Calculate the off-mode energy consumption values. a residential central air conditioner ETOTAL of a residential central air conditioner during 4.2.6.2.3 For residential central air equals E1. the heating season, E2, using conditioners only. Calculate the annual off- * * * * * mode energy consumption of a residential 4.3.1 Calculation of actual regional central air conditioner ETOTAL, using annual performance factors (APFA) for a Where P1 is determined as specified in particular location and for each standardized section 4.2.6.2 and the HSH are provided in design heating requirement.

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Where, DEPARTMENT OF ENERGY Docket: For access to the docket to CLHA = the actual cooling hours for a read background documents, or particular location as determined using 10 CFR Part 430 comments received, go to the Federal the map given in Figure 3, hr; eRulemaking Portal at http:// [Docket Number EERE–2010–BT–TP–0023] www.regulations.gov. RIN 1904–AC26 FOR FURTHER INFORMATION CONTACT: Mr. Wes Anderson, U.S. Department of the space cooling capacity of the unit as Energy Conservation Program: Test Energy, Office of Energy Efficiency and determined from the A or A2 Test, Procedures for Microwave Ovens Renewable Energy, Building whichever applies, Btu/h; Technologies Program, EE–2J, 1000 HLHA = the actual heating hours for a AGENCY: Office of Energy Efficiency and Independence Avenue, SW., particular location as determined using Renewable Energy, Department of Washington, DC 20585–0121. the map given in Figure 2, hr; Energy. Telephone: 202–586–7335. E-mail: DHR = the design heating requirement used ACTION: Request for information. [email protected]. in determining the HSPF; refer to section In the Office of the General Counsel, 4.2 and definition 1.22, Btu/h; SUMMARY: The U.S. Department of contact Mr. Ari Altman, U.S. C = defined in section 4.2 following Equation Energy (DOE) has initiated a test Department of Energy, 1000 4.2–2, dimensionless; procedure rulemaking to develop active Independence Ave., SW., Room 6B–159, SEER = the seasonal energy efficiency ratio mode testing methodologies for Washington, DC 20585. Telephone: calculated as specified in section 4.1, residential microwave ovens. DOE 202–287–6307; E-mail: Btu/W·h; specifically is seeking information, data, [email protected]. HSPF = the heating seasonal performance and comments regarding representative SUPPLEMENTARY INFORMATION: factor calculated as specified in section and repeatable methods for measuring On July 4.2 for the generalized climatic region the energy use of microwave-only ovens 22, 2010, DOE published in the Federal that includes the particular location of and combination microwave ovens, Register a final rule for the microwave interest (see Figure 2), Btu/W·h. The including: Food loads representative of oven test procedure rulemaking (July TP HSPF should correspond to the actual consumer use; the repeatability of repeal final rule), in which it repealed design heating requirement (DHR), if energy use measurements using the regulatory provisions for known. If it does not, it may correspond different food loads; and consumer establishing the cooking efficiency test to one of the standardized design heating usage data on the hours of operation in procedure for microwave ovens under requirements referenced in section 4.2; active mode, standby mode, and off the Energy Policy and Conservation Act P1 = the off-mode power consumption taken mode for the development of an (EPCA). 75 FR 42579. In the July TP ° at 82 F, as determined in section 3.13, integrated energy use metric. repeal final rule, DOE determined that W, and the existing microwave oven test DATES: Written comments and P2 = the off-mode power consumption taken procedure to measure the cooking information are requested on or before at 57 °F, as determined in section 3.13, efficiency did not produce W. November 23, 2011. representative and repeatable test Evaluate the HSH using ADDRESSES: Interested persons are results and was unaware of any test encouraged to submit comments using procedures that have been developed the Federal eRulemaking Portal at that address DOE’s concerns with the http://www.regulations.gov. Follow the microwave oven cooking efficiency test instructions for submitting comments. procedure. DOE was also unaware of Alternatively, interested persons may any research or data on consumer usage Where TOD and nj/N are listed in Table 19 submit comments, identified by docket indicating what a representative food and depend on the location of interest number EERE–2010–BT–TP–0023 and/ load would be, or any data showing the relative to Figure 2. For the six generalized or RIN 1904–AC26, by any of the repeatability of test results. 75 FR climatic regions, this equation simplifies to following methods: 42579, 42581. the following set of equations: • E-mail: MWO–2010–TP– On July 22, 2010, DOE also published × Region I HSH = 2.4348 HLH [email protected]. Include docket in the Federal Register a notice of × Region II HSH = 2.5182 HLH number EERE–2010–BT–TP–0023 and/ public meeting to initiate a separate × Region III HSH = 2.5444 HLH or RIN 1904–AC26 in the subject line of rulemaking process to consider new × Region IV HSH = 2.5078 HLH the message. Submit electronic × provisions for measuring microwave Region V HSH = 2.5295 HLH comments in WordPerfect, Microsoft × oven energy efficiency in active Region VI HSH = 2.2757 HLH Word, PDF, or ASCII file format and (cooking) mode. 75 FR 42611. DOE held Evaluate the shoulder season hours using avoid the use of special characters or the public meeting on September 16, any form of encryption. 2010 to discuss and receive comments • Postal Mail: Ms. Brenda Edwards, on several issues related to active mode Where, U.S. Department of Energy, Building test procedures for microwave ovens to CSH = the cooling season hours calculated Technologies Program, Mailstop EE–2J, consider in developing a new test using CSH = 2.8045 × CLH. 1000 Independence Avenue, SW., procedure. DOE received no data or * * * * * Washington, DC 20585–0121. comments at or after the September 16, [FR Doc. 2011–25813 Filed 10–21–11; 8:45 am] Telephone: (202) 586–2945. Please 2010 public meeting suggesting BILLING CODE 6450–01–P submit one signed original paper copy. potential methodologies for test • Hand Delivery/Courier: Ms. Brenda procedures for microwave oven active Edwards, U.S. Department of Energy, mode. Building Technologies Program, 950 In support of its test procedure L’Enfant Plaza, SW., 6th Floor, rulemaking, DOE conducts in-depth Washington, DC 20024. Please submit technical analyses of publicly available one signed original paper copy. test standards and other relevant

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information. DOE continually seeks data DOE is therefore interested in efficiency of microwave oven active and public input to improve its testing stakeholder feedback on what food mode cooking. When providing data, methodologies to more accurately reflect loads are most commonly cooked by please provide detailed description of consumer use and to produce repeatable consumers and should be used for the characteristics of the cooking load results. In general, DOE is requesting measuring the energy efficiency of under test; comment and supporting data regarding microwave oven cooking, as well as the • Whether there are any artificial representative and repeatable methods methodology for testing such food loads. loads that accurately simulate real food for measuring the energy use of In particular, DOE is requesting inputs loads and the repeatability of test results combination microwave ovens. on the following: using those loads; Additionally, DOE seeks comment and • Consumer usage data on the • Methodologies for improving the information on the specific topics characteristics of food loads cooked by repeatability of testing using various below. consumers in both microwave-only and food loads, for example, using multiple combination cooking modes. Please thermocouples to determine an average Food Test Load Characteristics provide specific details on which food temperature; DOE’s previous active mode test loads are cooked with the microwave- • The number of identical tests that procedure incorporated portions of the only cooking function and which are should be conducted for various food International Electrotechnical cooked with the combination cooking loads (with results averaged) in order to Commission (IEC) Standard 705–1998 function; produce accurate and repeatable results; and Amendment 2–1993, ‘‘Methods for • The percentage of cooking cycles and Measuring the Performance of consumers use the microwave-only and • Any testing burdens associated with Microwave Ovens for Households and combination cooking modes; testing various food loads. Similar Purpose.’’ The test methods • Specific details on the food loads, Consumer Usage Data on Hours of measured the amount of energy required including, but not limited to, weights, Operation in Active Mode, Standby to raise the temperature of 1 kilogram of composition, frequency of cooking, and Mode, and Off Mode Operation water by 10 degrees Celsius (°C) under initial and final temperatures, as well as controlled conditions. The ratio of the racks or plates used to hold the food EPCA requires that the energy usable output power over input power load; consumption in standby mode and off described the energy factor (EF), a • Food loads used by manufacturers mode be integrated into the energy measure of the cooking efficiency.1 In to evaluate both efficiency and cooking descriptor (which would include active comments received in response to a performance; mode) for a covered product unless the separate test procedure notice of • Testing methodology for measuring current test procedures already fully proposed rulemaking (NOPR) published the cooking efficiency using different accounts for such consumption. If in the Federal Register on October 17, food loads (Please provide specific integration is technically infeasible, 2008, which addressed provisions for details on suggested testing DOE must prescribe a separate standby measuring standby mode and off mode methodologies, including, but not mode and off mode energy use test energy use for microwave ovens (73 FR limited to, the number and placement of procedure, if the latter is technically 62134), interested parties commented temperature probes, required feasible. (42 U.S.C. 6295(gg)(2)(A)) DOE that pure water has relatively low temperature increases, and any conducted a separate test procedure specific resistivity, and actual food procedures for preparing the load prior rulemaking and published an interim items that might be cooked in a to heating); and final rule amending its test procedures • microwave oven would have more salts Appropriate metrics to use for for microwave ovens to provide for the and thus absorb microwave energy more measuring energy use or efficiency in measurement of standby mode and off efficiently than pure water. Interested both microwave-only ovens and mode power use by microwave ovens. parties stated that, as a result, testing combination microwave ovens. 76 FR 12825 (Mar. 9, 2011). In the with a water load would likely result in Food Load Repeatability interim final rule, DOE determined that lower efficiency measurements than the absence of active mode provisions As discussed previously, interested would be expected from using actual results in a de facto separate energy use parties commented in response to the food products. descriptor for microwave oven standby October 2008 test procedure NOPR that DOE also notes that IEC is currently mode and off mode energy use. If DOE the previous DOE microwave oven test revising its test standard for microwave adopts amendments to the microwave procedure did not produce repeatable ovens, IEC Standard 60705, ‘‘Household oven test procedure to include results. DOE is not aware of any data on microwave ovens—Methods for provisions for measuring active mode the repeatability of various food loads. measuring performance,’’ but that this energy use, it will consider adopting a test procedure continues to use a water DOE notes that consumer product review organizations evaluate single metric that integrates active load for testing. DOE is also unaware of mode, standby mode, and off mode any industry or international test performance of microwave ovens by testing loads such as: Potatoes, mashed energy use. standards that address the active mode DOE is therefore interested in potatoes, whole chicken, cake, and other cooking function of combination stakeholder feedback on developing real-world food loads. DOE also notes microwave ovens (i.e., microwave ovens such an integrated energy use metric. In that one consumer product review that incorporate convection features or particular, DOE is requesting inputs on possibly other means of cooking) and organization in the UK uses a solidifying gel, TX–151, to simulate a the following: what food loads would be appropriate • Consumer usage data on the food load (in this case lasagna).2 DOE for testing the combination cooking number of hours microwave ovens are function. specifically requests comment on: • Repeatability of various loads that operated in active mode, standby mode, may be used for measuring the energy and off mode; and 1 The previous DOE microwave oven test • What metric should be used to procedure also provided for the calculation of describe the integrated energy use (i.e., several other measures of energy consumption, 2 For more information, visit http:// including cooking efficiency and annual energy www.which.co.uk/home-and-garden/kitchen/ annual energy use, EF, or cooking consumption. guides/how-we-test-microwaves/. efficiency);

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Public Participation energy conservation standards in the Ms. Elizabeth Kohl, U.S. Department of DOE invites all interested parties to Federal Register. This notice announces Energy, Office of the General Counsel, submit in writing by November 23, that the period for submitting comments GC–71, 1000 Independence Avenue, 2011, comments and information on on the framework document is extended SW., Washington, DC 20585–0121. matters addressed in this notice and on to November 28, 2011. Telephone: (202) 586–7796. E-mail: other matters relevant to DOE’s DATES: DOE will accept comments, data, [email protected]. consideration of a revised test procedure and information regarding the SUPPLEMENTARY INFORMATION: On for measuring the active mode energy framework document received no later September 14, 2011, DOE published a consumption of residential microwaves than November 28, 2011. notice of public meeting and availability (both microwave-only and combination ADDRESSES: Any comments submitted of the framework document in the microwave types). must identify the framework document Federal Register 76 FR 56678 After the close of the comment period, on general service fluorescent lamps (September 14, 2011) to make available DOE will begin collecting data, and incandescent reflector lamps energy and invite comments on the framework conducting relevant analyses, and conservation standards, and provide document for general service fluorescent reviewing the public comments. These docket number EERE–2011–BT–STD– lamps and incandescent reflector lamps actions will be taken to aid in the 0006 and/or RIN number 1904–AC43. energy conservation standards. The development of a test procedure NOPR Comments may be submitted using any notice provided for the submission of for residential microwaves. of the following methods: comments by October 31, 2011, and DOE considers public participation to • Federal eRulemaking Portal: http:// comments were also accepted at a be a very important part of the process www.regulations.gov. Follow the public meeting held on October 4, 2011. for developing test procedures. DOE instructions for submitting comments. At this public meeting Lutron stated it • _ actively encourages the participation of E-mail: GSFL-IRL 2011-STD- had conferred with other stakeholders the public during the comment period [email protected]. Include docket and they were in agreement that more in each stage of the rulemaking process. number EERE–2011–BT–STD–0006 time should be allowed to provide Interactions with and between members and/or RIN 1904–AC43 in the subject comments on the framework document. of the public provide a balanced line of the message. Submit electronic Lutron suggested that the comment discussion of the issues and assist DOE comments in WordPerfect, Microsoft period for the framework document be in the rulemaking process. Anyone who Word, PDF, or ASCII file format and extended to coincide with the comment wishes to be added to the DOE mailing avoid the use of special characters or period for the notice of proposed any form of encryption. rulemaking for general service list to receive future notices and • information about this rulemaking Postal Mail: Ms. Brenda Edwards, fluorescent lamps, general service should contact Ms. Brenda Edwards at U.S. Department of Energy, Building incandescent lamps, and incandescent (202) 586–2945, or via e-mail at Technologies Program, Mailstop EE–2J, reflector lamps test procedures ending [email protected]. 1000 Independence Avenue, SW., November 28, 2011. DOE has Washington, DC 20585–0121. Issued in Washington, DC, on October 18, determined that an extension of the Telephone: (202) 586–2945. Please public comment period is appropriate 2011. submit one signed original paper copy. Kathleen Hogan, • based on the foregoing reasons and is Hand Delivery/Courier: Ms. Brenda hereby extending the comment period. Deputy Assistant Secretary for Energy Edwards, U.S. Department of Energy, Efficiency, Energy Efficiency and Renewable DOE will consider any comments Building Technologies Program, 950 received by November 28, 2011/ Energy. L’Enfant Plaza, SW., 6th Floor, [FR Doc. 2011–27406 Filed 10–21–11; 8:45 am] midnight and deems any comments Washington, DC 20024. Please submit received between October 31, 2011/ BILLING CODE 6450–01–P one signed original paper copy. midnight and November 28, 2011/ Docket: For access to the docket to midnight to be timely submitted. read background documents or DEPARTMENT OF ENERGY comments received, visit the U.S. Further Information on Submitting Department of Energy, Resource Room Comments 10 CFR Part 430 of the Building Technologies Program, Under 10 CFR 1004.11, any person [Docket Number: EERE–2011–BT–STD– 950 L’Enfant Plaza, SW., 6th Floor, submitting information that he or she 0006] Washington, DC 20024, (202) 586–2945, believes to be confidential and exempt between 9 a.m. and 4 p.m. Monday RIN 1904–AC43 by law from public disclosure should through Friday, except Federal holidays. submit two copies: One copy of the Please call Ms. Brenda Edwards at the document including all the information Energy Conservation Program: above telephone number for additional Framework Document for General believed to be confidential, and one information regarding visiting the copy of the document with the Service Fluorescent Lamps and Resource Room. Please note: DOE’s Incandescent Reflector Lamps information believed to be confidential Freedom of Information Reading Room deleted. DOE will make its own AGENCY: U.S. Department of Energy (Room 1E–190 at the Forrestal Building) determination about the confidential (DOE), Office of Energy Efficiency and no longer houses rulemaking materials. status of the information and treat it Renewable Energy. FOR FURTHER INFORMATION CONTACT: according to its determination. ACTION: Notice of extension of public Dr. Tina Kaarsberg, U.S. Department of Factors of interest to DOE when comment period. Energy, Office of Energy Efficiency evaluating requests to treat submitted and Renewable Energy, Building information as confidential include (1) a SUMMARY: On September 14, 2011, DOE Technologies Program, EE–2J, 1000 description of the items, (2) whether published a notice of public meeting Independence Avenue, SW., and why such items are customarily and availability of the framework Washington, DC 20585–0121. treated as confidential within the document on general service fluorescent Telephone: (202) 287–1393. E-mail: industry, (3) whether the information is lamps and incandescent reflector lamps [email protected]. generally known by or available from

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other sources, (4) whether the You may submit written comments, Purpose of the Meeting: To provide an information has previously been made identified by RIN 1994–AA02, by any of overview of proposed changes and to available to others without obligation the following methods: conduct Q&A session with industry concerning its confidentiality, (5) an 1. Federal eRulemaking Portal: with respect to the proposed explanation of the competitive injury to http://www.regulations.gov. Follow the rulemaking. the submitting person which would instructions for submitting comments. Tentative Agenda: The Webinar will result from public disclosure, (6) when 2. E-mail: [email protected] be conducted on November 2, 2011, such information might lose its Include RIN 1994–AA02 in the subject from 10 am to 11:30 am EST. All confidential character due to the line of the message. prospective registrants will be notified passage of time, and (7) why disclosure 3. Mail: Richard Goorevich, Senior by the agency via e-mail with respect to of the information would be contrary to Policy Advisor, Office of Webinar logon information. Webinar the public interest. Nonproliferation and International materials will be transmitted to Security, NA–24, National Nuclear registrants via e-mail. Issued in Washington, DC, on October 18, Security Administration, Department of Public Participation: To participate in 2011. Energy, 1000 Independence Avenue, the Webinar, please register by sending Kathleen B. Hogan, SW., Washington, DC 20585. an e-mail to Deputy Assistant Secretary for Energy, Due to potential delays in DOE’s [email protected]. Please Efficiency Energy Efficiency and Renewable receipt and processing of mail sent include in the subject line of the e-mail Energy. through the U.S. Portal Service, DOE ‘‘DOE Webinar November 2’’. In the [FR Doc. 2011–27408 Filed 10–21–11; 8:45 am] encourages responders to submit body of the e-mail, please provide the BILLING CODE 6450–01–P comments electronically to ensure registrant’s name, affiliation, e-mail timely receipt. address, mailing address, and telephone All submissions must include the RIN number. Please submit your e-mail DEPARTMENT OF ENERGY for this rulemaking, RIN 1994–AA02. registration by noon EST on November For detailed instructions on submitting 10 CFR Part 810 1, 2011. Registration will open at 9 a.m. comments and additional information EST on Friday, October 28, 2011. on the rulemaking process, see the Registration is limited to 125 registrants. RIN 1994–AA02 ‘‘Public Comment Procedures’’ heading Please note that comments on the of the SUPPLEMENTARY INFORMATION proposed rulemaking will not be Assistance to Foreign Atomic Energy section of the September 7, 2011, Notice accepted during the Webinar. Instead, Activities of Proposed Rulemaking (76 FR 55278). the public has an opportunity to AGENCY: National Nuclear Security FOR FURTHER INFORMATION CONTACT: comment formally on the proposed Administration, Department of Energy Richard Goorevich, National Nuclear rulemaking as provided in the Federal (DOE). Security Administration, U.S. Register on September 7, 2011 (76 FR Department of Energy, Office of Defense 55278). By this notice, DOE is extending ACTION: Notice of a public meeting and Nuclear Nonproliferation (NA–20), by 30 days the deadline for comments, extension of deadline for public Office of Nonproliferation and with the final deadline for DOE comment. International Security (NA–24), 1000 receiving comments now being SUMMARY: On September 7, 2011, DOE Independence Avenue, Washington, DC December 7, 2011. Participation in the published its proposal to amend its 20585. Telephone: (202) 586–0589. E- Webinar is not a prerequisite for regulations concerning unclassified mail: [email protected]. submission of written comments. assistance to foreign atomic energy SUPPLEMENTARY INFORMATION: Registrants are responsible for activities. Today, DOE announces its Background: On September 7, 2011, ensuring their systems are compatible intention to hold one informational DOE published its proposal to amend its with Webinar software. Webinar on the proposed amendment to regulation concerning unclassified Issued in Washington, DC on October 18, the regulations. Additionally, by this assistance to foreign atomic energy 2011. notice DOE is extending by 30 days the activities (76 FR 55278). This regulation Anne Harrington, deadline for public comment. provides that persons subject to the Deputy Administrator for Defense Nuclear jurisdiction of the United States who Nonproliferation, National Nuclear Security DATES: The Webinar will take place on engage directly or indirectly in the Administration, U.S. Department of Energy. Wednesday, November 2, 2011 from 10 production of special nuclear material a.m. to 11:30 a.m. EST. Public [FR Doc. 2011–27439 Filed 10–21–11; 8:45 am] outside the United States must be BILLING CODE 6450–01–P comments are due not later than authorized to do so by the Secretary of December 7, 2011. Energy pursuant to section 57 b.(2) of ADDRESSES: U.S. Department of Energy, the Atomic Energy Act of 1954, as DEPARTMENT OF THE TREASURY 1000 Independence Ave., SW., amended. The proposed revisions Washington, DC 20585. update and clarify several provisions in Internal Revenue Service To participate in the Webinar, please the current regulation, and identify register by sending an e-mail to information that applicants are required 26 CFR Part 1 [email protected]. Please to submit in support of applications for include in the subject line of the e-mail an authorization under this Part. The [REG–133002–10] ‘‘DOE Webinar November 2’’. In the revisions are intended to reduce RIN 1545–BJ79 body of the e-mail, please provide the uncertainties for industry users registrant’s name, affiliation, e-mail concerning which foreign nuclear- Redetermination of the Consolidated address, mailing address, and telephone related activities by U.S. persons are Net Unrealized Built-In Gain and Loss number. Please submit your e-mail ‘‘generally authorized’’ under the AGENCY: Internal Revenue Service (IRS), registration by noon EST on November regulation and which activities require Treasury. 1, 2011. Registration will open at 9 a.m. a ‘‘specific authorization’’ from the ACTION: Notice of proposed rulemaking. EST on Friday, October 28, 2011. Secretary.

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SUMMARY: This document contains subgroup. In this preamble, the term its S share before the loss on the truck proposed regulations under section loss group refers to both loss groups and is recognized and absorbed, the 1502 of the Internal Revenue Code. The loss subgroups. See §§ 1.1502–91(c)(1) duplicated loss (on either the truck or regulations will apply to corporations and 1.1502–91(d). the stock, as P chooses) will be filing consolidated returns. The Section 1.1502–91(g) provides rules eliminated by § 1.1502–36. As a result, regulations will require a loss group or for determining whether a loss group the group takes into account a single loss subgroup to redetermine its has a NUBIG or NUBIL. Section 1.1502– $30 economic loss, and the inclusion of consolidated net unrealized built-in 91(g)(1) provides that the determination both the unrecognized stock loss and gain and loss in certain circumstances. of whether a loss group has a the unrecognized asset loss in the This document also invites comments consolidated NUBIG or NUBIL is based NUBIL determination would overstate from the public regarding these on the aggregate amount of the the amount of loss actually available to proposed regulations. separately determined NUBIGs and the group. DATES: Written or electronic comments NUBILs of each member included in the However, if an unrecognized gain or and requests for a public hearing must loss group. Under this rule, unrealized loss on subsidiary stock exceeds the be received by January 23, 2012. gain or loss with respect to the stock of included subsidiary’s gain or loss on its ADDRESSES: Send submissions to: a member of the loss group (an included assets, disregarding this unduplicated CC:PA:LPD:PR (REG–133002–10), room subsidiary) is disregarded in gain or loss on the stock understates the 5205, Internal Revenue Service, PO Box determining the separately determined amount that the group may take into 7604, Ben Franklin Station, Washington, NUBIG or NUBIL. account. To illustrate, assume the same facts as DC 20044. Submissions may be hand- Explanation of Provisions delivered Monday through Friday in the previous example except that P The current regulations under between the hours of 8 a.m. and 4 p.m. originally purchased the S stock for § 1.1502–91(g) are premised upon the to CC:PA:LPD:PR (REG–133002–10), $150 (S’s basis in the truck is still $100). observation that unrecognized gain or Courier’s Desk, Internal Revenue In this case, there is $80 of loss available loss on included subsidiary stock Service, 1111 Constitution Avenue, to the group, the $30 loss that is generally reflects the same economic NW., Washington, DC, or sent duplicated (reflected in the bases of gain or loss reflected in the subsidiary’s electronically, via the Federal both the stock and the truck), as well as assets and that the consolidated return the $50 unduplicated stock loss. eRulemaking Portal at http:// regulations generally prevent the group Disregarding P’s loss in its S stock www.regulations.gov (IRS REG–133002– from taking that duplicative gain or loss causes the group’s NUBIL to be 10). into account more than once. This is the understated by $50. These proposed FOR FURTHER INFORMATION CONTACT: case because, if the subsidiary first regulations are intended to prevent such Concerning the proposed regulations, recognizes the duplicated gain or loss understatement. Grid Glyer (202) 622–7930; concerning on its assets, § 1.1502–32 eliminates the The current rule is administratively submissions of comments and requests duplicative gain or loss reflected in less burdensome to taxpayers and the for a public hearing, Oluwafunmilayo stock basis. Conversely, if a member government than a rule that would Taylor (202) 622–7180 (not toll-free first recognizes duplicated loss on the require taxpayers to identify and take numbers). subsidiary stock, § 1.1502–36 eliminates into account all unduplicated gain and SUPPLEMENTARY INFORMATION: the duplicative asset loss. Although the loss on stock of included subsidiaries regulations do not specifically address when determining NUBIG and NUBIL. Background the recognition of duplicated gain on Nevertheless, the IRS and the Treasury To prevent loss trafficking, section subsidiary stock, taxpayers generally Department believe that the purpose of 382 imposes a limitation (the section avoid duplicative gain recognition, for section 382(h) would be better served by 382 limitation) on a loss corporation’s example, through actual and section 338 a rule that does not wholly disregard ability to use net operating losses that deemed asset sales and through stock such gain and loss. A rule that takes into arose prior to an ownership change. elimination transactions, such as section account unduplicated gain or loss on Section 382(b)(1). In addition, if a loss 332 liquidations. Because duplicative stock would avoid both the understating corporation has a net unrealized built- gain and loss is expected to be taken of loss available to the group (when in loss (NUBIL) at the time of an into account only once, the there is unduplicated stock loss) and the ownership change, built-in losses will determination of NUBIG and NUBIL overstating of loss trafficking potential be subject to the section 382 limitation would be distorted if it included such (when there is unduplicated stock gain). as if they were pre-change losses of the amounts more than once. The IRS and the Treasury Department loss corporation if they are recognized To illustrate, assume P, the common are concerned, however, that requiring during the five-year period following parent of a consolidated group, all consolidated NUBIG and NUBIL the ownership change (the recognition contributes $100 to S in exchange for S’s determinations to include all period). Section 382(h)(1)(B). If a sole share of stock. S uses the $100 to unduplicated stock gains and losses corporation has a net unrealized built- purchase a truck. The value of the truck would significantly increase the in gain (NUBIG) at the time of its then declines to $70. At this point, the administrative burden on both taxpayers ownership change, recognized built-in stock has a basis of $100 and a value of and the government. gains will increase the section 382 $70, reflecting a $30 loss. In addition, Accordingly, the IRS and the Treasury limitation if they are recognized during the truck has a basis of $100 and value Department propose to modify the the recognition period. Section of $70, also reflecting a $30 loss. Thus, current regulations to take into account 382(h)(1)(A). Rules for determining it would appear the group has $60 of the unduplicated gain or loss on stock whether a loss corporation has a NUBIG loss available. However, if S sells the of included subsidiaries, but only to the or NUBIL are found in section 382(h)(3). truck and the group absorbs the $30 extent that such gain or loss is taken Sections 1.1502–90 through 1.1502– loss, P will reduce its basis in the S into account by the group during the 99 provide guidance for applying stock by $30 under § 1.1502–32, and the recognition period. This will generally section 382 with respect to a duplicative stock loss will be be the case only if, within the consolidated loss group or loss eliminated. On the other hand, if P sells recognition period, such stock is sold to

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a nonmember or becomes worthless, or such amount, has no effect on the tax and the Treasury Department a member takes an intercompany item treatment of amounts taken into account participated in its development. into account with respect to such stock. prior to the redetermination of NUBIG List of Subjects in 26 CFR Part 1 More specifically, the proposed or NUBIL. regulations would revise § 1.1502–91(g) The proposed regulations also Income taxes, Reporting and by adding a rule that would apply when reorganize § 1.1502–91(g) and revise recordkeeping requirements. any member of the consolidated group § 1.1502–91(h)(2) and (h)(4) without Proposed Amendments to the directly or indirectly (for example, substantive change. Regulations through a partnership) takes any amount of gain or loss into account with respect Effective/Applicability Date Accordingly, 26 CFR part 1 is proposed to be amended as follows: to a share of stock of an included These proposed regulations will apply subsidiary (S), whether or not such to amounts taken into account with PART 1—INCOME TAXES amount is absorbed. When the rule respect to a share of stock of an applies, the loss group would be included subsidiary on or after the date Paragraph 1. The authority citation required to redetermine NUBIG or that final regulations are published in for part 1 continues to read in part as NUBIL to include any unduplicated the Federal Register, but only with follows: built-in gain or loss with respect to the respect to ownership changes occurring share. As used in these proposed Authority: 26 U.S.C. 7805 * * * on or after October 24, 2011. Section 1.1502–91 also issued under 26 regulations, the term unduplicated U.S.C. 1502. built-in stock gain or loss refers to the Special Analyses Par. 2. Section 1.1502–91 is amended by: portion of the built-in stock gain or loss It has been determined that this notice that was not originally reflected in the 1. Revising paragraph (g)(1). of proposed rulemaking is not a 2. Adding paragraphs (g)(7) and (g)(8). loss group’s NUBIG or NUBIL as significant regulatory action as defined 3. Revising paragraph (h)(2) and the unrealized gain or loss on the assets of in Executive Order 12866, as heading of paragraph (h)(4). a lower-tier included subsidiary. The supplemented by Executive Order 4. Adding paragraph (k). proposed regulations identify 13565. Therefore, a regulatory The revisions and additions read as unduplicated built-in stock gain or loss assessment is not required. Pursuant to follows: by treating the separate NUBIG or the Regulatory Flexibility Act (5 U.S.C. NUBIL of each included subsidiary that § 1.1502–91 Application of section 382 chapter 6), it is hereby certified that is lower-tier to S as having been taken with respect to a consolidated group. these proposed regulations would not into account and absorbed immediately * * * * * have a significant economic impact on before the change date. These amounts (g) Net unrealized built-in gain and a substantial number of small entities. are then deemed to tier-up to tentatively loss—(1) In general. The determination adjust the basis in the S shares under This certification is based on the fact of whether a loss group or loss subgroup the principles of § 1.1502–32. The that these proposed regulations would has a net unrealized built-in gain difference between the tentatively primarily affect members of (NUBIG) or loss (NUBIL) under section adjusted change-date basis in a share of consolidated groups which tend to be 382(h)(3) is based on the aggregate S stock and the fair market value of the large corporations. Accordingly, a amount of the separately determined share (as of the change date) is the regulatory flexibility analysis is not NUBIGs or NUBILs (including items of unduplicated gain or loss in the S share. required. Pursuant to section 7805(f) of built-in income and deduction However, if, immediately before the the Internal Revenue Code, these described in section 382(h)(6)) of each change date, a member of the loss group regulations have been submitted to the member that is included in the loss has a deferred gain or loss on S stock Chief Counsel for Advocacy of the Small group or loss subgroup, as the case may and that gain or loss is taken into Business Administration for comment be, under paragraph (g)(2) of this account during the recognition period, on their impact on small business. section. The threshold requirement the unduplicated portion of such gain or Comments and Requests for a Public under section 382(h)(3)(B) applies on an loss is determined as of the date of the Hearing aggregate basis. transaction in which the deferred gain (i) Members included in group. If a or loss was recognized, notwithstanding Before these proposed regulations are member is not included in the that such date would be prior to the adopted as final regulations, determination of whether a loss group change date. consideration will be given to any or loss subgroup has a NUBIL under The loss group then redetermines its written (a signed original and eight (8) paragraph (g)(2)(ii) or (g)(2)(iv) of this NUBIG or NUBIL by including its copies) or electronic comments that are section, that member is not included in unduplicated gain or loss on the S share submitted timely to the IRS. All the loss group or loss subgroup. See (or shares) with respect to which an comments will be available for public § 1.1502–94(c) (relating to built-in gain amount is taken into account. Under the inspection and copying. A public or loss of a new loss member) and proposed regulations, the redetermined hearing may be scheduled if requested § 1.1502–96(a) (relating to the end of NUBIG or NUBIL is given effect only in writing by any person that timely separate tracking of certain losses). immediately before the gain or loss on submits written or electronic comments. (ii) Determination of separate NUBIG the stock is taken into account. It has no If a public hearing is scheduled, notice or NUBIL. For purposes of determining effect on the treatment of built-in gain of the date, time, and place for the a member’s separate NUBIG or NUBIL— or loss that is recognized and taken into public hearing will be published in the (A) Stock of a subsidiary that is a account prior to the time that built-in Federal Register. member of the loss group or loss subgroup (an included subsidiary) is stock gain or loss is taken into account. Drafting Information Thus, for example, the fact that a NUBIL disregarded, except as provided for in group was redetermined to be a NUBIG The principal author of these paragraph (g)(7) of this section. For this group, or that a NUBIL that exceeded regulations is Grid Glyer of the Office of purpose, the term stock includes stock the 15 percent threshold amount in Associate Chief Counsel (Corporate). described in section 1504(a)(4) and section 382(h)(3)(B) no longer exceeds However, other personnel from the IRS § 1.382–2T(f)(18)(ii) and (f)(18)(iii);

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(B) Intercompany obligations are basis in the share as tentatively adjusted (8) Examples. The following examples disregarded; and immediately before the change date or, illustrate the application of the (C) Deferred amounts, such as in the case of an amount with respect to provisions of paragraph (g) of this amounts deferred under section 267 or S stock that was deferred on the change section. Unless otherwise stated, P is the § 1.1502–13, are built-in items unless date, as of the date of the transaction common parent of a consolidated group they are deferred with respect to— that gave rise to the amount, as though that is a loss group and all members of (1) An intercompany obligation; or the following occurred immediately the P group are included subsidiaries (2) A share of stock of an included before the ownership change or the with respect to the loss group. P can subsidiary; however, if an amount transaction that gave rise to the deferred establish that its gains are recognized deferred with respect to a share of such amount— built-in gains; P cannot establish that its stock is taken into account at any time (A) Deemed recognition of built-in losses are not recognized built-in losses. during the recognition period (whether gain or loss of lower-tier included In addition, the threshold requirement or not any such loss amount is subsidiaries. The separate NUBIG and of section 382(h)(3)(B) is satisfied. All absorbed), NUBIG or NUBIL must be NUBIL of S and all included other relevant facts are set forth in the redetermined in accordance with subsidiaries that are lower-tier to S are examples. paragraph (g)(7) of this section. treated as recognized, taken into account, and absorbed. Example 1. Basic application of provision. * * * * * (i) Facts. On January 1, Year 1, P owns the (B) Tiering up of recognized amounts. (7) Redetermination of NUBIG or sole outstanding share of S stock (basis $210, All amounts deemed recognized, taken NUBIL of a loss group or loss subgroup value $160) and the sole outstanding share of into account, and absorbed under to reflect unduplicated built-in gain or M stock. S owns the sole outstanding share paragraph (g)(7)(ii)(A) of this section are loss with respect to stock of an included of S1 stock (basis $100, value $80) and Truck then deemed to tier up under the (basis $70, value $80). S1 owns three of the subsidiary— principles of § 1.1502–32 to tentatively five outstanding shares of S2 common stock (i) In general. This paragraph (g)(7) adjust the basis in all of the S shares that (basis $40, value $20 for each share; thus, applies if, during the recognition period, are subject to this paragraph (g)(7). basis $120, value $60 in the aggregate). S2 any member of the consolidated group (C) Unduplicated gain or loss with owns Truck 2 (basis $70, value $40) and directly or indirectly takes into account respect to S stock. If the aggregate Truck 3 (basis $30, value $40). M owns the fourth of the five outstanding shares of S2 any gain or loss with respect to a share tentatively adjusted basis in the S shares of stock of an included subsidiary (S) stock. X, a nonmember of the P group, owns subject to this paragraph (g)(7) exceeds the fifth outstanding share of S2 stock. that was held by another member of the the aggregate fair market value of those loss group or loss subgroup immediately January 1, Year 1, is a change date for the P shares immediately before the change group. before the change date, regardless of date or, in the case of a deferred whether any such loss is absorbed. If (ii) Determination of the separate NUBIG amount, on the date of the transaction or NUBIL of each member of the P loss group. this paragraph (g)(7) applies, the loss that gave rise to the item, the excess is group or loss subgroup must (A) S2’s separate NUBIG or NUBIL. S2’s the unduplicated loss with respect to assets are Truck 2 (with a built-in loss of $30) redetermine its NUBIG or NUBIL to those shares. Alternatively, if the and Truck 3 (with a built-in gain of $10); include any unduplicated built-in gain aggregate fair market value of the S therefore, S2 has a NUBIL of $20. or loss with respect to the S share in shares subject to this paragraph (g)(7) (B) S1’s separate NUBIG or NUBIL. S1’s accordance with the provisions of exceeds the aggregate tentatively only assets are the shares of S2 stock, which paragraphs (g)(7)(ii) and (g)(7)(iii) of this adjusted basis in those shares on such are disregarded under paragraph (g)(1)(ii)(A) of this section; therefore, S1 has a NUBIG or section. The redetermination is given date, the excess is the unduplicated gain effect immediately before the time the NUBIL of zero. with respect to those shares. (C) S’s separate NUBIG or NUBIL. S’s gain or loss on stock of an included (iii) Redetermination of the group’s subsidiary is taken into account. The assets are Truck (with a built-in gain of $10) NUBIG or NUBIL. The loss group or loss and the share of S1 stock (which is redetermined NUBIG or NUBIL does not subgroup’s redetermined NUBIG or disregarded); therefore, S has a NUBIG of affect the tax treatment of transactions NUBIL is the sum of— $10. taken into account prior to the event (A) The loss group or loss subgroup’s (D) M’s separate NUBIG or NUBIL. M’s that causes a redetermination of NUBIG NUBIG or NUBIL as originally only asset is the share of S2 stock, which is or NUBIL under this paragraph (g)(7). determined without regard to the stock disregarded under paragraph (g)(1)(ii)(A) of However, the redetermined NUBIG or of any included subsidiary; this section; therefore, M has a NUBIG or NUBIL is effective for all purposes (B) Any unduplicated gain or loss NUBIL of zero. immediately before the gain or loss on with respect to a share of stock of an (E) P’s separate NUBIG or NUBIL. P’s only stock of an included subsidiary is taken assets are the shares of M and S stock, which included subsidiary that was previously are disregarded; therefore, P has a NUBIG or into account. Thus, for example, the included in the loss group or loss NUBIL of zero. redetermined NUBIG or NUBIL is used subgroup’s NUBIG or NUBIL under this (iii) Determination of the P group’s NUBIG to determine whether the loss group or paragraph (g)(7); and or NUBIL. The P group has a NUBIL of $10, subgroup is a NUBIG or NUBIL group, (C) The unduplicated gain or loss on reflecting the sum of S2’s $20 NUBIL and S’s as well as whether the group meets the shares of S stock computed under $10 NUBIG. threshold requirement of section paragraph (g)(7)(ii) of this section. Example 2. Transfer of shares of stock of 382(h)(3)(B), at the time of the (iv) Anti-avoidance rule. If any person an included subsidiary during recognition redetermination. acts with a principal purpose contrary period. (i) Sale to nonmember. (A) Facts. The (ii) Computation of unduplicated to the purposes of this paragraph (g), to facts are the same as in Example 1. In built-in gain or loss with respect to avoid the effect of the rules of this addition, in Year 4, S sells its share of S1 shares of S stock that are subject to this paragraph (g), or to apply the rules of stock for $65 to an unrelated party. At the time of the sale, S’s basis in the share had paragraph (g)(7). The loss group or loss this paragraph (g) to avoid the effect of been reduced to $90 due to adjustments for subgroup computes its unduplicated any other provision of the consolidated depreciation on S2’s assets that tiered up built-in gain or loss with respect to each return regulations, adjustments must be under § 1.1502–32. (No adjustments are made share of S stock that is subject to this made as necessary to carry out the to S’s basis in the S1 share under § 1.1502– paragraph (g)(7) by first treating the purposes of this paragraph (g). 36, including by reason of an election to

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waive stock loss or reattribute losses.) As a on Truck 2, and the P group absorbed the $30 (basis $10, value $100). S owns Truck 1 result of the sale of the S1 share during the loss. The loss is a recognized built-in loss (basis $65, value $50) and Truck 2 (basis $45, recognition period, the P group must under section 382(h)(2)(B) and thus subject to value $50). January 1, Year 1, is a change date redetermine its NUBIL under paragraph (g)(7) limitation to the extent of the originally for the P group. In Year 3, P sells its S share of this section. determined $10 NUBIL. for $100. (B) Redetermination of the P group’s (ii) Redetermination of the P group’s (B) Determination of the P group’s NUBIG NUBIG or NUBIL. (1) Unduplicated built-in NUBIG or NUBIL. (A) Unduplicated built-in or NUBIL on change date. S’s assets are gain or loss with respect to S1 share. Under gain or loss with respect to the S1 share. Truck 1 (with a built-in loss of $15) and paragraph (g)(7)(ii)(A) of this section, the Because unduplicated stock gain or loss is Truck 2 (with a built-in gain of $5); therefore unduplicated built-in gain or loss with computed immediately before the change S has a separate NUBIL of $10. P’s sole asset respect to the S1 share sold in Year 4 is date, the unduplicated stock loss is $8 for the is the share of S stock, which is disregarded; computed by first treating the separate reasons set forth in paragraph (i)(B)(1) of therefore, P has a separate NUBIG or NUBIL NUBIG or NUBIL of S1 and S2 (the only Example 2. of zero. Accordingly, on the change date, the included subsidiary that is lower-tier to S1) (B) Redetermined NUBIG or NUBIL of the P group has a NUBIL of $10, reflecting the as having been recognized, taken into P group. The computation of the P group’s sum of S’s $10 NUBIL and P’s $0 NUBIG/ account, and absorbed immediately before redetermined NUBIG or NUBIL is the same NUBIL. the change date. Under paragraph (g)(7)(ii)(B) as in paragraph (i)(B)(2) of Example 2, except (C) Redetermination of the P group’s of this section, those amounts are then that the $30 of recognized built-in loss in NUBIG or NUBIL on disposition of stock of treated as tiering up under the principles of Year 2 reduces the P group’s $10 NUBIL included subsidiary. (1) Unduplicated built- § 1.1502–32 and tentatively adjusting S’s (before NUBIL is redetermined under in gain or loss with respect to the S share. basis in its S1 share, in order to identify the paragraph (g)(7) of this section) to zero. As Under paragraph (g)(7)(ii)(A) of this section, unduplicated gain or loss in the basis of the a result, immediately before the sale of the the unduplicated built-in gain or loss with share under paragraph (g)(7)(ii)(C) of this S1 share, the P group’s NUBIL is respect to the S share sold in Year 3 is section. S1 has no separate NUBIG or NUBIL redetermined to be $8, which is the sum of computed by first treating S’s $10 NUBIL as to be treated as recognized, taken into zero and the $8 unduplicated loss in the S1 having been recognized, taken into account, account, and absorbed. S2 has a $20 separate stock. and absorbed immediately before the NUBIL that is treated as recognized, taken (iii) Effect of redetermination. Of the $25 ownership change. Then, under paragraph into account, and absorbed and that is then loss on the sale of the S1 share, $20 is (g)(7)(ii)(B) of this section, S’s $10 NUBIL is treated as tiering up to adjust S’s basis in the recognized built-in loss, but the group only treated as tentatively adjusting P’s basis in S1 share under the principles of § 1.1502–32. has an $8 NUBIL and so only $8 of the the S share under the principles of § 1.1502– As a result, $12 of S2’s $20 NUBIL would be recognized built-in loss is subject to 32. Accordingly, P’s tentatively reduced basis treated as tiering up to S1 through the three limitation under section 382. The treatment in the S share is $10 ¥ $10, or $0. Further, S2 shares (of the total five outstanding) held of the loss recognized on the Year 2 sale of the value of the S share was $100 by S1, and that $12 would then be treated as Truck 2 is not affected by the Year 4 immediately before the change date. The tiering up through S1 to tentatively adjust S’s redetermination. share’s $100 value exceeds the $0 tentatively basis in the S1 share. S’s tentatively reduced reduced basis in the share by $100, and thus Example 4. Sale of less than all shares of basis in the S1 share is therefore $100 ¥ $12, P has a $100 unduplicated gain in its S stock. stock of an included subsidiary. (i) Facts. The or $88. Because the tentatively reduced basis (2) Redetermined NUBIG or NUBIL of the facts are the same as in paragraph (i)(A) of of the share exceeds the value of the share P group. Immediately before P takes into ¥ Example 2, except that S1 has ten shares of by $8 ($88 $80), S has an $8 unduplicated account the $90 gain on the sale of its share stock outstanding, designated Share 1 loss in its basis in its S1 stock. of S stock, the P group’s $10 NUBIL is through Share 10, all of which are owned by (2) Redetermined NUBIG or NUBIL of the redetermined to be a $90 NUBIG, the sum of S. S’s basis in Share 1 is $15.50, and S’s basis P group. Immediately before S takes into S’s NUBIL of $10 and the unduplicated gain in Share 2 is $4.50. In addition, instead of account the $25 loss on the sale of its share in the S stock of $100. selling its one share of S1 stock, on January of S1 stock, the P group’s NUBIL is (D) Effect of redetermination. Of the $90 1, Year 4, S sells Share 1 and Share 2 to an redetermined to be $18, the sum of S2’s gain P recognized on the sale of the S share, unrelated party for $16 (their aggregate fair NUBIL of $20, S1’s NUBIL of $0, S’s NUBIG all $90 is recognized built-in gain and market value). of $10, P’s NUBIG or NUBIL of $0, M’s therefore, under section 382(h)(2)(A), the (ii) Redetermination of the P group’s NUBIG or NUBIL of $0, and the $8 group’s section 382 limitation is increased by NUBIG or NUBIL. (A) Unduplicated built-in unduplicated loss in the S1 stock. $90. gain or loss with respect to S1 Share 1 and (C) Effect of redetermination. Of the $25 (ii) Disposition of loss asset prior to S1 Share 2. The analysis is the same as in loss on the sale of the S1 share, $20 is disposition of stock of included subsidiary. paragraph (i)(B)(1) of Example 2 except that recognized built-in loss, but the group only (A) Facts. The facts are the same as in the unduplicated loss is $1.60, computed as has an $18 NUBIL and so only $18 of the paragraph (i)(A) of this Example 5, except the excess of $17.60 ($20 aggregate basis in recognized built-in loss is subject to that, in addition, in Year 2, S sells Truck 1 the shares that are sold, tentatively reduced limitation under section 382. for $50, recognizing a $15 loss that is taken by $2.40, the shares’ portion (2/10) of the $12 (ii) Nonrecognition transfer to member into account and absorbed. As a result of the tentative adjustment that tiered-up from S2) followed by sale to nonmember. The facts are $15 loss absorption, P’s basis in the S share the same as in paragraph (i)(A) of this over $16 (the shares’ aggregate value). is reduced to an excess loss account of $5 in Example 2, except that, in Year 3, M1 joined (B) Redetermined NUBIG or NUBIL of the Year 2 and, thus, when P sells the S share the P group and S transferred its share of S1 P group. The P group’s redetermined NUBIL in Year 3, P recognizes $105 gain on the sale stock to M1 in a transaction qualifying under is $11.60, which is the sum of S2’s NUBIL ($100 sale proceeds + $5 excess loss account section 351; as a result, it is M1, not S, that of $20, S1’s NUBIL of $0, S’s NUBIG of $10, recapture). sells the S1 share to X in Year 4. The analysis P’s NUBIG or NUBIL of $0, M’s NUBIG or (B) Determination of the P group’s NUBIG and results are the same as in paragraphs NUBIL of $0, and the unduplicated stock loss or NUBIL on change date. For the reasons set (i)(B) and (i)(C) of this Example 2 because of $1.60. forth in paragraph (i)(B) of this Example 5, this section applies when any member of the (C) Effect of redetermination. Of the $4 loss the P group has a NUBIL of $10 on the group recognizes gain or loss with respect to recognized on the Year 4 sale of Share 1 and change date. Accordingly, S’s $15 loss on stock of an included subsidiary that was held Share 2, all $4 is recognized built-in loss. The Truck 1 is a recognized built-in loss under by a member of the loss group immediately group’s redetermined NUBIL is $11.60, and section 382(h)(2)(B), and therefore subject to before the change date. thus all $4 of the $4 recognized built-in loss limitation to the extent of the $10 NUBIL. is subject to limitation under section 382. Example 3. Recognition of built-in loss (C) Redetermination of the P group’s prior to stock sale. (i) Facts. The facts are the Example 5. NUBIL redetermined to be NUBIG or NUBIL on disposition of stock of same as in paragraph (i)(A) of Example 2 NUBIG. (i) Disposition of stock of included included subsidiary. (1) Unduplicated built- except that, in addition, in Year 2, S2 sold member. (A) Facts. On January 1, Year 1, P in gain or loss with respect to the S share. Truck 2 and recognized the $30 built-in loss owns the sole outstanding share of S stock For the reasons set forth in paragraph (i)(C)(1)

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of this Example 5, the unduplicated built-in POSTAL SERVICE • Customs Clearance and Delivery gain with respect to the S share is $100. Fee (2) Redetermined NUBIG or NUBIL of the 39 CFR Part 20 • International Reply Coupons P group. For the reasons set forth in • International Business Reply paragraph (i)(C)(2) of this Example 5, the P International Mail: Proposed Product Service group’s NUBIG is redetermined to be $90. Rate and Fee Changes The prices and fees proposed in this Immediately before P takes into account the AGENCY: Postal ServiceTM. notice, if adopted, would become $100 gain on the sale of its share of S stock, effective concurrent with any domestic the P group’s $10 NUBIL is redetermined to ACTION: Proposed rule. prices adopted as a result of the current be a $90 NUBIG, the sum of S’s NUBIL of $10 SUMMARY: In October 2011, the Postal proceedings before the Postal Regulatory and P’s NUBIG of $100. (D) Effect of redetermination. Of the $105 Service filed a notice of mailing services Commission (Docket No. R2012–3). All gain P recognized on the sale of the S share, price adjustments with the Postal regulatory changes necessary to $90 is recognized built-in gain and therefore, Regulatory Commission (PRC), effective implement this proposal are provided under section 382(h)(2)(A), the group’s on January 22, 2012. This proposed rule below. section 382 limitation is increased by $90. contains the revisions to Mailing Although exempt from the notice and The redetermination of P’s original $10 Standards of the United States Postal comment requirements of the NUBIL to a $100 NUBIG in Year 4 has no Service, International Mail Manual Administrative Procedure Act [5 U.S.C. ® effect on the treatment of the Year 2 (IMM ) that would accompany the new 553(b), (c)] regarding proposed recognized built-in loss from the sale of prices. rulemaking by 39 U.S.C. 410(a), the Truck 1. DATES: We must receive your comments Postal Service invites public comment on or before November 23, 2011. on the following proposed revisions to (h) * * * ADDRESSES: Mail or deliver comments to the Mailing Standards of the United (2) Disposition of stock or an the Manager, Product Classification, States Postal Service, International Mail intercompany obligation of a member. U.S. Postal Service®, 475 L’Enfant Manual (IMM), incorporated by Built-in gain or loss recognized by a Plaza, SW., RM 4446, Washington, DC reference in the Code of Federal member on the disposition of stock 20260–5015. You may inspect and Regulations. See 39 CFR 20.1. (including stock described in section photocopy all written comments at List of Subjects in 39 CFR Part 20 1504(a)(4) and § 1.382–2T(f)(18)(ii) and USPS® Headquarters Library, 475 (f)(18)(iii)) of another member is treated L’Enfant Plaza, SW., 11th Floor N, Foreign relations, International postal as a recognized gain or loss for purposes Washington, DC by appointment only services. of section 382(h)(2) (unless disallowed) between the hours of 9 a.m. and 4 p.m., Accordingly, 39 CFR part 20 is without regard to the extent to which Monday through Friday by calling proposed to be amended as follows: such gain or loss was included in the 1–202–268–2906 in advance. Email determination of a net unrealized built- comments, containing the name and PART 20—[AMENDED] in gain or loss under paragraph (g) of address of the commenter, may be sent ■ 1. The authority citation for 39 CFR this section. Built-in gain or loss to: [email protected], with a part 20 continues to read as follows: recognized by a member with respect to subject line of ‘‘International Mailing an intercompany obligation is treated as Services Price Change.’’ Faxed Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– recognized gain or loss only to the comments are not accepted. 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, 401, 403, 404, 407, 414, 416, 3001–3011, extent (if any) that the transaction gives FOR FURTHER INFORMATION CONTACT: rise to aggregate income or loss within 3201–3219, 3403–3406, 3621, 3622, 3626, Obataiye B. Akinwole at 202–268–2260, 3632, 3633, and 5001. the consolidated group. or Rick Klutts at 813–877–0372. ■ 2. Revise the following sections of the * * * * * SUPPLEMENTARY INFORMATION: Proposed Mailing Standards of the United States (4) Successor assets. *** prices are or will be available under Postal Service, International Mail * * * * * Docket Number R2012–3 on the Postal Regulatory Commission’s Web site at Manual (IMM) as follows: (k) Effective/Applicability date. http://www.prc.gov. * * * * * Paragraphs (g)(1), (g)(7), (g)(8), (h)(2) and This proposed rule includes: Price (h)(4) of this section apply to amounts Mailing Standards of the United States changes for First-Class Mail Postal Service, International Mail taken into account with respect to a International® and extra services. share of stock of an included subsidiary Manual (IMM) on or after the date that final regulations First-Class Mail International * * * * * are published in the Federal Register, This proposed rule would increase Individual Country Listings but only with respect to ownership prices for single-piece First-Class Mail changes occurring on or after October International letters by approximately * * * * * 24, 2011. For amounts taken into 6.6 percent, while the price for First-Class Mail International (240) account with respect to a share of stock postcards is proposed to increase by of an included subsidiary not described approximately 7 percent. [For each country that offers First- in the preceding sentence, see Class Mail International service, retain §§ 1.1502–91(g) and 1.1502–91(h) as International Extra Services the country’s Price Group designation contained in 26 CFR part 1 in effect on The Postal Service proposes to (which appears in the ‘‘First-Class Mail April 1, 2011. increase prices for market dominant International’’ heading), but remove the extra services by approximately 2.2 three price tables for letters, large Steven T. Miller, percent, for the following: envelopes (flats), and packages (small Deputy Commissioner for Services and • Certificate of Mailing packets), and insert text to read as Enforcement. • Registered MailTM follows:] [FR Doc. 2011–27445 Filed 10–21–11; 8:45 am] • Return Receipt For the prices and maximum weights BILLING CODE 4830–01–P • Restricted Delivery for postcards, letters, large envelopes

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(flats), packages (small packets), and these changes if our proposal is minimum postage charge would be for postcards, see Notice 123, Price List. adopted. a 2-ounce letter instead of the current 1-ounce minimum postage charge. * * * * * Stanley F. Mires, We also remove standards for Reply [Remove the entry ‘‘Postcards Attorney, Legal Policy & Legislative Advice. (241.22)’’ and the price for postcards.] Rides Free, because the program ends [FR Doc. 2011–27360 Filed 10–21–11; 8:45 am] on December 31, 2011. * * * * * BILLING CODE 7710–12–P Extra Services Commercial First-Class Mail and Standard Mail Letters Certificate of Mailing (313) POSTAL SERVICE The Postal Service proposes to modify [For each country that offers 39 CFR Part 111 the process of submitting mailpieces to certificate of mailing service, revise the the Pricing and Classification Service fees to read as follows:] New Standards for Domestic Mailing Center (PCSC) for testing and to delete Services the provision that pieces with attached Fee release cards be sent to Engineering. AGENCY: Postal ServiceTM. Individual Pieces: ACTION: Standard Mail Nonmachinable Letters Individual article (PS Form 3817) $1.15 Proposed rule. Firm mailing books (PS Form The USPS proposes to clarify that SUMMARY: In October 2011, the Postal overflow Standard Mail® 3877), per article listed (min- Service filed a notice of mailing services imum 3) ...... 0.44 nonmachinable letters that mailers place Duplicate copy of PS Form 3817 price adjustments with the Postal into existing trays at another level or PS Form 3877 (per page) ..... 1.15 Regulatory Commission (PRC), effective would require matching documentation. Bulk Quantities: on January 22, 2012. This proposed rule First 1,000 pieces (or fraction contains the revisions to Mailing Proposed Changes for Flats thereof) ...... 6.70 Standards of the United States Postal Automation Flats Each additional 1,000 pieces (or Service, Domestic Mail Manual (DMM®) fraction thereof) ...... 0.80 that we would adopt to implement the The USPS proposes to clarify 301.3.0 Duplicate copy of PS Form 3606 1.15 changes coincident with the price to add that automation flats must meet adjustments. the standards for all flats in 301.1.0 as * * * * * well as the standards in 301.3.0. DATES: We must receive comments on or International Business Reply Service before November 23, 2011. Periodicals Flats (382) ADDRESSES: Mail or deliver written Currently, Periodicals flats are [For each country that offers comments to the manager, Product allowed on mixed area distribution ® International Business Reply Service, Classification, U.S. Postal Service , 475 center (MADC) pallets only when the revise the fees to read as follows:] L’Enfant Plaza, SW., Room 4446, flats are sacked. This proposed rule Fee: Envelopes up to 2 ounces $1.50; Washington, DC 20260–5015. You may would allow bundles of Periodicals flats Cards $1.00 inspect and photocopy all written to be placed directly on MADC pallets comments at USPS® Headquarters * * * * * and would assign a specific price for Library, 475 L’Enfant Plaza, SW., 11th MADC pallets as well. International Reply Coupons (381) Floor N, Washington, DC by We propose to revise a price [For each country that offers appointment only between the hours of categorization under nonmachinable international reply coupons, revise the 9 a.m. and 4 p.m., Monday through flats to insert the correct categorization fee to read as follows:] Friday by calling 1–202–268–2906 in of nonmachinable flats-nonbarcoded. advance. E-mail comments, containing Fee: $2.20 the name and address of the commenter, Detached Address Labels Used With Registered Mail (330) may be sent to: Flats [email protected], with a [For each country that offers The Postal Service proposes to add a subject line of ‘‘January 2012 Domestic international Registered Mail service, new term to identify detached address Mailing Services Proposal.’’ Faxed revise the fee to read as follows:] labels (DALs) with advertising. comments are not accepted. Inclusion of advertising turns DALs into Fee: $11.75 FOR FURTHER INFORMATION CONTACT: Bill dual purpose pieces—optional * * * * * Chatfield, 202–268–7278. addressing vehicles and marketing Restricted Delivery (350) SUPPLEMENTARY INFORMATION: Proposed vehicles. A DAL with advertising on prices will be available under Docket either side would be a type of DAL [For each country that offers Number(s) R2012–3 on the Postal named as a detached marketing label international restricted delivery service, Regulatory Commission’s Web site at (DML). Both DALs and DMLs could be revise the fee to read as follows:] http://www.prc.gov. used with saturation flats or with Fee: $4.55 The Postal Service’s proposed rule Standard Mail Marketing parcels. * * * * * includes: Several mail classification Proposed Changes for Parcels changes, modifications to mailpiece Return Receipt (340) characteristics, and changes in Machinable Parcels [For each country that offers classification terminology. To align the standards for machinable international return receipt service, Proposed Change for Letters parcels with current mail processing revise the fee to read as follows:] equipment capability, the Postal Service Fee: $2.35 Commercial First-Class Mail Letters proposes to change the dimensional * * * * * The pricing structure for presorted criteria for all machinable parcels from We will publish an appropriate and automation First-Class Mail® letters the current 34 inches x 17 inches x 17 amendment to 39 CFR part 20 to reflect is proposed to change so that the inches to 27 inches x 17 inches x 17

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inches. We would additionally change Package Services Pieces Post Office Boxes the maximum weight of a machinable The Postal Service proposes to The Postal Service proposes to add a parcel from 35 pounds to 25 pounds for eliminate the provision to provide free new 3-month prepaid payment option, all parcels except those mailed as Parcel ® local forwarding for Package Services only available via recurring automatic Select or Parcel Return Service. We pieces. payments, for Post Office Box service. also propose to modify the processes by The USPS also proposes to Stamp Fulfillment Services which parcels that do not fully meet the discontinue the 3-cent barcode discount machinability standards are evaluated for all BPM, Media Mail®, and Library Currently, the Postal Service charges for machinability. In addition, the Postal Mail parcels. a standard fee for most Stamp Service proposes to clarify that parcels Fulfillment Services orders; however that meet the lightweight machinable Special, Extra, and Other Services Stamp Fulfillment Services shipping parcel standards are definitively Adult Signature fees are not identified in the DMM nor categorized as machinable parcels. listed in Notice 123-Price List. However, The Postal Service proposes to permit the fees are subject to regulation by the Standard Mail Parcels the use of a hard copy PS Form 3811, PRC. Domestic Return Receipt, with Adult Standard Mail regular parcels would The USPS proposes to add new DMM Signature service when used with language to explain that there are fees be separated into two groups, Marketing ® ® Express Mail or Priority Mail , associated with Stamp Fulfillment parcels and parcels that will become including shipments made under the Parcel Select LightweightTM parcels. Services and to refer customers to Prevent All Tobacco Cigarettes Notice 123 for the prices. A single Nonprofit Standard Mail parcels would Trafficking (PACT) Act. A return receipt have separate standards for Nonprofit standard fee is charged for orders up to fee would be charged in addition to $50, and a higher fee for larger orders. Marketing parcels and other Nonprofit regular postage and the Adult Signature parcels. fee. Stationery Marketing parcels are defined as Customers eligible to mail cigarettes Currently, the USPS does not offer containing information and/or product and smokeless tobacco under the postcard stationery sheets that easily fit samples whose purposes are to business/regulatory purposes and on standard computer printers. We encourage recipients to purchase a consumer testing exceptions of the propose to offer four perforated product or service, make a contribution, PACT Act are currently limited to postcards on an 81⁄2 inches x 11 inches support a cause, form a belief or shipping via Express Mail with Hold for sheet that would allow customers to opinion, take an action, or provide Pickup service. This proposed rule will feed them readily into computer information to recipients. These parcels offer additional options: Express Mail printers. Once separated, each card will would be required to bear an alternative with Adult Signature or Priority Mail be 41⁄4 inches x 51⁄2 inches. addressing format (occupant or with Adult Signature. Additionally, the USPS does not exceptional addressing, or simplified Confirm currently offer personalized stamped addressing when allowed for saturation postcards. This proposed rule will allow mail), and would be presented for The Postal Service proposes to customers to purchase stamped mailing in carrier route (basic, high- discontinue Confirm service as a paid postcards with pre-printed return density, or saturation sortation) or subscription service and to replace it addresses. presort separations. All Marketing with ‘‘IMbTM Tracing,’’ which will Although we are exempt from the parcels would have a maximum size of provide scan data similar to that notice and comment requirements of the 12 inches by 9 inches by 2 inches thick. provided through Confirm service, but Administrative Procedure Act [5 U.S.C. When DALs are used with Marketing with no paid subscription service of 553(b), (c)] regarding proposed parcels, the weight of the DALs is added required. rulemaking by 39 U.S.C. 410(a), we to the parcels in determining postage as Waiver of Annual Mailing Fees for Full- invite public comments on the is currently the case, but there would be Service Automation Mailings following proposed revisions to Mailing no separate charge for the DALs. Standards of the United States Postal The Postal Service proposes to revise Service, Domestic Mail Manual (DMM), Not Flat-Machinables (NFMs) certain requirements for mailers who incorporated by reference in the Code of present full-service (Intelligent Mail®) Federal Regulations. See 39 CFR 111.1. In 2007, the USPS created a automation mailings. When mailers temporary NFM price category for present only full-service automation List of Subjects in 39 CFR Part 111 Standard Mail items that could not meet mailings of First-Class Mail or Standard Administrative practice and revised automation flats standards. In Mail letters and flats or BPM flats with procedure, Postal Service. the revised proposed rule Federal 90 percent or more pieces qualifying for Accordingly, 39 CFR Part 111 is Register published on February 6, 2009 full-service automation prices, the proposed to be amended as follows: (74 FR 6250–6257), the Postal Service Postal Service proposes to waive announced our intention to discontinue payment of the annual mailing fees for PART 111—[AMENDED] the NFM category in May 2010. In the mailings presented under specific March 25, 2010 Postal Bulletin (No. permits. As an additional allowance, 1. The authority citation for 39 CFR 22281), we announced that the NFM when mailers present only qualifying part 111 continues to read as follows: price category would be extended. We full-service automation mailings with Authority: 5 U.S.C. 552(a); 13 U.S.C. 301– now propose to end the NFM category permit imprint indicia, those mailings 307; 18 U.S.C. 1692–1737; 39 U.S.C. 101, as of January 2012. Pieces that would will be able to be presented at any 401, 403, 404, 414, 416, 3001–3011, 3201– have been mailed as NFMs should PostalOne! ® acceptance office without 3219, 3403–3406, 3621, 3622, 3626, 3632, qualify as either Standard Mail payment of an additional permit imprint 3633, and 5001. Marketing parcels or Parcel Select application fee or payment of an annual 2. Revise the following sections of Lightweight parcels. mailing fee at the other office(s). Mailing Standards of the United States

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Postal Service, Domestic Mail Manual 2.3 Additional Criteria for Standard mailer must show that pieces presented (DMM), as follows: Mail Nonmachinable Letters for mailing are the same as those * * * * * [Revise 2.3 to read as follows:] approved. The nonmachinable prices in 243.1.0 100 Retail Mail 3.13 Labels, Stickers, Release Cards, apply to Standard Mail letter-size pieces and Perforated Pockets Affixed to the 101 Physical Standards that have one or more of the Outside of Letter-Size Mailpieces * * * * * nonmachinable characteristics in 2.1. Mailers must prepare all nonmachinable * * * * * 3.0 Physical Standards for Parcels letters as described in 245.5.0. 3.13.4 Letter-Size Piece With Attached [Renumber current 3.1 through 3.6 as * * * * * Release Card new 3.2 through 3.7 and add new 3.1 as 3.0 Physical Standards for [Revise the introductory text of 3.13.4 follows:] Machinable and Automation Letters as follows:] 3.1 Processing Categories and Cards A letter-size mailpiece, with one or USPS categorizes parcels into one of * * * * * two attached release cards, must have three mail processing categories: [Revise the titles of 3.4 and 3.4.1 as the following characteristics: machinable, irregular, or outside parcel. follows:] * * * * * These categories are based on the 3.4 Standards for Letter-Size Pieces 230 First-Class Mail physical dimensions of the piece, Containing One Disc (CD or DVD) regardless of the placement (orientation) 233 Prices and Eligibility of the delivery address on the piece. 3.4.1 Basic Standards for One Disc in a Letter-Size Mailpiece 1.0 Prices and Fees for First-Class * * * * * Mail [Revise the text of 3.4.1 as follows:] 3.4 Machinable Parcels A letter-size mailpiece containing one * * * * * [Revise the introductory text of disc and meeting the general standards 1.2 Price Computation for First-Class renumbered 3.4 as follows:] in 3.0 and the specific standards in 3.4.3 Mail Letters A machinable parcel is any piece that is considered automation-compatible. A is not a letter or a flat and that is (see mailpiece with one enclosed disc not [Revise the text of 1.2 as follows:] Exhibit 3.4): meeting these standards must be tested Commercial First-Class Mail presorted * * * * * and approved for automation- letters are charged at one price for the compatibility. For this purpose, mailers [Revise item 3.4b as follows:] first two ounces, with separate prices for must submit 5 sample mailpieces and a pieces over two ounces up to three b. Not more than 27 inches long, or written request to the local postmaster ounces and for pieces over three ounces 17 inches high, or 17 inches thick. or business mail entry manager for up to 3.5 ounces. Any fraction of an Parcels cannot weigh more than 25 submission to the Pricing and ounce is considered a whole ounce. For pounds, except Parcel Select and Parcel Classification Service Center. example, if a piece weighs 2.2 ounces, Return parcels which have a maximum the weight (postage) increment is 3 weight of 35 pounds, except for those * * * * * ounces. The pricing per ounce is similar containing books or other printed matter 3.12 Flexibility Standards for for automation First-Class Mail letters, (25 pound maximum). Automation Letters with pricing differences per sortation Exhibit 3.4 Machinable Parcel * * * * * level. Dimensions 3.12.2 USPS Services for Flexibility * * * * * [Revise the current length dimension Testing 3.0 Basic Standards for First-Class in to read 27 inches and delete the [Revise the text of 3.12.2 as follows:] Mail Letters sentences describing the minimum and A mailer requesting flexibility testing * * * * * maximum weights in Exhibit 3.4.] for letter-size mailpieces must submit at * * * * * least 5 mailpieces and a written request 3.4 Presort Mailing Fee 170 Media Mail and Library Mail to their local postmaster or business [Revise the text of 3.4 by adding a new mail entry manager for submission to second sentence as follows:] 173 Prices and Eligibility the Pricing and Classification Service * * * Payment of this fee is waived 1.0 Media Mail and Library Mail Center (PCSC) at least 6 weeks before for mailers who present only full-service Prices the mailing date. The request must describe mailpiece contents and automation mailings (under 705.23) * * * * * construction, number of pieces being containing 90% or more pieces [Delete 1.4, Barcode Discount— produced, and preparation level. The qualifying for full-service prices. * * * Machinable Parcels, in its entirety.] PCSC will evaluate the piece and, if * * * * * [Renumber current 1.5 and 1.6 as new warranted, will instruct the mailer to 1.4 and 1.5.] 7.0 First-Class Mail Incentive submit samples to USPS Engineering for Programs * * * * * testing. The PCSC advises the mailer of * * * * * 200 Commercial Letters and Cards its findings. If the mailpiece is approved, the letter includes a unique [Delete 7.2, Reply Rides Free Program, 201 Physical Standards number identifying the piece and serves in its entirety.] * * * * * as evidence that the piece meets the * * * * * relevant standards. A copy of the letter 2.0 Physical Standards for must accompany each postage statement 234 Postage Payment and Nonmachinable Letters submitted for mailings of the approved Documentation * * * * * piece. If requested by the USPS, the * * * * *

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2.0 Postage Payment for Presorted and be placed into the correct existing ADC 360 Bound Printed Matter Automation Letters tray. Bundle the overflow pieces 363 Prices and Eligibility * * * * * separately with the correct presort bundle label or OEL; the pieces will still 1.0 Prices and Fees for Bound Printed 2.2 Affixing Postage for Presorted and qualify for the 5-digit price. Mailers Matter Automation First-Class Mail must note these trays on standardized 1.1 Nonpresorted Bound Printed Unless permitted by other standards documentation (see 708.1.2). Matter or authorization by Business Mailer Preparation sequence, tray size, and * * * * * Support, when precanceled postage or labeling: 1.1.4 Barcoded Discount—Flats meter stamps are used, only one * * * * * payment method may be used in a [Revise the text of 1.1.4 as follows:] mailing and each piece must bear 300 Commercial Flats The barcoded discount applies only to postage under one of these conditions: 301 Physical Standards BPM flat-size pieces that meet the [Revise item 2.2a as follows:] requirements in 301.3.0 and bear a a. Each metered piece weighing more * * * * * delivery point POSTNET barcode or than 2 ounces must bear the correct Intelligent Mail barcode encoded with additional postage to pay for the 3.0 Physical Standards for Automation Flats the correct delivery point routing code, additional ounce(s). matching the delivery address and * * * * * 3.1 Basic Standards for Automation meeting the standards in 302.5.0 and [Revise item 2.2c as follows:] Flats 708.4.0. The pieces must be part of a c. Each metered piece must bear full nonpresorted mailing of 50 or more flat- [Revise the text of 3.1 as follows:] postage at the lowest First-Class Mail size pieces. letter price (or card price as applicable) Flat-size pieces claimed at automation * * * * * appropriate to the mailing plus any prices must meet the standards in 1.0 additional ounce(s) or nonmachinable and in 3.0, and the eligibility standards 1.2 Commercial Bound Printed Matter surcharge. for the class of mail and price claimed. * * * * * * * * * * * * * * * 1.2.6 Destination Entry Mailing Fee 240 Standard Mail 330 First-Class Mail [Add a new second sentence to 1.2.6 243 Prices and Eligibility 333 Prices and Eligibility as follows:] * * * * * * * * Payment of this fee is waived * * * * * for mailers who present only full-service 3.0 Basic Standards for Standard Mail automation mailings (under 705.23) Letters 3.0 Eligibility Standards for First- Class Mail Flats containing 90 percent or more pieces * * * * * qualifying for full-service prices. * * * * * 3.4 Presort Mailing Fees * * * * * 3.4 Presort Mailing Fee [Revise the text of 3.4 by adding a new 400 Commercial Parcels second sentence as follows:] [Revise the text of 3.4 by adding a new 401 Physical Standards * * * Payment of this fee is waived second sentence as follows:] for mailers who present only full-service 1.0 Physical Standards for Parcels * * * Payment of this fee is waived automation mailings (under 705.23) * * * * * containing 90% or more pieces for mailers who present only full-service 1.3 Maximum Weight and Size qualifying for full-service prices. * * * automation mailings (under 705.23) containing 90% or more pieces * * * * * [Revise text of 1.3 by adding a new qualifying for full-service prices. * * * fourth sentence to read as follows:] 245 Mail Preparation * * * * * * * * Standard Mail Marketing * * * * * parcels (see 2.4) may not be larger than 340 Standard Mail 12 inches long, 9 inches high, and 2 5.0 Preparing Nonautomation Letters 343 Prices and Eligibility inches thick. * * * * * * * * * * * * * * * * * * 5.4 Nonmachinable Preparation 1.5 Machinable Parcels 3.0 Basic Standards for Standard Mail * * * * * Flats 1.5.1 Criteria 5.4.2 Traying and Labeling * * * * * [Revise the introductory sentence to 1.5.1 as follows:] [Revise the introductory text of 5.4.2 3.4 Presort Mailing Fees as follows:] A machinable parcel is any piece that When all full trays for a destination [Revise the text of 3.4 by adding a new is not a letter or a flat and that is (see Exhibit 1.5.1): have been prepared, mailers may second sentence as follows:] include a group of 10 or more overflow * * * * * pieces for that destination in a qualified * * * Payment of this fee is waived [Revise item 1.5.1b as follows:] tray at either of the next two tray levels. for mailers who present only full-service b. Not more than 27 inches long, or For example, overflow pieces for a 5- automation mailings (under 705.23) 17 inches high, or 17 inches thick. digit destination may be placed into an containing 90% or more pieces Parcels cannot weigh more than 25 existing correct 3-digit tray; if a 3-digit qualifying for full-service prices. * * * pounds, except Parcel Select and Parcel tray that includes the 5-digit destination * * * * * Return parcels which have a maximum does not exist, the overflow pieces may weight of 35 pounds, except for those

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containing books or other printed matter 2.4 Standard Mail Parcels First-Class Package Service parcels (25 pound maximum). * * * * * and Standard Mail irregular parcels may bear POSTNET barcodes (under 4.3.1 Exhibit 1.5.1 Machinable Parcel [Revise title and text of 2.4.2 to delete through 4.3.3) or GS1–128 routing Dimensions references to Not Flat-Machinables and add standards for Marketing parcels to barcodes. First-Class Package Service [Revise the current length dimension read as follows:] parcels and Standard Mail irregular to read 27 inches and delete the parcels bearing POSTNET barcodes sentences describing the minimum and 2.4.2 Marketing Parcels representing only the postal routing maximum weights in Exhibit 1.5.1.] Marketing parcels do not meet letters barcode (destination ZIP Code) are * * * * * or flats standards and have the eligible to be mailed using eVS under [Revise the title and the introductory following characteristics: 705.2.9. POSTNET barcodes may not be text of 1.5.2 as follows:] a. Height not more than 9 inches high. used on eVS parcels bearing Minimum height must be 31⁄2 inches if concatenated GS1–128 barcodes. 1.5.2 Criteria for Lightweight the parcel is 1⁄4 inch thick or less. Machinable Parcels 4.3.1 General Placement of POSTNET b. Length not more than 12 inches Barcodes A parcel that weighs less than 6 long. Minimum length must be 5 inches 1 [Revise text of 4.3.1 by deleting ounces (but not less than 3.5 ounces) is if the parcel is ⁄4 inch thick or less. machinable if it meets all of the c. Thickness at least 0.009 thick, but references to Not Flat-Machinable piece following conditions: not more than 2 inches. under 6 ounces and revising other text to read as follows:] * * * * * d. An alternative addressing format, according to 602.3.0. On a First-Class Package Service parcel or Standard Mail irregular parcel, 1.5.4 Exception * * * * * the POSTNET barcode may be anywhere [Revise 1.5.4 as follows:] 2.6 Bound Printed Matter Parcels on the address side at least 1⁄8 inch from Mailers of parcels that do not conform 2.6.1 General Standards any edge of the piece. Print POSTNET to the machinability criteria in 1.5.1 or barcodes according to 708.4.0. Address 1.5.2 may request authorization to mail [Revise the text of 2.6.1 by moving the block barcodes are subject to 4.3.2. such parcels as machinable parcels by text of item 2.6.1a into the introductory * * * * * contacting the manager, Pricing and sentence and deleting item 2.6.1b in its Classification Service Center (PCSC; see entirety as follows:] 440 Standard Mail 608.8.1 for address). The manager, Pieces mailed at Bound Printed 443 Prices and Eligibility PCSC, in conjunction with the manager, Matter prices may not weigh more than Operations Integration and Support, 15 pounds. 1.0 Prices and Fees for Standard Mail may authorize such parcels as 402 Elements on the Face of a * * * * * machinable if the parcels are tested on [Revise title of 1.2 to read as follows:] NDC parcel sorters and prove to be Mailpiece machinable. Mailers requesting testing 1.0 All Mailpieces 1.2 Regular and Nonprofit Standard Mail—Marketing Parcel Prices of parcels for machinability must: * * * * * a. Submit a written request and two * * * * * sample parcels to the PCSC. The request 1.2 Delivery and Return Address [Revise title of 1.3 as follows:] must list the mailpiece characteristics [Revise 1.2 by reorganizing the text 1.3 Nonprofit Standard Mail— for every shape, weight, construction, and adding a new last sentence to read Machinable and Irregular Parcel Prices and size to be considered. If the request as follows:] describes a mailpiece that falls within The delivery address specifies the * * * * * the specifications of pieces that were location to which the USPS is to deliver 3.0 Basic Standards for Standard Mail tested previously, the mailpiece may not a mailpiece (see 602 for more Parcels require testing. information). Except for pieces prepared * * * * * b. State the estimated number of with detached address labels under parcels to be mailed in the next 12 602.4.0, each mailpiece must have a 3.2 Defining Characteristics months, and the anticipated preparation visible and legible delivery address only * * * * * level (e.g., destination NDC pallets). on the side of the piece bearing postage. [Renumber current 3.2.2 through 3.2.8 c. Upon acknowledgement from the A return address is required in specific as 3.2.4 through 3.2.10 and add new manager, Operations Integration and circumstances (see 3.2 and 602.1.5). 3.2.2 and 3.2.3 as follows:] Support, the mailer may be required to Standard Mail Marketing parcels (see send 100 mailpiece samples to the 443) must use an alternative addressing 3.2.2 Standard Mail Marketing designated test facility at least 6 weeks format under 602.3.0. Parcels prior to the first mailing date. The USPS * * * * * All Standard Mail Marketing parcels may recommend changes to physical (both regular and nonprofit) must bear characteristics of the mailpieces, and 4.0 General Barcode Placement for an alternative addressing format (see additional testing of the redesigned Parcels 602.3.0) and are subject to size pieces, before authorizing parcels as * * * * * restrictions in 401.2.4.2. machinable. 3.2.3 Nonprofit Standard Mail * * * * * 4.3 POSTNET Barcodes, GS1–128 Routing Barcodes and Intelligent Mail Machinable and Irregular Parcels 2.0 Additional Physical Standards by Package Barcodes Nonprofit Standard Mail parcels that Class of Mail [Revise text of 4.3 by deleting do not qualify as Marketing parcels may * * * * * references to Not Flat-Machinable be prepared and mailed as machinable [Revise the title of 2.4 to read as pieces and revising other text to read as or irregular parcels. follows:] follows:] * * * * *

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3.3 Additional Basic Standards for package barcode, under 708.5.0, for the 5.4.3 NDC Price Standard Mail delivery address. [Revise the introductory text of 5.4.3 Each Standard Mail mailing is subject [Delete current item 4.4c in its as follows:] to these general standards: entirety; redesignate current item d as NDC prices apply to irregular parcels new item c and revise to read as * * * * * and to Marketing parcels as follows follows:] under either of the following conditions: [Revise text of item 3.3d to read as c. The irregular parcels do not bear a * * * * * follows:] GS1–128 routing barcode, Intelligent d. Each Marketing parcel must bear an Mail package barcode or POSTNET 5.4.4 Mixed NDC Price alternative addressing format subject to barcode for the delivery address. [Revise the text of 5.4.4 as follows:] 602.3.0. Nonprofit Standard Mail 4.5 Extra Services for Standard Mail Mixed NDC prices apply to irregular machinable or irregular parcels must parcels and to Marketing parcels in bear the addressee’s name and complete 4.5.1 Available Services origin NDC or mixed NDC containers delivery address, or may use an that are not eligible for 5-digit, SCF, or alternative addressing format. Detached [Revise the introductory text of 4.5.1 as follows:] NDC prices. Place irregular parcels at address labels may be used subject to mixed NDC prices in origin NDC or 602.4.0. Only the following extra services may be used with Standard Mail parcels, mixed NDC sacks under 445.5.4.4 or on * * * * * with restrictions as noted in 4.5.2: origin NDC or mixed NDC pallets under 4.0 Price Eligibility for Standard Mail 705.8.10. * * * * * [Revise the title of 6.0 as follows:] * * * * * [Delete 4.5.2, Eligible Matter, in its entirety and renumber current 4.5.3 and 6.0 Additional Eligibility Standards 4.2 Minimum Per Piece Prices 4.5.4 as new 4.5.2 and 4.5.3.] for Enhanced Carrier Route Standard Mail Marketing Parcels The minimum per piece prices (i.e., 5.0 Additional Eligibility Standards the minimum postage that must be paid for Presorted Standard Mail Pieces 6.1 General Enhanced Carrier Route for each piece) apply as follows: Standards * * * * * * * * * * * * * * * [Revise text of item 4.2c as follows:] 5.2 Price Application 6.1.2 Basic Eligibility Standards c. Individual Prices. There are [Revise 5.2 as follows:] separate minimum per piece prices for Prices for Standard Mail and [Revise the introductory text of 6.1.2 each product and, within each product, Nonprofit Standard Mail apply as follows:] All pieces in an Enhanced Carrier for the presort and destination entry separately to Marketing parcels that Route or Nonprofit Enhanced Carrier levels within each mailing. There are meet the eligibility standards in 2.0 Route mailing of Standard Mail also separate prices for Marketing through 4.0 and the preparation Marketing parcels must: parcels and for Nonprofit machinable standards in 445.5.0, 705.6.0, 705.8.0, or parcels and Nonprofit irregular parcels. 705.20. Prices for Nonprofit parcels not * * * * * DDU prices are available for parcels qualifying as Marketing parcels apply d. Bear a delivery address that entered only at 5-digit or one of the separately to machinable parcels and includes the correct ZIP Code, ZIP + 4 code, or numeric equivalent to the Enhanced Carrier Route prices. irregular parcels. When parcels are delivery point barcode (DPBC) and that combined under 445.5.0, 705.6.0, or 4.3 Piece/Pound Prices meets these addressing standards: 705.20, all pieces are eligible for the [Revise the text of 4.3 as follows:] applicable prices when the combined * * * * * Pieces that exceed 3.3 ounces (0.2063 total meets the eligibility standards. [Revise item d2 to require alternative pound) are subject to a two-part piece/ addressing to read as follows:] pound price that includes a fixed charge * * * * * 2. An alternative addressing format as per piece and a variable pound charge [Revise title of 5.4 to read as follows:] described in 602.3.0. based on weight. There are separate per 5.4 Prices for Irregular Parcels and * * * * * piece prices for each product and within Marketing Parcels [Revise the first sentence of item 6.1.2f each product for the type of mailing and to indicate new size restrictions to read 5.4.1 5-Digit Price the presort and destination entry levels as follows:] within each mailing. There are separate [Revise the introductory text of 5.4.1 f. Enhanced Carrier Route Marketing per pound prices for each product. as follows:] parcels may not be more than 9 inches There are also separate prices for 5-digit prices apply to irregular high, 12 inches long, or 2 inches thick. Marketing parcels and for Nonprofit parcels and to Marketing parcels that are *** machinable parcels and Nonprofit dropshipped to a DNDC (or ASF when * * * * * irregular parcels. claiming DNDC prices), DSCF, or DDU and presented: 445 Mail Preparation 4.4 Surcharge * * * * * 1.0 General Information for Mail [Revise the introductory text of 4.4 to [Delete item 5.4.1e in its entirety.] Preparation read as follows:] * * * * * Unless prepared in carrier route or 5- 5.4.2 SCF Price digit/scheme containers, Standard Mail [Revise the introductory text of in 1.3 Terms for Presort Levels parcels are subject to a surcharge if: 5.4.2 as follows:] Terms used for presort levels are * * * * * SCF prices apply to irregular parcels defined as follows: [Revise item 4.4b as follows:] and to Marketing parcels that are * * * * * b. The Marketing parcels or the dropshipped and presented to a DSCF [Delete current item 1.3e, Origin/Entry machinable parcels do not bear a GS1– or DNDC: 3-Digit, in its entirety and redesignate 128 routing barcode or Intelligent Mail * * * * * current item 1.3f as new item 1.3e.]

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[Delete current items 1.3g, Origin All mailings and all pieces in each See 5.4.3 for restrictions on SCF, ASF, Optional Entry SCF, and 1.3h, ADC, in mailing at Standard Mail and Nonprofit and NDC sacks. Mailers must prepare a their entirety and redesignate current Standard Mail parcel prices are subject sack when the quantity of mail for a items 1.3i through1.3 l as new items 1.3f to preparation standards in 5.3 or 5.4, required presort destination reaches 10 through 1.3i.] and to these general standards: pounds of pieces. There is no minimum for parcels prepared in 5-digit/scheme 1.4 Preparation Definitions and * * * * * sacks entered at a DDU. Mailers Instructions [Revise item 5.1b as follows:] b. Marketing parcels, Nonprofit combining irregular parcels with For purposes of preparing mail: machinable parcels, and Nonprofit machinable parcels and Marketing * * * * * irregular parcels must each be prepared parcels weighing 6 ounces or more in 5- [Delete current item 1.4d in its as separate mailings, except under 5.3.1. digit/scheme sacks must prepare those entirety and redesignate current items e * * * * * sacks under 5.3.2. Mailers may not through j as new items d through i.] prepare sacks containing irregular and 5.2 Markings machinable parcels to other presort 2.0 Bundles [Revise the text of 5.2 as follows:] levels. Mailers may combine irregular 2.1 Definition of a Bundle All parcels must be marked according parcels with Marketing parcels weighing to 402.2.0. less than 6 ounces in sacks under 5.4.3. [Revise the last sentence in 2.1 by [Revise the title of 5.3 as follows:] For mailings of only Marketing parcels deleting the reference to 5-digit bundles weighing less than 6 ounces, use and Not Flat-Machinables to read as 5.3 Preparing Marketing Parcels (6 ‘‘MKTG’’ on line 2 of sack labels instead follows:] Ounces or More) and Machinable of ‘‘IRREG’’ under items 5.4.3a through * * * Bundling under 445 is allowed Parcels f. only for Marketing parcels mailed at 5.3.1 Sacking carrier route prices. * * * * * [Revise the introductory text of 5.3.1 * * * * * [Delete 5.4.3, Drop Shipment, in its as follows:] entirety and renumber current 5.4.4 as 2.11 Facing Slips—All Carrier Route Prepare mailings of Marketing parcels new 5.4.3.] weighing 6 ounces or more and mailings Mail [Delete current 6.0 in its entirety and of machinable parcels under 5.3.0. All facing slips used on carrier route renumber all of current 7.0 as new 6.0.] Prepare 5-digit sacks only for parcels bundles must show this information: dropshipped to a DNDC (or ASF when * * * * * * * * * * claiming DNDC prices), DSCF, or DDU. 6.0 Preparing Enhanced Carrier Route [Revise item 2.11b as follows:] Prepare ASF or NDC sacks only for Parcels b. Line 2: Content (appropriate to the parcels dropshipped to a DNDC (or ASF class), followed by carrier route type when claiming DNDC prices). There is 6.1 Basic Standards and route number (e.g., ‘‘STD MKTG no minimum for parcels in 5-digit/ [Revise the introductory text of LOT CR R 012’’). scheme sacks entered at a DDU. Mailers renumbered 6.1 as follows:] * * * * * combining irregular parcels with All mailings and all pieces in each machinable parcels placed in 5-digit/ 4.0 Sack Labels mailing at an Enhanced Carrier Route scheme sacks must prepare those sacks (ECR) parcel price are subject to specific * * * * * under 5.3.2a. Mailers combining preparation standards in 6.4, and 6.5, 4.4 Line 2 (Content Line) Marketing parcels weighing 6 ounces or and to these general standards: more with machinable parcels placed in Line 2 (content line) must meet these ASF, NDC, or mixed NDC sacks must [Revise items 6.1a through d as standards: prepare the sacks under 5.3.2. For follows:] * * * * * mailings of only Marketing parcels a. All pieces must meet the standards b. Codes: The codes shown below weighing 6 ounces or more, use for basic eligibility in 443.2.0 through must be used as appropriate in Line 2 ‘‘MKTG’’ on line 2 of sack labels instead 443.4.0 and specific eligibility in of sack labels: of ‘‘MACH’’ under items 5.3.2a through 443.6.0. Nonprofit Enhanced Carrier [Revise the table in item 4.4b by e. Route Standard Mail must meet the adding a new row after ‘‘Machinable’’ * * * * * additional eligibility standards in (seventh row) with ‘‘Marketing Parcels’’ [Revise the title of 5.4 as follows:] 703.1.0. (new eighth row) in the ‘‘CONTENT b. All pieces in each mailing must be TYPE’’ column and with ‘‘MKTG’’ in the 5.4 Preparing Marketing Parcels (Less Marketing parcels as defined in ‘‘CODE’’ column as follows:] Than 6 Ounces) and Irregular Parcels 443.3.2.2. 5.4.1 Bundling c. All pieces must meet the applicable Content type Code [Revise the text of 5.4.1 as follows:] general preparation standards in 1.0 Bundling is permitted only for through 4.0, and the following: ******* bundles of carrier route Marketing 1. Pieces must be sequenced Machinable ...... MACH parcels under 7.0. according to 6.6 and 6.7. Marketing Parcels ...... MKTG 5.4.2 Sacking 2. Pieces with a simplified address format must meet the standards in ******* [Revise the text of 5.4.2 as follows:] Prepare mailings of Marketing parcels 602.3.0. 5.0 Preparing Presorted Parcels weighing less than 6 ounces and d. All pieces in the mailing must meet mailings of irregular parcels under 5.4.0. the specific sortation and preparation 5.1 Basic Standards Prepare 5-digit sacks only for parcels standards in 6.0 or the palletization [Revise the introductory sentence of dropshipped to a DNDC (or ASF when standards in 705.8.0. 5.1 as follows:] claiming DNDC prices), DSCF, or DDU. * * * * *

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6.3 Residual Pieces b. 5-digit carrier routes: required (no 6.0 Price Eligibility for Media Mail [Revise the text of renumbered 6.3 as minimum). and Library Mail Parcels follows:] * * * * * * * * * * Parcels not sorted as a carrier route [Revise item b2 as follows:] 6.3 Price Categories for Media Mail mailing must be prepared as a separate 2. Line 2: ‘‘STD MKTG CR–RTS.’’ and Library Mail Parcels mailing at Standard Mail Presorted * * * * * prices. * * * The price categories and 446 Enter and Deposit discounts are as follows: 6.4 Bundling [Delete item 6.3c in its entirety.] * * * * * * * * * * * * * * * 5.0 Destination Delivery Unit (DDU) 6.4.2 Bundles and Sacks With Fewer Entry 500 Additional Mailing Services Than the Minimum Number of Pieces 503 Extra Services Required * * * * * * * * * * [Revise the text of renumbered 6.4.2 5.2 Eligibility as follows: Pieces in a mailing that meets the 6.0 Return Receipt As a general exception to 6.4.1 and standards in 2.0 and 5.0 are eligible for * * * * * 6.5.1, mailers may prepare a bundle the DDU price when deposited at a 6.2 Basic Information with fewer than 10 pieces and a less- DDU, addressed for delivery within that than-full sack with fewer than 125 facility’s service area, and prepared as * * * * * pieces or less than 15 pounds of pieces follows: to a carrier route when they are claiming 6.2.4 Additional Services * * * * * the saturation price for the contents and [Revise the introductory text of 6.2.4 the applicable density standard is met. [Revise item 5.2b by deleting the as follows:] Mailers using Express Mail Open and reference to Not Flat-Machinable pieces If return receipt service has been Distribute or Priority Mail Open and to read as follows:] purchased with one of the services Distribute to dropship ECR parcels also b. One or more parcels in 5-digit listed in 6.2.2, one or more of the may prepare sacks of fewer than 125 containers. following extra services may be added at pieces or less than 15 pounds of mail. * * * * * the time of mailing if the standards for [Revise the title of renumbered 6.5 as the services are met and the additional 460 Bound Printed Matter follows:] service fees are paid: 463 Prices and Eligibility 6.5 Preparing Carrier Route * * * * * [Add new item 6.2.4f as follows:] Marketing Parcels 1.0 Prices and Fees for Bound Printed Matter f. Adult Signature (Express Mail and 6.5.1 Sack Minimums Priority Mail only), under restrictions in 1.1 Nonpresorted Bound Printed 8.2.6. [Revise the introductory text of Matter renumbered 6.5.1 as follows:] * * * * * * * * * * Except under 6.4.1, a sack must be 8.0 Adult Signature prepared when the quantity of mail for [Delete 1.1.3 Barcode Discount— a required presort destination reaches Machinable Parcels in its entirety and * * * * * either 125 pieces or 15 pounds of renumber current items 1.1.4 and 1.1.5 8.2 Basic Information pieces, whichever occurs first, subject to as new 1.1.3 and 1.1.4.] these conditions: * * * * * 1.2 Commercial Bound Printed Matter * * * * * 8.2.5 Confirmation of Delivery * * * * * [Revise item 6.5.1b as follows:] Confirmation of delivery information b. For nonidentical-weight pieces, 1.2.3 Bound Printed Matter Presorted for Adult Signature is available as mailers must use the minimum that and Carrier Route Prices follows: applies to either the average piece [Delete the second sentence of 1.2.3.] * * * * * weight for the entire mailing or the [Add new item 8.2.5c as follows:] actual piece count or mail weight for 1.2.4 Bound Printed Matter c. Return receipt service (hard copy each sack, if documentation can be Destination Entry Prices PS Form 3811 option only), under 6.0, provided with the mailing that shows may be purchased with Express Mail or [Delete the second sentence of 1.2.4.] (specifically for each sack) the number Priority Mail pieces requesting Adult of pieces and their total weight. * * * * * Signature. * * * * * 4.0 Price Eligibility for Bound Printed 8.2.6 Additional Services 6.5.2 Sacking and Labeling Matter Parcels Adult Signature may be combined Preparation sequence, sack size, and 4.1 Price Eligibility with: labeling: * * * Price categories are as follows: * * * * * a. Carrier route: required (minimum of * * * * * [Add new item 8.2.6d as follows:] 125 pieces/15 pounds). d. Return receipt (hard copy PS Form [Delete item 4.1d in its entirety.] * * * * * 3811 only) for Express Mail and Priority [Revise item a2 as follows:] * * * * * Mail pieces. 2. Line 2: ‘‘STD MKTG WSS’’ or ‘‘STD 470 Media Mail and Library Mail * * * * * MKTG WSH’’ or ‘‘STD MKTG LOT’’ as applicable, followed by the route type 473 Prices and Eligibility 10.0 Delivery Confirmation and number. * * * * * * * * * *

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10.2 Basic Information Requirements for participation in IMb 14.2.2 Intelligent Mail Barcode * * * * * Tracing are the use of the Intelligent Requirements Mail barcode, the use of a Mailer To obtain IMb Tracing, mailers apply 10.2.2 Eligible Matter Identifier that has been registered (via Intelligent Mail barcodes on letter-size [Revise the first sentence of the the Business Customer Gateway, pieces or on flat-size pieces meeting introductory text of 10.2.2 as follows:] accessible on usps.com) to receive scan automation-compatibility standards in Delivery Confirmation is available for data, and verification by the Postal 201.3.0 (letters) or 301.3.0 (flats). No First-Class Mail parcels and First-Class Service that the Intelligent Mail barcode other barcode use is acceptable on these Package Service parcels; all Priority (IMb) as printed meets all applicable pieces. Only one Intelligent Mail postal standards. Mail pieces; Standard Mail parcels barcode may appear on each piece, (electronic option only); Package 14.1.2 Description of Service according to these standards: Services, Parcel Select, and Parcel IMb Tracing (and Confirm) provides a a. Intelligent Mail barcodes must meet Select Regional Ground parcels mailer with data electronically collected the barcode and format standards in (electronic option only) under 401.1.0. from the scanning of barcoded 708.4.0 and in Specification USPS–B– *** mailpieces as they pass through 3200 at http://ribbs.usps.gov/. * * * * * automated mail processing operations. b. Place barcodes on letters according Scanned data can include the postal to 202.5.0, and on flats according to 10.2.3 Electronic Option Delivery 302.5.0. Confirmation for Standard Mail facility where such pieces are processed, the postal operation used to * * * * * [Revise the first sentence of 10.2.3 as process the pieces, the date and time 507 Mailer Services follows:] when the pieces are processed, and the If electronic option Delivery numeric equivalent of a barcode(s) that 1.0 Treatment of Mail Confirmation is requested for all pieces help to identify the specific pieces. Any in the mailing and the pieces are of * * * * * piece intended to generate scanned data 1.5 Treatment for Ancillary Services identical weight, then postage may be must meet the physical characteristics paid with metered postage or permit by Class of Mail and standards in 14.0, although not * * * * * imprint under the applicable standards every piece is guaranteed such data or in 444.2.0 for parcels. * * * complete data. This service does not 1.5.3 Standard Mail * * * * * provide proof of delivery. Existing users Undeliverable-as-addressed (UAA) 11.0 Signature Confirmation must convert to the use of an IMb to Standard Mail is treated as described in receive data once existing subscriptions * * * * * Exhibit 1.5.3a and Exhibit 1.5.3k, with expire. these additional conditions: 11.2 Basic Information 14.1.3 Availability * * * * * * * * * * IMb Tracing is available to mailers for [Revise item 1.5.3j as follows:] j. A returned piece endorsed ‘‘Return 11.2.2 Eligible Matter obtaining scan data for automation- compatible letter-size and automation- Service Requested’’ is charged the [Revise the first sentence of the compatible flat-size mail. applicable single-piece First-Class Mail introductory text of 11.2.2 as follows:] price for the weight and shape of the Signature Confirmation is available 14.2 Barcodes piece, or the Priority Mail price for the for First-Class Mail parcels and First- 14.2.1 General Barcode Requirements weight and destination of the piece. Class Package Service parcels; all * * * * * Priority Mail pieces; Standard Mail Each piece in a mailing that is parcels (electronic option only); Package intended to generate IMb Tracing 1.5.4 Package Services and Parcel Services, Parcel Select, and Parcel information must bear an Intelligent Select Mail barcode under 14.2.2. Until the Select Regional Ground parcels Undeliverable-as-addressed (UAA) time when their current Confirm (electronic option only) under 401.1.0. Package Services and Parcel Select subscription expires, mailers may use *** mailpieces are treated as described in PLANET Code barcodes and POSTNET Exhibit 1.5.4, with these additional * * * * * barcodes under the provisions in conditions: [Revise the title of 14.0 as follows:] Publication 197, Confirm Service 14.0 Confirm Service and IMb Tracing Featuring OneCode Confirm, accessible * * * * * [Revise item 1.5.4d as follows:] [Delete the current text of 14.1 online at http://ribbs.usps.gov/. Otherwise, mailers must apply d. If a Package Services (except for through 14.4 and replace with the unendorsed Bound Printed Matter) or a following:] Intelligent Mail barcodes under 708.4.0 and the following standards: Parcel Select mailpiece and any 14.1 Basic Information a. Reply pieces must meet the attachment are not opened by the addressee, the addressee may refuse 14.1.1 General Information following standards: 1. For Business Reply Mail, the piece delivery of the piece and have it IMb Tracing is a replacement for must bear a barcode that corresponds to returned to the sender without affixing Confirm service. Participation in the subscriber’s Business Reply Mail postage. Pieces endorsed ‘‘change Confirm service is limited to those ZIP+4 codes assigned by the USPS service requested’’ are not returned to customers who have already paid for a under 507.9.0. sender. If a Package Services or Parcel current subscription until the 2. For other reply mail, the piece must Select piece or any attachment to that subscription expires. After the bear a barcode that correctly piece is opened by the addressee, the expiration of a Confirm subscription, corresponds to the delivery address. addressee must affix the applicable IMb Tracing provides the same basic b. Outgoing pieces must bear an postage to return the piece to the sender. information as Confirm, but is available Intelligent Mail barcode that correctly If the addressee does not want to pay at no charge without a subscription. corresponds to the delivery address. forwarding postage for all Package

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Services mail, use Form 3546 to notify may refuse any piece of Package month left in the payment period. For the postmaster of the old address to Services or Parcel Select that has been the 3-month payment option, one-third discontinue the forwarding of Package forwarded. Shipper Paid Forwarding, of a 3-month fee is refunded for each Services mail. under provisions in 4.2.9, provides month left in the payment. * * * [Revise item 1.5.4e as follows:] mailers an option of paying forwarding * * * * * e. An undeliverable Package Services postage for parcels instead of the (except for unendorsed Bound Printer addressee paying postage due charges. 600 Basic Standards for All Mailing Services Matter) or a Parcel Select mailpiece that * * * * * bears postage with a postage evidencing 601 Mailability imprint and that has no return address 508 Recipient Services * * * * * or illegible return address is returned to * * * * * the meter licensee or PC Postage 11.0 Cigarettes and Smokeless customer upon payment of the return 4.0 Post Office Box Service Tobacco postage. The reason for nondelivery is * * * * * * * * * * attached, with no address correction fee. 4.2 Basic Information for Post Office All Package Services and Parcel Select 11.5 Exception for Business/ Box Service pieces must have a legible return Regulatory Purposes address. * * * * * * * * * * * * * * * 4.2.7 Service Period 11.5.2 Mailing Exhibit 1.5.4 Treatment of [Revise the text of 4.2.7 as follows:] Undeliverable Package Services Mail Post Office Box service is available in * * * All mailings under the and Parcel Select 3-, 6- or 12-month prepaid periods. The business/regulatory purposes exception 3-month option is available only must: * * * * * [Revise 11.5.2a as follows:] [Revise the text in the Exhibit 1.5.4 through recurring automatic payments. a. Be entered in a face-to-face column ‘‘USPS Treatment of UAA The 3-month option is not available at transaction with a postal employee Pieces’’ endorsement ‘‘Address Service Post Office locations on the semi-annual (carrier pickup not permitted) as Requested as follows:] (April/October) payment schedule. Express Mail with Hold for Pickup If change-of-address order on file: * * * * * service, Express Mail with an Adult [Revise the first sentence of the 4.5 Basis of Fees and Payment Signature service (see 503.8.0), or introductory text in the first bullet as Priority Mail with an Adult Signature follows: * * * * * • service; Months 1 through 12: Package 4.5.4 Payment Services forwarded at the single-piece * * * * * [Revise the first sentence of 4.5.4 as price for the class of mail. * * * 11.6 Exception for Certain Individuals follows:] * * * * * All fees for Post Office Box service are * * * * * [Revise the text in the Exhibit 1.5.4 for 3-, 6- or 12-month prepaid periods, 11.6.2 Mailing column ‘‘USPS Treatment of UAA except as noted under 4.5.6, 4.5.7, and Pieces’’ endorsement ‘‘Forwarding 4.5.10. * * * * * * Each mailing under the certain Service Requested as follows:] individuals exception must: If change-of-address order on file: * * * * * [Revise 11.6.2a as follows:] [Revise the first sentence of the 4.7 Fee Refund introductory text in the first bullet as a. Be entered (carrier pickup not 4.7.1 Calculation follows:] permitted) as Express Mail with Hold • Months 1 through 12: Package When Post Office Box service is for Pickup service, Express Mail with an Services forwarded at the single-piece terminated or surrendered by the Adult Signature service (see 503.8.0), or price for the class of mail. * * * customer, the unused portion of the fee Priority Mail with an Adult Signature service; unless shipped to APO/FPO/ * * * * * may be refunded as follows: [Revise item 4.7.1a as follows:] DPO addresses under 11.6.4. 2.0 Forwarding a. If service is discontinued any time * * * * * * * * * * within the first 3 months of the service [Revise 11.6.2c as follows:] period, then one-half of the fee is c. Bear the full name and mailing 2.3 Postage for Forwarding refunded, except that none of the fee is address of the sender and recipient on * * * * * refunded under the 3-month payment the Express Mail or Priority Mail label; option. 2.3.6 Package Services and Parcel * * * * * Select * * * * * [Revise item 4.7.1c as follows:] 11.6.3 Delivery [Delete the current second sentence of c. If service is discontinued and the Delivery under the certain individuals 2.3.6 and revise the text to read as customer has prepaid for the next exception is made under the following follows:] quarterly or semiannual service period, conditions: Package Services and Parcel Select then the entire fee for that next period * * * * * pieces are subject to the collection of is refunded. additional postage at the applicable [Revise 11.6.3c as follows:] price for forwarding; Parcel Select at the 4.7.2 Discontinued Postal Facility c. For Express Mail or Adult Signature Parcel Select nonpresort price plus the [Revise the second sentence of 4.7.2 articles, once age is established, the additional service fee and Package as follows:] recipient must sign PS Form 3849 in the Services at the single-piece price for the * * * For this purpose, one-sixth of appropriate signature block. specific class of mail. The addressee a semiannual fee is refunded for each * * * * *

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11.7 Consumer Testing Exception unless a standard specifically states that DALs and items mailed is not identical, * * * * * it applies only to DMLs. the number of pieces used to determine * * * * * postage is the greater of the two. No 11.7.2 Mailing [Revise the title and text of 4.1.3 as postage refund is allowed in these * * * Mailings must be tendered follows:] situations. In addition, these methods of postage payment apply: under the following conditions: 4.1.3 Standard Mail Marketing * * * * * * * * * * Parcels b. All mailings under the consumer [Revise items 4.5.2b and 4.5.2c as testing exception: DALs may be used with Standard follows:] [Revise 11.7.2b1 as follows:] Mail Marketing parcels mailed at carrier b. Standard Mail flats and parcels (at 1. Be entered in a face-to-face route, high density, or saturation parcel the applicable postage) and Bound transaction with a postal employee prices. Printed Matter pieces must be paid by (carrier pickup not permitted) as * * * * * permit imprint, which must appear on each DAL. Express Mail with Hold for Pickup 4.1.5 Alternative Addressing Format service, Express Mail with Adult c. A surcharge applies to each DAL Signature Restricted Delivery service [Revise the text of 4.1.5 as follows:] (including DMLs) used in a Standard (see 503.8.0), or Priority Mail with DALs may have alternative addressing Mail flats mailing. Adult Signature Restricted Delivery formats under 3.0, subject to the * * * * * applicable standards. service; 604 Postage Payment Methods * * * * * * * * * * * * * * * [Revise 11.7.2b4 as follows:] 4.2 Label Preparation 4. Must bear the full mailing 2.0 Stamped Stationery * * * * * addresses of both the sender and * * * * * recipient on the Express Mail or Priority 4.2.5 Other Information Mail label (the name and address of the 2.3 Other Stationery [Revise the text of 4.2.5 as follows:] sender must match exactly those listed 2.3.1 Stamped Cards on the customer’s application on file In addition to the information with the PCSC); described in 4.2.2 and 4.2.4 and an [Revise 2.3.1 as follows:] indicium of postage payment, only Stamped cards are available as single * * * * * official pictures and data circulated by stamped cards, double (reply) stamped 11.7.3 Delivery the National Center for Missing and cards, and in sheets of 40 for customer imprinting. Single and double stamped Mailings bearing the markings for Exploited Children may appear on the cards are 31⁄2 inches high by 51⁄2 inches consumer testing can only be delivered front of a DAL. Advertising may appear long. Stamped cards are also available to the named addressee under the on a DML, under the following in 81⁄2 inches by 11-inches perforated following conditions: conditions: a. The DMLs must meet the physical and non-perforated sheets with four 41⁄4 * * * * * characteristics for DALs under 4.2.1 and inches by 51⁄2 inches cards. Sheets must [Revise 11.7.3c as follows:] have a correct POSTNET or Intelligent be cut so that the stamp is in the upper c. The name on the identification Mail barcode with an 11-digit routing right corner of each card. The USPS must match the name of the addressee code (see 708.4.0). offers personalized stamped cards (cards on the Express Mail or Priority Mail b. The advertising must not obstruct imprinted with a return address). label. or overlap any of the required elements * * * * * * * * * * on the front of a DML. [Add the new 2.3.4 as follows:] 602 Addressing c. The advertising must be to the left of the delivery address and placed to 2.3.4 Printing Specifications * * * * * maintain required clear spaces around The printing specifications for [Revise the title of 4.0 as follows:] the address and postage payment (see personalized stamped envelopes also 4.0 Detached Address Labels (DALs) 202 and 1.0). apply to stamped postcards (see 2.2.3). and Detached Marketing Labels (DMLs) * * * * * * * * * * [Add new item 2.4 as follows:] [Revise the title of 4.1 as follows:] 4.5 Postage 2.4 Stamp Fulfillment Service 4.1 DAL and DML Use 4.5.1 Prices 2.4.1 Description [Revise the title and text of 4.1.1 as [Revise the text of 4.5.1 as follows:] follows:] DAL mailings are not eligible for Stamp Fulfillment Services provides automation prices, but the pieces may the fulfillment of stamp orders placed 4.1.1 Definitions qualify for carrier route prices, subject by customers via mail, phone, fax, or For these standards, item(s) refers to to applicable standards. Mailers must online to the Stamp Fulfillment Services the types of mail described in 4.1.2 pay a surcharge for each DAL used with organization. Stamp Fulfillment through 4.1.4. DALs in their basic form Standard Mail flats. See Notice 123- Services charges shipping and handling may be used by mailers as an optional Price List for prices. fees associated with fulfilling stamp method of addressing and printing of orders. The fees vary depending on the postage indicia on the DALs instead of 4.5.2 Postage Computation and dollar amount of the order. All prices printing addresses and postage on the Payment and fees are listed on Notice 123—Price items mailed with the DALs. DMLs are [Revise the introductory text of 4.5.2 List. types of DALs, but also include as follows:] * * * * * advertising. For purposes of standards Postage is computed based on the in 4.0, the term ‘‘DALs’’ (or ‘‘DAL’’) will combined weight of the item and the 700 Special Standards be used to mean both DALs and DMLs, accompanying DAL. If the number of * * * * *

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705 Advanced Preparation and [Revise items 6.3.1a through d by 8.10 Pallet Presort and Labeling Special Postage Payment Systems deleting references to NFMs 6 ounces or * * * * * * * * * * more to read as follows:] a. When claiming Parcel Select ONDC 8.10.2 Periodicals—Bundles, Sacks, or 6.0 Combining Mailings of Standard Presort discounts, machinable Standard Trays Mail, Package Services, and Parcel Mail parcels may be combined with [Add a new last sentence in the Select Parcels machinable Parcel Select and Package introductory text to read as follows:] [Revise title of 6.1 by deleting the Services parcels under 6.3 only if the *** Prepare pallets in the following reference to NFMs to read as follows:] mailpieces are palletized and each sequence: pallet or pallet box contains a 200- 6.1 Basic Standards for Combining * * * * * pound minimum. [Revise the introductory text of item Parcels b. When claiming Parcel Select NDC 8.10.2k to read as follows:] 6.1.1 Basic Standards Presort discounts, machinable Standard k. Mixed ADC, optional, permitted for Mail parcels may be combined with sacks and trays, and bundles of flats. [Revise text in the first sentence of machinable Parcel Select and Package 6.1.1 by deleting NFMs to read as Pallet may contain carrier route, Services parcels under 6.3 only if the automation price, and/or presorted price follows:] mailpieces are palletized and each Standard Mail parcels, Package mail. Pallets must not contain origin pallet or pallet box contains a 200 mixed ADC (OMX) sacks. Labeling: Services, and Parcel Select parcels in pound minimum. combined mailings must meet the * * * * * c. When claiming the DSCF price for following standards: Parcel Select or Bound Printed Matter 8.10.3 Standard Mail—Bundles, * * * * * parcels, Standard Mail parcels may be Sacks, or Trays [Revise title of 6.2 by deleting combined with Package Services and [Revise the third sentence of 8.10.3 for reference to NFMs to read as follows:] Parcel Select parcels under 6.3. clarity to read as follows:] 6.2 Combining Parcels—DNDC Entry d. All Standard Mail parcels may be * * * For irregular parcels, use this combined with Package Services and preparation only for pieces in sacks or [Revise 6.2 by deleting reference to Parcel Select parcels prepared for DDU in carrier route bundles. * * * NFMs 6 ounces or more to read as prices under 6.3. follows:] * * * * * * * * * * [Revise the title and introductory text Mailers may combine Standard Mail of 8.10.6 to read as follows:] machinable parcels with Package 6.4 Combining Package Services, Services and Parcel Select machinable Parcel Select, and Standard Mail— 8.10.6 Standard Mail, Package parcels for entry at an NDC when Optional 3-Digit SCF Entry Services, Parcel Select authorized by the USPS under 6.1.4. * * * * * Prepare pallets under 8.0 in the * * * * * sequence below. Unless indicated as 6.4.2 Qualifications and Preparation 6.2.2 Additional Standards optional, all sort levels are required. [Revise the introductory paragraph of Combined mailings of Standard Mail, [Revise the introductory text of 6.2.2 6.4.2 by deleting references to NFMs to Parcel Select, and Package Services by deleting references to NFMs 6 ounces read as follows:] machinable parcels also must meet the or more to read as follows:] Parcel Select, Bound Printed Matter standards in 6.0 or 20.0. Label pallets Standard Mail machinable parcels machinable parcels, and Standard Mail according to Line 1 and Line 2 and Package Services and Parcel Select parcels may be prepared for entry at information below and under 8.6, machinable parcels prepared for DNDC designated SCFs under these standards: except for combined mailings that entry must meet the following [Revise item 6.4.2a by deleting include Standard Mail parcels. conditions in addition to the basic references to NFMs to read as follows:] [Delete the reference to ‘‘NFM’’ and standards in 6.1: a. Standard Mail parcels that weigh replace the reference to ‘‘STD MACH’’ [Revise text of 6.2.2a by deleting less than 2 ounces and Standard Mail with ‘‘STD/PSVC MACH.’’ to revise item references to NFMs to read as follows:] parcels that are tubes, rolls, triangles, 8.10.6a as follows:] a. Each piece in a combined Standard and similar pieces may not be included. a. 5-digit scheme, required. Pallet Mail, Package Services, and Parcel [Revise item 6.4.2b as follows:] must contain parcels for the same 5- Select mailing must meet the criteria for b. Mailers must prepare pieces on 3- digit scheme under L606. For 5-digit machinable parcels in 401.1.5. digit pallets or pallet boxes, or unload destinations not part of L606, or for * * * * * and physically separate the pieces into which scheme sorts are not performed, [Revise text of 6.2.2e by deleting containers as specified by the prepare 5-digit pallets under 8.10.6b. references to NFMs to read as follows:] destination facility. Labeling: 1. Line 1: Use L606. e. Mailers must deposit combined * * * * * machinable parcels at NDCs or ASFs 2. Line 2: ‘‘STD/PSCV MACH 5D;,’’ [Revise item 6.4.2d by deleting followed by ‘‘SCHEME’’ (or ‘‘SCH’’). (see Exhibit 6.2.3) under applicable references to NFMs to read as follows:] standards in 15.0. [Delete the reference to ‘‘NFM’’ and d. Standard Mail machinable parcels replace the reference to ‘‘STD MACH’’ * * * * * are eligible for the NDC presort level, with ‘‘STD/PSVC MACH.’’ to revise item 6.3 Combining Parcels—Parcel Select DNDC price; irregular parcels are 8.10.6b as follows:] ONDC Presort, NDC Presort, DSCF, and eligible for the 3-digit presort level, b. 5-digit, required. Pallet must DDU Prices DSCF price. contain parcels only for the same 5-digit * * * * * ZIP Code. Labeling: 6.3.1 Qualification 1. Line 1: city, state, and 5-digit ZIP Combination requirements for specific 8.0 Preparing Pallets Code destination (see 8.6.4c for overseas discounts and prices are as follows: * * * * * military mail).

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2. Line 2: ‘‘STD/PSVC MACH 5D’’ c. ASF, optional, but required for 1. For Line 1, L002, Column C. [Delete the reference to ‘‘NFM’’ and DNDC prices. Not available for the 2. For Line 2, ‘‘STD/PSLW IRREG replace the reference to ‘‘STD MACH’’ Buffalo NY ASF in L602. Pallets must SCF.’’ with ‘‘STD/PSVC MACH.’’ to revise item contain only parcels for the 3-digit ZIP d. ASF, optional, but required for 8.10.6c as follows:] Code groups in L602. Labeling: DNDC prices. Not available for the c. ASF, optional, but required for 1. Line 1: Use L602. Buffalo NY ASF in L602. Pallets must DNDC prices. Not available for the 2. Line 2: ‘‘STD/PSLW MACH ASF.’’ contain only parcels for the 3-digit ZIP Buffalo NY ASF in L602. Pallets must d. NDC, required. Pallets must contain Code groups in L602. Labeling: contain only parcels for the 3-digit ZIP only parcels for the 3-digit ZIP Code 1. Line 1: Use L602. Code groups in L602. Labeling: groups in L601. Labeling: 2. Line 2: ‘‘STD/PSLW IRREG ASF’’. 1. Line 1: Use L602. 1. Line 1: Use L601. e. NDC, required. Pallets must contain 2. Line 2: ‘‘STD/PSVC MACH ASF.’’ 2. Line 2: ‘‘STD/PSLW MACH NDC.’’ only parcels for the 3-digit ZIP Code [Delete the reference to ‘‘NFM’’ and e. Origin NDC (required); no groups in L601. Labeling: replace the reference to ‘‘STD MACH’’ minimum; labeling: 1. Line 1: Use L601. with ‘‘STD/PSVC MACH.’’ to revise item 1. Line 1: L601, Column B. 2. Line 2: ‘‘STD/PSLW IRREG NDC’’. 8.10.6d as follows:] 2. Line 2: ‘‘STD/PSLW MACH NDC.’’ f. Origin NDC (required); no d. NDC, required. Pallets must contain f. Mixed NDC, optional; no minimum. minimum; labeling: only parcels for the 3-digit ZIP Code Labeling: 1. Line 1: L601, Column B. 1. Line 1: ‘‘MXD’’ followed by groups in L601. Labeling: 2. Line 2: ‘‘STD/PSLW IRREG NDC’’. information in L601, Column B, for NDC 1. Line 1: Use L601. g. Mixed NDC, optional. Labeling: serving 3-digit ZIP Code prefix of entry 2. Line 2: ‘‘STD/PSVC MACH NDC.’’ 1. Line 1: ‘‘MXD’’ followed by [Delete the reference to ‘‘NFM’’ and Post Office (or labeled to plant serving information in L601, Column B, for NDC replace the reference to ‘‘STD MACH’’ entry Post Office if authorized by serving 3-digit ZIP Code prefix of entry with ‘‘STD/PSVC MACH.’’ to revise item processing and distribution manager). Post Office (or labeled to plant serving 8.10.6e as follows:] 2. Line 2: ‘‘STD/PSLW MACH WKG.’’ entry Post Office if authorized by e. Mixed NDC, optional. Labeling: [Revise title and introductory text of processing and distribution manager). 1. Line 1: ‘‘MXD’’ followed by 8.10.8 as follows:] 2. Line 2: ‘‘STD/PSLW IRREG WKG’’. information in L601, Column B, for NDC 8.10.8 Standard Mail and Parcel serving 3-digit ZIP Code prefix of entry * * * * * Select Lightweight Irregular Parcels Post Office (or labeled to plant serving [Delete current 8.10.9, Standard Mail Weighing 2 Ounces or More entry Post Office if authorized by Not Flat-Machinable Pieces Weighing processing and distribution manager). Mailers who palletize unbundled or Less Than 6 Ounces, in its entirety.] 2. Line 2: ‘‘STD/PSVC MACH WKG.,’’ unsacked irregular parcels must make * * * * * [Revise title and introductory text of pallets or pallet boxes when there are 8.17 Pallets of Machinable Parcels 8.10.7 to remove references to Not Flat- 250 pounds or more for the destination Machinables and NFMs and revise as levels below for DNDC, DSCF, or DDU 8.17.1 DNDC Price follows:] prices. When prepared at origin, a 200 [Revise text of 8.17.1 to read as pound minimum is required for the follows:] 8.10.7 Standard Mail and Parcel NDC price. Prepare pallets or pallet Select Lightweight Machinable Parcels Pieces may be eligible for the 5-digit boxes of irregular parcels (except tubes, price only when prepared under 8.10.7a Mailers who palletize machinable rolls, and similar pieces) weighing 2 or 8.10.7b and entered at a destination parcels must make pallets or pallet ounces or more under 8.0 and in the facility under 446. boxes when there are 250 pounds or sequence listed below. Label pallets or more for the destination levels below for pallet boxes according to the Line 1 and * * * * * DNDC, DSCF, or DDU prices. When Line 2 information listed below and 21.0 Optional Combined Parcel prepared at origin, a 200-pound under 8.6. Mailers may not prepare Mailings minimum is required for the NDC price. tubes, rolls, and similar pieces or pieces 21.1 Basic Standards for Combining Prepare pallets under 8.0 in the that weigh less than 2 ounces on pallets Parcel Select, Package Services, and sequence below. Unless indicated as or in pallet boxes, except for pieces in Standard Mail Parcels optional, all sort levels are required. carrier route bundles or in sacks under Label pallets according to Line 1 and 8.10.3. 21.1.1 Basic Standards Line 2 information below and under 8.6. [Revise items 8.10.8a through g by [Revise first sentence in 21.1.1 by [Revise items 8.10.7a through f by deleting references to NFMs and deleting the references to NFMs to read removing reference to NFMs and changing line 2 content as follows:] as follows:] revising as follows:] a. 5-digit scheme, required. Pallet or Package Services parcels, Parcel a. 5-digit scheme, required. Pallet pallet box must contain parcels only for Select parcels, and Standard Mail must contain parcels for the same 5- the same 5-digit scheme under L606. parcels in a combined parcel mailing digit scheme under L606. For 5-digit For 5-digit destinations not part of L606 must meet the following standards: destinations not part of L606, prepare 5- prepare 5-digit pallets under 8.10.8b. digit pallets under 8.10.7b, Labeling: Labeling: * * * * * 1. Line 1: Use L606. 1. Line 1: Use L606. d. Combined mailings must meet the 2. Line 2: ‘‘STD/PSLW MACH 5D. 2. Line 2: ‘‘STD/PSLW IRREG 5D; following minimum volume b. 5-digit, required. Pallet must followed by ‘‘SCHEME’’ (or ‘‘SCH’’). requirements: contain parcels only for the same 5-digit b. 5-digit, required. * * *. Labeling: [Revise item d1 to delete the reference ZIP Code. Labeling: 1. Line 1: city, state, and 5-digit ZIP to NFMs to read as follows:] 1. Line 1: city, state, and 5-digit ZIP Code destination (see 8.6.4c for overseas 1. Standard Mail—Minimum 200 Code destination (see 8.6.4c for overseas military mail). pieces or 50 pounds of Standard Mail military mail). 2. Line 2: ‘‘STD IRREG 5D.’’ parcels. 2. Line 2: ‘‘STD/PSLW MACH 5D.,’’ c. SCF, required. * * * Labeling: * * * * *

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21.2 Price Eligibility 23.0 Full-Service Automation Option 708 Technical Specifications * * * * * * * * * * * * * * * [Revise the title of 23.2 as follows:] 21.2.2 Price Application 6.0 Standards for Barcoded Tray 23.2 General Eligibility Standards Apply prices based on the criteria in Labels, Sack Labels, and Container 400 and the following standards: [Renumber current 23.3 and 23.4 as Placards [Revise item 21.2.2a by deleting the new 23.4 and 23.5, and add new 23.3 as * * * * * follows:] reference to NFMs to read as follows:] 6.2 Specifications for Barcoded Tray a. Standard Mail parcels are based on 23.3 Eligibility for Waiver of Annual and Sack Labels the container level and entry (see Fees and Waiver of Deposit of Permit 443.5.0. Imprint Mail Restrictions * * * * * * * * * * Mailers who present only full-service 6.2.4 3-Digit Content Identifier 21.3 Mail Preparation automation mailings (of First-Class Mail Numbers cards, letters, and flats, Standards Mail * * * * * 21.3.1 Basic Standards letters and flats, or Bound Printed Prepare combined mailings as Matter flats) that contain 90 percent or Exhibit 6.2.4 3-Digit Content Identifier follows: more pieces eligible for full-service Numbers a. Different parcel types must be automation prices are eligible for the CLASS AND MAILING CIN HUMAN- prepared separately for combined parcel following exceptions to standards: READABLE CONTENT LINE a. The annual presort mailing or mailings as indicated below: * * * * * [Revise item a1 through a4 by deleting destination entry fees, as applicable, the references to NFMs to read as will be waived for qualified full-service STANDARD MAIL follows:] mailings. [Delete the following heading and the b. Mailers may present qualified full- 1. Standard Mail, Parcel Select, and six rows beneath it in their entirety.] Package Services machinable parcels. service mailings with mailpieces Use ‘‘STD/PSVC MACH’’ for line 2 bearing a current valid permit imprint STD Not Flat-Machinable Pieces Less content labeling. for acceptance at any USPS acceptance Than 6 Ounces—Nonautomation 2. Standard Mail, Parcel Select, and office that has PostalOne! acceptance [Delete the following heading and the Package Services irregular parcels at functions without payment of any five rows beneath it in their entirety.] least 2 ounces and up to (but not additional permit imprint application or including) 6 ounces, except for tubes, annual mailing fees. STD Not Flat-Machinable Pieces 6 rolls, triangles, and other similarly c. If any mailing (of the classes and Ounces Or More—Nonautomation irregularly-shaped pieces. Use ‘‘STD/ shapes of mail in 23.3) presented under * * * * * PSVC’’ for line 2 content labeling. a mailing permit does not contain at We will publish an appropriate 3. Standard Mail, Parcel Select, and least 90 percent of the pieces qualifying amendment to 39 CFR part 111 to reflect Package Services tubes, rolls, triangles, for full-service automation prices: these changes if our proposal is 1. The mailer must pay the applicable and similarly irregularly-shaped parcels; adopted. annual fee before that mailing may be and all parcels weighing less than 2 accepted. Stanley F. Mires, ounces. Use ‘‘STD/PSVC IRREG’’ for 2. The provision in 23.3b for Attorney, Legal Policy & Legislative Advice. line 2 content labeling. presentation of mailings at multiple 4. Combine all parcel types in 5-digit [FR Doc. 2011–27365 Filed 10–21–11; 8:45 am] offices is discontinued for all mailings BILLING CODE 7710–P and 5-digit scheme containers. Use presented under the applicable permit ‘‘STD/PSVC PARCELS’’ for line 2 imprint. content labeling. * * * * * * * * * * ENVIRONMENTAL PROTECTION [Revise title of 21.3.2 to read as 707 Periodicals AGENCY follows:] * * * * * 40 CFR Part 60 21.3.2 Combining Standard Mail, 2.0 Price Application and [EPA–HQ–OAR–2010–0223; FRL–9482–5] Parcel Select, and Package Services Computation Machinable Parcels RIN 2060–AO60 2.1 Price Application * * * * * * * * * * New Source Performance Standards [Revise title of 21.3.3 to read as (NSPS) Review follows:] 2.1.2 Applying Outside-County Piece Prices AGENCY: Environmental Protection 21.3.3 Combining Standard Mail, Agency (EPA). Parcel Select, and Package Services * * * Apply piece prices for Outside- Apps-Machinable Parcels County mail as follows: ACTION: Advanced notice of proposed rulemaking. * * * * * * * * * * [Revise title of 21.3.4 to read as c. Nonmachinable flats: SUMMARY: The purpose of this advanced follows:] * * * * * notice of proposed rulemaking [Revise item 2.1.2c2 as follows:] (ANPRM) is to request public comment 21.3.4 Combining Standard Mail 2. Apply the ‘‘Nonmachinable Flats— on a proposed approach the EPA has (Under 2 Ounces), Parcel Select, and Nonbarcoded’’ prices to pieces that meet developed to carry out the statutorily Package Services Other Irregular the standards for nonmachinable flats in required periodic evaluation of the new Parcels 707.26 but do not include a barcode. source performance standards (NSPS) * * * * * * * * * * program. Consistent with Executive

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Order 13563, ‘‘Improving Regulation including any personal information Group, Office of Air Quality Planning and Regulatory Review,’’ issued on provided, unless the comment includes and Standards (D205–02), January 18, 2011, this proposed information claimed to be Confidential Environmental Protection Agency, approach will provide a streamlined Business Information (CBI) or other Research Triangle Park, North Carolina process to ensure that public and information whose disclosure is 27711; telephone number: (919) 541– private resources are focused on the restricted by statute. Do not submit 3391; fax number: (919) 541–4991; e- rules that provide the greatest public information that you consider to be CBI mail address: [email protected]. health protection and are most likely to or otherwise protected through http:// SUPPLEMENTARY INFORMATION: Outline. warrant revision to include current www.regulations.gov or e-mail. The The information in this ANPRM is technology and eliminate obsolete or http://www.regulations.gov Web site is organized as follows: unnecessary requirements. By an ‘‘anonymous access’’ system, which demonstrating the continued efficacy of means the EPA will not know your I. General Information A. What should I consider as I prepare my the standards, the agency will be able to identity or contact information unless you provide it in the body of your comments for the EPA? fulfill its statutory requirement to B. Where can I get a copy of this document review, and, if necessary, revise NSPS at comment. If you send an e-mail and other related information? a minimum of every 8 years. This comment directly to the EPA without II. Background Information ANPRM is part of the EPA’s effort to going through http:// A. What is the NSPS program? meet these statutory obligations. The www.regulations.gov, your e-mail B. What is the status of the NSPS program? agency is seeking comment on the address will be automatically captured C. What is the purpose of this ANPRM? overall approach to managing the NSPS and included as part of the comment III. Developing an NSPS Evaluation Strategy program, in particular the criteria used that is placed in the public docket and A. What are the goals of an evaluation made available on the Internet. If you strategy for the NSPS program? to determine that no review is needed B. Which NSPS do not need review? for a subset of NSPS. submit an electronic comment, the EPA recommends that you include your C. NSPS Potentially in Need of a Review DATES: Comments must be received on IV. Request for Comment and Next Steps name and other contact information in or before November 23, 2011. V. Statutory and Executive Order Review the body of your comment and with any ADDRESSES: The EPA has established a disk or CD–ROM you submit. If the EPA I. General Information docket for this action under Docket ID cannot read your comment due to No. EPA–HQ–OAR–2010–0223. All A. What should I consider as I prepare technical difficulties and cannot contact my comments for the EPA? documents in the docket are listed in you for clarification, the EPA may not the Federal Docket Management System be able to consider your comment. Please provide data and explanatory index at http://www.regulations.gov. Electronic files should avoid the use of information in a format that is thorough Publicly available docket materials are special characters, any form of and complete enough for use by the EPA available either electronically through encryption, and be free of any defects or to justify any modifications to the http://www.regulations.gov or in hard viruses. For additional information proposed approach. Do not submit CBI copy at the NSPS Review Under CAA about the EPA’s public docket visit the to the EPA through http:// Section 111(b)(1)(B) ANPRM Docket, EPA Docket Center homepage at www.regulations.gov or e-mail. Clearly EPA/DC, EPA West, Room 3334, 1301 www.epa.gov/epahome/dockets.htm. mark the part or all of the information Constitution Ave., NW., Washington, Docket: All documents in the docket that you claim to be CBI. For CBI DC. The Public Reading Room is open are listed in the http:// information on a disk or CD–ROM that from 8:30 a.m. to 4:30 p.m., Monday www.regulations.gov index. Although you mail to the EPA, mark the outside through Friday, excluding legal listed in the index, some information is of the disk or CD–ROM as CBI and then holidays. The telephone number for the not publicly available, e.g., CBI or other identify electronically within the disk or Public Reading Room is (202) 566–1744, information whose disclosure is CD–ROM the specific information that and the telephone number for the Air restricted by statute. Certain other is claimed as CBI. In addition to one Docket is (202) 566–1742. material, such as copyrighted material, complete version of the comment that Instructions: Direct your comments to will be publicly available only in hard includes information claimed as CBI, a Docket ID No. EPA–HQ–OAR–2010– copy. Publicly available docket copy of the comment that does not 0223. The U.S. Environmental materials are available either contain the information claimed as CBI Protection Agency’s (EPA’s) policy is electronically in http:// must be submitted for inclusion in the that all comments received will be www.regulations.gov or in hard copy at public docket. Information so marked included in the public docket without the Public Reading Room. will not be disclosed except in change and may be made available FOR FURTHER INFORMATION CONTACT: Ms. accordance with procedures set forth in online at http://www.regulations.gov, Janice Godfrey, Policy and Strategies 40 CFR part 2.

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B. Where can I get a copy of this various CAA section 111(b) standards allows the EPA to identify potential document and other related include particulate matter (PM, PM2.5, emission limits. We evaluate each information? PM10), nitrogen oxides (NOX), carbon system in conjunction with cost of In addition to being available in the monoxide (CO), lead (Pb), volatile achieving such reduction and any non- docket, an electronic copy of this organic compounds (VOC), sulfur air quality health and environmental ANPRM will be available on the dioxide (SO2), sulfuric acid mist, impact and energy requirements. The Worldwide Web through the fluorides, hydrogen sulfide, reduced resultant standard is usually a Technology Transfer Network (TTN). sulfur compounds, total reduced sulfur, numerical emissions limit, expressed as The TTN provides information about and landfill gas. CAA section a performance level (i.e., a rate-based various areas of air pollution control. 111(b)(1)(B) generally requires the EPA standard or percent control). Although Following signature, an electronic to ‘‘at least every 8 years review and, if such standards are based on the version of this document will be posted appropriate, revise’’ NSPS. While effectiveness of one or more specific air at http://www.epa.gov/ttn/oarpg under conducting a review of existing NSPS, pollution control systems, section ‘‘Recent Additions.’’ the EPA has also promulgated emission 111(b)(5) provides that the EPA may not The EPA has also created a technical limits for pollutants not currently prescribe a particular technology that support document (TSD) that provides regulated for that source category and must be used to comply with an NSPS, supporting data and information for this added additional affected facilities except in instances where the ANPRM. The TSD will also be available where appropriate. See, e.g., 75 FR Administrator determines it is not in the docket and on the TTN at http:// 54970 (Sept. 9, 2010),1 73 FR 35883 feasible to prescribe or enforce a www.epa.gov/ttn/oarpg under ‘‘Recent (June 24, 2009).2 In addition, section standard of performance, as defined in Additions.’’ 111(b)(1)(B) also states that the EPA section 111(h). Upon promulgation, need not conduct this review if the EPA NSPS become national standards to II. Background Information determines that reviewing an NSPS ‘‘is which all new, modified, or A. What is the NSPS program? not appropriate in light of readily reconstructed sources must comply. available information on the efficacy of Clean Air Act (CAA) section 111 such standard.’’ B. What is the status of the NSPS requires the EPA Administrator to list In setting or revising NSPS, CAA program? categories of stationary sources if such section 111(a)(1) provides that NSPS are sources cause or contribute significantly to ‘‘reflect the degree of emission Since December 23, 1971, the to air pollution which may reasonably limitation achievable through the Administrator has promulgated over 70 be anticipated to endanger public health application of the best system of NSPS. These standards can be found in or welfare. The EPA must then issue emission reduction which (taking into the Code of Federal Regulations (CFR) at NSPS for such source categories. NSPS account the cost of achieving such 40 CFR part 60. A list of all NSPS reflect the degree of emission limitation reduction and any non-air quality health promulgated under the authority of achievable through the application of and environmental impact and energy CAA 111(b)(1)(B) is provided in Table 1, the ‘‘best system of emission reduction’’ requirements) the Administrator which includes the promulgation date which the EPA determines has been determines has been adequately of the original standards and adequately demonstrated. The EPA may demonstrated.’’ The format of NSPS can information on the most recent activity. consider certain costs and non-air vary from source category to source Not all Federal Register actions indicate quality health and environmental category (and even from facility type to a review of the standard. In many cases impacts and energy requirements when facility type within an NSPS) including the most recent action includes only establishing NSPS. For a NAAQS a numerical emission limit, a design minor amendments. For example, on pollutant or a Hazardous Air Pollutant standard, an equipment standard, or a October 17, 2000, EPA made final minor (one listed under 112), only new or work practice standard. In determining amendments to numerous NSPS to modified or reconstructed stationary the best system of emission reduction, include miscellaneous editorial changes sources are regulated. For other we typically conduct a review that and technical corrections to stationary regulated pollutants, section 111(d) also identifies what emission reduction testing and monitoring rules. See requires states to set standards for systems exist and how much they 65FR61768 through 65FR61792. existing sources. reduce air pollution in practice. This Seventeen standards have been Under section 111(b), the EPA has the promulgated or revised within the last authority to define the source categories, 1 EPA promulgated emission limits for nitrogen 8 years. In addition to those standards determine the pollutants for which oxides and sulfur dioxide to the NSPS for Portland that are current within their review standards should be developed, identify Cement plants which had previously only regulated cycle, there are also multiple standards the facilities within each source particulate matter emissions. in different phases of the review 2 In this rulemaking, EPA extended the coverage category to be covered, and set the of the NSPS program to include additional affected process, including some standards that emission level of the standards. Air facilities (e.g., delayed coking units) at a petroleum are in various stages of the litigation pollutants currently regulated through refinery. process.

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TABLE 1—LIST OF CAA § 111(b)(1)(B)NSPS 3

NSPS Subpart Date of promulgation Date of most recent action (FR citation) (FR citation) 4

Ammonium Sulfate Manufacture ...... PP 11/12/1980 (45FR74846) 10/17/2000 56(65FR61760) Asphalt Concrete (Hot Mix Asphalt) ...... I 03/08/1974 02/14/1989 4 (54FR6667) Asphalt Processing and Roofing Manufacture ...... UU 08/06/1982 (47FR34147) 10/17/2000 34(65FR61762) Auto/Light Duty Truck Surface Coating ...... MM 12/24/1980 (45FR85410) 10/17/2000 34(65FR61760) Basic Oxygen Process Furnaces ...... N 03/08/1974 (39FR9318) 10/17/2000 34(65FR61756) Basic Process Steelmak- ...... Na 01/02/1986 (51FR161) 10/17/2000 34(65FR61756) ing Facilities (Integrated Steel Plants) ...... Beverage Can Surface Coating ...... WW 08/25/1983 (48FR38728) 10/17/2000 34(65FR61763) Bulk Gasoline Terminals ...... XX 08/18/1983 (48FR37578) 12/19/2003 (68FR70965) Calciners and Dryers in Mineral Industries ...... UUU 09/28/1992 (57FR44496) 10/17/2000 34(65FR61778) Coal Prep Plants ...... Y 01/15/1976 (41FR2234) 10/08/2009 (74FR51977) Electric Utility Steam Generating Units 7 ...... Da 06/11/1979 (44FR33581) 01/28/2009 4 (74FR5078) Ferroalloy Production Facilities ...... Z 05/04/1976 (41FR18501) 10/17/2000 34(65FR61758) Flexible Vinyl/Urethane Coating and Printing ...... FFF 06/29/1984 (49FR26885) 10/17/2000 34(65FR61768) Fossil-Fuel Fired Steam Generators 4 ...... D 12/12/1971 01/28/2009 34(74FR5078) Glass Manufacturing ...... CC 10/07/1980 (45FR66742) 10/17/2000 34(65FR61759) Grain Elevators ...... DD 08/03/1978 (43FR34347) 10/17/2000 34(65FR61759) Graphic Arts Industry/Publi-cation Rotogravure Printing ...... QQ 11/08/1982 (47FR50644) 04/09/2004 4 (69FR18803) Industrial, Commercial, Institutional Steam Generating Units ... Db 11/25/1986 (51FR42768) 01/28/2009 4 (74FR5084) Kraft Pulp Mills ...... BB 02/23/1978 (43FR7568) 09/21/2006 4 (71FR55127) Large Appliances Surface Coating ...... SS 10/27/1982 (47FR47778) 10/17/2000 34(65FR61761) Lead Acid Batteries ...... KK 04/16/1982 (47FR16564) 10/17/2000 34(65FR61760) Lime Manufacturing ...... HH 03/07/1978 10/17/2000 34(65FR61760) Magnetic Tape Coating Facilities ...... SSS 10/03/1988 (53FR38892) 02/12/1999 (64FR7467) Metal Coil Surface Coating ...... TT 11/01/1982 (47FR49606) 10/17/2000 34(65FR61761) Metal Furniture Surface Coating ...... EE 10/29/1982 (47FR49278) 10/17/2000 34(65FR61759) Metallic Mineral Processing Plants ...... LL 02/21/1984 (49FR6458) 10/17/2000 34(65FR61760) Municipal Solid Waste Landfills ...... WWW 03/12/1996 (60FR9905) 09/21/2006 (71FR55127) New Residential Wood Heaters ...... AAA 08/02/1985 (50FR31504) 10/17/2000 34(65FR61764) Nitric Acid Plants ...... G 12/23/1971 02/14/1989 4 (54FR6666) Nonmetallic Mineral Processing Plants ...... OOO 08/01/1985 (50FR31328) 04/28/2009 (74FR19309) Onshore Natural Gas Processing Plants—Equipment Leaks ... KKK 06/24/1985 (50FR26122) 10/17/2000 34(65FR61773) 34 Onshore Natural Gas Processing: SO2 Emissions ...... LLL 10/01/1985 (50FR40158) 10/17/2000 (65FR61773) Petroleum Dry Cleaners ...... JJJ 09/21/1984 (49FR37331) 10/17/2000 34(65FR61773) Petroleum Refineries ...... J 03/08/1974 (39FR9308) 06/24/2008 (73FR35865) Petroleum Refineries ...... Ja 06/24/2008 (73FR35867) 12/22/2008 4 (73FR78552) (Stay) Phosphate Fertilizers—Diammonium Phosphate Plants ...... V 08/06/1975 (40FR33155) 10/17/2000 34(65FR61757) Phosphate Fertilizers—Granular Triple Superphosphate Stor- X 08/06/1975 (40FR33156) 10/17/2000 34(65FR61757) age Facilities. Phosphate Fertilizers—Superphosphoric Acid Plants ...... U 08/06/1975 (40FR33155) 10/17/2000 34(65FR61757) Phosphate Fertilizers—Triple Superphosphate Plants ...... W 08/06/1975 (40FR33156) 10/17/2000 34(65FR61757) Phosphate Fertilizers—Wet-Process Phosphoric Acid Plants ... T 08/06/1975 (40FR33154) 10/17/2000 34(65FR61757) Phosphate Rock Plants ...... NN 04/16/1982 (47FR16589) 10/17/2000 34(65FR61760) Polymeric Coating of Supporting Substrates ...... VVV 09/11/1989 (54FR37551) Polymers Manufacturing Industry ...... DDD 12/11/1990 (55FR51035) 12/14/2000 (65FR78278) Portland Cement ...... F 12/23/1971 (36FR24877) 08/09/2010 (75FR54970) Pressure Sensitive Tape and Label Surface Coating Oper- RR 10/18/1983 (48FR48375) 10/17/2000 34(65FR61761) ations. Primary Aluminum Reduction Plants ...... S 01/26/1976 (41FR3826) 10/17/2000 34(65FR61757) Primary Copper Smelters ...... P 01/15/1976 (41FR2338) 10/17/2000 34(65FR61756) Primary Lead Smelters ...... R 01/15/1976 (41FR2340) 02/14/1989 4 (54FR6668) Primary Zinc Smelters ...... Q 01/15/1976 (41FR2340) 02/14/1989 4 (54FR6668) Refineries: Equipment Leaks ...... GGG 05/30/1984 (49FR22606) 06/02/2008 4 (73FR31376) Refineries: Wastewater ...... QQQ 11/23/1988 (53FR47623) 10/17/2000 34(65FR61778) Rubber Tire Manufacturing ...... BBB 09/15/1987 (52FR34874) 10/17/2000 34(65FR61765) Secondary Brass and Bronze Production Plants ...... M 03/08/1974 (39FR9318) 10/17/2000 34(65FR61756) Secondary Lead Smelters ...... L 03/08/1974 (39FR9317) 10/17/2000 34(65FR61756) Small Industrial, Commercial, Institutional Steam Generating Dc 09/12/1990 (55FR37674) 01/28/2009 (74FR5091) Units. SOCMI Air Ox Unit Processes ...... III 06/29/1990 (55FR 26922) 12/14/2000 (65FR78278) SOCMI Distillation ...... NNN 06/29/1990 (55FR 26942) 12/14/2000 (65FR78279) SOCMI Equipment Leaks ...... VV 01/18/1983 (48FR48335) 06/02/2008 4 (73FR31375) (Stay) SOCMI Reactor Processes ...... RRR 08/31/1993 (58FR45962) 12/14/2000 (65FR78279) Stationary Combustion Turbines ...... KKKK 06/06/2006 (71FR38497) 3/20/2009 4 (74FR11858) Stationary Compression Ignition Internal Combustion Engines IIII 7/11/2006 (71FR39172) 06/08/2011 (75FR32612) Stationary Gas Turbines ...... GG 09/10/1979 (44FR 52798) 02/24/2006 4 (71FR9458) Stationary Spark Ignition Internal Combustion Engines ...... JJJJ 01/18/2008 (73FR 3591) 06/08/2011 (75FR32612) Steel Plants: Electric Arc Furnaces ...... AA 09/23/1975 (40FR43850) 02/22/2005 (70FR8532) Steel Plants: Electric Arc Furnaces and Argon-Oxygen AAa 10/31/1984 (49FR43845) 02/22/2005 (70FR8533) Decarburization Vessels. Sulfuric Acid Plants ...... H 12/23/1971 (36FR24877) 02/14/1989 (54FR6666)

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TABLE 1—LIST OF CAA § 111(b)(1)(B)NSPS 3—Continued

NSPS Subpart Date of promulgation Date of most recent action (FR citation) (FR citation) 4

Surface Coating of Plastic Parts for Business Machines ...... TTT 01/29/1988 (53FR2676) 10/17/2000 34(65FR61778) Synthetic Fibers ...... HHH 04/05/1984 (49FR13651) 10/17/2000 34(65FR61768) Volatile Organic Liquid Storage Vessels 8 ...... Ka 04/04/1980 (45FR23379) 12/14/2000 (65FR78275) Volatile Organic Liquid Storage Vessels (incl. Petroleum Liquid Kb 04/08/1987 (52FR11429) 10/15/2003 4 (68FR 59333) Storage Vessels). Wool Fiberglass Insulation Manufacturing Plants ...... PPP 02/25/1985 (50FR7699) 10/17/2000 34(65FR61778)

C. What is the purpose of this ANPRM? will have fulfilled its statutory improvement in air quality, health and The purpose of this ANPRM is to obligations under 111(b) with respect to welfare benefits and are most likely to request public comment on a strategy the 8-year review requirement for that warrant review and revision to include for focusing reviews of the NSPS so as standard. current technology and eliminate to maximize the public health and In addition to fulfilling the mandate obsolete or unnecessary requirements. welfare benefits while ensuring that the in CAA section 111(b)(1)(B), this At the same time, this focus on NSPS resources of stakeholders, state and process is also responsive to Executive where greatest emission reductions can local agencies, and the federal Order 13563, ‘‘Improving Regulation be achieved promotes better use of government are used most efficiently and Regulatory Review,’’ issued on resources for industry, government and effectively. As part of this strategy, January 18, 2011, which directs each agencies, environmental organizations, we are proposing criteria that would be federal agency to ‘‘periodically review and all other stakeholders and used to assess whether review of a its existing significant regulations to participants in the regulatory review particular NSPS is necessary during the determine whether any such regulations process. Additionally, in some review cycle. A listing of any NSPS for should be modified, streamlined, instances, sources remain well which we recommend not reviewing the expanded, or repealed so as to make the controlled through other CAA programs, standard based on these criteria (after agency’s regulatory program more such as the national emission standards considering comments to this ANPRM) effective or less burdensome in for hazardous air pollutants (NESHAP), will be published in the Federal achieving the regulatory objectives.’’ that have provided similar, if not more Register for public comment. The EPA’s proposed approach will stringent, regulations than what would Subsequent to this ANPRM, all NSPS allow this process to be made more be required through the revision of for which no review is warranted will efficient, so that both public and private existing NSPS or implementation of be addressed with detailed technical resources can be focused where it makes new NSPS. We are also aware that, in information in a rulemaking proposal the most sense. This strategy will reduce some instances, an evaluation of NSPS which will provide a further the resource burden to the government may show the current requirements of opportunity for public comment. and stakeholders by eliminating the the standard continue to meet the If, after review of the public need for costly and time consuming statutory requirements, and no review is comments, EPA determines there is reviews of certain standards, which are required. sufficient evidence that a full review of not expected to result in any To optimize the air quality, health a standard is warranted, EPA would environmental benefits. By determining and welfare benefits of the NSPS withdraw its no review conclusion for which NSPS are not in need of review, program, the EPA is proposing to that standard. Otherwise by having the agency can then focus its resources prioritize NSPS reviews such that those demonstrated the continued on the remaining NSPS that are in need NSPS likely to bring about greater effectiveness of an NSPS, the agency of revision (or at least a closer review to benefits to public health and welfare determine if revision is needed). This through air quality improvements, 3 Table only includes NSPS promulgated under ANPRM is seeking comment on this including environmental justice the authority of CAA § 111(b) (1) (B), and does not proposed process and on the considerations, are reviewed first. This include standards promulgated under the authority appropriateness of the proposed criteria prioritization is being done with of CAA § 129 or § 111(d). for making a finding that a current NSPS consideration of multiple pollutants and 4 ‘‘Date of Most Recent Action’’ refers to the most recently dated Federal Register action affecting the does not need review, and the processes, and synchronization of referenced Subpart as referenced in the electronic application of those criteria in this regulatory efforts as the primary driver, Code of Federal Regulations (http:// evaluation of the NSPS program. allowing the EPA to seek opportunities www.gpoaccess.gov/cfr/). Additionally, this ANPRM is seeking for increased air quality, health and 5 On October 17, 2000 (65FR61743), EPA made editorial and technical changes to test method and comment on pertinent factors for the welfare benefits, and greater continuous emission modeling system (CEMS) prioritization of NSPS to be reviewed, administrative efficiency. performance specification requirements for Part 60 and potentially revised. and other regulations. This included organizational B. Which NSPS do not need review? changes and the promulgation of Performance III. Developing an NSPS Evaluation 1. What is the EPA’s authority in Specification 15, for Fourier Transform Infrared Strategy (FTIR) CEMS. determining whether to review NSPS? 6 Action was only minor amendment and not a A. What are the goals of an evaluation As described previously, CAA section full review of the standard. strategy for the NSPS program? 7 Subpart D was superseded by subpart Da and, 111(b) (1) (B) requires the agency to thus, will not be reviewed or revised as all subpart The primary goal of the NSPS strategy review and, if appropriate, revise NSPS D units that modify or reconstruct would be subject is to assist the agency in fulfilling our ‘‘at least every 8 years’’. Section 111(b) to subpart Da. statutory obligations in a streamlined (1) (B) also gives the EPA authority to 8 Subpart K was superseded by subpart Ka and, process that ensures both public and determine that reviewing an NSPS ‘‘is thus, will not be reviewed or revised as all subpart K units that modify or reconstruct would be subject private resources are focused on the not appropriate in light of readily to subpart Ka. rules that provide the greatest available information on the efficacy of

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such standard.’’ In most instances, the improvements, or other factors that to the sources of the raw materials. EPA has met the requirement of this would lead to selection of a more Copper mines in the U.S. have closed section solely through formal review stringent best system of emission while new mines have opened in South and revision (when deemed reduction? Are there available controls America where there is greater access to appropriate) of standards. for pollutants or emission sources that raw materials. In other industries there We note that the majority of NSPS were previously uncontrolled? If have historically been multiple will be reviewed and considered for available information on control processes used to make some products, revision, as there are likely potential technology indicates that review of the but cost, efficiency, and other forces process improvements and technology standard would not result in more have reduced the variety of processes in advances that would alter the best stringent emission limits or no greater use. The result of these trends may be system of emission reduction. In level of control, and would not provide that NSPS address emission sources addition, a regular evaluation gives the improvements in air quality and health which are no longer in use, technology EPA and the public the opportunity to and welfare benefits, such standard is outdated, and which likely will not be consider whether requirements of a would be listed as a potential candidate used in the future. Some other source particular NSPS are outmoded or no for no review. categories include industries whose longer necessary. However, there are There are certain source categories for primary product has been superseded some NSPS where currently available which the information available from by a substitute product which serves the information indicates that there are no national databases (e.g., the National same purpose, but is produced using an potential gains to public health and Emissions Inventory), publicly available entirely different process (e.g., optical welfare from a review of the NSPS. data, the EPA’s interaction with storage media as a substitute for When the continued efficacy of a stakeholders from industries, magnetic tape) and as a result there are standard is demonstrated, the agency environmental organizations, state, no expected new facilities or believes that using its authority to not local, and Tribal governments on other modifications of existing facilities. If devote resources to a rulemaking in rulemakings provides a strong technical this criterion were met, the rule would these cases should also be considered as basis to assess the availability and remain in effect for the remainder of the an option. All NSPS, including those economic feasibility of employing new review cycle in the event that sources that we determined do not need review, control technologies, or design or no longer in operation were to begin will be subject to continual evaluation efficiency improvements that could operation again. cycles, at least every 8 years. This result in a revised best system of The agency is requesting comment on ANPRM presents three independent emission reduction determination. As the appropriateness of this second criteria that the agency believes can be an example, information developed criterion. Specifically, we request used to demonstrate that review of under the CAA section 112 air toxics comment on the level of certainty NSPS would not provide emission program provides a significant amount required in making a finding that no reductions and associated air quality, of information on control technologies review is needed based on the health and welfare benefits. and pollution control measures for expectation that no new sources are to stationary sources. be constructed, reconstructed or 2. What are the criteria we believe are We specifically request comment on modified in the source category within appropriate for determining the this criterion and the level of certainty the current 8 year review cycle. continued efficacy of NSPS? required in making a finding that no The third criterion that may support We have identified three criteria that review is needed based upon an a finding that review is not necessary is we have determined are appropriate to evaluation of readily available the existence of other regulatory determine that review of existing NSPS information that indicates no greater programs that are applicable to the same would not result in any health and level of control would be expected at pollutants (either directly or as welfare benefits, and, thus, should not the conclusion of an evaluation under surrogates) and emission sources as the be reviewed in the current review cycle. this criterion. NSPS, such that a revision of the NSPS For this programmatic evaluation, we The second criterion considers would result in best system of emission believe that in most cases NSPS that whether we anticipate any new, reduction requirements that are no more meet any one of these criteria do not modified, or reconstructed sources stringent than another applicable CAA need to be reviewed. However, several within a source category, which would requirement. When evaluating a possible conditions exist where a review trigger applicability under the NSPS in standard by this criterion, we will also might be appropriate, even if one or question over the next 8 years. The ensure that no inconsistencies or more of the criteria described above are predicted growth rate of an industry is conflicts exist with these other rules. met. For instance, if there are emissions used as an indicator of satisfying this The intent of this criterion is to avoid units not addressed by the existing criterion to the extent that no new, reviewing NSPS to adopt more stringent NSPS, or if there has been stakeholder modified, or reconstructed sources are emission limitations that are already interest (e.g., environmental justice anticipated over the next 8 years. It is being achieved by another regulation, concerns) in updating an NSPS, then possible to have a predicted negative and, thus, providing no or limited actual additional deliberation would be growth rate, and still trigger NSPS additional health and welfare benefit necessary before a decision not to applicability through modification or while redirecting resources from review NSPS could be made. construction of new sources at a rate revision of standards where there are The first criterion focuses on the less than the closure rate of existing potential significant emission decreases. existence of updated or new control facilities. Some of the source categories For example, the air toxics program technology, which is used to inform a covered by the NSPS represent very implemented under CAA section 112(d) decision on the potential improvement mature industries for which there is includes standards for major sources of in air quality or health and welfare currently no growth, and this trend has toxic air pollutants based on Maximum benefits. We address the criterion with existed for numerous years. For Achievable Control Technology the following questions: Have there example, industries that rely on metal (MACT). Although the CAA section been advances in control technologies, and mineral raw materials have tended 112(d) program regulates air toxics, process operations, design or efficiency to move out of the country to be closer rules under the program sometimes

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regulate the air toxics through the use of Another potential consideration for a decision not to review NSPS could be surrogates, such as criteria pollutants applying this criterion is the potential made. In addition, if there are pollutants (PM and VOC). Section 112 establishes interaction with other CAA programs that are not currently regulated by an a minimum baseline or ‘‘MACT floor’’ such as Best Available Control NSPS, but which the agency believes for standards, which, for existing Technology (BACT) requirements for should be, we would likely take the sources in categories or subcategories New Source Review (NSR). The CAA opportunity to review the existing with 30 or more sources, is based on the and corresponding implementing standards to see if they should be average emission limitation achieved by regulations require that a permitting updated at the same time. If the NSPS the best performing 12 percent of authority conduct a BACT analysis on a is outdated, or could be made less existing sources. For new sources, the case-by-case basis, and the permitting burdensome without lessening the standards for a source category or authority must evaluate the amount of public health protection it provides, or subcategory cannot be less stringent emissions reductions that each available conflicts with another applicable than the emission control that is emissions-reducing technology or requirement, review might well be achieved in practice by the best technique would achieve, as well as the appropriate. These conditions have been controlled similar sources, as energy, environmental, economic and considered in addition to a standard’s determined by the Administrator (CAA other costs associated with each ability to meet one or more of the three section 112(d)(3)). The MACT floors technology or technique. Based on this criteria as the agency developed the form the least stringent regulatory assessment, the permitting authority NSPS evaluation. In instances where option the EPA may consider in the must establish a numeric emissions one of the above conditions indicated determination of MACT standards limitation that reflects the maximum the need for further consideration, those under section 112(d) for a source degree of reduction achievable for each NSPS would be recommended to category. The EPA must also determine pollutant subject to BACT through the undergo a traditional review, with whether to control emissions ‘‘beyond- application of the selected technology or subsequent potential revision. technique. BACT requirements must be the-floor,’’ after considering the costs, In addition to taking comment on the at least as stringent as the best system non-air quality health and general approach described in this environmental impacts, and energy of emission reduction set by the NSPS. The agency is requesting comment on ANPRM, we also request comment on requirements of such more stringent the following: (1) Are the three criteria control (CAA section 112(d) (2)). the appropriateness of this third criterion. Although we are taking the appropriate for determining whether MACT for new sources is the most position that this criterion is sufficient NSPS should be reviewed, (2) are there stringent level of control identified to make a finding that no review is additional criteria that should be used under CAA section 112(d). Therefore, needed, we solicit comment on whether to make a finding that NSPS remains where the EPA regulated air toxics interaction with other CAA efficacious and, therefore, review of the through regulation of criteria pollutants requirements would make source standard is not needed, and (3) are there as surrogates for the toxic pollutant(s), categories meeting this criterion more different criteria that should be used. In it would be expected in most cases that appropriate for a streamlined review judging the appropriateness of criteria, the level of the MACT standard would that incorporates the level of control commenters should also consider reflect a level that would meet or exceed achieved by the MACT into the NSPS, Executive Order 13563, which calls for the best system of emission reduction rather than a no review determination. periodic review of regulations ‘‘to make when the same pollutants are covered. We also solicit comment on how the agency’s regulatory program more Therefore, where the MACT and NSPS interaction with the CAA’s NSR effective or less burdensome in have comparable applicability (e.g., programs (including the BACT, offset achieving the regulatory objectives.’’ covers the same emission sources and and netting regulations) should be 3. How many NSPS are potentially not effectively controls the same pollutants), accounted for in developing and in need of review? the MACT would in many cases implementing this criterion. accomplish emissions reductions that In addition to the three detailed Of the NSPS requiring periodic would be equivalent to or greater than criteria, several possible conditions review, the majority of NSPS would be those achieved by a revised NSPS. In exist where a review might be subject to review and potential revision, such cases, even if new facilities are appropriate, even if one or more of the and would not meet the criteria for constructed, the MACT would serve to criteria described above are met. For establishing no review as defined in this achieve the level of control that would instance, if there are emissions units not document. However, using the criteria otherwise be achieved through updating addressed by the existing NSPS, or if outlined in this ANPRM, the agency has the NSPS through the review process. there has been stakeholder interest (e.g., identified a limited number of NSPS as Under CAA section 112(d) (6), the environmental justice concerns) in potential candidates to not undergo MACT standards are also subject to updating an NSPS, then additional review. These NSPS are listed in Table technology reviews every 8 years. deliberation would be necessary before 2 along with the applicable criteria.

TABLE 2—NSPS POTENTIALLY MEETING CRITERIA TO NOT BE REVIEWED BASED ON CAA 111(B)(1)(B) AUTHORITY

No review criteria No expected Level of control applicability of Equivalent/more Subpart NSPS in current NSPS stringent require- standard remains (No new/modi- ments in other appropriate fied/recon- CAA actions structed sources)

P ...... Primary Copper Smelters ...... X X X Q ...... Primary Zinc Smelters ...... X X X T ...... Phosphate Fertilizers—Wet-Process Phosphoric Acid Plants ...... X

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TABLE 2—NSPS POTENTIALLY MEETING CRITERIA TO NOT BE REVIEWED BASED ON CAA 111(B)(1)(B) AUTHORITY— Continued

No review criteria No expected Level of control applicability of Equivalent/more Subpart NSPS in current NSPS stringent require- standard remains (No new/modi- ments in other appropriate fied/recon- CAA actions structed sources)

U ...... Phosphate Fertilizers—Super Phosphoric Acid Plants ...... X V ...... Phosphate Fertilizers—Diammonium Phosphate Plants ...... X W ...... Phosphate Fertilizers—Triple Superphosphate Plants ...... X X X ...... Phosphate Fertilizers—Granular Triple Superphosphate Storage ...... X X Facilities. EE ...... Metal Furniture Surface Coating ...... X ...... MM ...... Auto/Light Duty Truck Surface Coating ...... X NN ...... Phosphate Rock Plants ...... X X ...... QQ ...... Graphic Arts Industry/Publication Rotogravure Printing ...... X BBB ...... Rubber Tire Manufacturing ...... X HHH ...... Synthetic Fibers ...... X ...... SSS ...... Magnetic Tape Coating Facilities ...... X ......

We are requesting comment on the list preliminary evaluation, review of the NSPS are expected, due to changes in of NSPS provided in Table 2 as standards is not necessary. These three the types of processes typically used potentially not in need of review. categories are described below, along (i.e., there have been no new facilities Specifically, we are soliciting comment with a brief description of the reasons since 1974, and only one facility on the appropriateness of NSPS not for their selection. A more detailed remains in operation). Furthermore, this undergoing review based on the criteria description of these three examples, category meets the criterion presented indicated in Table 2. We are also including the rationale for in this document that another CAA soliciting comment on any additional recommending no review, is provided requirement would apply to any new, NSPS that should be considered as in the TSD. All NSPS for which no modified, or reconstructed facility with potentially not in need of review based review is recommended, including the provisions that are effectively as on the criteria provided in this three examples presented in this stringent as what would likely be document. For example, the following ANPRM, will be presented, with considered the best system of emission three NSPS may meet the third criterion detailed technical supporting reduction under NSPS review. that revision of the NSPS would result documentation, in a proposal following Specifically, in complying with the in best system of emission reduction this ANPRM and will have further and NESHAP (40 CFR part 63, subpart requirements that are no more stringent full opportunity for public comment. GGGGGG), the source must use control than another applicable CAA technologies that provide equal or more a. Primary Zinc Smelters NSPS Example requirement (i.e., NESHAP). However, a stringent SO2, PM, and opacity more detailed assessment would be Primary Zinc Smelters is a source requirements than would result from necessary to ensure that the emission category for which currently available revisions to the NSPS for both roaster points covered by the other regulatory information indicates that there is no and sinter processes. The agency programs are comparable to those need at this time for review of the NSPS believes that the Primary Zinc Smelters covered by the NSPS: (40 CFR 60 subpart Q). Following an NSPS (subpart Q) meets all three of the • Large Appliances Surface Coating, evaluation of the currently available criteria to not review a standard as Subpart SS technologies (i.e., double-absorption on described in this document. Therefore, • Flexible Vinyl/Urethane Coating and sulfuric acid plant), we believe that a the current standard would remain in Printing, Subpart FFF revised standard would not result in a effect until the next review cycle. • Surface Coating of Plastic Parts for more stringent level of control because b. Magnetic Tape Production Operations Business Machines, Subpart TTT no new control technologies, or design NSPS Example EPA is soliciting comments as to the or efficiency improvements exist that extent to which the NESHAP would result in more stringent The second example of an NSPS sufficiently covers the above NSPS requirements.9 We do not find the category for which currently available categories. current requirements of the rule to be information indicates that there is no need at this time for review of the NSPS 4. What are examples of how the no outmoded or unnecessarily burdensome. We also do not expect any is Magnetic Tape Production Operations review criteria would be applied to (40 CFR 60 subpart SSS), consisting of NSPS categories? applicability of the standard over the next 8 years as no new, modified, or coating and mixing operations at Evaluation of NSPS categories for reconstructed facilities subject to the affected facilities. The agency which no review is recommended may concluded this because this industry be influenced by comments received 9 The criterion that no new control technology has been in continual decline for over regarding the criteria as discussed in exists that would result in more stringent 20 years. As a result, there is no growth this document. However, we present as requirements can be met when there is no new anticipated in the industry over the next technology in existence at all or when there is no examples three NSPS categories that new technology that provides more effective 8 years, and there are no anticipated meet one or more of the criteria for controls. In the case of Primary Zinc smelters both new sources, reconstructions, or which we believe, based on a conditions are met. modifications that would trigger NSPS

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applicability. Consumer preferences and built in the last 15 years. No new (6)), and availability of relevant technology have changed such that the facilities are anticipated during the next information. primary product of this industry has 8 year review cycle. Therefore, we do been superseded by a substitute not expect applicability of the NSPS in IV. Request for Comment and Next product(s) which serves the same the foreseeable future. Therefore, we Steps purpose, but is produced using an believe no additional emission As described throughout this ANPRM, entirely different process (i.e., optical reductions would be achieved from a the EPA is soliciting comments to storage media). On this basis, we believe revision to the current standard. Thus develop an evaluation plan for the NSPS that there would be no emission the agency believes that the Publication program. We also encourage readers to reductions and associated air quality Rotogravure Printing NSPS (subpart QQ) submit other comments and supporting and health and welfare benefits in meets the criteria to not review as reviewing the best system of emission described in this document. data that could help us further improve NSPS review strategies. To ensure a reduction for the magnetic tape Detailed evaluations of the Primary well balanced response and develop the production operations NSPS category. Zinc Smelters source category, the best possible product, we encourage the The new process for manufacturing Magnetic Tape Production Operations submittal of both comments offering optical storage media (e.g., compact source category, and the Graphic Arts disks) is assessed under the NESHAP for Industry/Publication Rotogravure suggestions and changes and those Surface Coating of Plastic Parts and Printing source category can be found in supporting the strategies included in Products (40 CFR part 63 subpart PPPP). the TSD. Following comment on this this ANPRM. Therefore, the current rule would ANPRM, more detailed analyses will be remain in effect for the remainder of the V. Statutory and Executive Order completed for other NSPS that meet one Reviews review cycle. In subsequent NSPS or more of the criteria listed in this reviews, the EPA would consider document. The EPA is seeking comment Under Executive Order 12866, whether rescinding the rule on the appropriateness of the entitled Regulatory Planning and permanently is an appropriate action in application of the proposed criteria as Review (58 FR 51735, October 4, 1993), accordance with E.O. 13563. shown in these three examples. We are this is a ‘‘significant regulatory action’’ c. Graphic Arts Industry/Publication also seeking comment on any additional because we expected this action to raise Rotogravure Printing NSPS Example independent criteria that could be used novel legal or policy issues. The third example of an NSPS in making a determination to not review Accordingly, the EPA submitted this category for which currently available NSPS. action to the Office of Management and information indicates that there is no C. NSPS Potentially in Need of Review Budget (OMB) for review under need at this time for review of the Executive Order 12866 and 13563 (76 applicable NSPS is Graphic Arts After identifying those NSPS that do FR 3821, January 21, 2011) and any Industry/Publication Rotogravure not currently need review, the focus of changes made in response to OMB Printing (40 CFR part 60 subpart QQ). In the NSPS strategy will be on reviewing, recommendations will be documented accordance with criterion 3, the and potentially revising, those in the docket for this action. Because remaining standards as required by the NESHAP (40 CFR subpart KK) for this action does not propose or impose statute. This will be done through Printing and Publishing is significantly any requirements, and instead seeks prioritization of NSPS based on multi- more stringent than the NSPS under comments and suggestions for the subpart QQ. The NESHAP recently went pollutant and sector-based 10 agency to consider in possibly through the EPA’s Risk and Technology approaches. The benefits of multi- developing a subsequent proposed rule, Review (RTR) process and no additional pollutant and sector-based analyses and technology standards were adopted approaches include the ability to the various statutes and Executive pursuant to CAA section 112(d)(6). Only identify optimal strategies that consider Orders that normally apply to two new facilities have been built in the feasibility, costs, and benefits across rulemakings do not apply in this case. past 15 years since the NESHAP was multiple pollutant types—criteria, Should the EPA subsequently determine promulgated in 1996. Both of these toxics, and others. to pursue a rulemaking, the EPA will facilities placed their presses in We intend to prioritize NSPS in need address the statutes and Executive permanent total enclosures using carbon of a review based on a number of Orders as applicable to that rulemaking. absorbers to achieve very efficient different criteria. Possible prioritization List of Subjects in 40 CFR Part 60 solvent recovery. As part of the EPA’s criteria would include the types and RTR, it was determined that no new magnitude of emissions, population Environmental protection, Air advancements in practices, processes or exposure, trends in industry growth, pollution control, Intergovernmental control technologies beyond those in advances in control measures and relations, Reporting and recordkeeping place at the two new facilities were technologies, level and accuracy of requirements. identified. The BACT level control at monitoring required by the existing Dated: October 18, 2011. the two new facilities is representative standards, expected NSPS applicability, of current industry practice and is state ability to synchronize NSPS review with Gina McCarthy, of the art technology, and a revised best other CAA requirements (e.g., RTR Assistant Administrator for Air and system of emission reduction for the under CAA sections 112(f) and 112(d) Radiation. solvent recovery practice listed in the [FR Doc. 2011–27441 Filed 10–21–11; 8:45 am] NSPS would not be more stringent. 10 A sector-based approach is based on integrated BILLING CODE 6560–50–P Under criterion 2, there has been almost assessments that consider multiple pollutants in a no growth in the industry in the past comprehensive and coordinated manner to manage decade. The number of publication emissions and CAA requirements. (National Emission Standards for Hazardous Air Pollutants rotogravure printing facilities has from the Portland Cement Manufacturing Industry declined from 27 to under 20 in the last and Standards of Performance for Portland Cement 10 years. Only two facilities have been Plants; August, 2010.)

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DEPARTMENT OF COMMERCE voluntarily submitted by the commenter measures for the Gulf migratory groups may be publicly accessible. Do not and the South Atlantic Council National Oceanic and Atmospheric submit Confidential Business determines management measures for Administration Information or otherwise sensitive or the Atlantic migratory groups. protected information. Management Measures Contained in 50 CFR Part 622 To submit comments through the This Proposed Rule [Docket No. 110803468–1612–01] Federal e-Rulemaking Portal: http:// www.regulations.gov, click on ‘‘submit a This rule would remove four species RIN 0648–BB33 comment,’’ then enter ‘‘NOAA–NMFS– from the FMP; modify the framework 2011–0202’’ in the keyword search and procedures; establish two migratory Fisheries of the Caribbean, Gulf of click on ‘‘search.’’ To view posted groups for cobia; establish ACLs, ACTs, Mexico, and South Atlantic; Coastal comments during the comment period, and AMs for each migratory group of Migratory Pelagic Resources in the enter ‘‘NOAA–NMFS–2011–0202’’ in king mackerel, Spanish mackerel, and Gulf of Mexico and Atlantic Region; the keyword search and click on cobia. In addition, Amendment 18 Amendment 18 ‘‘search.’’ NMFS will accept anonymous would set allocations for Atlantic cobia and establish control rules for king AGENCY: National Marine Fisheries comments (enter N/A in the required Service (NMFS), National Oceanic and field if you wish to remain anonymous). mackerel, Spanish mackerel, and cobia. Atmospheric Administration (NOAA), You may submit attachments to Removal of Species From the FMP Commerce. electronic comments in Microsoft Word, Excel, WordPerfect, or Adobe PDF file Species currently in the FMP include ACTION: Proposed rule; request for king mackerel, Spanish mackerel, cobia, comments. formats only. Comments received through means cero, little tunny, dolphin, and bluefish (Gulf only). Dolphin in the Atlantic are SUMMARY: NMFS proposes regulations to not specified in this rule will not be implement Amendment 18 to the considered. managed under a different FMP, and Fishery Management Plan for the Electronic copies of documents bluefish in the Atlantic are managed by Coastal Migratory Pelagic Resources in supporting this proposed rule, which the Mid-Atlantic Council. At present, the Gulf of Mexico and Atlantic Region include a draft environmental only king mackerel, Spanish mackerel, (FMP), as prepared and submitted by assessment and an initial regulatory and cobia have associated regulatory the Gulf of Mexico (Gulf) and South flexibility analysis (IRFA), may be text; the other species are in the FMP for Atlantic Fishery Management Councils obtained from the Southeast Regional data collection purposes only. This rule would remove cero, little (Councils). If implemented, this rule Office Web site at http:// tunny, dolphin, and bluefish from the would remove species from the FMP; sero.nmfs.noaa.gov/sf/ FMP. The Councils and NMFS have modify the framework procedures; MackerelHomepage.htm. determined that these species are not in establish two migratory groups for FOR FURTHER INFORMATION CONTACT: need of Federal management at this cobia; establish annual catch limits Susan Gerhart, telephone: 727–824– time. Although these species are (ACLs), annual catch targets (ACTs), and 5305, or e-mail: targeted in some areas, landings are accountability measures (AMs) for king [email protected]. relatively low. In addition, the Councils mackerel, Spanish mackerel, and cobia. SUPPLEMENTARY INFORMATION: The have never managed cero, little tunny, In addition, Amendment 18 would set coastal migratory pelagic (CMP) fishery dolphin, or bluefish under the FMP. The allocations for Atlantic cobia and in the Gulf of Mexico (Gulf) and the species were originally included in the establish control rules for king Atlantic is managed under the FMP. The FMP ‘‘for data collection purposes,’’ but mackerel, Spanish mackerel, and cobia. FMP was prepared by the Councils and data collection on any species can be The intent of this rule is to specify ACLs implemented through regulations at 50 required of fishermen and dealers that for species not undergoing overfishing CFR part 622 under the authority of the hold Federal permits, regardless of the while maintaining catch levels Magnuson-Stevens Fishery presence of that species in an FMP. At consistent with achieving optimum Conservation and Management Act this time, the Southeast Fisheries yield (OY) for the resource. (Magnuson-Stevens Act). Science Center has no plans to remove DATES: Written comments must be any species from their data collection Background received on or before November 21, programs. If landings or effort change 2011. The 2006 revisions to the Magnuson- for any of these species and the ADDRESSES: You may submit comments Stevens Act require that by 2011, for Councils determine management at the on the proposed rule identified by fisheries determined by the Secretary of Federal level is needed, these species ‘‘NOAA–NMFS–2011–0202’’ by any of Commerce (Secretary) to not be subject could be added back into the FMP at a the following methods: to overfishing, ACLs and AMs must be later date. • Electronic submissions: Submit established at a level that prevents electronic comments via the Federal overfishing and helps to achieve OY. Cobia Migratory Groups e-Rulemaking Portal: http:// These mandates are intended to ensure Although there is mixing of cobia www.regulations.gov. Follow the fishery resources are managed for the from the Gulf and the Atlantic, the instructions for submitting comments. greatest overall benefit to the nation, preponderance of scientific data • Mail: Susan Gerhart, Southeast particularly with respect to providing indicate that there are at least two Regional Office, NMFS, 263 13th food production and recreational separate migratory groups, if not two Avenue South, St. Petersburg, FL 33701. opportunities, and protecting marine separate stocks in the Gulf and Atlantic. Instructions: All comments received ecosystems. These two groups have separate are a part of the public record and will Currently two migratory groups of seasonal migrations and distinct life generally be posted to http:// king mackerel and Spanish mackerel are history parameters. The Councils have www.regulations.gov without change. established, Gulf migratory group and determined they should manage these All Personal Identifying Information (for Atlantic migratory group. The Gulf groups separately within their example, name, address, etc.) Council determines management individual areas of jurisdiction. This

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rule would establish two migratory that vessel also has a valid charter group king mackerel are not considered groups for cobia, a Gulf migratory group vessel/headboat permit on board for overfished at this time. and an Atlantic migratory group. The CMP species and is operating as a Gulf Migratory Group Spanish Mackerel boundary would be the line of charter vessel or headboat, harvest and demarcation between the Gulf EEZ and possession of king mackerel would be For Gulf migratory group Spanish the South Atlantic EEZ. ACLs and AMs limited to the applicable bag limit. Also, mackerel, this rule proposes stock ACLs would be established separately for each sale and purchase of king mackerel from and AMs. Both the commercial and group by the responsible Council. the closed zone, subzone, or gear type recreational sectors would close when However, this rule would not change would be prohibited, including king the stock ACL is reached or projected to the current possession limit of two cobia mackerel taken under the bag or be reached. Harvest, possession, sale, per person per day for either possession limits. and purchase of Spanish mackerel commercial or recreational fishermen. For the recreational sector, the would be prohibited, without regard to where such species were harvested, i.e. ACLs and AMs Regional Administrator would have the authority to revert the bag and in state or Federal waters. In 2006, the Magnuson-Stevens Act possession limit to zero if the was re-authorized and included a Atlantic Migratory Group Spanish recreational allocation (recreational Mackerel number of changes to improve the ACL) is reached or projected to be conservation of managed fishery reached. This bag and possession limit For Atlantic migratory group Spanish resources. Included in these changes are would also apply on board a vessel for mackerel, this rule proposes separate requirements that fishery management which a valid charter vessel/headboat ACLs for the commercial and councils establish both a mechanism for permit has been issued, without regard recreational sectors based on sector specifying ACLs at a level such that to where such species were harvested, allocations. This rule also proposes an overfishing does not occur in a fishery i.e. in state or Federal waters. ACT for the recreational sector. and AMs to mitigate any overages that The commercial sector would close may occur. Guidance also requires Atlantic Migratory Group King Mackerel when the commercial quota is reached or projected to be reached. In addition, fishery management councils to For Atlantic migratory group king current trip limit adjustments would establish a control rule to determine mackerel, this rule proposes separate allowable biological catch (ABC). remain in place. When the commercial ACLs for the commercial and The Councils accepted ABC control sector closes, harvest and possession of recreational sectors based on sector rules for Gulf migratory groups of king Spanish mackerel would be prohibited allocations. This rule also proposes a mackerel, Spanish mackerel, and cobia, for persons aboard a vessel for which a stock ACL and an ACT for the and for the Atlantic migratory group of commercial permit for Spanish recreational sector. cobia, based on the control rule mackerel has been issued. If that vessel The commercial sector would close recommended by the Gulf Council’s also has a valid charter vessel/headboat when the commercial ACL is reached or Scientific and Statistical Committee permit on board for CMP species and is projected to be reached. When the (SSC). They accepted ABC control rules operating as a charter vessel or commercial sector closes, harvest and for Atlantic migratory group king headboat, harvest and possession of possession of king mackerel would be mackerel and Spanish mackerel based Spanish mackerel would be limited to prohibited for persons aboard a vessel on the control rule recommended by the the applicable bag limit. Also, sale and for which a commercial permit for king South Atlantic Council’s SSC. For all purchase of Spanish mackerel would be mackerel has been issued. If that vessel species, this rule proposes ACLs equal prohibited, including Spanish mackerel also has a valid charter vessel/headboat to the ABC. For purposes of tracking the taken under the bag or possession permit on board for CMP species and is ACL, for king and Spanish mackerel, limits, without regard to where such operating as a charter vessel or landings will be evaluated based on the species were harvested, i.e. in state or headboat, harvest and possession of commercial fishing year. Recreational Federal waters. landings for all Atlantic species will be king mackerel would be limited to the For the recreational sector, if the stock evaluated based on a moving multi-year applicable bag limit. Also, sale and ACL is exceeded in any year, the bag average of landings, as described in the purchase of king mackerel would be limit would be reduced the next fishing FMP. prohibited, including king mackerel year by the amount necessary to ensure taken under the bag or possession recreational landings may achieve the Gulf Migratory Group King Mackerel limits, without regard to where such recreational ACT, but do not exceed the For Gulf migratory group king species were harvested, i.e. in state or recreational ACL in the following mackerel this rule proposes separate Federal waters. fishing year. ACLs and AMs for the commercial and For the recreational sector, if the stock A payback would be assessed if the recreational sectors based on sector ACL is exceeded in any year, the bag Atlantic migratory group Spanish allocations. limit would be reduced the next fishing mackerel are determined to be The commercial sector would close by year by the amount necessary to ensure overfished and the stock ACL is zone, subzone, or gear type when the recreational landings may achieve the exceeded. The payback would include a commercial quota for the applicable recreational ACT, but do not exceed the reduction in the sector ACL, for the zone, subzone, or gear type is reached recreational ACL in the following following year by the amount of the or is projected to be reached. In fishing year. overage by that sector in the prior addition, current trip limit adjustments A payback would be assessed if fishing year. Atlantic migratory group would remain in place. When the Atlantic migratory group king mackerel Spanish mackerel are not considered commercial sector closes, harvest and are determined to be overfished and the overfished at this time. possession of king mackerel for the stock ACL is exceeded. The payback applicable zone, subzone, or gear type would include a reduction in the sector Gulf Migratory Group Cobia would be prohibited for persons aboard ACL for the following year, by the For Gulf migratory group cobia, this a vessel for which a commercial permit amount of the overage by that sector in rule proposes stock ACLs and AMs. A for king mackerel has been issued. If the prior fishing year. Atlantic migratory stock ACT is proposed that is 90 percent

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of the ACL. Both the commercial and framework procedures would also add fewer anglers (paying passengers), and a recreational sectors would close when flexibility and the ability to more timely smaller number of head boats, which the stock ACT is reached or projected to respond to certain future Council charge for each individual angler (only be reached. Harvest, possession, sale, decisions through the framework 15 percent of all of the CMP for-hire and purchase of cobia would be procedures. vessels can carry more than six anglers). prohibited, without regard to where Including revenue from all activities, Classification such species were harvested, i.e. in state charter boats are estimated to average or Federal waters. Pursuant to section 304(b)(1)(A) of the approximately $88,000 (2008 dollars) in Magnuson-Stevens Act, the NMFS gross revenue per year, while the Atlantic Migratory Group Cobia Assistant Administrator has determined headboat average is $461,000 (2008 For Atlantic migratory group cobia, that this proposed rule is consistent dollars). this rule proposes separate ACLs for the with Amendment 18, other provisions The Small Business Administration commercial and recreational sectors of the Magnuson-Stevens Act, and other has established size criteria for all major based on sector allocations. Because applicable law, subject to further industry sectors in the U.S. including sector allocations do not currently exist consideration after public comment. fish harvesters. A business involved in for cobia, Amendment 18 proposes an This proposed rule has been commercial finfish harvesting is allocation of 8 percent of the ACL for determined to be not significant for classified as a small business if it is the commercial sector and 92 percent of purposes of Executive Order 12866. independently owned and operated, is the ACL for the recreational sector, NMFS prepared an IRFA, as required not dominant in its field of operation based on landings. This rule also by section 603 of the Regulatory (including its affiliates), and has proposes an ACT for the recreational Flexibility Act, for this rule. The IRFA combined annual receipts not in excess sector. describes the economic impact this rule, of $4.0 million (NAICS code 114111, The commercial sector would close if adopted, would have on small finfish fishing) for all its affiliated when the commercial ACL is reached or entities. A description of the rule, why operations worldwide. A for-hire projected to be reached. Sale and it is being considered, the objectives of, business involved in fish harvesting is purchase of cobia would be prohibited, and legal basis for this rule are classified as a small business if it is including cobia taken under the contained at the beginning of this independently owned and operated, is possession limit, without regard to section in the preamble and in the not dominant in its field of operation where such species were harvested, i.e. SUMMARY section of the preamble. A (including its affiliates), and has in state or Federal waters. copy of the full analysis is available combined annual receipts not in excess For the recreational sector, if the stock from NMFS (see ADDRESSES). A of $7.0 million (NAICS code 713990, ACL is exceeded in any year, the fishing summary of the IRFA follows. recreational industries). Based on the season would be reduced the following The Magnuson-Stevens Act provides average revenue estimates provided year by the amount necessary to ensure the statutory basis for this rule. No above, all commercial and for-hire that recreational landings may achieve duplicative, overlapping, or conflicting fishing vessels expected to be directly the recreational ACT, but do not exceed Federal rules have been identified. affected by this rule are determined for the recreational ACL in the following This rule would affect all fishing in the purpose of this analysis to be small fishing year. the EEZ that is managed under the FMP business entities. A payback would be assessed if for Coastal Migratory Pelagic Resources All of the actions in this rule that Atlantic migratory group cobia are in the Gulf and Atlantic. This includes would be jointly applicable to the Gulf determined to be overfished and the the EEZ in the Gulf and South Atlantic, and Atlantic migratory groups would be stock ACL is exceeded. The payback as well as the EEZ in the Mid-Atlantic administrative in nature or allow status would include a reduction in the sector for king mackerel, Spanish mackerel, quo harvest behavior. As a result, none ACL for the following year by the and cobia. For purposes of fishery of these actions would be expected to amount of the overage by that sector in management, Atlantic and Gulf result in any direct economic impacts the prior fishing year. Atlantic migratory migratory groups have been designated on small entities. group cobia are not considered for each of the mackerels, and, under With the exception of the AMs for the overfished at this time. this rule, cobia. Gulf migratory groups of king mackerel, This rule would be expected to apply Spanish mackerel, and cobia, the Modification of Generic Framework to 1,000 to 2,000 commercial fishing actions in this rule applicable to the Procedures vessels and as many as 2,500 vessels Gulf migratory groups are either To facilitate timely adjustments to that have Federal permits to engage in administrative or allow status quo harvest parameters and other for-hire fishing for coastal migratory harvests and fishing behavior. As a management measures, the Councils pelagic species. The commercial fishing result, these actions would not be have added the ability to adjust ACLs vessels that would be expected to be expected to result in any direct and AMs, and establish and adjust target affected by this rule are estimated to economic impacts on small entities. The catch levels, including ACTs, to the average $28,000 to $46,000 (2008 proposed AMs for each species would current framework procedures. These dollars) in gross revenue per vessel for be expected to result in unquantifiable adjustments or additions may be those fishing for king and Spanish short-term reductions in economic accomplished through a regulatory mackerel, and $16,000 to $277,000 for benefits associated with the amendment which is less time-intensive vessels harvesting other CMP species implementation of harvest restrictions than an FMP amendment. By including (the lower value is for vessels harvesting necessary to correct for harvest ACLs, AMs, and ACTs in the framework cero while the upper value is for vessels overages, should such overages be procedures, the Councils and NMFS harvesting dolphin; this range forecast or occur. These impacts cannot would have the flexibility to more encompasses the vessels harvesting all be quantified at this time because the promptly alter those harvest parameters the remaining CMP species). The for- overages, and necessary corrections, as new scientific information becomes hire vessels expected to be affected by cannot be forecast. However, any available. The proposed addition of this rule are mostly charter boats, which harvest corrections, and associated other management options into the charge by the trip, often with six or reduction in short-term economic

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benefits, would be expected to preserve Three alternatives, including 13 FMP. The proposed action is the long-term biological goals, and long- options or sub-options, were considered administrative in nature and would not term economic benefits, associated with for the action to modify the fishery be expected to result in any direct the harvest of these stocks. management unit (FMU). The proposed economic impact on small entities. Because the majority of the actions in action, which incorporates 7 of the 13 Four alternatives were considered for this rule applicable to the Atlantic options and sub-options, would remove the action to set the ACL for Gulf migratory groups are either cero, little tunny, and dolphin from the migratory group cobia. The proposed administrative or allow status quo FMP for both the Gulf and South action would establish a single stock harvests and fishing behavior, only Atlantic regions, and remove bluefish ACL and set the ACL equal to the ABC. minimal economic effects would be from the FMP for the Gulf region. The The no-action alternative was not expected to occur. Only the Spanish no-action alternative, which would adopted because it would not establish mackerel ACL and AMs for king retain the four subject species in the an ACL, as required by the Magnuson- mackerel, Spanish mackerel, and cobia, FMP for data-collection purposes only, Stevens Act. Another alternative would if implemented, would be expected to was not adopted because it would not also set the total ACL equal to the ABC, result in adverse economic impacts. The satisfy the Magnuson-Stevens Act but would specify sector ACLs. This specification of the Spanish mackerel guidelines, which do not allow species alternative was not adopted because ACL would be expected to result in a to be retained in an FMU for data both sectors are currently managed reduction in ex-vessel revenue to collection purposes only. The third under the same harvest restrictions and sector separation would not be expected commercial fishermen due to a alternative would add the four species to be beneficial at this time. The reduction in the allowable commercial to the FMU and set ACLs and AMs for remaining alternatives and associated harvest and the AM requirement that each, following the stated geographic options would establish a buffer harvest, possession, and sale of Spanish designations. This alternative was not between the ACL and ABC and result in mackerel be prohibited when the adopted because the Councils lower stock or sector ACLs. These commercial quota is met. The economic determined that these species no longer alternatives and options were not activity associated with this reduction require Federal management in the respective regions. The proposed action adopted because the Councils elected to in revenue is an estimated 17 harvester would not be expected to result in any establish a buffer to the ABC for this and 10 dealer/processor full-time direct economic impact on small species through the ACT rather than the equivalent jobs. The relative effect of entities. ACL. this estimated reduction per small entity Five alternatives, including three Three alternatives, including four is unknown. For the 2004/2005 through options, were considered for the action options, were considered for the action 2008/2009 fishing years, an average of to modify the framework procedures. to set the ACT for Gulf migratory group 349 vessels recorded Atlantic migratory The no-action alternative would not cobia. The proposed action would group Spanish mackerel harvests in the change the framework procedures and specify a single stock ACT and set the Southeast Federal logbook program. was not adopted because it is not ACT equal to 90 percent of the ACL. These vessels averaged approximately consistent with current assessment and The no-action alternative would not $28,000 in ex-vessel revenue per vessel management methods. The remaining establish an ACT, but would be an per year from all species recorded in the alternatives were not adopted either acceptable action because an ACT is not logbook. If divided among these vessels, because they would have been more required. This alternative was not the estimated reduction in ex-revenue restrictive in the items that could be adopted because the Councils for Spanish mackerel alone changed through framework procedures, determined that a buffer between the (approximately $680,000) would equate or because they would have given the ABC and allowable harvest was to a reduction in average vessel gross Councils and NMFS either too much or appropriate for this stock and the revenue of approximately 7 percent. too little authority to change adoption of the no-action alternative These results do not include any management outside of the plan would be inconsistent with the reduction in gross revenue for other amendment process. The proposed Councils’ decision to establish this species if trips do not occur (are action is administrative in nature and buffer through the ACT instead of the cancelled) as a result of a prohibition on would not be expected to result in any ACL. The other options were not Spanish mackerel commercial harvest. direct economic impact on small adopted because they would establish Total vessel Federal logbook-recorded entities. sector ACTs, which would be landings of Spanish mackerel accounted Three alternatives were considered for inconsistent with the Councils’ decision for approximately 57 percent the action to establish separate Atlantic to establish a single stock ACL, and/or (approximately 2.03 million lb (0.9 and Gulf migratory groups of cobia. The they would specify a lower stock ACT million kg) of the total Atlantic proposed action would separate cobia than the proposed action, and thereby migratory group Spanish mackerel into two groups at the Gulf and South establish a larger buffer than is expected harvest during this period Atlantic jurisdictional boundary. The to be necessary for this stock. (approximately 3.57 million lb (1.62 no-action alternative would not split Three alternatives, including seven million kg). A significant portion of the cobia into two migratory groups, and options (options listed under the no- difference between these harvest totals was not adopted because the Councils action alternative were not included in may be attributed to harvest in Florida determined that sufficient information this tabulation), were considered for the waters where Federal permits and exists to demonstrate that there are at action to set AMs for Gulf migratory logbooks are not required for Spanish least two different migratory groups and group cobia. The proposed action would mackerel. The average annual revenue regional management is appropriate. set an in-season AM and prohibit profile of the vessels that harvested the The other alternative to the proposed harvest for the remainder of the fishing remaining portion of the species is action would split the two migratory year from the date the ACT is reached unknown. As a result, the total relative groups at the Miami-Dade/Monroe or is projected to be reached. AMs for effect of the projected reduction in ex- County line, and was not adopted the commercial harvest of this stock do vessel revenue on the profit of small because it would not best meet the not currently exist under the status quo. entity commercial vessels is not known. Councils’ goals and objectives for the As a result, the no-action alternative

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was not adopted because it would not to result in any direct economic impacts action alternative would maintain establish AMs that account for the on small entities. current AMs for Gulf migratory group harvest from all sectors, as required by Three alternatives, including 7 Spanish mackerel and was not adopted the Magnuson-Stevens Act. Two options options or sub-options (options and sub- because the current AMs are to the proposed action would also options listed under the no-action implemented by sector and are establish in-season AMs but would alternative were not included in this inconsistent with the proposed action to trigger the AMs when 90 percent of the tabulation), were considered for the establish a stock ACL. One option to the ACT is reached or projected to be action to set AMs for Gulf migratory proposed action would establish in- reached. Both options would reduce the group king mackerel. The proposed season AMs that implement a possession limit to one fish per person action, the no-action alternative, would commercial trip limit and reduced per day, but only one option would not set new AMs for this stock. The recreational bag limits if the stock ACL prohibit possession of cobia and only alternatives, and associated options or is reached or projected to be reached. then if the ACL is reached and not the sub-options, to the proposed action can This option was not adopted because it be divided into two general categories; ACT. These options were not adopted would require multiple in-season alternatives that would change the because the option that would just actions and may result in a lower current in-season AMs (two options), reduce the possession limit would certainty that the ACL not be exceeded provide insufficient assurance that the and alternatives that would set post- season AMs (two options encompassing compared to the proposed action ACL would not be exceeded, while data because harvest would not be monitoring issues would likely render five sub-options). None of these options or sub-options were adopted because prohibited. The remaining alternative the other option inoperable. The and associated options would establish remaining alternative and associated the Councils determined that current regulations provide sufficient AMs for post-season AMs. These options were four options to the proposed action not adopted because they would be would establish post-season AMs, each the recreational and commercial sectors. The proposed action is not expected to expected to impose an increased and varying in method (overage payback, unnecessary burden on fishermen and reduction in possession limit, reduced have a direct economic impact on small the administration. The proposed action season) or period of assessment (the entities. is not expected to have an economic overage assessment would be based on Four alternatives, including nine impact on small entities because the multi-year averages). These options options, were considered for the action proposed stock ACL (5.15 million lb were not adopted because the Councils to set the ACL for Gulf migratory group (2.34 million kg)) is greater than the determined that in-season assessment Spanish mackerel. The proposed action 5-year average (3.63 million lb (1.65 would be more effective in ensuring the would set the aggregate ACL equal to the ABC and establish a stock ACL million kg)) or 10-year average (3.95 ACL is not exceeded. The proposed encompassing harvest by both sectors. million lb (1.79 million kg) landings. action would not be expected to result The no-action alternative would in any direct economic impact on small Five alternatives, including five maintain an ACL equal to the current entities because the proposed ACT (1.31 options, were considered for the action TAC for Gulf migratory group Spanish million lb (0.59 million kg)) exceeds the to set the ACL and OY for Atlantic mackerel. This action was not adopted estimated status-quo harvest (1.07 migratory group king mackerel. The because the ACL cannot exceed the ABC million lb (0.49 million kg)) for Gulf proposed action would set the ACL and and the status quo TAC is greater than migratory group cobia. OY equal to the ABC, with the ABC set the proposed ABC. Compared with the equal to the average of the current South Five alternatives, including 12 proposed action, some options would Atlantic Council’s SSC’s ABC options, were considered for the action establish sector ACLs. These options recommendations for the 2011–2013 to set the ACL for Gulf migratory group were not adopted because the Councils seasons. This would result in an ACL of king mackerel. The proposed action determined the establishment of sector 10.46 million lb (4.75 million kg). The would set the aggregate (stock) ACL ACLs would unnecessarily restrict catch no-action alternative was not adopted equal to the ABC, and set sector ACLs and not allow the achievement of using current allocation percentages. optimum yield. The remaining two because it would not have resulted in as The no-action alternative would set the alternatives, encompassing six options, concise a rule for setting the ACL and stock ACL equal to the current total would specify a single, stock ACL as a OY and would have resulted in a lower allowable catch (TAC), and was not portion of ABC (80 percent or 90 ACL, 10.0 million lb (4.54 million kg), adopted because the TAC is less than percent of ABC, rather than 100 than the proposed action. Two the ABC and, as a result, this action percent). These alternatives and options alternatives to the proposed action would have resulted in less economic would have resulted in reductions in would have also set the ACL and OY benefits than the proposed action. The economic benefits relative to the equal to the ABC but with the ABC remaining three alternatives to the proposed action and were not adopted equal to, alternatively, the lowest and proposed action would set the stock because the Councils determined that a highest SSC recommended ABCs for ACL at 80–90 percent of ABC, and were buffer between the ACL and ABC was 2011–2013. These alternatives were not not adopted because each would have not needed for this stock. adopted because they were determined allowed lower harvest, and associated Three alternatives, including six to be, alternatively, excessively or economic benefits, than the proposed options or sub-options (options and sub- insufficiently conservative compared to action, and the Councils have options listed under the no-action the proposed action. The final determined that the condition of this alternative were not included in this alternative to the proposed action, stock and level of management tabulation), were considered for the which included five options, would uncertainty does not require a buffer action to set AMs for Gulf migratory have set the ACL and OY equal to a between the ACL and ABC. It is noted group Spanish mackerel. The proposed percentage of the ABC, varying from 65– that the proposed stock ACL would be action would establish in-season AMs 90 percent. These options were not expected to allow continued average that would allow harvest to be adopted because the Councils annual harvest. As a result, the prohibited if the stock ACL is reached determined that the status and proposed action would not be expected or projected to be reached. The no- management certainty of the king

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mackerel stock did not require a buffer Administrator (RA) to implement on small entities in the recreational between the ACL or OY and the ABC. several actions, including reduction of sector would be expected to occur. The Four alternatives were considered for the recreational bag limit to zero, if the no-action alternative would not set a the action to set the recreational sector recreational allocation has been met or recreational sector ACT and was not ACT for Atlantic migratory group king is projected to be met. This alternative adopted because the Council mackerel. The proposed action for this was not adopted because it would not determined that the management sector would set the ACT based on the have been as flexible as the proposed uncertainty associated with the uncertainty associated with the estimate action in factoring in the status of the recreational harvest of this stock of the ACL and would result in a stock, the total harvest, and annual requires a buffer between allowable recreational sector ACT of 6.11 million harvest variability by the recreational harvest and the ACL. The two remaining lb (2.77 million kg), which would be sector into the AM decision. One option alternatives to the proposed action less than the proposed recreational to the proposed action would have would set the recreational sector ACT sector ACL, but greater than current reduced the length of the subsequent based on alternative fixed percentages of average annual harvests. As a result, no recreational fishing season instead of a the ACL. Neither of these alternatives reduction in current recreational harvest reduction in the bag limit in the event was adopted because they would result or associated economic benefits or of a recreational overage. This in an ACT that was less reflective of the impacts on small entities would be alternative was not adopted because uncertainty associated with the expected to occur. The no-action allowing the sector to continue harvest estimation of the ACL than the proposed alternative would not set a recreational all year under a reduced bag limit, as action. As applied to the proposed sector ACT and was not adopted would be allowed under the proposed estimate of the ACL, each of these because the Councils determined that action, would be expected to result in alternatives would also result in a lower the management uncertainty associated more economic benefits than a closed recreational harvest and reduced with the recreational harvest of this season. The remaining options to the economic benefits than the proposed stock is sufficient to require a buffer proposed action would have imposed action. between allowable harvest and the ACL. sector paybacks regardless of stock Four alternatives, including nine The two remaining alternatives to the status. These options were not adopted options, were considered to set AMs for proposed action would set the because each would be expected to Atlantic migratory group Spanish recreational sector ACT based on result in unnecessary reductions in mackerel. The proposed action includes alternative fixed percentages of the ACL. economic benefits. Neither of these alternatives was Three alternatives, including five six of the options spread over three adopted because they would result in an options, were considered for the action alternatives. The proposed action would ACT that was less reflective of the to set the ACL and OY for Atlantic implement enhanced quota monitoring uncertainty associated with the migratory group Spanish mackerel. The for the commercial sector, should in- estimation of the ACL than the proposed proposed action would set the ACL and season closure be necessary, and would action. As applied to the proposed OY equal to the ABC. The no-action adopt post-season adjustments for the estimate of the ACL, each of these alternative was not adopted because it recreational sector based on moving alternatives would also result in a lower would not have resulted in as concise a multi-year average harvests, including a recreational harvest, and reduced procedure as the proposed action to reduction in the bag limit to assure that economic benefits, than the proposed determine the ACL based on the ABC, the sector ACL is not exceeded, if the action. and the resultant ACL would exceed the stock ACL is exceeded. The proposed Four alternatives, including ten proposed ABC, which would be action would also require sector overage options, were considered for the action inconsistent with the Magnuson-Stevens payback, where appropriate, if the stock to set AMs for Atlantic migratory group Act National Standard 1 guidelines is overfished and the stock ACL is king mackerel. The proposed action (74 FR 3178, January 16, 2009). The exceeded. The no-action alternative includes seven of the options spread third alternative to the proposed action, would continue the current quota over three alternatives. The proposed which included five options, would monitoring and staged trip limits for the action would continue in-season quota have set the ACL equal to a percentage commercial sector in place of sector monitoring and closure if the of the ABC, varying from closure. It also includes authority under commercial sector ACL is met or 75–95 percent. These options were not the framework procedures for the RA to projected to be met, as occurs under the adopted because they would be implement several actions, including status quo. In addition, the proposed inconsistent with the Councils’ reduction of the recreational bag limit to action would adopt post-season determination that specification of a zero, if the recreational allocation has adjustments. These adjustments include buffer for this stock could be adequately been met or is projected to be met. This post-season reductions in bag limits for accomplished through the proposed alternative was not adopted because it the recreational sector based on moving ACT. would not have been as flexible as the multi-year average harvests, to assure Four alternatives were considered for proposed action in factoring in the that the recreational sector ACL is not the action to set a recreational sector status of the stock, the total harvest, and exceeded. Post-season bag limits would ACT for Atlantic migratory group annual harvest variability by the only be reduced if the stock ACL (both Spanish mackerel. The proposed action recreational sector into the AM sectors) is exceeded. Post-season would be based on the uncertainty decision. This alternative was also not overage payback would be required for associated with the estimate of the adopted because it would not provide both sectors, where appropriate, if the sector ACL and would result in a for in-season closure for the commercial stock is overfished and the stock ACL is recreational sector ACT of 2.32 million sector. In the event of a sector overage, exceeded. The no-action alternative lb (1.05 million kg), which would be one option to the proposed action would continue the current quota less than the proposed recreational would have reduced the length of the monitoring for the commercial sector, sector ACL, but greater than current subsequent recreational fishing season and closure when appropriate; it also average annual harvests. As a result, no (no reduction in the bag limit) to assure includes authority under the framework reduction in current harvest or that the sector ACL is not exceeded. procedures for the Regional associated economic benefits or impacts This option was not adopted because it

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would result in lower economic benefits adjustments for the recreational sector Magnuson-Stevens Act guidelines. The than the proposed action. The based on moving multi-year average second alternative to the proposed remaining two options to the proposed harvests, including a reduction in the action was not adopted because it action would have imposed sector season length to assure that the sector would establish an ABC control rule paybacks regardless of stock status. ACL is not exceeded if the stock ACL is that sets the ABC using a static These options were not adopted because exceeded; and require sector overage definition which would not allow for each would be expected to result in payback, where appropriate, but only if changes in the level of risk based on unnecessary reductions in economic the stock is overfished and the stock updated stock assessments and, benefits. ACL is exceeded. The no-action therefore, would not be as flexible as the Three alternatives, including five alternative would continue the current proposed action. options, were considered for the action authority to revert the recreational and Three alternatives were considered for to set the ACL and OY for Atlantic commercial possession limit to zero if the action to establish an ABC control migratory group cobia. The proposed the sectors have met or are projected to rule for Gulf migratory king mackerel. action would set the ACL and OY equal meet their allocation. This alternative The proposed action would determine to the ABC. The no-action alternative was not adopted because it would not the appropriate level of risk and/or was not adopted because it would not be as flexible as the proposed action in buffer to set between the OFL and ABC set the ACL or OY, as required by the factoring the status of the stock, the total based on a tiered approach that would Magnuson-Stevens Act guidelines. The harvest, and annual harvest variability consider new information available on third alternative to the proposed action, by the recreational sector into the AM the stock and identified through which included five options, would decision. One alternative to the updated stock assessments. The no- have set the ACL and OY equal to a proposed action would explicitly action alternative was not adopted percentage of the ABC, varying from 75– prohibit the purchase and sale of cobia because it would not establish an ABC 95 percent. These options were not if the commercial quota is met or control rule, as recommended by the adopted because they would be projected to be met, though this would Magnuson-Stevens Act guidelines. The inconsistent with the Councils’ be functionally equivalent to the status second alternative to the proposed determination that specification of a quo as a zero possession limit would action was not adopted because it buffer for this stock could be adequately preclude purchase or sale. This would establish an ABC control rule accomplished through the proposed alternative would not establish that sets the ABC using a static ACT. additional AMs for the recreational definition which would not allow for Four alternatives were considered for sector, resulting in current recreational changes in the level of risk based on the action to set a recreational sector AMs remaining in effect. Thus, this updated stock assessments and, ACT for Atlantic migratory group cobia. alternative would be functionally therefore, would not be as flexible as the The proposed action for the recreational equivalent to the status quo. proposed action. sector would set the ACT based on the Nevertheless, this alternative was not Three alternatives were considered for uncertainty associated with the estimate adopted because it, like the no-action the action to set an ACT for Gulf of the ACL and would result in a alternative, would not be as flexible as migratory group king mackerel. The recreational sector ACT of 1,184,688 lb the proposed action in factoring the proposed action, the no-action (537,365 kg), which would be less than status of the stock, the total harvest, and alternative, would not set an aggregate the proposed sector ACL but equal to annual harvest variability by the ACT. The remaining alternatives and current average annual harvests. As a recreational sector into the AM associated options would all set the result, no reduction in current decision. The remaining options to the aggregate ACT equal to a portion of the recreational harvest or associated proposed action would have imposed ACL, varying from 85–90 percent, with economic benefits or impacts on small sector paybacks regardless of stock or without sector ACTs. These entities would be expected to occur. The status. These options were not adopted alternatives and options were not no-action alternative would not set a because each would be expected to adopted because each would have recreational sector ACT and was not result in unnecessary reductions in allowed lower harvest, and associated adopted because the Councils economic benefits. economic benefits, than the proposed determined that the management Additional actions and alternatives action and the Councils determined that uncertainty associated with the were considered in the amendment but the condition of this stock and level of recreational harvest of this stock are not included in this rule because management uncertainty did not require requires a buffer between allowable they would either establish management a buffer between the ACT and ACL. harvest and the sector ACL. The two reference points or the proposed action Four options would have set ACTs that remaining alternatives to the proposed would not result in any regulatory would not be consistent with the action would set the recreational sector change. These actions and alternatives Councils’ decision to set ACLs in ACT based on alternative fixed are discussed in the following accordance with current allocation percentages of the ACL. Neither of these paragraphs. percentages. alternatives was adopted because they Three alternatives were considered for Three alternatives were considered for would result in an ACT that was less the action to establish an ABC control the action to establish an ABC control reflective of the uncertainty associated rule for Gulf migratory group cobia. The rule for Gulf migratory group Spanish with the estimation of the ACL than the proposed action would determine the mackerel. The proposed action would proposed action. appropriate level of risk and/or buffer to determine the appropriate level of risk Five alternatives, including seven set between the overfishing limit (OFL) and/or buffer to set between the OFL options, were considered for the action and ABC based on a tiered approach and ABC based on a tiered approach to set AMs for Atlantic migratory group that considers new information that considers new information cobia. The proposed action includes five available on the stock and identified available on the stock and identified of the options spread over three through updated stock assessments. The through updated stock assessments. The alternatives and would: Implement in- no-action alternative was not adopted no-action alternative was not adopted season quota monitoring for the because it would not establish an ABC because it would not establish an ABC commercial sector; adopt post-season control rule, as recommended by the control rule, as recommended by the

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Magnuson-Stevens Act guidelines. The was adopted because the Councils reduce economic benefits to fishery second alternative to the proposed determined that management participants and associated businesses. action was not adopted because it uncertainty for this sector of this stock Five alternatives, including three would establish an ABC control rule does not require a harvest buffer options, were considered for the action that sets the ABC using a static between the ACT and ACL. to establish an ABC control rule for definition which would not allow for Two alternatives were considered for Atlantic migratory group cobia. The changes in the level of risk based on the action to establish an ABC control proposed action would adopt the Gulf updated stock assessments and, rule for Atlantic migratory group Council’s SSC-recommended ABC therefore, would not be as flexible as the Spanish mackerel. The proposed action control rule, which is essentially the proposed action. would determine the appropriate level same as the South Atlantic Council’s Four alternatives, including six of risk and/or buffer to set between the SSC-recommended control rule. This options, were considered for the action OFL and ABC based on a tiered action would determine the appropriate to set an ACT for Gulf migratory group approach that considers new level of risk and/or buffer to set between Spanish mackerel. The proposed action, information available on the stock and the OFL and ABC based on a tiered the no-action alternative, would not set identified through updated stock approach that considers new an ACT for Gulf migratory group assessments. The no-action alternative information available on the stock, as Spanish mackerel. The alternatives to was not adopted because it would not identified through updated stock the proposed action, and associated establish an ABC control rule, as assessments. As applied to this stock, options, would implement a stock ACT recommended by the Magnuson-Stevens this approach would set the ABC equal lower than the ACL and result in lower Act guidelines. to the mean plus 1.5 times the standard harvest, and associated economic Three alternatives were considered for deviation of the most recent 10 years of benefits, than the proposed action. the action to set a commercial sector landings data. The no-action alternative These alternatives and options were not ACT for Atlantic migratory group was not adopted because it would not adopted because the Councils Spanish mackerel. The no-action establish an ABC control rule, as recommended by the Magnuson-Stevens determined that a buffer between the alternative is the proposed action for ACT and ACL was not needed for this Act guidelines. The remaining two this sector and would not set a stock. Some options would have set alternatives and associated options to commercial sector ACT for Atlantic ACTs that are not consistent the the proposed action were not adopted migratory group Spanish mackerel. Councils’ decision to specify a single because they would establish an ABC Under this proposed action, commercial (stock) ACL. control rule that sets the ABC using a sector harvest would be limited to the Four alternatives, including three static definition which would not allow ACL, which is less than the current options, were considered for the action for changes in the level of risk based on harvest and would be expected to result to establish an ABC control rule for updated stock assessments and, in a reduction in short-term economic Atlantic migratory group king mackerel. therefore, would not be as flexible as the The proposed action would determine benefits under the proposed AMs. Two proposed action. Additionally, the appropriate level of risk and/or alternatives to the proposed action application of the rule specified by buffer to set between the OFL and ABC would set ACTs that establish a buffer these alternatives and options would based on a tiered approach that between the commercial sector ACT and require an estimate of the OFL, which considers new information available on the commercial sector ACL, resulting in is considered unknown by the SSC. the stock and identified through an allowable harvest that is further Three alternatives were considered for updated stock assessments. The no- below the current harvest than the the action to define sector allocations action alternative was not adopted proposed action and would be expected for Atlantic migratory group cobia. The because it would not establish an ABC to result in a greater reduction in proposed action would define control rule, as recommended by the harvests and associated economic allocations based on weighted averages Magnuson-Stevens Act guidelines. The benefits than the proposed action. of 2000–2008 and 2006–2008 harvest remaining alternatives and associated Neither of these alternatives was data. The no-action alternative would options to the proposed action were not adopted because the Councils not define sector allocations and was adopted because they would establish determined that management not adopted because it would not be an ABC control rule that sets the ABC uncertainty for this sector of this stock consistent with the proposed actions to using a static definition which would does not require a harvest buffer establish sector ACLs, ACTs not allow for changes in the level of risk between the ACT and ACL. (recreational sector only), and AMs. The based on updated stock assessments Five alternatives were considered for second alternative to the proposed and, therefore, would not be as flexible the action to change the management action would only use 2006–2008 data as the proposed action. measures for the Atlantic migratory to determine the allocations and was not Three alternatives were considered for group Spanish mackerel. The proposed adopted because of the potential that the action to set the commercial sector action, the no-action alternative, would this specification may not contain ACT for Atlantic migratory group king not make any changes in the adequate consideration of historic mackerel. The no-action alternative is management measures for this stock. landings. This alternative and the the proposed action for this sector and The four alternatives to the proposed proposed action would result in would not set a commercial sector ACT action would have increased the identical allocations. for Atlantic migratory group king restrictions on recreational harvests Three alternatives were considered for mackerel. Two alternatives to this through reduced bag limits and/or the action to set a commercial sector proposed action would set ACTs that vessel limits. These alternatives were ACT for Atlantic migratory group cobia. establish a buffer between the not adopted because current harvest The no-action alternative is the commercial sector ACT and the would not need to be reduced under the proposed action for this sector and commercial sector ACL, resulting in proposed allowable recreational harvest would not set a commercial sector ACT lower allowable harvest and reduced for this stock. As a result, increased for Atlantic migratory group cobia. Two economic benefits than the proposed restrictions on recreational harvest alternatives to this proposed action action. Neither of these two alternatives would be expected to unnecessarily would set ACTs that establish a buffer

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between the commercial sector ACT and (2) King mackerel, Scomberomorus § 622.41 Species specific limitations. the commercial sector ACL, resulting in cavalla. * * * * * lower allowable harvest and reduced (3) Spanish mackerel, Scomberomorus (c) * * * economic benefits. Neither of these maculatus. (1) * * * alternatives was adopted because the * * * * * (v) Cobia in the Mid-Atlantic and South Atlantic EEZ—automatic reel, Councils determined that management Dolphin means a whole fish, or a part bandit gear, handline, rod and reel, and uncertainty for this sector of this stock thereof, of the species Coryphaena pelagic longline. does not require a harvest buffer equiselis or C. hippurus. between the ACT and ACL. (vi) Cobia in the Gulf EEZ—all gear * * * * * Six alternatives were considered for except drift gillnet and long gillnet. Migratory group, for king mackerel, the action to change the management * * * * * Spanish mackerel, and cobia, means a measures for the Atlantic migratory 6. In § 622.42, revise paragraph (c) to group of fish that may or may not be a group cobia. The proposed action, the read as follows: separate genetic stock, but that is treated no-action alternative, would not make as a separate stock for management § 622.42 Quotas. any changes in the management purposes. King mackerel, Spanish measures for this stock. The five * * * * * mackerel, and cobia are divided into alternatives, and associated options, to (c) Coastal migratory pelagic fish. migratory groups—the boundaries the proposed action would have King and Spanish mackerel quotas between these groups are as follows: increased restrictions on either apply to persons who fish under commercial or recreational harvests (1) King mackerel—(i) Summer commercial vessel permits for king or through reduced possession limits per separation. From April 1 through Spanish mackerel, as required under trip, person, or day. These alternatives October 31, the boundary separating the § 622.4(a)(2)(iii) or (iv). Cobia quotas Gulf and Atlantic migratory groups of apply to persons who fish for cobia and were not adopted because current ° ′ harvest would not need to be reduced king mackerel is 25 48 N. lat., which is sell their catch. A fish is counted against under the proposed allowable sector a line directly west from the Monroe/ the quota for the area where it is caught. (1) Migratory groups of king harvests for this stock. As a result, Collier County, FL, boundary to the mackerel—(i) Gulf migratory group. For increased restrictions on harvest would outer limit of the EEZ. the 2012 to 2013 fishing year, the quota be expected to unnecessarily reduce (ii) Winter separation. From for the Gulf migratory group of king economic benefits to fishery November 1 through March 31, the mackerel is 3.808 million lb (1.728 participants and associated businesses. boundary separating the Gulf and Atlantic migratory groups of king million kg). For the 2013 to 2014 fishing List of Subjects in 50 CFR Part 622 mackerel is 29°25′ N. lat., which is a year and subsequent fishing years, the quota for the Gulf migratory group of Fisheries, Fishing, Puerto Rico, line directly east from the Volusia/ king mackerel is 3.456 million lb (1.568 Reporting and recordkeeping Flagler County, FL, boundary to the million kg). The Gulf migratory group is requirements, Virgin Islands. outer limit of the EEZ. (2) Spanish mackerel. The boundary divided into eastern and western zones Dated: October 18, 2011. separating the Gulf and Atlantic separated by 87°31.1′ W. long., which is Samuel D. Rauch, III, migratory groups of Spanish mackerel is a line directly south from the Alabama/ Deputy Assistant Administrator for 25°20.4′ N. lat., which is a line directly Florida boundary. Quotas for the eastern Regulatory Programs, National Marine east from the Miami-Dade/Monroe and western zones are as follows: Fisheries Service. County, FL, boundary to the outer limit (A) Eastern zone. The eastern zone is For the reasons set out in the of the EEZ. divided into subzones with quotas as preamble, 50 CFR part 622 is proposed (3) Cobia. The boundary separating follows: to be amended as follows: the Gulf and Atlantic migratory groups (1) Florida east coast subzone. For the of cobia is the line of demarcation 2012 to 2013 fishing year, the quota is PART 622—FISHERIES OF THE between the Atlantic Ocean and the 1,215,228 lb (551,218 kg). For the 2013 CARIBBEAN, GULF, AND SOUTH Gulf of Mexico, as specified in to 2014 fishing year and subsequent ATLANTIC § 600.105(c) of this chapter. fishing years, the quota is 1,102,896 lb (500,265 kg). 1. The authority citation for part 622 * * * * * (2) Florida west coast subzone. (i) continues to read as follows: 4. In § 622.4, revise the first sentence Southern. For the 2012 to 2013 fishing Authority: 16 U.S.C. 1801 et seq. of paragraph (a)(2)(iv) to read as follows: year, the quota is 1,215,228, (515,218 § 622.4 Permits and fees. kg). For the 2013 to 2014 fishing year § 622.1 [Amended] and subsequent fishing years, the quota 2. In § 622.1, in Table 1, remove (a) * * * is 1,102,896 lb (500,265 kg), which is footnotes 2 and 3 and redesignate (2) * * * further divided into a quota for vessels footnotes 4 through 6 as footnotes 2 (iv) Spanish mackerel. For a person fishing with hook-and-line and a quota through 4. aboard a vessel to be eligible for for vessels fishing with run-around 3. In § 622.2, the definitions for exemption from the bag limits, a gillnets. For the 2012 to 2013 fishing ‘‘coastal migratory pelagic fish’’, commercial vessel permit for Spanish year, the hook-and-line quota is 607,614 ‘‘dolphin’’, and ‘‘migratory group’’ are mackerel must have been issued to the lb (275,609 kg) and the run-around revised to read as follows: vessel and must be on board. * * * gillnet quota is 607,614 lb (275,609 kg). * * * * * For the 2013 to 2014 fishing year and § 622.2 Definitions and acronyms. 5. In § 622.41, remove paragraph subsequent fishing years, the hook-and- * * * * * (c)(1)(vi) and redesignate paragraph line quota is 551,448 lb (250,133 kg) and Coastal migratory pelagic fish means (c)(1)(vii) as paragraph (c)(1)(vi); revise the run-around gillnet quota is 551,448 a whole fish, or a part thereof, of one or paragraph (c)(1)(v) and newly lb (250,133 kg). more of the following species: redesignated paragraph (c)(1)(vi) to read (ii) Northern. For the 2012 to 2013 (1) Cobia, Rachycentron canadum. as follows: fishing year, the quota is 197,064 lb

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(89,387 kg). For the 2013 to 2014 fishing paragraph (a), revise the heading of (ranging from regulation to complete year and subsequent fishing years, the paragraph (a)(3), remove the prohibition), gear markings and quota is 178,848 lb (81,124 kg). introductory paragraph in paragraph identification, vessel markings and (3) Description of Florida subzones. (a)(3), revise paragraph (a)(3)(iii), revise identification, allowable biological From November 1 through March 31, paragraph (b)(1), and revise paragraph catch (ABC) and ABC control rules, the Florida east coast subzone is that (c) to read as follows: rebuilding plans, sale and purchase part of the eastern zone south of 29°25′ restrictions, transfer at sea provisions, § 622.43 Closures. N. lat. (a line directly east from the and restrictions relative to conditions of Flagler/Volusia County, FL, boundary) * * * * * harvested fish (maintaining fish in and north of 25°20.4′ N. lat. (a line (a) Quota closures. * * * (See whole condition, use as bait). § 622.49 for closure provisions when an directly east from the Miami-Dade/ * * * * * Monroe County, FL, boundary). From ACL is reached or projected to be 9. In § 622.49, revise the section April 1 through October 31, the Florida reached). heading and add paragraph (c) to read (3) Coastal migratory pelagic fish. east coast subzone is no longer part of as follows: the Gulf migratory group king mackerel * * * * * (iii) The sale or purchase of king § 622.49 Annual catch limits (ACLs) and area; it is part of the Atlantic migratory accountability measures (AMs). group king mackerel area. The Florida mackerel, Spanish mackerel, or cobia of west coast subzone is that part of the the closed species, migratory group, * * * * * eastern zone south and west of 25°20.4′ subzone, or gear type, is prohibited, (c) Coastal migratory pelagic fish—(1) N. lat. The Florida west coast subzone including any king or Spanish mackerel Gulf migratory group king mackerel—(i) Commercial sector. If commercial is further divided into southern and taken under the bag limits, or cobia landings, as estimated by the SRD, reach northern subzones. From November 1 taken under the limited-harvest species or are projected to reach the applicable through March 31, the southern subzone possession limit specified in quota specified in § 622.42(c)(1)(i) is that part of the Florida west coast § 622.32(c)(1). (commercial ACL), the AA will file a subzone that extends south and west * * * * * notification with the Office of the from 25°20.4′ N. lat., north to 26°19.8′ (b) * * * Federal Register to close the commercial N. lat. (a line directly west from the Lee/ (1) The prohibition on sale/purchase sector for that zone, subzone, or gear Collier County, FL, boundary). From during a closure for Gulf reef fish, type for the remainder of the fishing April 1 through October 31, the coastal migratory pelagic fish, royal red shrimp, or specified snapper-grouper year. southern subzone is that part of the (ii) Recreational sector. If recreational Florida west coast subzone that is species in paragraphs (a)(1), (a)(3)(iii), ° ′ ° ′ (a)(4), or (a)(5) and (a)(6), respectively, landings, as estimated by the SRD, reach between 26 19.8 N. lat. and 25 48 N. or are projected to reach the recreational lat. (a line directly west from the of this section does not apply to the indicated species that were harvested, ACL of 8.092 million lb (3.670 million Monroe/Collier County, FL, boundary). kg), the AA will file a notification with The northern subzone is that part of the landed ashore, and sold prior to the effective date of the closure and were the Office of the Federal Register to Florida west coast subzone that is implement a bag and possession limit between 26°19.8′ N. lat. north and west held in cold storage by a dealer or ° ′ processor. for Gulf migratory group king mackerel to 87 31.1 W. long. (a line directly of zero, unless the best scientific south from the Alabama/Florida * * * * * (c) Reopening. When a sector has been information available determines that a boundary) year round. bag limit reduction is unnecessary. This (B) Western zone. For the 2012 to closed based on a projection of the quota specified in § 622.42, or the ACL bag and possession limit would also 2013 fishing year, the quota is 1,180,480 apply in the Gulf on board a vessel for lb (535,457 kg). For the 2013 to 2014 specified in § 622.49, being reached and subsequent data indicate that the quota which a valid Federal charter vessel/ fishing year and subsequent fishing headboat permit for coastal migratory years, the quota is 1,071,360 lb (485,961 or ACL was not reached, the Assistant Administrator may file a notification to pelagic fish has been issued, without kg). regard to where such species were (ii) Atlantic migratory group. The that effect with the Office of the Federal Register. Such notification may reopen harvested, i.e. in State or Federal waters. quota for the Atlantic migratory group of (iii) For purposes of tracking the ACL, king mackerel is 3.88 million lb (1.76 the sector to provide an opportunity for the quota or ACL to be harvested. recreational landings will be monitored million kg). No more than 0.40 million based on the commercial fishing year, lb (0.18 million kg) may be harvested by 8. In § 622.48, revise paragraph (c) to read as follows: July 1 through June 1. purse seines. (2) Atlantic migratory group king (2) Migratory groups of Spanish § 622.48 Adjustment to management mackerel—(i) Commercial sector—(A) If mackerel—(i) Gulf migratory group. measures. commercial landings, as estimated by [Reserved] * * * * * the SRD, reach or are projected to reach (ii) Atlantic migratory group. The (c) Coastal migratory pelagic fish. For the quota specified in § 622.42(c)(1)(ii) quota for the Atlantic migratory group of a species or species group: reporting and (commercial ACL), the AA will file a Spanish mackerel is 3.13 million lb monitoring requirements, permitting notification with the Office of the (1.42 million kg). requirements, bag and possession limits Federal Register to close the commercial (3) Migratory groups of cobia—(i) Gulf (including a bag limit of zero), size sector for the remainder of the fishing migratory group. [Reserved] limits, vessel trip limits, closed seasons year. (ii) Atlantic migratory group. The or areas and reopenings, annual catch (B) In addition to the measures quota for the Atlantic migratory group of limits (ACLs), annual catch targets specified in paragraph (c)(2)(i)(A), if the cobia is 125,712 lb (57,022 kg). (ACTs), quotas (including a quota of sum of the commercial and recreational * * * * * zero), accountability measures (AMs), landings, as estimated by the SRD, 7. In § 622.43, revise the heading of MSY (or proxy), OY, TAC, management exceeds the stock ACL, as specified in paragraph (a), add a sentence at the end parameters such as overfished and paragraph (c)(2)(iii) of this section, and of the introductory paragraph in overfishing definitions, gear restrictions Atlantic migratory group king mackerel

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are overfished, based on the most recent species in or from the Gulf EEZ is zero. Federal Register, at or near the status of U.S. Fisheries Report to This possession limit also applies in the beginning of the following fishing year Congress, the AA will file a notification Gulf on board a vessel for which a valid to reduce the recreational ACT for that with the Office of the Federal Register, Federal charter vessel/headboat permit following year by the amount of any at or near the beginning of the following for coastal migratory pelagic fish has recreational sector overage in the prior fishing year to reduce the commercial been issued, without regard to where fishing year. quota (commercial ACL) for that such species were harvested, i.e. in State (C) For purposes of tracking the ACL following year by the amount of any or Federal waters. and ACT, recreational landings will be commercial sector overage in the prior (ii) For purposes of tracking the ACL, evaluated based on the commercial fishing year. recreational landings will be evaluated fishing year, March through February. (ii) Recreational sector. (A) If the sum based on the commercial fishing year, Recreational landings will be evaluated of the commercial and recreational April through March. relative to the ACL based on a moving landings, as estimated by the SRD, (iii) The stock ACL for Gulf migratory multi-year average of landings, as exceeds the stock ACL, as specified in group Spanish mackerel is 5.15 million described in the FMP. paragraph (c)(2)(iii) of this section, the lb (4.75 million kg). (iii) The stock ACL for Atlantic AA will file a notification with the (4) Atlantic migratory group Spanish migratory group Spanish mackerel is Office of the Federal Register, at or near mackerel—(i) Commercial sector—(A) If 5.69 million lb (2.58 million kg). the beginning of the following fishing commercial landings, as estimated by (5) Gulf migratory group cobia—(i) If year to reduce the bag limit by the the SRD, reach or are projected to reach the sum of the commercial and amount necessary to ensure recreational the quota specified in § 622.42(c)(2)(ii) recreational landings, as estimated by landings may achieve the recreational (commercial ACL), the AA will file a the SRD, reaches or is projected to reach annual catch target (ACT), but do not notification with the Office of the the stock ACT, as specified in paragraph exceed the recreational ACL, in the Federal Register to close the commercial (c)(5)(ii) of this section, the AA will file following fishing year. The recreational sector for the remainder of the fishing a notification with the Office of the ACT is 6.11 million lb (2.77 million kg). year. Federal Register to close the commercial The recreational ACL is 6.58 million lb (B) In addition to the measures and recreational sectors for the (2.99 million lb) specified in paragraph (c)(4)(i)(A), if the remainder of the fishing year. On and (B) In addition to the measures sum of the commercial and recreational after the effective date of such a specified in paragraph (c)(2)(ii)(A), if the landings, as estimated by the SRD, notification, all sale and purchase of sum of the commercial and recreational exceeds the stock ACL, as specified in Gulf migratory group cobia is prohibited landings, as estimated by the SRD, paragraph (c)(4)(iii) of this section, and and the harvest and possession limit of exceeds the stock ACL, as specified in Atlantic migratory group Spanish this species in or from the Gulf EEZ is paragraph (c)(2)(iii) of this section, and mackerel are overfished, based on the zero. This bag and possession limit also Atlantic migratory group king mackerel most recent status of U.S. Fisheries applies in the Gulf on board a vessel for are overfished, based on the most recent Report to Congress, the AA will file a which a valid Federal charter vessel/ status of U.S. Fisheries Report to notification with the Office of the headboat permit for coastal migratory Congress, the AA will file a notification Federal Register, at or near the pelagic fish has been issued, without with the Office of the Federal Register, beginning of the following fishing year regard to where such species were at or near the beginning of the following to reduce the commercial quota harvested, i.e. in state or Federal water. fishing year to reduce the recreational (commercial ACL) for that following (ii) The stock ACT for Gulf migratory ACL and ACT for that following year by year by the amount of any commercial group cobia is 1.31 million lb the amount of any recreational sector sector overage in the prior fishing year. (0.59 million kg). The stock ACL for overage in the prior fishing year. (ii) Recreational sector. (A) If the sum Gulf migratory group cobia is 1.46 (C) For purposes of tracking the ACL, of the commercial and recreational million lb (0.66 million kg). recreational landings will be evaluated landings, as estimated by the SRD, (6) Atlantic migratory group cobia—(i) based on the commercial fishing year, exceeds the stock ACL, as specified in Commercial sector—(A) If commercial March through February. Recreational paragraph (c)(4)(iii) of this section, the landings, as estimated by the SRD, reach landings will be evaluated relative to AA will file a notification with the or are projected to reach the quota the ACL based on a moving multi-year Office of the Federal Register, at or near specified in § 622.42(c)(3)(ii) average of landings, as described in the the beginning of the following fishing (commercial ACL), the AA will file a FMP. year to reduce the bag limit by the notification with the Office of the (iii) The stock ACL for Atlantic amount necessary to ensure recreational Federal Register to close the commercial migratory group king mackerel is landings may achieve the recreational sector for the remainder of the fishing 10.46 million lb (4.75 million kg). ACT, but do not exceed the recreational year. (3) Gulf migratory group Spanish ACL, in the following fishing year. The (B) In addition to the measures mackerel—(i) If the sum of the recreational ACT is 2.32 million lb specified in paragraph (c)(6)(i)(A), if the commercial and recreational landings, (1.05 million kg). The recreational ACL sum of the commercial and recreational as estimated by the SRD, reaches or is is 2.56 million lb (1.16 million kg). landings, as estimated by the SRD, projected to reach the stock ACL, as (B) In addition to the measures exceeds the stock ACL, as specified in specified in paragraph (c)(3)(iii) of this specified in paragraph (c)(4)(ii)(A), if the paragraph (c)(6)(iii) of this section, and section, the AA will file a notification sum of the commercial and recreational Atlantic migratory group cobia are with the Office of the Federal Register landings, as estimated by the SRD, overfished, based on the most recent to close the commercial and recreational exceeds the stock ACL, as specified in status of U.S. Fisheries Report to sectors for the remainder of the fishing paragraph (c)(4)(iii) of this section, and Congress, the AA will file a notification year. On and after the effective date of Atlantic migratory group Spanish with the Office of the Federal Register, such a notification, all sale and mackerel are overfished, based on the at or near the beginning of the following purchase of Gulf migratory group most recent status of U.S. Fisheries fishing year to reduce the commercial Spanish mackerel is prohibited and the Report to Congress, the AA will file a quota (commercial ACL) for that harvest and possession limit of this notification with the Office of the following year by the amount of any

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commercial sector overage in the prior ACTION: Stock status determinations; 26021)—on page 62334, in Table 2, fishing year. Notice of Intent (NOI) to prepare an column 1, row 1—the date ‘‘October 12, (ii) Recreational sector. (A) If the sum Environmental Impact Statement (EIS); 2011’’ is corrected to read as follows: of the commercial and recreational request for comments; correction. ‘‘October 11, 2011.’’ landings, as estimated by the SRD, exceeds the stock ACL, as specified in SUMMARY: This document corrects an Dated: October 19, 2011. paragraph (c)(6)(iii) of this section, the October 7, 2011, notice that announced Emily H. Menashes, AA will file a notification with the the stock status of several Atlantic shark Acting Director, Office of Sustainable Office of the Federal Register, at or near stocks and announced NMFS’ intent to Fisheries, National Marine Fisheries Service. the beginning of the following fishing amend the 2006 Consolidated Highly [FR Doc. 2011–27476 Filed 10–21–11; 8:45 am] year to reduce the length of the Migratory Species (HMS) Fishery BILLING CODE 3510–22–P following recreational fishing season by Management Plan (FMP) via the the amount necessary to ensure rulemaking process to rebuild these recreational landings may achieve the shark stocks and end overfishing, as DEPARTMENT OF COMMERCE recreational ACT, but do not exceed the necessary. The notice provided an National Oceanic and Atmospheric recreational ACL in the following incorrect date for a scoping meeting Administration fishing year. Further, during that held in Galloway, NJ. This document following year, if necessary, the AA may provides the correct date. The address 50 CFR Part 660 file additional notification with the and time for the scoping meeting remain the same. Although the meeting already Office of the Federal Register to readjust [Docket No. 101206604–1620–01] the reduced fishing season to ensure occurred, it is important that the date be recreational harvest achieves but does accurate for HMS’ records. RIN 0648–BA55 DATES: The correct date for the not exceed the intended harvest level. Fisheries Off West Coast States; West The recreational ACT is 1,184,688 lb Galloway, NJ, scoping meeting is Tuesday, October 11, 2011. Coast Salmon Fisheries; Amendment (537,365 kg). The recreational ACL is 16 to the Salmon Fishery Management ADDRESSES: The scoping meeting was 1,445,687 (655,753 kg). Plan (B) In addition to the measures held at the Dolce Seaview Resort at 401 specified in paragraph (c)(6)(ii)(A), if the South New York Road, Galloway, New AGENCY: National Marine Fisheries sum of the commercial and recreational Jersey 08205. Service (NMFS), National Oceanic and landings, as estimated by the SRD, FOR FURTHER INFORMATION CONTACT: Atmospheric Administration (NOAA), exceeds the stock ACL, as specified in Karyl Brewster-Geisz or Peter Cooper at Commerce. paragraph (c)(6)(iii) of this section, and (301) 427–8503, or Jackie Wilson at ACTION: Proposed rule; request for Atlantic migratory group cobia are (240) 338–3936. comments; notice of availability of a overfished, based on the most recent SUPPLEMENTARY INFORMATION: draft environmental assessment. status of U.S. Fisheries Report to Background Congress, the AA will file a notification SUMMARY: NMFS proposes regulations to with the Office of the Federal Register, NMFS announced the stock status of implement Amendment 16 to the Pacific at or near the beginning of the following sandbar, dusky, and Atlantic and Gulf of Coast Salmon Fishery Management Plan fishing year to reduce the recreational Mexico blacknose shark stocks in a for Commercial and Recreational ACL and ACT for that following year by Federal Register notice on October 7, Salmon Fisheries off the Coasts of the amount of any recreational sector 2011 (76 FR 62331). The notice also Washington, Oregon, and California overage in the prior fishing year. announced NMFS’ intent to undertake (Salmon FMP). Amendment 16, which (C) Recreational landings will be rulemaking to rebuild and/or end was transmitted by the Pacific Fishery evaluated relative to the ACL based on overfishing of these Atlantic shark Management Council (Council) on a moving multi-year average of landings, stocks and to prepare an Environmental September 12, 2011, to the Secretary of as described in the FMP. Impact Statement (EIS) to assess the Commerce (Secretary) for review and (iii) The stock ACL for Atlantic potential effects on the human and approval, brings the Salmon FMP into migratory group cobia is 1,571,399 lb natural environment resulting from this compliance with the Magnuson-Stevens (712,775 kg). rulemaking. The notice also announced Fishery Conservation and Management [FR Doc. 2011–27348 Filed 10–21–11; 8:45 am] that NMFS is in the scoping phase of the Act (MSA) as reauthorized in 2006, and BILLING CODE 3510–22–P rulemaking process and notified the the corresponding revised National public of five public scoping meetings Standard 1 Guidelines (NS1Gs) to end and one conference call to provide the and prevent overfishing. This document DEPARTMENT OF COMMERCE opportunity for public comment on also announces the availability for potential shark management measures. public review and comment of a draft National Oceanic and Atmospheric Further details regarding the public environmental assessment (EA) Administration scoping meetings are provided in the analyzing the environmental impacts of October 7, 2011, notice and are not implementing Amendment 16. 50 CFR Part 635 repeated here. DATES: Written comments on this RIN 0648–BB29 Need for Correction proposed rule must be received on or before November 18, 2011. Atlantic Highly Migratory Species; In the original Federal Register ADDRESSES: Atlantic Shark Management Measures; notice, the date for the Galloway, NJ, You may submit comments, Correction public scoping meeting contains an identified by NOAA–NMFS–2011–0227, error and is in need of correction. by any one of the following methods: AGENCY: National Marine Fisheries • Electronic Submissions: Submit all Service (NMFS), National Oceanic and Correction electronic public comments via the Atmospheric Administration (NOAA), Accordingly, in the October 7, 2011 Federal e-Rulemaking Portal http:// Commerce. (76 FR 62331) notice (Doc. 2011– www.regulations.gov. To submit

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comments via the e-Rulemaking Portal, Background fisheries have negligible impacts on the first click the ‘‘submit a comment’’ icon, The Magnuson-Stevens Fishery stock, and therefore they are not in need then enter NOAA–NMFS–2011–0227 in Conservation and Management of conservation and management the keyword search. Locate the Reauthorization Act of 2006 (MSRA) measures in fisheries under Council document you wish to comment on amended the Magnuson-Stevens Fishery authority. Two stocks would be added from the resulting list and click on the Conservation and Management Act to the FMP: Oregon coastal hatchery ‘‘Submit a Comment’’ icon on the right (MSA) to include new requirements for coho and Willapa Bay natural coho. of that line. annual catch limits (ACLs), Smith River Chinook salmon would also • Mail: William W. Stelle, Jr., accountability measures (AMs), and be identified as a separate stock from other ESA listed California Coastal Regional Administrator, Northwest other provisions regarding preventing Chinook stocks. Region, NMFS, 7600 Sand Point Way and ending overfishing and rebuilding Stock Complexes. Stock complexes NE., Seattle, WA 98115–0070 or to Rod fisheries. On January 16, 2009, NMFS are groups of stocks that are sufficiently McInnis, Regional Administrator, published a final rule (74 FR 3178) similar in geographic distribution, life Southwest Region, NMFS, 501 West amending the National Standard 1 history, and vulnerabilities to the Ocean Boulevard, Suite 4200, Long Guidelines (NS1Gs) to implement these fishery such that the impacts of Beach, CA 90802–4213. new requirements. In response, the management actions on the stocks are • Fax: 206–526–6736 Attn: Peggy Pacific Fishery Management Council similar. Stock complexes may be formed Mundy, or 562–980–4047 Attn: Jennifer (Council) convened an ad hoc Salmon to facilitate management requirements Ise´. Amendment Committee to develop such as setting ACLs, or determining alternatives for Amendment 16 to the Instructions: Comments must be stock status. Three Chinook stock FMP to address these new requirements. submitted by one of the above methods complexes would be specified in In June 2011, the Council adopted to ensure that they are received, Amendment 16 for the purposes of Amendment 16. The Council documented, and considered by NMFS. specifying ACLs and AMs: Central transmitted the amendment to NMFS on Comments sent by any other method, to Valley Fall (CVF), Southern Oregon September 12, 2011. NMFS published a any other address or individual, or Northern California (SONC), and far- Notice of Availability in the Federal received after the end of the comment north migrating coastal (FNMC). The Register (76 FR 57945, September 19, period, may not be considered. All status of stocks in these complexes 2011) to notify the public of the comments received are a part of the would be assessed individually. availability of the amendment and public record and will generally be Internationally managed stocks. invite comments. Concurrently with posted for public viewing on http:// Amendment 16 identifies the FNMC developing Amendment 16, alternatives www.regulations.gov without change. Chinook complex; Washington coastal were analyzed in a Draft EA. All personal identifying information and Puget Sound coho; and Puget This proposed rule identifies changes Sound pink salmon as exempt from the (e.g., name, address, etc.) submitted to the regulations under 50 CFR 660 voluntarily by the sender will be ACL and AM requirements in the MSA subpart H to implement Amendment 16. because these stocks are subject to publicly accessible. Do not submit The Council has deemed the proposed confidential business information or management under an international regulations to be necessary and agreement (Pub. L. 109–479, sec. 104(b), otherwise sensitive or protected appropriate as required by section information. NMFS will accept MSA § 303 note). These stocks are 303(c) of the MSA. This document also managed in accordance with terms of anonymous comments (enter N/A in the announces the availability of the Draft required fields if you wish to remain the Pacific Salmon Treaty between the EA for public review and comment. Key U.S. and Canada. While stocks managed anonymous). Attachments to electronic Components of Amendment 16. under an international agreement can be comments will be accepted in Microsoft exempted from the specification of Word, Excel, WordPerfect, or Adobe Stock Classification ACLs, all other MSA 303(a) PDF file formats only. Stocks ‘‘in the fishery.’’ Stocks in requirements apply, such as Information relevant to this proposed need of conservation and management specification of maximum sustainable rule, which includes a draft measures in Council-area fisheries yield (MSY) and status determination environmental assessment (Draft EA), a would be classified as ‘‘in the fishery’’ criteria (SDC). regulatory impact review (RIR), and an under Amendment 16. Target stocks in initial regulatory flexibility analysis Council-area fisheries are hatchery Status Determination Criteria (IRFA) are available for public review stocks and productive natural stocks Under Amendment 16, SDC would be during business hours at the office of with ocean distributions primarily determined for natural stocks 1 for the Pacific Fishery Management Council within the Council area. Non-target which specification of these reference (Council), at 7700 NE Ambassador salmon stocks include stocks listed points is appropriate and possible, Place, Portland, OR 97220, phone: 503– under the Endangered Species Act based on the best available science. SDC 820–2280, and are posted on its Web (ESA) or depressed natural stocks. would be specified only for individual site (http://www.pcouncil.org). These Under Amendment 16, all salmon stocks, including indicator stocks documents are also linked on the NMFS stocks currently included in the FMP within stock complexes, not for stock Northwest Region Web site (http:// would be considered to be in the fishery complexes as a whole. The proposed www.nwr.noaa.gov). Copies of except for Canadian Chinook, coho and SDC incorporate the reference points additional reports referred to in this pink stocks, and mid-Columbia River identified in the MSA and NS1Gs; document may also be obtained from spring Chinook salmon. The Canadian however, the proposed definitions of the Council. stocks would be removed because they some of these reference points differ are managed under the Pacific Salmon FOR FURTHER INFORMATION CONTACT: Treaty, and their status is assessed by 1 ‘‘Natural stocks’’ have at least some component Peggy Mundy at 206–526–4323, or the Canadian government. The mid- of the stock that relies on natural production, Jennifer Ise´ at 562–980–4046. although hatchery production and naturally Columbia River spring Chinook salmon spawning hatchery fish may contribute to SUPPLEMENTARY INFORMATION: would be removed because Council area abundance and spawning escapement estimates.

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slightly from those in the NS1Gs to managed to meet hatchery goals and use a multi-step F-based control rule accommodate the life history of Pacific ESA consultation standards, consistent that would allow some harvest at all salmon, whose reproduction is with the NS1Gs, which provide the abundance levels. As stock size semelparous 2 and for which a stock’s flexibility to consider alternative declines, the allowable exploitation rate full reproductive potential can be approaches for specifying ACLs and declines from FABC in order to achieve spread out over a multi-year period. AMs for these types of stocks. Under SMSY until F = 0.25. A constant These modified approaches are Amendment 16, the relevant stocks for maximum exploitation rate of 0.25 proposed in accordance with the specifying OFL/ABC/ACL reference would be allowed until the potential provision allowing for flexibility in the points would be Sacramento River fall spawner abundance reaches the application of NS1Gs (50 CFR Chinook (SRFC) and Klamath River fall midpoint between SMSY and MSST 600.310(h)(3)). Chinook (KRFC) as indicator stocks for where F would be reduced in Under Amendment 16, a stock would the CVF and SONC Chinook complexes proportion to abundance to no more be considered subject to overfishing respectively. than 10 percent at MSST. At potential when the postseason estimate of the Under Amendment 16, OFL, ABC and spawner abundance levels less than or fishing mortality rate (F) exceeds the ACL would be specified as escapement equal to half of MSST the allowable maximum fishery mortality threshold levels for each stock. These OFL, ABC, exploitation rate would be further (MFMT), where the MFMT is generally and ACL escapement levels would be reduced to levels approaching zero as defined as FMSY. The definitions of determined annually using exploitation abundance approaches zero. overfished, approaching overfished, and rates (i.e., FMSY, FABC, and FACL) and rebuilt rely on multi-year postseason abundance estimates for each stock. Changes to Regulations 3 estimates of spawning escapement to FABC incorporates a reduction from This proposed rule includes changes be assessed using a 3-year geometric FMSY to account for scientific to the existing regulations at 50 CFR mean to determine status. Minimum uncertainty in FMSY. FMSY and FABC are 660.401 et seq. to implement stock size threshold (MSST) would be defined in terms of the total exploitation Amendment 16 and additional updates. variable among stocks, with MSST rate across all salmon fisheries (Federal These are described below. defined for most stocks as 0.5*SMSY, but and nonfederal jurisdiction). Impacts in MSST for Sacramento River fall non-salmon fisheries are included in the • § 660.402—Definitions Chinook (SRFC), Klamath River fall natural mortality assumptions used to The definition of the Pacific Coast Chinook (KRFC), Grays Harbor, Queets, estimate population parameters for Salmon Plan is updated to address Hoh, and Quillayute coho defined as salmon stocks; therefore, all fishing recent amendments. 0.75*SMSY, and MSST for Puget Sound mortality sources are accounted for coho defined as the stock specific low/ when reference points are specified. • § 660.403—Relation to Other Laws critical abundance breakpoint Amendment 16 would generally leave References to the regulations multiplied by one minus the low in place existing conservation objectives governing the Pacific groundfish fishery exploitation rate limit. The Puget Sound for stocks in the FMP; the notable are updated consistent with recent coho provisions are designed to be exception would be Klamath River fall changes to 50 CFR part 660 (75 FR consistent with the conservation and Chinook salmon, for which the 60868, October 1, 2010). management provisions developed spawning escapement component of the through the Pacific Salmon Treaty. An conservation objective would change • § 660.405—Prohibitions approaching overfished determination from 35,000 to 40,700 naturally Language is added to allow flexibility would be made if the geometric mean of spawning adults. Under the the two most recent postseason amendment, the fishery would be in implementing fishery closures by estimates of spawning escapement and managed to meet the greater of either inseason action to meet fishery the current preseason forecast of the ACL or the conservation objective in management objectives. Specifically, spawning escapement are below the a given year. under the proposed language fishery MSST. closures could be implemented at times De minimis Fishing Provisions other than at 2400 hours (midnight) in Annual Catch Limits and Acceptable The de minimis fishing provisions order to allow for more precise Biological Catch that exist in the current FMP would be management of the fishery. Under Amendment 16, specification revised by Amendment 16 to allow for Information on the Salmon Troll of overfishing limit (OFL), ABC, and more flexibility in setting annual Yelloweye Rockfish Conservation area is ACL reference points would be made on regulations when the conservation updated consistent with recent changes an individual stock basis as required objectives for limiting stocks are to 50 CFR part 660 (75 FR 60868, based on the best available science. projected not to be met, and provide October 1, 2010). These reference points would not be opportunity to access more abundant • § 660.408—Annual Actions specified for internationally managed salmon stocks that are typically stocks identified in the FMP (Pub. L. available in the Council management Language regarding annual 109–479, sec. 104(b), MSA section 303 area when the status of one stock may specifications is modified to include note). Hatchery stocks and ESA-listed otherwise preclude all ocean salmon ACLs and to state that they and other stocks identified in the FMP would be fishing in a large region, as is the case specifications and management under the conservation alert in the measures are determined consistent 2 Semelparous: reproducing once. All Pacific current FMP. De minimis fishing with the FMP. The definition of salmon species managed under the Salmon FMP are provisions vary by stock and depend on ‘‘allowable ocean harvest levels’’ is semelparous, spawning once before dying, as compared to iteroparous species, such as steelhead the form and structure of the revised to specify that such levels must (Oncorhynchus mykiss), which can, potentially, conservation objective. Amendment 16 ensure that ACLs and conservation spawn multiple times. describes de minimis fishing provisions objectives are not exceeded. This 3 Escapement, or spawning escapement, refers to that would be applied to SRFC and section is also modified to allow for anadromous fish that survive the ocean and return to fresh water where they are available for in-river KRFC specifically. Under Amendment mark-selective fisheries and to define fisheries or spawning. 16, de minimis fishing provisions would the term ‘‘mark-selective.’’

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• § 660.410—Conservation Objectives The Salmon FMP also specifies fishing from privately owned pleasure and ACLs criteria to determine when overfishing crafts, and (2) anglers employing the Language relative to conservation may be occurring and when a stock may services of the charter boat fleet. In objectives is updated, including have become overfished. These general, success rates on charter vessels treatment of ESA-listed stocks within conditions are referred to as a tend to be higher than success rates on annual specifications and management Conservation Alert and an Overfishing private vessels. Small amounts of shore- measures. Language is added stating Concern, respectively. In addition, the based effort directed toward ocean area Salmon FMP also specifies required salmon occur, primarily from jetties and that annual management measures will actions when these conditions are piers. Coastwide, the proportion of be designed to ensure that escapement triggered. The alternatives described in angler trips taken on charter vessels in levels reach or exceed ACLs. Section 2 are structured around the 2010 was relatively stable at 24 percent Classification actions required when a Conservation compared with 23 percent in 2009; Pursuant to section 304(b)(1)(A) of the Alert is triggered. This proposed action however, underlying this trend was a Magnuson-Stevens Act, the NMFS will bring the Salmon FMP into decline in the proportion of charter trips Assistant Administrator has determined compliance with the MSA, as amended in Oregon and increases in California that this proposed rule is consistent in 2007, and the revised NS1Gs, by and Washington. During 2010, the with Amendment 16, other provisions developing and implementing ACLs and Review indicates that there were 465 of the Magnuson- Stevens Act, and other AMs to prevent overfishing on stocks in charterboats that participated in the applicable law, subject to further the fishery to which MSA section 2010 fishery. 303(a)(15) applies, ensure ‘‘measurable While some of the treaty Indian consideration after public comment. harvest was for ceremonial and This proposed rule has been and objective’’ SDC for stocks in the fishery, and define the control rules subsistence purposes, the vast majority determined to be not significant for under which de minimis fishing of the catch was commercial harvest. purposes of Executive Order 12866. opportunity would take place consistent For all of 2010 the preliminary ex-vessel A Draft EA has been prepared for with NS1. value of Chinook and coho landed in Amendment 16; a copy of the Draft EA The Pacific Fishery Management the treaty Indian ocean troll fishery was is available online at http:// Council’s ‘‘Review 2010 Ocean Salmon $1.8 million, compared with the ex- www.pcouncil.org/. The Draft EA Fisheries’’ provides the following vessel value in 2009 of $1.0 million. includes a regulatory impact review economic snapshot of the 2010 fishery. According to a Northwest Indian (RIR) and preliminary regulatory Total 2010 ex-vessel value of the Fisheries Commission representative, flexibility analysis, NMFS has revised Council-managed non-Indian the tribal fleet consists of 40 to 50 the RIR and drafted an initial regulatory commercial salmon fishery was $7.15 trollers. The commercial entities flexibility analysis (IRFA) and is making million, which is the fifth lowest on directly regulated by the Pacific available its revised RIR and IRFA for record, but more than four times above Council’s Fishery Management Plan are public review and comment. its 2009 level of $1.5 million. California non-tribal commercial trollers, tribal An initial regulatory flexibility had its first commercial salmon fishery commercial trollers, and charterboats. analysis (IRFA) was prepared, as since 2007. The 2010 ex-vessel value of During 2010, these fleets consisted of required by section 603 of the the commercial fishery was 28 percent 641 non-tribal trollers, 40 to 50 tribal Regulatory Flexibility Act (RFA). The below the 2005–2009 inflation-adjusted trollers, and 465 charterboats. IRFA describes the economic impact average of $10 million and 88 percent Total West Coast income impact this proposed rule, if adopted, would below the 1979 through 1990 inflation- associated with recreational and have on small entities. A description of adjusted average of $59.3 million. Based commercial ocean salmon fisheries for the action, why it is being considered, on Pacific Coast Fisheries Information all three states combined was estimated and the legal basis for this action are Network (PacFIN) data, a total of 641 at $25.5 million in 2010. This was 46 contained at the beginning of this vessels participated in the non-tribal percent above the estimated 2009 level section in the preamble and in the West Coast commercial salmon fishery of $17.4 million. 2010 had the third SUMMARY section of the preamble, and in 2010. This is more than double the lowest income impacts on record, with are not repeated here. The RIR and IRFA number that participated in 2009 (313), 2008 having the lowest on record at $7.5 are available for public review and and nearly triple the number in 2008. million and 2009 the second lowest comment (see ADDRESSES). A summary However the 2010 total was down 36 (adjusted for inflation). of the analysis follows: The Salmon percent from 2007’s total of 1,007 The key components of Amendment FMP (PFMC 2007) establishes vessels. 16 are administrative, as they are conservation and allocation guidelines The preliminary number of vessel- revisions to the key components of the for annual management of salmon off based ocean salmon recreational angler process by which the Council and the coasts of Washington, Oregon, and trips taken on the West Coast in 2010 NMFS make decisions on how best to California. This framework allows the was 182,900, a decrease of three percent manage various stocks in the fishery. Council to develop measures responsive from 2009, and 70 percent below the These key components include defining to stock status in a given year. Section 1979 through 1990 average. Compared what stocks are in the fishery; how these 3 of the current Salmon FMP describes with 2009, preliminary estimates of the stocks may be organized into stock the conservation objectives for Salmon number of trips taken in 2010 decreased complexes, the treatment of FMP stocks necessary to meet the dual by 37 percent in Oregon and 18 percent international stocks, revising the stock MSA objectives of obtaining optimum in Washington. California effort was up status determination criteria including yield (OY) from a fishery while substantially since the sport fishery was definitions of overfishing, ABC, and preventing overfishing. Each stock has a not restricted to a 10-day fishery in the ACL reference points; and revising de specific objective, generally designed to Klamath Management Zone as it was in minimis fishing provisions to allow for achieve MSY, maximum sustained 2009; however it was still severely more flexibility in setting annual production (MSP), or in some cases, an depressed compared to historic levels. regulations when the conservation exploitation rate to serve as an MSY Recreational salmon fishing takes place objectives for limiting stocks are proxy. primarily in two modes, (1) Anglers projected not to be met, and provide

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opportunity to access more abundant administrative in nature (e.g., having a ‘‘significant’’ economic impact salmon stocks that are typically notification). Proposed alternatives for on a ‘‘substantial number’’ of small available in the Council management de minimis fishing are not expected to entities. Nonetheless, NMFS has area when the status of one stock may result in significant biological or prepared an IRFA. Through the otherwise preclude all ocean salmon economic effects. However, providing rulemaking process associated with this fishing in a large region. This action for de minimis fishing will afford more action, we are requesting comments on revises the process of how conservation opportunities for harvest, consistent this conclusion. and management decisions will be with National Standard 8, and achieve made; it contains no actual application optimum yield for the fishery consistent This proposed rule would not of the methods to set ABC, ACL, or OFL with NS1. Therefore, there are projected establish any new reporting, record- or the management measures (e.g. positive economic benefits of the keeping, requirements. closed seasons, area closures, bag limits, proposed action by allowing some No Federal rules have been identified etc.) to keep the fishery within the ACL minimal harvest of weaker stocks in an that duplicate, overlap, or conflict with and other conservation objectives to effort to harvest healthier, abundant this action. assure that overfishing does not occur. stocks in the mixed stock fishery. NMFS has issued ESA biological As a result there are no immediate The commercial entities directly economic impacts to evaluate. These regulated by the Pacific Council’s opinions that address the impacts of the will occur when the new process is Fishery Salmon Management Plan are Council managed salmon fisheries on actually applied in future actions and non-tribal commercial trollers, tribal listed salmonids as follows: March 8, the economic impacts will be evaluated commercial trollers, and charterboats. 1996 (Snake River spring/summer and then. During 2010, these fleets consisted of fall Chinook and sockeye), April 28, However, the EA did undertake an 641 non-tribal trollers, 40 to 50 tribal 1999 (Oregon Coast natural coho, economic analysis of the expected trollers, and 465 charterboats. A fish- Southern Oregon/Northern California effects of the preferred action and harvesting business is considered a coastal coho, Central California coastal options relative to ‘‘No Action’’ ‘‘small’’ business by the Small Business coho), April 28, 2000 (Central Valley alternative and presented the following Administration (SBA) if it has annual spring Chinook), April 27, 2001 (Hood conclusions. The proposed alternatives receipts not in excess of $4.0 million. Canal summer chum 4(d) limit), April for classifying the stocks in the FMP For marinas and charter/party boats, a 30, 2004 (Puget Sound Chinook), June will have no economic impacts, as there small business is one with annual 13, 2005 (California coastal Chinook), are no biological implications to receipts not in excess of $6.5 million. April 28, 2008 (Lower Columbia River designating stocks ‘‘in the fishery’’ and All of the businesses that would be natural coho), and April 30, 2010 ‘‘ecosystem components,’’ as compared affected by this action are considered (Sacramento River winter Chinook, with the no action Alternative. Proposed small businesses under SBA guidance. Lower Columbia River Chinook; and alternatives for SDC have no significant Tribal and non-tribal commercial listed Puget Sound yelloweye rockfish, biological or economic impacts. The salmon vessel revenues averaged canary rockfish, and bocaccio). NMFS stocks have had low frequency of approximately $13,000 in 2010 (Review experiencing overfishing in the past and of 2010 Ocean Salmon Fisheries). reiterates its consultation standards for many of the current control rules clearly Charterboats participating in the all ESA listed salmon and steelhead species in their annual Guidance letter prevent fishing at or above FMSY. It has recreational salmon fishery in 2000 had been rare that stock abundance or other average revenues ranging from $7,000 to to the Council. In 2009, NMFS constraints on the fishery have created $131,000, depending on vessel size class consulted on the effects of fishing under opportunity for fishing above FMSY in (Pacific States Marine Fisheries the Salmon FMP on the endangered other cases. Identifying clearer criteria Commission study). These figures Southern Resident Killer Whale Distinct with which to determine stock status remain low, and NMFS has no Population Segment (SRKW) and will more clearly align with the MSA information suggesting that these concluded the salmon fisheries were not and NS1Gs, and can help managers vessels have received annual revenues likely to jeopardize SRKW (biological implement timelier management since 2000 such that they should be opinion dated May 5, 2009). responses and contribute to ensuring considered ‘‘large’’ entities under the Pursuant to Executive Order 13175, sustainable salmon stock levels to RFA. As these average revenues are far this proposed rule was developed after support the fishery, resulting in positive below SBA’s thresholds for small meaningful consultation and economic effects. The proposed entities, NMFS has determined that all alternatives for implementing ACLs, of these entities are small entities under collaboration with Tribal officials from ABCs, and associated reference points SBA’s definitions. the area covered by the FMP. Under the (i.e., the ACL framework) are similar in The economic analysis does not Magnuson-Stevens Act at 16 U.S.C. nature to the effects of the proposed highlight any significant impact upon 1852(b)(5), one of the voting members of SDC, thus, have no significant biological small businesses. The key components the Pacific Council must be a or economic impacts. In the short term, of Amendment 16 are administrative, as representative of an Indian Tribe with fisheries may be constrained in a given they are revisions to the key Federally recognized fishing rights from year to prevent overfishing, but such components of the process by which the the area of the Council’s jurisdiction. In actions will provide long-term benefits Council and NMFS make decisions on addition, a Tribal representative served from more sustainable salmon how best to manage various stocks in on the committee appointed by the populations to support harvest and the fishery. As a result there are no Pacific Council to develop Amendment recreational opportunities. immediate economic impacts to 16. Proposed alternatives to identify AMs evaluate. These will occur when the have no significant biological or new process is actually applied in List of Subjects in 50 CFR Part 660 economic impacts, compared to the no future actions and the economic impacts action alternative. Many of the proposed will be evaluated then. Consequently, Fisheries, Fishing, Recordkeeping and AMs identified are actions that exist in the regulations being proposed are not reporting requirements. the FMP currently and are expected to meet any of the tests of

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Dated: October 18, 2011. regulations or notices. All open fishing § 660.410. The allowable ocean harvest Samuel D. Rauch III, periods begin at 0001 hours and end at for commercial, recreational, and treaty Deputy Assistant Administrator for 2400 hours local time on the dates Indian fishing may be expressed in Regulatory Programs, National Marine specified, except that a fishing period terms of season regulations expected to Fisheries Service. may be ended prior to 2400 hours local achieve a certain optimum harvest level For the reasons set out in the time through an inseason action taken or in terms of a particular number of preamble, 50 CFR part 660 is proposed under § 660.409 in order to meet fishery fish. Procedures for determining to be amended as follows: management objectives. allowable ocean harvest vary by species (c) Under the Pacific Coast groundfish and fishery complexity, and are PART 660—FISHERIES OFF WEST regulations at § 660.330, fishing with documented in the fishery management COAST STATES salmon troll gear is prohibited within plan and Council documents. the Salmon Troll Yelloweye Rockfish 1. The authority citation for part 660 * * * * * Conservation Area (YRCA). It is continues to read as follows: (d) * * * unlawful for commercial salmon troll (1) * * * Authority: 16 U.S.C. 1801 et seq. and 16 vessels to take and retain, possess, or (ii) Deviations from allocation U.S.C. 773 et seq. land fish taken with salmon troll gear schedule. The initial allocation may be 2. In § 660.402, revise the definition within the Salmon Troll YRCA. Vessels modified annually in accordance with for ‘‘Pacific Coast Salmon Plan’’ to read may transit through the Salmon Troll paragraphs (d)(1)(iii) through (viii) of as follows: YRCA with or without fish on board. this section. These deviations from the The Salmon Troll YRCA is an area off allocation schedule provide flexibility § 660.402 Definitions. the northern Washington coast. The to account for the dynamic nature of the * * * * * Salmon Troll YRCA is intended to fisheries and better achieve the Pacific Coast Salmon Plan (PCSP or protect yelloweye rockfish. The Salmon allocation objectives and fishery Salmon FMP) means the Fishery Troll YRCA is defined by straight lines allocation priorities in paragraphs Management Plan, as amended, for connecting specific latitude and (d)(1)(ix) and (x) of this section. Total commercial and recreational ocean longitude coordinates under the Pacific allowable ocean harvest will be salmon fisheries in the Exclusive Coast Groundfish regulations at maximized to the extent possible Economic Zone (EEZ) (3 to 200 nautical § 660.70. consistent with treaty obligations, state miles offshore) off Washington, Oregon, * * * * * fishery needs, conservation objectives, and California. The Salmon FMP was 5. In § 660.408, and ACLs. Every effort will be made to first developed by the Council and a. Revise paragraph (a); establish seasons and gear requirements approved by the Secretary in 1978. The b. Redesignate paragraphs (b), (c), (d), that provide troll and recreational fleets Salmon FMP was amended on October (e), (f), (g), (h), (i), (j), (k), (l), (m), and a reasonable opportunity to catch the 31, 1984, to establish a framework (n) as paragraphs (c), (d), (e), (f), (g), (h), available harvest. These may include process to develop and implement (i), (j), (k), (l), (m), (n), and (o), single-species directed fisheries with fishery management actions; the Salmon respectively; landing restrictions for other species. FMP has been subsequently amended at c. Add a new paragraph (b); * * * * * irregular intervals. Other names d. Revise newly redesignated (v) * * * commonly used include: Pacific Coast paragraphs (c), (d)(1)(ii), (d)(1)(v)(B), (B) Chinook distribution. Subarea Salmon Fishery Management Plan, West (d)(1)(vi), (d)(2)(iv), (e), (g), (i)(2), (k), distributions of Chinook will be Coast Salmon Plan, West Coast Salmon (l)(2), (l)(4), and (o) to read as follows: managed as guidelines based on Fishery Management Plan. § 660.408 Annual actions. calculations of the Salmon Technical * * * * * (a) General. NMFS will annually Team with the primary objective of 3. In § 660.403, revise paragraph (b) to achieving all-species fisheries without read as follows: establish specifications and management measures or, as necessary, imposing Chinook restrictions (i.e., area § 660.403 Relation to other laws. adjust specifications and management closures or bag limit reductions). * * * * * measures for the commercial, Chinook in excess of all-species (b) Any person fishing subject to this recreational, and treaty Indian fisheries fisheries needs may be utilized by subpart who also engages in fishing for by publishing the action in the Federal directed Chinook fisheries north of Cape groundfish should consult Federal Register under § 660.411. Management Falcon or by negotiating a preseason regulations in subpart C through G for of the Pacific Coast salmon fishery will species trade of Chinook and coho applicable requirements of that subpart, be conducted consistent with the between commercial and recreational including the requirement that vessels standards and procedures in the Salmon allocations in accordance with engaged in commercial fishing for FMP. The Salmon FMP is available from paragraph (d)(1)(iii) of this section. groundfish (except commercial the Regional Administrator or the * * * * * passenger vessels) have vessel Council. Specifications and (vi) Inseason trades and transfers. identification in accordance with management measures are described in Inseason transfers, including species § 660.20. paragraphs (b) through (o) of this trades of Chinook and coho, may be * * * * * section. permitted in either direction between 4. In § 660.405, revise paragraph (b) (b) Annual catch limits. Annual commercial and recreational fishery and the introductory text of paragraph Specifications will include annual catch quotas to allow for uncatchable fish in (c) to read as follows: limits (ACLs) determined consistent one fishery to be reallocated to the with the standards and procedures in other. Fish will be deemed uncatchable § 660.405 Prohibitions. the Salmon FMP. by a respective commercial or * * * * * (c) Allowable ocean harvest levels. recreational fishery only after (b) The fishery management area is Allowable ocean harvest levels must considering all possible annual closed to salmon fishing except as ensure that conservation objectives and management actions to allow for their opened by this subpart or superseding ACLs are not exceeded, as described in harvest that are consistent with the

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harvest management objectives specific areas. All-species seasons will be in a regulatory area subject to quota in the fishery management plan established to allow the maximum management and landing their catch in including consideration of single allowable harvest of pink salmon, when another regulatory area open to fishing species fisheries. Implementation of and where available, without exceeding may be required to transmit a brief inseason transfers will require allowable Chinook or coho harvest report prior to leaving the first consultation with the pertinent levels and within conservation and regulatory area. The regulatory areas commercial and recreational Salmon allocation constraints of the pink stocks. subject to these reporting requirements, Advisory Subpanel representatives from * * * * * the contents of the reports, and the the area involved and the Salmon (k) Selective fisheries—(1) In general. entities receiving the reports will be Technical Team, and a clear In addition to the all-species seasons specified annually. establishment of available fish and and the all-species-except-coho seasons 6. In § 660.409, revise paragraph (b)(2) impacts from the transfer. Inseason established for the commercial and introductory text to read as follows: trades or transfers may vary from the recreational fisheries, species selective § 660.409 Inseason actions. guideline ratio of four coho to one fisheries and mark selective fisheries Chinook to meet the allocation may be established. * * * * * objectives in paragraph (d)(1)(ix) of this (2) Species selective fisheries. (b) * * * section. Selective coho-only, Chinook-only, (2) Fishery managers must determine that any inseason adjustment in * * * * * pink-only, all salmon except Chinook, (2) * * * and all salmon except coho fisheries management measures is consistent (iv) Oregon coastal natural coho. The may be established if harvestable fish of with fishery regimes established by the allocation provisions in paragraph (d)(2) the target species are available; harvest U.S.-Canada Pacific Salmon of this section provide guidance only of incidental species will not exceed Commission, conservation objectives when coho abundance permits a allowable levels; proven, documented and ACLs, conservation of the salmon directed coho harvest, not when the selective gear exists; significant wastage resource, any adjudicated Indian fishing allowable harvest impacts are of incidental species will not occur; and rights, and the ocean allocation scheme insufficient to allow coho retention the selective fishery will occur in an in the fishery management plan. All south of Cape Falcon. At such low acceptable time and area where wastage inseason adjustments will be based on levels, allowable harvest impacts will be can be minimized and target stocks are consideration of the following factors: allocated during the Council’s preseason primarily available. * * * * * process. (3) Mark selective fisheries. Fisheries 7. Revise § 660.410 to read as follows: * * * * * that select for salmon marked with a § 660.410 Conservation objectives and (e) Management boundaries and healed adipose fin clip may be ACLs. established in the annual management zones. Management boundaries and (a) Conservation objectives. Annual measures as long as they are consistent zones will be established or adjusted to management measures will be with guidelines in section 6.5.3.1 of the achieve a conservation purpose or consistent with conservation objectives Pacific Coast Salmon Plan. management objective. A conservation described in Table 3–1 of the Salmon purpose or management objective * * * * * FMP or as modified through the protects a fish stock, simplifies (1) * * * processes described below, except management of a fishery, or promotes (2) The combined treaty Indian where the ACL escapement level for a wise use of fishery resources by, for fishing seasons will not be longer than stock is higher than the conservation example, separating fish stocks, necessary to harvest the allowable treaty objective, in which case annual facilitating enforcement, separating Indian catch, which is the total treaty management measures will be designed conflicting fishing activities, or harvest that would occur if the tribes to ensure that the ACL for that stock is facilitating harvest opportunities. chose to take their total entitlement of met. Management boundaries and zones will the weakest stock in the fishery (1) Modification of conservation be described by geographical references, management area, assuming this level of objectives. NMFS is authorized, through coordinates (latitude and longitude), harvest did not create conservation or an action issued under § 660.411, to depth contours, distance from shore, or allocation problems for other stocks. modify a conservation objective if— similar criteria. * * * * * (i) A comprehensive technical review * * * * * (4) If adjustable quotas are established of the best scientific information (g) Recreational daily bag limits. for treaty Indian fishing, they may be available provides conclusive evidence Recreational daily bag limits for each subject to inseason adjustment because that, in the view of the Council, the fishing area will specify number and of unanticipated Chinook or coho Scientific and Statistical Committee, species of salmon that may be retained. hooking mortality occurring during the and the Salmon Technical Team, The recreational daily bag limits for season, catches in treaty Indian fisheries justifies modification of a conservation each fishing area will be set to maximize inconsistent with those unanticipated objective or the length of the fishing season under Federal regulations, or a need to (ii) Action by a Federal court consistent with the allowable level of redistribute quotas to ensure attainment indicates that modification of a harvest in the area. of an overall quota. conservation objective is appropriate. * * * * * * * * * * (2) ESA listed species. The annual (i) * * * (o) Reporting requirements. Reporting specifications and management (2) Commercial seasons. Commercial requirements for commercial fishing measures will be consistent with NMFS seasons will be established or modified may be imposed to ensure timely and consultation standards or NMFS taking into account wastage of fish that accurate assessment of catches in recovery plans for species listed under cannot legally be retained, size and regulatory areas subject to quota the Endangered Species Act (ESA). poundage of fish caught, effort shifts management. Such reports are subject to Where these standards differ from those between fishing areas, and protection of the limitations described herein. described in FMP Table 3–1, NMFS will depressed stocks present in the fishing Persons engaged in commercial fishing describe the ESA-related standards for

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the upcoming annual specifications and those annual management measures than ACLs determined through the management measures in a letter to the occurs. procedures set forth in the FMP. Council prior to the first Council (b) Annual catch limits. Annual [FR Doc. 2011–27346 Filed 10–21–11; 8:45 am] management measures will be designed meeting at which the development of BILLING CODE 3510–22–P to ensure escapement levels at or higher

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Notices Federal Register Vol. 76, No. 205

Monday, October 24, 2011

This section of the FEDERAL REGISTER Miles, Management Analyst, OAO, 1400 Miles at least 7 days in advance of the contains documents other than rules or Independence Ave., SW., Whitten Bldg., meeting. OAO is committed to the proposed rules that are applicable to the 520–A, Washington, DC 20250, 202– orderly conduct of the advisory public. Notices of hearings and investigations, 720–4679, Fax: 202–720–7136 e-mail: committee meeting. Please visit our Web committee meetings, agency decisions and [email protected]. site at http://www.outreach.usda.gov/ rulings, delegations of authority, filing of petitions and applications and agency SUPPLEMENTARY INFORMATION: The oasdfr for procedures on public conduct statements of organization and functions are Committee was established pursuant to during the advisory committee meeting. examples of documents appearing in this section 14008 of the Food Conservation, Anderson Neal, Jr., section. and Energy Act of 2008, Public Law Acting Director, Office of Advocacy and 110–246, 122 Stat. 1651, 2208. The Outreach. Secretary of Agriculture selected a [FR Doc. 2011–27352 Filed 10–21–11; 8:45 am] DEPARTMENT OF AGRICULTURE diverse group of members representing BILLING CODE 1240–78–P a broad spectrum of persons interested Advisory Committee on Minority in providing solutions to the challenges Farmers; Notice of Meeting of the aforementioned agenda topics (1), DEPARTMENT OF AGRICULTURE AGENCY: Office of Advocacy and (2) and (3). Equal opportunity practices Outreach, USDA. were considered in all appointments to Forest Service ACTION: Notice of public meeting. the Committee in accordance with USDA policies. The Secretary selected Black Hills National Forest, Mystic SUMMARY: This notice announces a the members in January 2011. Ranger District, South Dakota, Calumet forthcoming meeting of a public On November 3, 2011, from 9 a.m. to Project Area advisory committee of the Office of 12 p.m., there will be an opportunity for Advocacy and Outreach (OAO). Notice public comments. Interested persons AGENCY: Forest Service, USDA. of the meetings are provided in may present views, orally or in writing, ACTION: Notice of intent to prepare an accordance with section 10(a)(2) of the on issues relating to the above agenda Environmental Impact Statement (EIS). Federal Advisory Committee Act, as topics (1), (2) and (3) before the amended (5 U.S.C. Appendix 2). This committee. Written submissions may be SUMMARY: The Forest Service will meeting will be open to the public. submitted to the contact person on or prepare an environmental impact As required by the Federal Advisory before October 27, 2011. Oral statement on a proposal to use multiple Committee Act, as amended, the OAO presentations from the public will be vegetation treatments focused on announces a public meeting of the scheduled between approximately reducing the threat to ecosystem Advisory Committee on Minority 9 a.m. to 12 p.m. Those individuals components including forest resources Farmers (Committee) to advise the interested in making oral presentations from an existing insect and disease Secretary of Agriculture on: (1) The should notify the contact person and epidemic (mountain pine beetle), implementation of section 2501 of the submit a brief statement of the general creating a landscape condition more Food, Agriculture, Conservation, and nature of the issue they wish to present adapted to fire and that reduces Trade Act of 1990, as amended, 7 U.S.C. and the names and addresses of potential for high severity wildfire near 2279; (2) methods of maximizing the proposed participants. (All oral at-risk communities and in the participation of minority farmers and presentations will be given three wildland-urban interface. The proposal ranchers in Department of Agriculture minutes. If the number of registrants is being planned for the 31,772 acre programs; and (3) civil rights activities requesting to speak is greater than what Calumet Project Area that includes within the Department as such activities can be reasonably accommodated about 27,617 acres of National Forest relate to participants in such programs. during the scheduled open public System land and about 4,155 acres of DATES: The meeting will be held on hearing session timeframe, OAO may interspersed private land. The project November 3, 2011, and November 4, conduct a lottery to determine the area lies approximately six miles 2011, from 8:30 a.m. to 5 p.m. and 8:30 speakers for the scheduled open public southwest of Rapid City, SD. Sheridan a.m. to 5 p.m., respectively. The meeting hearing session.) The contact person Lake is also located within the project will be open to the public for public will notify interested persons regarding area. This project will be conducted as comment on November 3, 2011, from their request to speak by October 31, an authorized project under Section 102 9 a.m. to 12 p.m. 2011. of the Healthy Forests Restoration Act of ADDRESSES: The meeting will be held at OAO will make all agenda topics 2003 (HFRA). Actions proposed for the the Hotel Albuquerque Old Town, 800 available to the public via the OAO Web Calumet Project Area include the Rio Grande Boulevard, NW., site (http://www.outreach.usda.gov/ following: Albuquerque, NM 87104. The hotel’s oasdfr) no later than 10 business days • Thin and harvest approximately telephone number is 505–843–6300. before the meeting and at the meeting. 14,954 acres of pine stands using a Written comments may be submitted to: OAO welcomes the attendance of the variety of methods to treat MPB infested Lauretta Miles, Management Analyst, public at its advisory committee stands, reduce the overall density of OAO, 1400 Independence Ave., SW., meetings and will make every effort to pine trees and create a mosaic of Whitten Bldg., 520–A, Washington, DC accommodate persons with physical structural stages across the landscape. 20250, 202–720–4679. disabilities or special needs. If you Both commercial and non-commercial FOR FURTHER INFORMATION CONTACT: require special accommodations due to sized trees would be removed utilizing Questions should be directed to Lauretta a disability, please contact Lauretta multiple contracts including

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stewardship, timber sale, and service Mystic Ranger District office in Rapid on public and adjacent private lands, contracts. City at (605) 343–1567. and reducing the probability and • Remove conifers from hardwood SUPPLEMENTARY INFORMATION: The occurrence of severe wildfire in the fire stands (e.g., aspen, oak, and birch) and actions proposed are in direct response adapted ecosystems, especially near at restore meadows on approximately to management direction provided by risk communities and in the wildland- 3,497 acres to provide habitat diversity the Black Hills National Forest Land urban interface. Moreover, it is and wildfire protection by enhancing and Resource Management Plan (Forest appropriate that proposed actions be natural fuel breaks. Plan). The site specific actions are designed in consideration of the fuels • Reduce the amount of fuels that designed, based on Forest Plan hazard reduction management currently exists. Treatments could Standards and Guidelines, to move recommendations and guidelines include (but are not limited to) lopping, existing resource conditions in the provided by the Pennington County chipping, crushing, piling and burning; Calumet Project Area toward meeting Community Wildfire Protection Plan of creating fuel breaks along roads and Forest Plan Goals and Objectives. The 2007. project area lies approximately six miles adjacent to private property, particularly Proposed Action those properties with houses and southwest of Rapid City, SD. Sheridan subdivisions. Roadway treatments Lake is also located within the project Proposed actions include the would improve access (ingress/egress) area. Anticipated issues include: following: for the public, as well as emergency reducing MPB infestation and risk; • Thin and harvest approximately services in the event of a wildfire. protecting local communities, private 14,954 acres of pine stands using a Prescribed broadcast burning would and public lands, infrastructure and variety of methods to treat MPB infested also be allowed anywhere strategically access from severe wildfire; associated stands, reduce the overall density of practical within the project area, up to fire and fuels hazard reduction needs in pine trees and create a mosaic of approximately 27,000 acres. The goals the wildland-urban interface; support or structural stages across the landscape. of prescribed fire are to reduce fuel opposition to forest thinning using Both commercial and non-commercial loading and continuity to help protect commercial timber harvest; impacts of sized trees would be removed utilizing private property and Forest resources, vegetation treatment and multiple forest multiple contracts including and to increase the quantity and quality uses on wildlife habitat. The range of stewardship, timber sale, and service of forage for big game and other wildlife alternatives analyzed in the EIS is contracts. resources. Annually, the Mystic Ranger expected to be consistent with Sec. 104 • Remove conifers from hardwood District conducts approximately 2,000 of HFRA. stands (e.g., aspen, oak, and birch) and to 4,000 acres of prescribed broadcast Purpose and Need for Action restore meadows on approximately burning. These annual, accomplished 3,497 acres to provide habitat diversity acres are spread across the district and The purpose of the Calumet Project is and wildfire protection by enhancing are split among multiple planning areas. to: • natural fuel breaks. Burning designated areas within the Moves existing land and resource Calumet Project Area could take up to conditions toward desired conditions as • Reduce the amount of fuels that ten years to accomplish. specified in the Forest Plan. currently exists. Treatments could • Reduce the threat to ecosystem • Use of existing road templates, with include (but are not limited to) lopping, components including forest resources, less than five miles of new construction, chipping, crushing, piling and burning; from the existing insect and disease would be required to carry out creating fuel breaks along roads and (mountain pine beetle) epidemic. vegetation treatments. • adjacent to private property, particularly Restore resource conditions to a those properties with houses and DATES: Comments concerning the scope healthy, resilient fire-adapted subdivisions. Roadway treatments of the analysis would be most useful if ecosystem. • would improve access (ingress/egress) received by 30-days following the date Help protect local communities and for the public, as well as emergency of this notice. The draft environmental resources from catastrophic wildfire. services in the event of a wildfire. This project is focused on impact statement is expected to be Prescribed broadcast burning would implementing management actions that available for public review by February also be allowed anywhere strategically move toward achieving: 2012 and the final environmental practical within the project area, up to impact statement is expected to be • Desired conditions and objectives embodied in Goals 2, 3, 7, and 10 of the approximately 27,000 acres. The goals completed by May 2012. of prescribed fire are to reduce fuel ADDRESSES: Send written comments to Forest Plan (as amended). • Goals and objectives applicable to loading and continuity to help protect Jackie Groce, Acting District Ranger, Forest Plan Management Area (MA) private property and Forest resources, Black Hills National Forest, Mystic 3.7—Late Successional Forest and to increase the quantity and quality Ranger District, Calumet Project Area, Landscape (∼780 acres); MA 5.1 of forage for big game and other wildlife 8221 South Highway 16, Rapid City, Resource Production Emphasis (∼5,621 resources. Annually, the Mystic Ranger South Dakota 57702. Telephone acres); MA 5.4—Big Game Winter Range District conducts approximately 2,000 Number: (605) 343–1567. E-mail: Emphasis (∼18,259 acres); and MA 8.2 to 4,000 acres of prescribed broadcast comments-rocky-mountain-black-hills- Developed Recreation Complex (∼2,686 burning. These annual, accomplished [email protected] with ‘‘Calumet’’ as the acres), that lie within Calumet Project acres are spread across the district and subject. Electronic comments must be Area, described in Chapter III of the are split among multiple planning areas. readable in Word, Rich Text, or PDF Forest Plan (Phase II Amendment). Burning designated areas within the formats. • Goals of the Healthy Forest Calumet Project Area could take up to FOR FURTHER INFORMATION CONTACT: If Restoration Act (HFRA) of 2003 (HR ten years to accomplish. you have any questions or need 1904) and other National level • Use of existing road templates, with additional information, please contact initiatives and policy that provide less than five miles of new construction, Lou Conroy, Team Leader or Jackie procedural tools to hasten processes would be required to carry out Groce, Acting District Ranger, at the focused on reducing insects or disease vegetation treatments.

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Responsible Official environmental impact statement may be Register (76 FR 25300, 05/04/2011) and District Ranger, Mystic Ranger waived or dismissed by the courts. City the application has been processed District, Black Hills National Forest, of Angoon v. Hodel, 803 F.2d 1016, pursuant to the FTZ Act and the Board’s 8221 South Highway 16, Rapid City, 1022 (9th Cir. 1986) and Wisconsin regulations; and, South Dakota 57702. Heritages, Inc. v. Harris, 490 F. Supp. Whereas, the Board adopts the 1334, 1338 (E.D. Wis. 1980). Because of findings and recommendations of the Nature of Decision To Be Made these court rulings, it is very important examiner’s report, and finds that the The decision to be made is whether or that those interested in this proposed requirements of the FTZ Act and not to implement the proposed action or action participate by the close of the 45- Board’s regulations are satisfied, and possible alternative at this time. day comment period so that substantive that the proposal is in the public comments and objections are made interest; Scoping Process available to the Forest Service at a time Now, therefore, the Board hereby Comments and input regarding the when it can meaningfully consider them orders: proposal will be received via direct and respond to them in the final The application to expand FTZ 276 is mailing from the public, other groups, environmental impact statement. approved, subject to the FTZ Act and and agencies during the initial public To assist the Forest Service in the Board’s regulations, including comment period in October and identifying and considering issues and Section 400.28, and further subject to November 2011. If you would like to be concerns on the proposed action, the Board’s standard 2,000-acre more involved, a public meeting is comments on the draft environmental activation limit. scheduled for Thursday, November 3, impact statement should be as specific Dated: Signed at Washington, DC, this 13th 2011, from 7 p.m. to 9 p.m. at the Mystic as possible. It is also helpful if day of October 2011. Ranger District Office, Rapid City, South comments refer to specific pages or Ronald K. Lorentzen, Dakota. Comments submitted based on chapters of the draft statement. Deputy Assistant Secretary for Import this NOI will be most useful if received Comments may also address the Administration, Alternate Chairman, Foreign- within 30-days from the date of this adequacy of the draft environmental Trade Zones Board. notice. Response to the draft EIS will be impact statement or the merits of the sought from the interested public alternatives formulated and discussed in Andrew McGilvray, beginning in February 2012. the statement. Reviewers may wish to Executive Secretary. Comment Requested refer to the Council on Environmental [FR Doc. 2011–27450 Filed 10–21–11; 8:45 am] Quality Regulations for implementing BILLING CODE P This notice of intent provides the procedural provisions of the information that the agency will prepare National Environmental Policy Act at 40 an environmental impact statement in CFR 1503.3 in addressing these points. DEPARTMENT OF COMMERCE response to public comment and feedback during the October and Authority: 40 CFR 1501.7 and 1508.22; Foreign-Trade Zones Board November 2011, scoping period. Forest Service Handbook 1909.15, Section Comments received will assist the 21. [Order No. 1788] planning team to develop the mailing Dated: October 17, 2011. Reorganization of Foreign-Trade Zone list for the draft EIS and help identify Robert J. Thompson, 205 Under Alternative Site Framework key issues and opportunities used to Acting Deputy Forest Supervisor, Black Hills Port Hueneme, CA refine the proposal or possible National Forest. alternative and mitigation measures. [FR Doc. 2011–27404 Filed 10–21–11; 8:45 am] Pursuant to its authority under the Foreign- Comments on the DEIS will be BILLING CODE 3410–11–P Trade Zones Act of June 18, 1934, as requested during the 45-day comment amended (19 U.S.C. 81a–81u), the Foreign- period following the Notice of Trade Zones Board (the Board) adopts the following Order: Availability, expected to be published DEPARTMENT OF COMMERCE in the Federal Register in February 2012 Whereas, the Board adopted the (See discussion below). Foreign-Trade Zones Board alternative site framework (ASF) (74 FR 1170, 01/12/09; correction 74 FR 3987, Early Notice of Importance of Public [Order No. 1789] 01/22/09; 75 FR 71069–71070, 11/22/ Participation in Subsequent 10) as an option for the establishment or Environmental Review Expansion of Foreign-Trade Zone 276; reorganization of general-purpose zones; The Forest Service believes, at this Kern County, CA Whereas, the Board of Harbor early stage, it is important to give Pursuant to its authority under the Foreign- Commissioners of the Oxnard Harbor reviewers notice of several court rulings Trade Zones Act of June 18, 1934, as District, grantee of Foreign-Trade Zone related to public participation in the amended (19 U.S.C. 81a–81u), the Foreign- 205, submitted an application to the environmental review process. First, Trade Zones Board (the Board) adopts the Board (FTZ Docket 25–2011, filed 03/ reviewers of draft environmental impact following Order: 31/2011) for authority to reorganize statements must structure their Whereas, the County of Kern under the ASF with a service area of participation in the environmental Department of Airports, grantee of Ventura County, California, within and review of the proposal so that it is Foreign-Trade Zone 276, submitted an adjacent to the Port Hueneme U.S. meaningful and alerts an agency to the application to the Board for authority to Customs and Border Protection port of reviewer’s position and contentions. expand FTZ 276 to include a site in entry, and FTZ 205’s existing Sites 1 Vermont Yankee Nuclear Power Corp. v. Shafter, California, within the through 4 would be categorized as NRDC, 435 U.S. 519, 553 (1978). Also, Bakersfield U.S. Customs and Border magnet sites; environmental objections that could be Protection port of entry (FTZ Docket 28– Whereas, notice inviting public raised at the draft environmental impact 2011, filed 04/28/2011); comment was given in the Federal statement stage but that are not raised Whereas, notice inviting public Register (76 FR 19314–19315, 04/07/ until after completion of the final comment has been given in the Federal 2011) and the application has been

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processed pursuant to the FTZ Act and We invite interested parties to Department limited the number of the Board’s regulations; and, comment on these preliminary results. respondents selected for individual Whereas, the Board adopts the Parties who submit comments are examination, it would select findings and recommendation of the requested to submit with each argument respondents based on export/shipment examiner’s report, and finds that the a statement of the issue and a brief data provided in response to the requirements of the FTZ Act and summary of the argument. We intend to Department’s quantity and value Board’s regulations are satisfied, and issue the final results of this review no (‘‘Q&V’’) questionnaire. The Department that the proposal is in the public later than 120 days from the date of further stated its intention to limit the interest; publication of this notice. number of Q&V questionnaires issued in Now, therefore, the Board hereby DATES: Effective Date: October 24, 2011. the review based on CBP data for U.S. orders: FOR FURTHER INFORMATION CONTACT: Jeff imports classified under the The application to reorganize FTZ 205 Pedersen or Rebecca Pandolph, AD/CVD Harmonized Tariff Schedule of the under the alternative site framework is Operations, Office 4, Import United States (‘‘HTSUS’’) headings approved, subject to the FTZ Act and Administration, International Trade identified in the scope of the the Board’s regulations, including Administration, U.S. Department of antidumping duty order on wooden Section 400.28, to the Board’s standard Commerce, 14th Street and Constitution bedroom furniture from the PRC. The 2,000-acre activation limit for the Avenue, NW., Washington, DC 20230; Department noted it intended to send overall general-purpose zone project, telephone: (202) 482–2769 or (202) 482– Q&V questionnaires to the 21 companies and to a five-year ASF sunset provision 3627, respectively. for which a review was requested with for magnet sites that would terminate SUPPLEMENTARY INFORMATION: the largest total values of subject authority for Sites 1 through 4 if not merchandise imported into the United activated by October 31, 2016. Background States during the POR according to CBP Signed at Washington, DC, this 13th day of On January 4, 2005, the Department data. See Initiation Notice, 76 FR at October 2011. published in the Federal Register the 10881. The Initiation Notice also Ronald K. Lorentzen, antidumping duty order on wooden notified parties that they must timely Deputy Assistant Secretary for Import bedroom furniture from the PRC.1 On submit separate rate applications or Administration, Alternate Chairman, Foreign- January 3, 2011, the Department notified separate rate certifications in order to Trade Zones Board. interested parties of their opportunity to qualify for a separate rate. See Initiation [FR Doc. 2011–27452 Filed 10–21–11; 8:45 am] request an administrative review, Notice, 76 FR at 10881–82. BILLING CODE P including a review of the antidumping On February 23, 2011, the Department duty order on wooden bedroom issued Q&V questionnaires to the 21 furniture from the PRC.2 In January companies for which a review was DEPARTMENT OF COMMERCE 2011, the petitioners, American requested with the largest shipments by Furniture Manufacturers Committee for value according to information gathered International Trade Administration 4 Legal Trade and Vaughan-Bassett from CBP. These questionnaires [A–570–890] Furniture Company, Inc. (collectively, requested that the companies report the ‘‘Petitioners’’), and the domestic Q&V of their POR exports and/or Wooden Bedroom Furniture From the interested parties, Kimball International, shipments of wooden bedroom furniture People’s Republic of China: Inc., Kimball Furniture Group, Inc. and to the United States for the purpose of Preliminary Results of Antidumping Kimball Hospitality Inc. (collectively, respondent selection. The Department Duty Administrative Review and Intent ‘‘Kimball’’); Ashley Furniture; Butler received Q&V questionnaire responses To Rescind Review in Part Woodcrafters, Inc.; Acme Furniture from all of the 21 companies except AGENCY: Import Administration, Industry Inc., as well as a U.S. importer and certain foreign exporters requested 4 These companies are: (1) Art Heritage International Trade Administration, International, Ltd.; Super Art Furniture Co., Ltd.; Department of Commerce. that the Department conduct an Artwork Metal & Plastic Co., Ltd.; Jibson Industries administrative review. On February 28, Ltd., Always Loyal International; (2) Dalian SUMMARY: The Department of Commerce 2011, the Department published in the Huafeng Furniture Co., Ltd. (3) Dongguan Sunrise (‘‘Department’’) is conducting an Federal Register a notice initiating an Furniture Co.; Taicang Sunrise Wood Industry Co., Ltd.; Shanghai Sunrise Furniture Co., Ltd.; administrative review of the antidumping duty administrative review antidumping duty order on wooden Fairmont Designs (4) Dongguan Sunshine Furniture of wooden bedroom furniture from the Co., Ltd. (5) Dorbest Ltd.; Rui Feng Woodwork Co., bedroom furniture from the People’s PRC covering 183 companies/company Ltd. aka Rui Feng Woodwork (Dongguan) Co., Ltd.; Republic of China (‘‘PRC’’). The period groupings and the period January 1, Rui Feng Lumber Development Co., Ltd. aka Rui Feng Lumber Development (Shenzhen) Co., Ltd.; (6) of review (‘‘POR’’) is January 1, 2010 2010 through December 31, 2010.3 through December 31, 2010. This Fine Furniture (Shanghai) Ltd. (7) Jiangmen Kinwai In the Initiation Notice and International Furniture Co., Ltd. (8) (9) Sen Yeong administrative review covers multiple Opportunity to Request Administrative International Co., Ltd.; Sheh Hau International exporters of the subject merchandise. Review, parties were notified that if the Trading Ltd. (10) Shanghai Aosen Furniture Co., Fourteen companies failed to provide Ltd. (11) Shanghai Fangjia Industry Co. Ltd. (12) separate rate information and, thus, did Shanghai Maoji Imp and Exp Co., Ltd. (13) 1 See Notice of Amended Final Determination of Shenzhen Forest Furniture Co., Ltd. (14) Shing not demonstrate that they are entitled to Sales at Less Than Fair Value and Antidumping Mark Enterprise Co., Ltd.; Carven Industries a separate rate and have been treated as Duty Order: Wooden Bedroom Furniture from the Limited (BVI); Carven Industries Limited (HK); part of the PRC-wide entity. One People’s Republic of China, 70 FR 329 (January 4, Dongguan Zhenxin Furniture Co., Ltd.; Dongguan company demonstrated that it is entitled 2005). Yongpeng Furniture Co., Ltd. (15) Superwood Co., 2 See Antidumping or Countervailing Duty Order, Ltd.; Lianjiang Zongyu Art Products Co., Ltd. (16) to a separate rate. If these preliminary Finding, or Suspended Investigation; Opportunity Taicang Fairmount Designs Furniture Co., Ltd. (17) results are adopted in our final results to Request Administrative Review, 76 FR 90 Tube-Smith Enterprise (Zhangzhou) Co., Ltd.; Tube- of review, we will instruct U.S. Customs (January 3, 2011) (‘‘Opportunity to Request Smith Enterprise (Haimen) Co., Ltd.; Billionworth and Border Protection (‘‘CBP’’) to assess Administrative Review’’). Enterprises Ltd. (18) (19) Wanhengtong Nueevder 3 See Initiation of Administrative Review of the (Furniture) Manufacture Co., Ltd./Dongguan antidumping duties on all appropriate Antidumping Duty Order on Wooden Bedroom Wanengtong Industry Co., Ltd. (20) Woodworth entries of subject merchandise during Furniture From the People’s Republic of China, 76 Wooden Industries (Dong Guan) Co., Ltd.; and (21) the POR. FR 10880 (February 28, 2011) (‘‘Initiation Notice’’). Zhangzhou Guohui Industrial & Trade Co. Ltd.

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Shanghai Fangjia Industry Co. Ltd., From March through June 2011, a documents related to potential period of Shanghai Aosen Furniture Co., Ltd. and number of interested parties withdrew review entries of subject merchandise received an untimely Q&V their review requests for all but 22 from the following companies claiming questionnaire response from companies/company groupings.9 All no sales or shipments of subject Wanhengtong Nueevder (Furniture) review requests were withdrawn for the merchandise: (1) Baigou Crafts Factory Manufacture Co., Ltd./Dongguan mandatory respondents the Dorbest of Fengkai; (2) Locke Furniture Factory; Wanengtong Industry Co., Ltd.5 Seven Group and the Shing Mark Group. Kai Chan Furniture Co., Ltd.; Kai Chan additional companies or company On May 27, 2011, Amini Innovation (Hong Kong) Enterprise Ltd.; Taiwan groupings also submitted Q&V Corp. (‘‘Amini’’), a U.S. importer of Kai Chan Co., Ltd, (collectively, ‘‘Locke questionnaire responses.6 From March wooden bedroom furniture, commented Furniture’’); and (3) Sunwin. On August through May 2011, the Department on the Tube-Smith Group 10 sm request 25, and September 2, 2011, Petitioners received separate rate certifications and for a review of its sales during the POR. submitted comments on the CBP data applications from 73 companies and On June 6, 2011, the Tube-Smith Group and documents. On September 2, 2011, company groupings. In addition, during responded to Amini’s May 27, 2011, Sunwin submitted comments on the that period, the Department received comments. On June 8, 2011, Amini CBP data and requested additional time requests from Dalian Huafeng Furniture submitted additional comments to submit its separate rate information. Group Co., Ltd.; the Dorbest Group; 7 regarding the Tube-Smith Group’s Scope of the Order Fine Furniture (Shanghai) Limited; and review request. Guangzhou Maria Yee Furnishings Ltd., On June 20, 2011, Petitioners The product covered by the order is Pyla HK Limited, and Maria Yee, Inc. submitted factual information from the wooden bedroom furniture. Wooden (collectively, ‘‘Maria Yee’’) to be treated first new shipper review of wooden bedroom furniture is generally, but not as voluntary respondents. bedroom furniture from the PRC exclusively, designed, manufactured, On January 31, and March 14, 2011, pertaining to the margin calculated for and offered for sale in coordinated Petitioners submitted comments on the Shenyang Kunyu Wood Industry Co., groups, or bedrooms, in which all of the Department’s process of selecting Ltd. individual pieces are of approximately On June 22, 2011, the Department mandatory respondents. Given its the same style and approximately the issued a letter to Zhanjiang Sunwin Arts limited resources, and the fact that an same material and/or finish. The subject & Crafts Co., Ltd. (‘‘Sunwin’’), a administrative review was requested for merchandise is made substantially of company that reported it made no 183 companies/company groupings, on wood products, including both solid shipments of subject merchandise to the March 30, 2011, the Department wood and also engineered wood United States during the POR, decided to individually examine the products made from wood particles, requesting more information regarding following companies, based upon the fibers, or other wooden materials such its claim that it changed its name to Q&V data: (1) The Dorbest Group; and as plywood, strand board, particle Guangdong Sunwin Green Furniture (2) the Shing Mark Group, which board, and fiberboard, with or without Industry Group Co., Ltd. On July 5, consists of Shing Mark Enterprise Co., 2011, Sunwin submitted its response to wood veneers, wood overlays, or Ltd., Carven Industries Limited (BVI), the letter. laminates, with or without non-wood Carven Industries Limited (HK), On August 12, and August 26, 2011, components or trim such as metal, Dongguan Zhenxin Furniture Co., Ltd., the Department released CBP data and marble, leather, glass, plastic, or other and Dongguan Yongpeng Furniture Co., resins, and whether or not assembled, 8 Ltd. 9 These companies are: (1) Baigou Crafts Factory completed, or finished. On March 30, 2011, the Department of Fengkai; (2) Dongguan Bon Ten Furniture Co., The subject merchandise includes the issued the antidumping questionnaire to Ltd.; (3) Dongguan Grand Style Furniture Co. Ltd.; following items: (1) Wooden beds such the Dorbest Group and the Shing Mark Hong Kong Da Zhi Furniture Co., Ltd.; (4) Dongguan Hero Way Woodwork Co., Ltd.; Dongguan Da Zhong as loft beds, bunk beds, and other beds; Group, and made the questionnaire Woodwork Co., Ltd.; Hero Way Enterprises Ltd.; (2) wooden headboards for beds available to the voluntary respondents. Well Earth International Ltd.; (5) Dongguan (whether stand-alone or attached to side Huansheng Furniture Co., Ltd.; (6) Dongguan Mu Si rails), wooden footboards for beds, Furniture Co., Ltd.; (7) Golden Well International 5 The Department did not accept the untimely (HK) Ltd.; (8) Hainan Jong Bao Lumber Co., Ltd.; wooden side rails for beds, and wooden information. See letter to Wanhengtong Nueevder Jibbon Enterprise Co., Ltd.; (9) Hangzhou Cadman canopies for beds; (3) night tables, night (Furniture) Manufacture Co., Ltd. from Abdelali Trading Co., Ltd.; (10) Kuan Lin Furniture (Dong Elouaradia, Director, Office 4, AD/CVD Operations, stands, dressers, commodes, bureaus, Guan) Co., Ltd.; Kuan Lin Furniture Factory; Kuan mule chests, gentlemen’s chests, dated March 28, 2011. Lin Furniture Co., Ltd.; (11) Kunshan Lee Wood 6 These companies are: (1) Guangzhou Maria Yee Product Co., Ltd.; (12) Leefu Wood (Dongguan) Co., bachelor’s chests, lingerie chests, Furnishings Ltd.; Pyla HK, Ltd.; Maria Yee, Inc.; (2) Ltd.; King Rich International, Ltd.; (13) Locke wardrobes, vanities, chessers, Jiangmen Kinwai Furniture Decoration Co., Ltd.; (3) Furniture Factory; Kai Chan Furniture Co., Ltd.; Kai chifforobes, and wardrobe-type cabinets; Jiedong Lehouse Furniture Co., Ltd.; (4) Putian Chan (Hong Kong) Enterprise Ltd.; Taiwan Kai (4) dressers with framed glass mirrors Jinggong Furniture Co., Ltd.; (5) Shanghai Jian Pu Chan Co., Ltd.; (14) Meikangchi (Nantong) Export & Import Co., Ltd.; (6) Zhongshan Golden Furniture Company Ltd.; (15) Nantong Dongfang that are attached to, incorporated in, sit King Furniture Industrial Co., Ltd.; and (7) Sheng Orient Furniture Co., Ltd.; (16) Shanghai Fangjia on, or hang over the dresser; (5) chests- Jing Wood Products (Beijing) Co., Ltd. Industry Co. Ltd.; (17) Tube-Smith Enterprise on-chests,11 highboys,12 lowboys,13 7 The Dorbest Group consists of Rui Feng (Zhangzhou) Co., Ltd.; Tube-Smith Enterprise Woodwork Co. Ltd., Rui Feng Lumber Development (Haimen) Co., Ltd.; Billionworth Enterprises Ltd. Co., Ltd., Dorbest Ltd., Rui Feng Woodwork (18) Winny Overseas, Ltd.; Zhongshan Winny 11 A chest-on-chest is typically a tall chest-of- (Dongguan) Co., Ltd., and Rui Feng Lumber Furniture Ltd.; Winny Universal Ltd.; (19) drawers in two or more sections (or appearing to be Development (Shenzhen) Co., Ltd. Zhangjiang Sunwin Arts & Crafts Co., Ltd.; (20) in two or more sections), with one or two sections 8 See Memorandum from Jeff Pedersen, Senior Zhejiang Tianyi Scientific & Educational Equipment mounted (or appearing to be mounted) on a slightly International Trade Compliance Analyst, Office 4, Co., Ltd.; (21) Zhong Shan Fullwin Furniture Co., larger chest; also known as a tallboy. AD/CVD Operations through Howard Smith, Ltd.; and (22) Zhongshan Gainwell Furniture Co. 12 A highboy is typically a tall chest of drawers Program Manager, Office 4, AD/CVD Operations to Ltd. usually composed of a base and a top section with Abdelali Elouaradia, Office Director, Office 4, AD/ 10 The Tube-Smith Group consists of the drawers, and supported on four legs or a small chest CVD Operations regarding, ‘‘Respondent Selection following companies: Tube-Smith Enterprises (often 15 inches or more in height). in the 2010 Antidumping Duty Administrative (ZhangZhou) Co., Ltd.; Tube-Smith Enterprises 13 A lowboy is typically a short chest of drawers, Review of Wooden Bedroom Furniture from the (Haimen) Co., Ltd.; and Billionworth Enterprises, not more than four feet high, normally set on short People’s Republic of China,’’ dated March 30, 2011. Ltd. legs.

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chests of drawers,14 chests,15 door mirrors; 22 (11) certain metal parts; 23 Imports of subject merchandise are chests,16 chiffoniers,17 hutches,18 and (12) mirrors that do not attach to, classified under subheadings armoires; 19 (6) desks, computer stands, incorporate in, sit on, or hang over a 9403.50.9042 and 9403.50.9045 of the filing cabinets, book cases, or writing dresser if they are not designed and U.S. Harmonized Tariff Schedule tables that are attached to or marketed to be sold in conjunction with (‘‘HTSUS’’) as ‘‘wooden * * * beds’’ incorporated in the subject a dresser as part of a dresser-mirror set; and under subheading 9403.50.9080 of merchandise; and (7) other bedroom (13) upholstered beds 24 and (14) toy the HTSUS as ‘‘other * * * wooden furniture consistent with the above list. boxes.25 furniture of a kind used in the The scope of the order excludes the bedroom.’’ In addition, wooden following items: (1) Seats, chairs, Duty Investigation of Wooden Bedroom Furniture headboards for beds, wooden footboards benches, couches, sofas, sofa beds, from the People’s Republic of China,’’ dated August for beds, wooden side rails for beds, and stools, and other seating furniture; (2) 31, 2004. See also Wooden Bedroom Furniture From the People’s Republic of China: Final wooden canopies for beds may also be mattresses, mattress supports (including Changed Circumstances Review, and Determination entered under subheading 9403.50.9042 box springs), infant cribs, water beds, To Revoke Order in Part, 71 FR 38621 (July 7, or 9403.50.9045 of the HTSUS as ‘‘parts and futon frames; (3) office furniture, 2006). of wood.’’ Subject merchandise may such as desks, standup desks, computer 22 Cheval mirrors are any framed, tiltable mirror also be entered under subheadings with a height in excess of 50 inches that is mounted cabinets, filing cabinets, credenzas, and on a floor-standing, hinged base. Additionally, the 9403.50.9041, 9403.60.8081, or bookcases; (4) dining room or kitchen scope of the order excludes combination cheval 9403.20.0018.26 Further, framed glass furniture such as dining tables, chairs, mirror/jewelry cabinets. The excluded merchandise mirrors may be entered under servers, sideboards, buffets, corner is an integrated piece consisting of a cheval mirror, subheading 7009.92.1000 or i.e., a framed tiltable mirror with a height in excess cabinets, china cabinets, and china of 50 inches, mounted on a floor-standing, hinged 7009.92.5000 of the HTSUS as ‘‘glass hutches; (5) other non-bedroom base, the cheval mirror serving as a door to a mirrors * * * framed.’’ The order furniture, such as television cabinets, cabinet back that is integral to the structure of the covers all wooden bedroom furniture mirror and which constitutes a jewelry cabinet line meeting the above description, cocktail tables, end tables, occasional with fabric, having necklace and bracelet hooks, tables, wall systems, book cases, and mountings for rings and shelves, with or without a regardless of tariff classification. entertainment systems; (6) bedroom working lock and key to secure the contents of the Although the HTSUS subheadings are furniture made primarily of wicker, jewelry cabinet back to the cheval mirror, and no provided for convenience and customs drawers anywhere on the integrated piece. The fully purposes, our written description of the cane, osier, bamboo or rattan; (7) side assembled piece must be at least 50 inches in rails for beds made of metal if sold height, 14.5 inches in width, and 3 inches in depth. scope of this proceeding is dispositive. separately from the headboard and See Wooden Bedroom Furniture From the People’s Partial Final Rescission of Review footboard; (8) bedroom furniture in Republic of China: Final Changed Circumstances 20 Review and Determination To Revoke Order in Part, Pursuant to 19 CFR 351.213(d)(1), the which bentwood parts predominate; 72 FR 948 (January 9, 2007). 21 Department will rescind an (9) jewelry armories; (10) cheval 23 Metal furniture parts and unfinished furniture parts made of wood products (as defined above) administrative review, in whole or in 14 A chest of drawers is typically a case that are not otherwise specifically named in this part, if the party that requested the containing drawers for storing clothing. scope (i.e., wooden headboards for beds, wooden review withdraws its request within 90 15 A chest is typically a case piece taller than it footboards for beds, wooden side rails for beds, and days of the date of publication of the wooden canopies for beds) and that do not possess is wide featuring a series of drawers and with or notice of initiation of the requested without one or more doors for storing clothing. The the essential character of wooden bedroom piece can either include drawers or be designed as furniture in an unassembled, incomplete, or review. Because all requesting parties a large box incorporating a lid. unfinished form. Such parts are usually classified withdrew their respective requests for under HTSUS subheadings 9403.90.7005, 16 A door chest is typically a chest with hinged an administrative review of the 9403.90.7010, or 9403.90.7080. doors to store clothing, whether or not containing 24 Upholstered beds that are completely following entities within 90 days of the drawers. The piece may also include shelves for date of publication of the notice of televisions and other entertainment electronics. upholstered, i.e., containing filling material and completely covered in sewn genuine leather, 17 A chiffonier is typically a tall and narrow chest initiation, the Department is rescinding synthetic leather, or natural or synthetic decorative this review with respect to these of drawers normally used for storing undergarments fabric. To be excluded, the entire bed (headboards, and lingerie, often with mirror(s) attached. footboards, and side rails) must be upholstered entities: 18 A hutch is typically an open case of furniture except for bed feet, which may be of wood, metal, • Alexandre International Corp.; with shelves that typically sits on another piece of or any other material and which are no more than Southern Art Development Ltd.; furniture and provides storage for clothes. nine inches in height from the floor. See Wooden Alexandre Furniture (Shenzhen) Co., 19 An armoire is typically a tall cabinet or Bedroom Furniture from the People’s Republic of Ltd.; Southern Art Furniture Factory wardrobe (typically 50 inches or taller), with doors, China: Final Results of Changed Circumstances • and with one or more drawers (either exterior below Review and Determination to Revoke Order in Part, Art Heritage International, Ltd.; or above the doors or interior behind the doors), 72 FR 7013 (February 14, 2007). Super Art Furniture Co., Ltd.; Artwork shelves, and/or garment rods or other apparatus for 25 To be excluded the toy box must: (1) be wider Metal & Plastic Co., Ltd.; Jibson storing clothes. Bedroom armoires may also be used than it is tall; (2) have dimensions within 16 inches Industries Ltd., Always Loyal to hold television receivers and/or other to 27 inches in height, 15 inches to 18 inches in audiovisual entertainment systems. International depth, and 21 inches to 30 inches in width; (3) have • 20 As used herein, bentwood means solid wood a hinged lid that encompasses the entire top of the Billy Wood Industrial (Dong Guan) made pliable. Bentwood is wood that is brought to box; (4) not incorporate any doors or drawers; (5) Co., Ltd.; Great Union Industrial a curved shape by bending it while made pliable have slow-closing safety hinges; (6) have air vents; (Dongguan) Co., Ltd.; Time Faith Ltd. with moist heat or other agency and then set by (7) have no locking mechanism; and (8) comply • Changshu HTC Import & Export Co., cooling or drying. See CBP’s Headquarters Ruling with American Society for Testing and Materials Letter 043859, dated May 17, 1976. (‘‘ASTM’’) standard F963–03. Toy boxes are boxes Ltd. 21 Any armoire, cabinet or other accent item for generally designed for the purpose of storing • Cheng Meng Furniture (PTE) Ltd.; the purpose of storing jewelry, not to exceed 24 children’s items such as toys, books, and Cheng Meng Decoration & Furniture inches in width, 18 inches in depth, and 49 inches playthings. See Wooden Bedroom Furniture from (Suzhou) Co., Ltd. in height, including a minimum of 5 lined drawers the People’s Republic of China: Final Results of • Chuan Fa Furniture Factory lined with felt or felt-like material, at least one side Changed Circumstances Review and Determination door (whether or not the door is lined with felt or to Revoke Order in Part, 74 FR 8506 (February 25, felt-like material), with necklace hangers, and a flip- 2009). Further, as determined in the scope ruling that are excluded from the wooden bedroom top lid with inset mirror. See Issues and Decision memorandum ‘‘Wooden Bedroom Furniture from furniture order apply to the box itself rather than Memorandum from Laurel LaCivita to Laurie the People’s Republic of China: Scope Ruling on a the lid. Parkhill, Office Director, concerning ‘‘Jewelry White Toy Box,’’ dated July 6, 2009, the 26 This HTSUS number has been added to the Armoires and Cheval Mirrors in the Antidumping dimensional ranges used to identify the toy boxes scope description in this segment of the proceeding.

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• Clearwise Company Limited • Garri Furniture (Dong Guan) Co., • Shenzhen Xiande Furniture Factory • COE Ltd. Ltd.; Molabile International, Inc.; Weei • Shun Feng Furniture Co., Ltd. • Dalian Huafeng Furniture Co., Ltd./ Geo Enterprise Co., Ltd. • Songgang Jasonwood Furniture Dalian Huafeng Furniture Group Co., • Guangzhou Maria Yee Furnishings Factory; Jasonwood Industrial Co., Ltd. Ltd.27 Ltd.; Pyla HK, Ltd.; Maria Yee, Inc. S.A. • Decca Furniture Ltd. • Hang Hai Woodcraft’s Art Factory • Starwood Industries Ltd. • Dongguan Cambridge Furniture Co.; • Hualing Furniture (China) Co., Ltd.; • Strongson Furniture (Shenzhen) Glory Oceanic Co., Ltd. Tony House Manufacture (China) Co., Co., Ltd.; Strongson Furniture Co., Ltd.; • Dongguan Creation Furniture Co., Ltd.; Buysell Investments Ltd.; Tony Strongson (HK) Co. Ltd.; Creation Industries Co., Ltd. House Industries Co., Ltd. • Sunforce Furniture (Hui-Yang) Co., • Dongguan Great Reputation • Jardine Enterprise, Ltd. Ltd.; Sun Fung Wooden Factory; Sun Furniture Co., Ltd. • Jiangmen Kinwai Furniture Fung Co.; Shin Feng Furniture Co., Ltd.; • Dongguan Hung Sheng Artware Decoration Co., Ltd. Stupendous International Co., Ltd. Products Co., Ltd.; Coronal Enterprise • Jiangmen Kinwai International • Superwood Co., Ltd.; Lianjiang Co., Ltd. Furniture Co., Ltd. Zongyu Art Products Co., Ltd. • Dongguan Kin Feng Furniture Co., • Jiangsu Dare Furniture Co., Ltd. • Tarzan Furniture Industries Ltd.; Ltd. • Jiangsu Weifu Group Fullhouse Samso Industries Ltd. • Dongguan Kingstone Furniture Co., Furniture Mfg. Corp. • Techniwood Industries Ltd.; Ningbo Ltd.; Kingstone Furniture Co., Ltd. • Jiangsu Xiangsheng Bedtime Furniture Industries Limited; Ningbo • Dongguan Landmark Furniture Furniture Co., Ltd. Hengnin Furniture Co. Ltd. • Products Ltd. Jiangsu Yuexing Furniture Group • Tianjin Fortune Furniture Co., Ltd • Dongguan Liaobushangdun Huada Co., Ltd. • Tianjin Master Home Furniture • Furniture Factory; Great Rich (HK) Jiedong Lehouse Furniture Co., Ltd. • Tianjin Phu Shing Woodwork • Enterprises Co. Ltd. Kunshan Summit Furniture Co., Enterprise Co., Ltd. • Dongguan Lung Dong Furniture Co., Ltd. • Tradewinds Furniture Ltd.; Fortune • Ltd.; Dongguan Dong He Furniture Co., Langfang Tiancheng Furniture Co., Glory Industrial Ltd. (H. K. Ltd.) Ltd. Ltd. • Transworld (Zhang Zhou) Furniture • • Dongguan Singways Furniture Co., Link Silver Ltd. (V.I.B.); Forward Co. Ltd. Ltd. Win Enterprises Company Limited; • U–Rich Furniture (Zhangzhou) Co., • Dongguan Sunrise Furniture Co., Dongguan Haoshun Furniture Ltd. • Ltd.; U–Rich Furniture Ltd. Ltd.; Taicang Sunrise Wood Industry Longrange Furniture Co., Ltd. • Wanhengtong Nueevder (Furniture) Co., Ltd.; Taicang Fairmount Designs • Nanhai Baiyi Woodwork Co., Ltd. • Manufacture Co., Ltd.; Dongguan Furniture Co., Ltd.; Meizhou Sunrise Nanhai Jiantai Woodwork Co., Ltd.; Wanengtong Industry Co., Ltd. Furniture Co., Ltd. Fortune Glory Industrial Ltd. (H.K. Ltd.) • Wanvog Furniture (Kunshan) Co., • Dongguan Sunrise Furniture Co.; • Nantong Yangzi Furniture Co., Ltd. • Ltd. Taicang Sunrise Wood Industry Co., Nantong Yushi Furniture Co., Ltd. • Woodworth Wooden Industries • Nathan International Ltd.; Nathan Ltd.; Shanghai Sunrise Furniture Co., (Dong Guan) Co., Ltd. Ltd.; Fairmont Designs Rattan Factory • • Xiamen Yongquan Sci-Tech • Dongguan Sunshine Furniture Co., Perfect Line Furniture Co., Ltd. • Pleasant Wave Limited; Passwell Development Co., Ltd. Ltd. • Yeh Brothers World Trade, Inc. • Dongguan Yihaiwei Furniture Corporation • • Prime Wood International Co., Ltd; Yihua Timber Industry Co., Ltd.; Limited Guangdong Yihua Timber Industry Co., • Prime Best International Co., Ltd.; Prime Dongguan Yujia Furniture Co., Ltd. 28 Best Factory; Liang Huang (Jiaxing) Ltd. • Zhang Zhou Sanlong Wood Product • Dongying Huanghekou Furniture Enterprise Co., Ltd. • Putian Jinggong Furniture Co., Ltd. Co., Ltd. Industry Co., Ltd. • • Zhangjiagang Daye Hotel Furniture • Eurosa (Kunshan) Co., Ltd.; Eurosa Qingdao Liangmu Co., Ltd. • Restonic (Dongguan) Furniture Ltd.; Co., Ltd. Furniture Co., (PTE) Ltd. • Zhangjiagang Zheng Yan Decoration • Fine Furniture (Shanghai) Ltd. Restonic Far East (Samoa) Ltd. • • Rizhao Sanmu Woodworking Co., Co., Ltd. Foshan Guanqiu Furniture Co. Ltd. • Zhangzhou Guohui Industrial & • Fuzhou Huan Mei Furniture Co., Ltd. • Season Furniture Manufacturing Trade Co. Ltd. Ltd. • Co.; Season Industrial Development Co. Zhongshan Fookyik Furniture Co., • Ltd. 27 Sen Yeong International Co., Ltd.; The Department initiated reviews of Dalian • Zhongshan Golden King Furniture Huafeng Furniture Co., Ltd. and Dalian Huafeng Sheh Hau International Trading Ltd. Furniture Group Co., Ltd. as separate companies. • Shanghai Jian Pu Export & Import Industrial Co., Ltd. • However, in the administrative review just prior to Co., Ltd. Zhoushan For-Strong Wood Co., this review, the Department determined that Dalian • Shanghai Maoji Imp and Exp Co., Ltd. Huafeng Furniture Group Co., Ltd. was the In addition, because all requesting successor-in-interest to Dalian Huafeng Furniture Ltd. Co., Ltd. See Memorandum from Abdelali • Sheng Jing Wood Products (Beijing) parties withdrew their respective Elouaradia, Director, Office 4, AD/CVD Operations Co., Ltd.; Telstar Enterprises Ltd. requests for an administrative review of through Howard Smith, Program Manager, Office 4, • Shenyang Shining Dongxing the two mandatory respondents within AD/CVD Operations from Rebecca Pandolph, Furniture Co., Ltd. 90 days of the date of publication of the International Trade Compliance Analyst, AD/CVD • Operations, Office 4 regarding, ‘‘Successor-in- Shenzhen Jiafa High Grade notice of initiation, the Department is Interest,’’ dated March 11, 2011. Furniture Co., Ltd.; Golden Lion rescinding this review with respect to 28 Dongguan Yujia Furniture Co., Ltd. is International Trading Ltd. the Dorbest Group and the Shing Mark undergoing a new shipper review covering the • Shenzhen New Fudu Furniture Co., Group, in accordance with 19 CFR period January 1, 2010 through December 31, 2010. Ltd. 351.213(d)(1). The Department will issue assessment instructions • for Dongguan Yujia Furniture Co., Ltd. at the Shenzhen Shen Long Hang Industry Acme Furniture Industry Inc. completion of the new shipper review. Co., Ltd. (‘‘Acme’’) withdrew its request for an

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administrative review of Shenzhen this review of the antidumping duty • Guangdong Gainwell Industrial Forest Furniture Co., Ltd. and Shenzhen order with respect to Shenzhen. Furniture Co., Ltd. Wonderful Furniture Co., Ltd. Further, for the following companies • Hong Kong Jingbi Group (collectively, ‘‘Shenzhen’’) on June 9, for which all requesting parties • Huasen Furniture Co., Ltd. 2011.29 The 90-day deadline established withdrew their respective requests for • Jiant Furniture Co., Ltd. by 19 CFR 351.213(d)(1) for an administrative review within 90 days • King Kei Trading Company withdrawing review requests was May of the date of publication of the notice Limited 39 31, 2011. However, 19 CFR of initiation, but which were part of the • King’s Way Furniture Industries 351.213(d)(1) states that the Secretary PRC-wide entity during the POR, the Co., Ltd.40 may extend this time limit if the Department intends to rescind the • Kingsyear Ltd.41 Secretary finds it reasonable to do so. In review in the final results: • Longkou Huangshan Furniture order to provide parties additional • Brother Furniture Manufacture Co., Factory certainty with respect to when the Ltd.33 • MoonArt Furniture Group Department will exercise its discretion • C.F. Kent Co., Inc. • MoonArt International Inc. to extend the 90-day deadline, the • C.F. Kent Hospitality, Inc. • Nanjing Jardine Enterprise, Ltd. Department has recently announced that • Champion Sun Industries Limited • Nanjing Nanmu Furniture Co., it will not accept withdrawals of review • Contact Co., Ltd. Ltd.42 requests after the 90-day deadline • Denny’s Furniture Associates Corp. • Nantong Wangzhuang Furniture except in extraordinary • Denny’s International Co., Ltd. Co., Ltd. • circumstances.30 Because (1) the Der Cheng Furniture Co., Ltd. • Ningbo Fubang Furniture Industries • Der Cheng Wooden Works Limited Department did not notify parties to this • review, prior to Acme’s request for a Dong Guan Golden Fortune • Ningbo Furniture Industries Houseware Co., Ltd.34 Company Ltd. review of Shenzhen, that it would not • accept withdrawals of review requests Dongguan Chunsan Wood Products • Ningbo Techniwood Furniture Co., Ltd.35 Industries Limited after the 90-day deadline except in • extraordinary circumstances, and (2) the Dongguan Hua Ban Furniture Co., • Northeast Lumber Co., Ltd. Ltd.36 • Passwell Wood Corporation Department has allowed parties, in this • review and other proceedings, to DongGuan Sundart Timber • S.Y.C. Family Enterprise Co., Ltd. 43 withdraw review requests after the 90- Products Co., Ltd • Senyuan Furniture Group • Ever Spring Furniture Company day deadline for withdrawing review • Shanghai Aosen Furniture Co., 37 44 requests despite there being no Ltd. Ltd. • Evershine Enterprise Co. extraordinary circumstances,31 the • Fleetwood Fine Furniture LP Review Final Results), and has not filed a separate Department has decided to extend the • Fujian Putian Jinggong Furniture time limit for withdrawing the review rate application to establish its eligibility for a Co., Ltd. separate rate in this review, the Department is request for Shenzhen. However, • Gainwell Industries Limited treating this company as part of the PRC-wide consistent with the recent • Green River Wood (Dongguan) entity. 39 Because King Kei Trading Company Limited announcement regarding withdrawals of Ltd.38 review requests, in segments of this lost its separate rate on August 18, 2010 (see 4th Review Final Results), and has not filed a separate proceeding with anniversary months 33 Because Brother Furniture Manufacture Co., rate application to establish its eligibility for a after August 2011, the Department will Ltd. lost its separate rate on August 18, 2010 (see separate rate in this review, the Department is not consider extending the 90-day 4th Review Final Results), and has not filed a treating this company as part of the PRC-wide deadline for withdrawing review separate rate application to establish its eligibility entity. 40 requests unless the requestor for a separate rate in this review, the Department Because King’s Way Furniture Industries Co., is treating this company as part of the PRC-wide Ltd.; Kingsyear Ltd. lost its separate rate on August demonstrates that an extraordinary entity. 18, 2010 (see 4th Review Final Results), and has not circumstance has prevented it from 34 Because Dong Guan Golden Fortune filed a separate rate application to establish its submitting a timely withdrawal of its Houseware Co., Ltd. lost its separate rate on August eligibility or a separate rate in this review, the review request. Determinations by the 18, 2010 (see 4th Review Final Results), and has not Department is treating this company as part of the filed a separate rate application to establish its PRC-wide entity. Department to extend the 90-day eligibility for a separate rate in this review, the 41 Because King’s Way Furniture Industries Co., deadline will be made on a case-by-case Department is treating this company as part of the Ltd.; Kingsyear Ltd. lost its separate rate on August basis.32 Because all parties who PRC-wide entity. 18, 2010 (see 4th Review Final Results), and has not requested the review of Shenzhen have 35 Because Dongguan Chunsan Wood Products filed a separate rate application to establish its subsequently withdrawn their requests, Co., Ltd. lost its separate rate on August 18, 2010 eligibility or a separate rate in this review, the (see 4th Review Final Results), and has not filed a Department is treating this company as part of the in accordance with 19 CFR separate rate application to establish its eligibility PRC-wide entity. 351.213(d)(1), we are also rescinding for a separate rate in this review, the Department 42 4th Because Nanjing Nanmu Furniture Co., Ltd. is treating this company as part of the PRC-wide lost its separate rate on August 18, 2010 (see 4 29 See letter from Shenzhen regarding, ‘‘Wooden entity. Review Final Results), and has not filed a separate Bedroom Furniture from the People’s Republic of 36 Because Dongguan Hua Ban Furniture Co., Ltd. rate application to establish its eligibility for a China-Acme Furniture Industry, Inc.’s Withdrawal lost its separate rate on August 18, 2010 (see 4th separate rate in this review, the Department is Request for Shenzhen Forest and Shenzhen Review Final Results), and has not filed a separate treating this company as part of the PRC-wide Wonderful,’’ dated June 9, 2011. rate application to establish its eligibility for a entity. 30 See Antidumping or Countervailing Duty separate rate in this review, the Department is 43 Because Ever Spring Furniture Company Ltd.; Order, Finding, or Suspended Investigation; treating this company as part of the PRC-wide S.Y.C. Family Enterprise Co., Ltd. lost its separate Opportunity to Request Administrative Review, 76 entity. rate on August 18, 2010 (see Llul Review Final FR 45773 (August 1, 2011) (August 2011 37 Because Ever Spring Furniture Company Ltd.; Results), and has not filed a separate rate ‘‘Opporunity Notice’’). S.Y.C. Family Enterprise Co., Ltd. lost its separate application to establish its eligibility for a separate 31 See Wooden Bedroom Furniture From the rate on August 18, 2010 (see 4th Review Final rate in this review, the Department is treating this People’s Republic of China: Partial Rescission of Results), and has not filed a separate rate company as part of the PRC-wide entity. Antidumping Duty Administrative Review, 75 FR application to establish its eligibility for a separate 44 Because Shanghai Aosen Furniture Co., Ltd. 54854 (September 9, 2010) at the section entitled rate in this review, the Department is treating this lost its separate rate on August 18, 2010 (see 4th ‘‘Rescission of the Fairmont Group.’’ company as part of the PRC-wide entity. Review Final Results), and has not filed a separate 32 See August 2011 Opportunity Notice, 76 FR at 38 Because Green River Wood (Dongguan) Ltd. rate application to establish its eligibility for a 45773. lost its separate rate on August 18, 2010 (see 4th separate rate in this review, the Department is

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• Shanghai Hospitality Product Mfg., requesting that it provide any should be assessed a single antidumping Co., Ltd. information that contradicted the no- duty rate. It is the Department’s policy • Shanghai Industries Group shipment claims, and obtained entry to assign all exporters of subject • Shanghai Kent Furniture Co., Ltd. documents from CBP.49 After examining merchandise in a NME country this • Shanghai Season Industry & record information, we have single rate unless an exporter can Commerce Co., Ltd. preliminarily determined that three of demonstrate that it is sufficiently • Shanghai Zhiyi (Jiashun) Furniture the seven companies, (1) Baigou Crafts independent so as to be entitled to a Co., Ltd. Factory of Fengkai, (2) Locke Furniture, separate rate. Exporters can demonstrate • Shanghai Zhiyi Furniture and and (3) Sunwin, had shipments of this independence through the absence Decoration Co., Ltd. subject merchandise that entered the of both de ’ire and de facto • Shaoxing Mengxing Furniture Co., United States during the POR.50 governmental control over export Ltd. Since record evidence does not activities. The Department analyzes • Starwood Furniture Manufacturing contradict the no-shipment claims of the each entity exporting the subject Co., Ltd. 45 following companies, the Department merchandise under a test arising from • Sundart International, Ltd. intends to rescind this administrative the Final Determination of Sales at Less • Techniwood (Macao Commercial review with respect to these companies, Than Fair Value: Sparklers From the Offshore) Limited pursuant to 19 CFR 351.213(d)(3): People’s Republic of China, 56 FR 20588 • • Tradewinds International Hangzhou Cadman Trading Co., (May 6, 1991) (‘‘Sparklers’’), as further Enterprise Ltd. Ltd. developed in Notice of Final • • Trendex Industries Ltd. Dongguan Huangsheng Furniture Determination of Sales at Less Than Fair • Wan Bao Chen Group Hong Kong Co., Ltd. Value: Silicon Carbide from the People’s 46 • Golden Well International (HK) Ltd. Co., Ltd. Republic of China, 59 FR 22585, 22586– • • Zhejiang Tianyi Scientific and World Design International Co., Ltd. 87 (May 2, 1994) (‘‘Silicon Carbide’’). • Xilinmen Furniture Co., Ltd. Educational Equipment Co., Ltd. • However, if the Department Xingli Arts & Crafts Factory of Non-Market Economy Country Status determines that a company is wholly Yangchun 47 • In every case conducted by the foreign-owned or located in a market Yuexing Group Co., Ltd. economy, then a separate rate analysis • Zhejiang Shaoxing Huaweimei Department involving the PRC, the PRC is not necessary to determine whether it Furniture Co., Ltd. has been treated as a non-market is independent from government • Zhong Shan Heng Fu Furniture Co. economy (‘‘NME’’) country. In control. See Notice of Final • Zhongshan Fengheng Furniture Co., accordance with section 771(18)(C)(i) of Determination of Sales at Less Than Fair Ltd. the Tariff Act of 1930, as amended (‘‘the Value: Creatine Monohydrate from the • Zhongshan Yiming Furniture Co., Act’’), any determination that a foreign People’s Republic of China, 64 FR Ltd. country is an NME country shall remain in effect until revoked by the 71104, 71105 (December 20, 1999) Intent To Rescind the 2010 administering authority. None of the (where the respondent was wholly Administrative Review, in Part parties to this proceeding have foreign-owned and thus qualified for a Among the companies still under contested NME treatment. Accordingly, separate rate). review, seven companies reported that the Department has continued to treat Separate Rate Recipients they made no shipments of subject the PRC as an NME country in this merchandise to the United States during review Of the 73 companies or company groupings that had submitted separate the POR.48 To test these claims, the Separate Rates Department ran a CBP data query, applications or certifications, all but one In proceedings involving NME issued a no-shipment inquiry to CBP request for review of these companies countries, the Department has a have been withdrawn. The Tube-Smith rebuttable presumption that all treating this company as part of the PRC-wide Group is the only company that has entity. companies within the country are submitted separate rate information for 45 Because Starwood Furniture Manufacturing subject to government control and thus which there still remains a request for Co., Ltd. lost its separate rate on August 18, 2010 review. The Tube-Smith Group reported (see Llth Review Final Results), and has not filed 49 See Memorandum to the File from Rebecca that it is wholly-owned by individuals a separate rate application to establish its eligibility Pandolph, International Trade Analyst, AD/CVD for a separate rate in this review, the Department Operations, Office 4 regarding, ‘‘Release of U.S. or companies located in a market is treating this company as part of the PRC-wide Customs and Border Protection Information economy. The record indicates that the entity. Relating to No Shipment Claims Made in the 2010 Tube-Smith Group is wholly foreign- 46 Because Wan Bao Chen Group Hong Kong Co., Administrative Review of Wooden Bedroom owned and the Department has no Ltd. lost its separate rate on August 18, 2010 (see Furniture from the People’s Republic of China,’’ 461Review Final Results), and has not filed a dated August 12, 201 land Memorandum to the File evidence indicating that it is under the 51 separate rate application to establish its eligibility from Rebecca Pandolph, International Trade control of the PRC governments for a separate rate in this review, the Department Analyst, AD/CVD Operations, Office 4 regarding, Accordingly, the Department has is treating this company as part of the PRC-wide ‘‘Second Release of U.S. Customs and Border preliminarily granted a separate rate to entity. Protection Information Relating to No Shipment 47 Because Xingli Arts & Crafts Factory of Claims Made in the 2010 Administrative Review of the Tube-Smith Group. Yangchun lost its separate rate on August 18, 2010 Wooden Bedroom Furniture from the People’s (see 4 Review Final Results), and has not filed a Republic of China,’’ dated August 26, 2011. 51 See letter from Billionworth Enterprises, Ltd. to separate rate application to establish its eligibility 50 See Memorandum to Abdelali Elouaradia, the Secretary of Commerce, regarding, ‘‘Wooden for a separate rate in this review, the Department Director, Office 4, AD/CVD Operations from Bedroom Furniture from the People’s Republic of is treating this company as part of the PRC-wide Rebecca Pandolph, International Trade Compliance China: Separate Rate Certification of Billionworth entity. Analyst, AD/CVD Operations, Office 4, regarding Enterprises, Ltd.,’’ dated May 2, 2011 and Letter 48 These companies are Baigou Crafts Factory of ‘‘Antidumping Duty Administrative Review of from Tube-Smith Enterprise (Zhangzhou) Co., Ltd. Fengkai; Locke Furniture; Sunwin; Hangzhou Wooden Bedroom Furniture from the People’s to the Secretary of Commerce, regarding ‘‘Wooden Cadman Trading Co., Ltd.; Dongguan Huangsheng Republic of China: Analysis of No Sales/Shipments Bedroom Furniture from the People’s Republic of Furniture Co., Ltd.; Golden Well International (HK) Claims Made by Certain Companies’’ dated China: Separate Rate Application for Tube-Smith Ltd.; Zhejiang Tianyi Scientific and Educational concurrently with this notice (‘‘No Shipments Enterprise (Zhangzhou) Co., Ltd.,’’ dated May 2, Equipment Co., Ltd. Memorandum’’). 2011.

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Margin for Separate Rate Recipient Not which the Tube-Smith Group was separate rate certification or Individually Examined assigned a rate. application 54 and thereby failed to provide separate rate information, they We note that the statute and the Companies Not Receiving a Separate have failed to demonstrate their Department’s regulations do not directly Rate eligibility for separate rate status. As a address the establishment of a rate to be The following 14 companies and result, the Department is treating these applied to individual companies not company groupings for which the three companies as part of the PRC-wide selected for examination where the Department initiated the instant review entity.55 Department limited its examination in did not provide a separate rate an administrative review pursuant to certification or application: Use of Facts Available and AFA section 777(A)(c)(2) of the Act. The • Dongguan Bon Ten Furniture Co., Section 776(a) of the Act provides that Department’s practice in this regard, in Ltd. the Department shall apply ‘‘facts cases involving limited selection based • Dongguan Grand Style Furniture otherwise available’’ if: (1) Necessary on exporters accounting for the largest Co. Ltd.; Hong Kong Da Zhi Furniture information is not on the record, or (2) volumes of trade, has been to weight- Co., Ltd. an interested party or any other person average the rates for the companies • Dongguan Hero Way Woodwork (A) withholds information that has been selected for examination excluding zero Co., Ltd.; Dongguan Da Zhong requested, (B) fails to provide and de minimis rates and rates based Woodwork Co., Ltd.; Hero Way information within the deadlines entirely on adverse facts available Enterprises Ltd.; Well Earth established, or in the form and manner (‘‘AFA’’). In the instant review, International Ltd. requested by the Department, subject to however, as discussed above, the • Dongguan Mu Si Furniture Co., Ltd. subsections (c)(1) and (e) of section 782 Department is rescinding the review of • Hainan Jong Bao Lumber Co., Ltd.; of the Act, (C) significantly impedes a the two entities selected as mandatory Jibbon Enterprise Co., Ltd. proceeding, or (D) provides information respondents and no other companies • Kuan Lin Furniture (Dong Guan) that cannot be verified as provided by were selected for individual Co., Ltd.; Kuan Lin Furniture Factory; section 782(i) of the Act. Where the examination. Thus, there were no Kuan Lin Furniture Co., Ltd. Department determines that a response • company-specific margins calculated in Kunshan Lee Wood Product Co., to a request for information does not this review. Additionally, as discussed Ltd. comply with the request, section 782(d) • below, the rate for the PRC-wide entity Leefu Wood (Dongguan) Co., Ltd.; of the Act provides that the Department is based on total AFA. King Rich International, Ltd. will so inform the party submitting the • While the statute does not specifically Meikangchi (Nantong) Furniture response and will, to the extent address this particular set of Company Ltd. • practicable, provide that party the circumstances, the Department has Nantong Dongfang Orient Furniture opportunity to remedy or explain the generally looked to section 735(c)(5) of Co., Ltd. • deficiency. If the party fails to remedy the Act for guidance when calculating Shanghai Fangjia Industry Co. Ltd. • the deficiency within the applicable the rate for respondents we did not Winny Overseas, Ltd.; Zhongshan time limits and subject to section 782(e) examine in an administrative review. Winny Furniture Ltd.; Winny Universal of the Act, the Department may Section 735(c)(5)(A) of the Act instructs Ltd. disregard all or part of the original and • Zhong Shan Fullwin Furniture Co., the Department not to calculate an all- subsequent responses, as appropriate. Ltd. others rate using any zero or de minimis • Section 782(e) of the Act provides that margins or any margins based entirely Zhongshan Gainwell Furniture Co. the Department ‘‘shall not decline to on facts available. Section 735(c)(5)(B) Ltd. consider information that is submitted The companies listed above, which of the Act also provides that, where all by an interested party and is necessary were named in the Initiation Notice, margins are zero, de minimis, or based to the determination but does not meet were notified in that notice that they entirely on facts available, we may use all applicable requirements established must timely submit separate rate ‘‘any reasonable method’’ for assigning by the administering authority’’ if the applications or separate rate the rate to non-selected respondents. information is timely, can be verified, is certifications in order to qualify for a Consistent with Department practice, not so incomplete that it cannot be used, we preliminarily find that a reasonable separate rate. Additionally, the Initiation Notice identified the Web site method for assigning the rate to non- 54 The due date for submitting separate rate selected respondents is to use the most address where the separate rate information was April 29, 2011. On September 2, certification and the separate rate 2011, approximately one month before the due date recent rate calculated for the non- for the preliminary results of the instant review, selected company in question, unless application could be found. Since each of the companies listed above did not Sunwin requested that the Department permit it to we calculated in a more recent review submit an ‘‘out of time separate rate certification a rate for any company that was not provide separate rate information, they * * * .’’ The Department has not granted Sunwin’s zero, de minimis or based entirely on have failed to demonstrate their request. 55 Sunwim claims it changed its name from facts available. Therefore, the eligibility for separate rate status. As a result, the Department is treating these Zhangjiang Sunwin Arts & Crafts Co., Ltd. to Department has preliminarily assigned a Guangdong Sunwin Green Furniture Industry rate of 41.75 percent to the Tube-Smith PRC exporters as part of the PRC-wide Group Co., Ltd. However, a timely separate rate Group. This rate is the most recently entity. application has not been filed in this review under Also, we have preliminarily found either name. Thus, entries of subject merchandise calculated rate that is not zero or de during the POR exported under either name would minimis and not based entirely on facts that (1) Baigou Crafts Factory of Fengkai, (2) Locke Furniture Factory, be subject to the PRC-wide rate. Since Zhangjiang available.52 Also, this rate is for a period Sunwin Arts & Crafts Co., Ltd. has lost its separate and (3) Sunwin, shipped subject that is more recent than the period for rate, there is no need to make a determination as merchandise during the POR, despite to whether Guangdong Sunwin Green Furniture their claims to the contrary.53 Because Industry Group Co., Ltd. is entitled to the separate 52 See Wooden Bedroom Furniture from the rate that had been assigned to Zhangjiang Sunwin People’s Republic of China: Final Results and Final these companies did not file a timely Arts & Crafts Co., Ltd. Therefore, the Department Rescission in Part, 76 FR 49729, 49733 (August 11, has not conducted a successor-in-interest analysis 2011) (‘‘5th Review Results’’). 53 See No Shipments Memorandum. with respect to Sunwin.

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and if the interested party acted to the ‘‘failure to cooperate to the best of a AFA, the Department has preliminarily best of its ability in providing the respondent’s ability’’ existed (i.e., assigned the PRC-wide entity a dumping information. Where all of these information was not provided ‘‘under margin of 216.01 percent. This margin, conditions are met, the statute requires circumstances in which it is reasonable which is from the 2004–2005 new the Department to use the information to conclude that less than full shipper review of wooden bedroom supplied if it can do so without undue cooperation has been shown’’). Hence, furniture from the PRC, is the highest difficulties. pursuant to section 776(b) of the Act, dumping margin on the record of any Section 776(b) of the Act further the Department has determined that, segment of this proceeding.60 provides that the Department may use when selecting from among the facts an adverse inference in applying the otherwise available, an adverse Corroboration of Secondary facts otherwise available when a party inference is warranted with respect to Information has failed to cooperate by not acting to the PRC-wide entity. Section 776(c) of the Act provides the best of its ability to comply with a that, when the Department relies on request for information. Such an adverse Selection of an AFA Rate for the PRC- secondary information rather than on inference may include reliance on Wide Entity information obtained in the course of an information derived from the petition, In deciding which facts to use as investigation or review, it shall, to the the final determination, a previous AFA, section 776(b) of the Act and 19 extent practicable, corroborate that administrative review, or other CFR 351.308(c)(1) provide that the information from independent sources information placed on the record. Department may rely on information that are reasonably at its disposal. Application of Total AFA to the PRC- derived from (1) the petition, (2) a final Secondary information is defined as Wide Entity determination in the investigation, (3) information derived from the petition any previous review or determination, that gave rise to the investigation or In the Initiation Notice, the or (4) any information placed on the Department stated that if one of the review, the final determination record. The Department’s practice is to concerning the subject merchandise, or companies for which this review has select an AFA rate that is sufficiently been initiated ‘‘does not qualify for a any previous review under section 751 adverse ‘‘as to effectuate the purpose of of the Act concerning the subject separate rate, all other exporters of the facts available rule to induce wooden bedroom furniture from the merchandise.61 Corroborate means that respondents to provide the Department the Department will satisfy itself that PRC that have not qualified for a with complete and accurate information separate rate are deemed to be covered the secondary information to be used in a timely manner’’ and that ensures has probative value.62 To corroborate by this review as part of a single PRC ‘‘that the party does not obtain a more 56 secondary information, the Department entity * * * .’’ As noted above, not all favorable result by failing to cooperate of the companies for which this review will, to the extent practicable, examine than if it had cooperated fully.’’ 57 was initiated have qualified for a the reliability and relevance of the Specifically, the Department’s practice separate rate; as a result, the PRC-wide information to be used.63 Independent in selecting a total AFA rate in entity is now under review. sources used to corroborate such Information on the record of this administrative reviews is to use the information may include, for example, investigation indicates that the PRC- highest rate on the record of the published price lists, official import wide entity was non-responsive. proceeding which, to the extent statistics and customs data, and Specifically, Shanghai Fangjia Industry practicable, can be corroborated information obtained from interested Co. Ltd., which we are treating as part (assuming the rate is based on secondary infonnation).58 of the PRC-wide entity, did not respond (affirming a 73.55 percent total AFA rate, the to the Department’s request for Q&V The Court of International Trade highest available dumping margin from a different data. We preliminarily determine that (‘‘CIT’’) and the CAFC have affirmed respondent in the investigation); Kompass Food Trading Int’l v. United States, 24 CIT 678, 683–84 the PRC-wide entity has withheld decisions to select the highest margin from any prior segment of the (2000) (affirming a 51.16 percent total AFA rate, the information requested by the highest available dumping margin from a different, proceeding as the AFA rate on fully cooperative respondent); and Shanghai Taoen Department. 59 Thus, pursuant to sections numerous occasions. Therefore, as Int’l Trading Co., Ltd. v. United States, 360 F. Supp. 776(a)(2)(A) (withholds requested 2d 1339, 1348 (Ct. Int’l Trade 2005) (affirming a 57 See Notice of Final Determination of Sales at 223.01 percent total AFA rate, the highest available information) and (C) (significantly Less Than Fair Value: Static Random Access dumping margin from a different respondent in a impedes a proceeding) of the Act, the Memory Semiconductors From Taiwan, 63 FR 8909, previous administrative review). Department has preliminarily based the 8911 (February 23, 1998); see also Brake Rotors 60 See Wooden Bedroom Furniture from the dumping margin of the PRC-wide entity From the People’s Republic of China: Final Results People’s Republic of China: Final Results of the and Partial Rescission of the Seventh 2004–2005 Semi-Annual New Shipper Reviews, 71 on the facts otherwise available on the Administrative Review; Final Results of the FR 70739, 70741 (December 6, 2006) (‘‘2004–2005 record. Furthermore, the PRC-wide Eleventh New Shipper Review, 70 FR 69937, 69939 New Shipper Review’’). entity’s refusal to provide the requested (November 18, 2005) and the Statement of 61 See SAA at 870. information constitutes circumstances Administrative Action accompanying the Uruguay 62 Id. under which it is reasonable to Round Agreements Act, H.R. Doc. 103, 316, 838, 63 See Tapered Roller Bearings and Parts Thereof, 870 (1994). Finished and Unfinished From Japan, and Tapered conclude that less than full cooperation 58 See Glycine from the People’s Republic of Roller Bearings Four Inches or Less in Outside has been shown. See Nippon Steel China: Preliminary Results of Antidumping Duty Diameter, and Components Thereof, From Japan: Corporation v. United States, 337 F.3d Administrative Review, 74 FR 15930, 15934 (April Preliminary Results of Antidumping Duty 1373, 1383 (Fed. Cir. 2003) (Nippon 8, 2009) (unchanged in the final results); see also, Administrative Reviews and Partial Termination of Fujian Lianfu Forestry Co., Ltd. v. United States, Administrative Reviews, 61 FR 57391, 57392 Steel) where the Court of Appeals for 638 F. Supp. 2d 1325, 1336 (Ct. Int’l Trade 2009) (November 6, 1996) (unchanged in the final results); the Federal Circuit (‘‘CAFC’’) explained (‘‘Commerce may, of course, begin its total AFA Tapered Roller Bearings and Parts Thereof, that the Department need not show selection process by defaulting to the highest rate Finished and Unfinished From Japan, and Tapered intentional conduct existed on the part in any segment of the proceeding, but that selection Roller Bearings Four Inches or Less in Outside must then be corroborated, to the extent Diameter, and Components Thereof, From Japan; of the respondent, but merely that a practicable.’’) Final Results of Antidumping Duty Administrative 59 See, e.g., NSK Ltd. v. United States, 346 F. Reviews and Termination in Part, 62 FR 11825 56 Initiation Notice, 76 FR at 10882 n.10. Supp. 2d 1312, 1335 (Ct. Int’l Trade 2004) (March 13, 1997).

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parties during the particular United States, 113 F.3d 1220, 1221 (Fed. Department. Since the 216.01 percent investigation.64 Cir. 1997) (ruling that the Department margin was within the range of The 216.01 AFA rate that the will not use a margin that has been transaction-specific margins on the Department is using in this review is a judicially invalidated). record of the two prior administrative company-specific rate calculated in the Because there are no mandatory reviews, the Department determined 2004–2005 New Shipper Review of the respondents in this review for which that the 216.01 percent margin 65 wooden bedroom furniture order. No individual margins are calculated, there continued to be relevant for use as an additional information has been are no transaction specific margins with AFA rate for the PRC-wide entity in presented in the current review which which to corroborate the 216.01 rate. those administrative reviews. As there calls into question the reliability of the Accordingly, the Department must look are no comments or evidence on the information. Thus, we have determined to secondary information to corroborate record to indicate that there have been this information continues to be this rate. reliable. In the two most recently completed significant changes in the industry since With respect to the relevance aspect administrative reviews in this the final results of the two most recently of corroboration, the Department will proceeding, the Department compared completed administrative reviews and consider information reasonably at its transaction-specific margins calculated there are no comments or evidence on disposal to determine whether a margin for the mandatory respondents with the the record of this review that question continues to have relevance. Where 216.01 percent rate calculated in the the relevancy of the 216.01 rate, the circumstances indicate that the selected 2004–2005 New Shipper Review and Department has determined that the margin is not appropriate as AFA, the found that the 216.01 percent margin 216.01 percent margin continues to be Department will disregard the margin was within the range of the margins relevant for use as an AFA rate for the and determine an appropriate margin. calculated for the mandatory PRC-wide entity. 66 See Fresh Cut Flowers from Mexico: respondents. Because the dumping As the adverse margin is both reliable Final Results of Antidumping Duty margins used to corroborate the AFA and relevant, the Department has Administrative Review, 61 FR 6812, rate in the two most recently completed determined that it has probative value. 6814 (February 22, 1996) (where the reviews did not reflect unusually high Accordingly, the Department has Department disregarded the highest dumping margins relative to the determined that this rate meets the margin in that case as adverse best calculated rates determined for the corroboration criterion established in information available (the predecessor cooperating respondents in those to facts available) because the margin reviews, the Department was satisfied section 776(c) of the Act. was based on another company’s that the dumping margins used for Preliminary Results of Review uncharacteristic business expense corroborative purposes reflected resulting in an unusually high margin). commercial reality because they were We preliminarily determine that the Similarly, the Department does not based upon real transactions that following weighted-average dumping apply a margin that has been occurred during the POR and were margins exist for the period January 1, discredited. See D&L Supply Co. v. subject to verification by the 2010 through December 31, 2010:

Antidumping Exporter duty margin (percent)

Tube-Smith Enterprises (ZhangZhou) Co., Ltd.; Tube-Smith Enterprises (Haimen) Co., Ltd.; and Billionworth Enterprises, Ltd .... 41.75 PRC-Wide Entity ...... 216.01

Comments confirm by telephone the date, time, and Department intends to instruct CBP to location of the hearing two days before liquidate POR entries containing subject Interested parties may submit written the scheduled date. merchandise exported by the Tube- comments no later than 30 days after the The Department will issue the final Smith group and the PRC-wide entity at date of publication of these preliminary results of the administrative review, the rates assigned to these entities in the results of review. See 19 CFR which will include the results of its final results of this review. The 351.309(c)(1)(ii). Rebuttal comments analysis of issues raised in the briefs, Department intends to issue these must be limited to the issues raised in within 120 days of publication of these assessment instructions, as well as the written comments and may be filed preliminary results, in accordance with instructions for the companies for no later than 5 days after the time limit 19 CFR 351.213(h)(1) unless the time which the Department intends to for filing case briefs see 19 CFR limit is extended. rescind this review, directly to CBP 351.309(d). Any interested party may 15 days after publication of the final request a hearing within 30 days of Assessment results of this review. publication of these preliminary results. Pursuant to 19 CFR 351.212, the For the companies for which the See 19 CFR 351.310(c). Any hearing, if Department will determine, and CBP Department has rescinded this review requested, ordinarily will be held two shall assess, antidumping duties on all (see the companies listed under ‘‘Partial days after the scheduled date for appropriate entries of subject Final Rescission of Review’’ above) submission of rebuttal briefs. See merchandise in accordance with the which had a separate rate granted in a 19 CFR 351.310(d). Parties should final results of this review. The previously completed segment of this

64 See Notice of Preliminary Determination of Determination of Sales at Less Than Fair Value: 66 See Wooden Bedroom Furniture from the Sales at Less Than Fair Value: High and Ultra-High Live Swine From Canada, 70 FR 12181, 12183–84 People’s Republic of China: Final Results and Final Voltage Ceramic Station Post Insulators from Japan, (March 11, 2005). Rescission in Part, 75 FR 50992 (August 18, 2010) 68 FR 35627, 35629 (June 16, 2003), unchanged in 65 See 2004–2005 New Shipper Review, 71 FR at (‘‘4th Review Final Results’’) and 5th Review final determination, 68 FR 62560; Notice of Final 70741. Results.

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proceeding that was in effect during the • DongGuan Sundart Timber • Nanjing Jardine Enterprise, Ltd. instant review period, the Department Products Co., Ltd • Nanjing Nanmu Furniture Co., intends to issue appropriate assessment • Ever Spring Furniture Company Ltd.76 instructions directly to CBP 15 days Ltd.71 • Nantong Wangzhuang Furniture after the publication of this preliminary • Evershine Enterprise Co. Co., Ltd. notice in the Federal Register. For these • Fleetwood Fine Furniture LP • Ningbo Fubang Furniture Industries companies, antidumping duties shall be • Fujian Putian Jinggong Furniture Limited assessed on POR entries subject to the Co., Ltd. • Ningbo Furniture Industries separate rates at rates equal to the cash • Gainwell Industries Limited Company Ltd. deposit of estimated antidumping duties • Green River Wood (Dongguan) • Ningbo Techniwood Furniture required at the time of entry, or Ltd.72 Industries Limited withdrawal from warehouse, for • Guangdong Gainwell Industrial • Northeast Lumber Co., Ltd. consumption, in accordance with 19 Furniture Co., Ltd. • Passwell Wood Corporation • 77 CFR 351.212(c)(1)(i). • Hong Kong Jingbi Group S.Y.C. Family Enterprise Co., Ltd. • For the companies for which the • Huasen Furniture Co., Ltd. Senyuan Furniture Group • Department intends to rescind the • Jiant Furniture Co., Ltd. Shanghai Aosen Furniture Co., individual review of the company in the • Ltd.78 King Kei Trading Company • final results, but which are part of the Limited 73 Shanghai Hospitality Product Mfg., PRC-wide entity during the instant • King’s Way Furniture Industries Co., Ltd. 74 • Shanghai Industries Group review period (i.e., have not established Co., Ltd. • • 75 Shanghai Kent Furniture Co., Ltd. their eligibility for a separate rate), the Kingsyear Ltd. • Department will issue assessment • Longkou Huangshan Furniture Shanghai Season Industry & Commerce Co., Ltd. instructions 15 days after publication of Factory • the final results of this review. These • MoonArt Furniture Group Shanghai Zhiyi (Jiashun) Furniture • Co., Ltd. companies are as follows: MoonArt International Inc. • • Brother Furniture Manufacture Co., Shanghai Zhiyi Furniture and 67 Decoration Co., Ltd. Ltd. are subject to the PRC-wide rate. Assessment • • C.F. Kent Co., Inc. instructions for 2010 entries will not be issued until Shaoxing Mengxing Furniture Co., • C.F. Kent Hospitality, Inc. completion of the instant review. Ltd. 71 • • Champion Sun Industries Limited Ever Spring Furniture Company Ltd.; S.Y.C. Starwood Furniture Manufacturing • Family Enterprise Co., Ltd. lost its separate rate on Co., Ltd.79 Contact Co., Ltd. August 18, 2010 (see 4th Review Final Results). The • Denny’s Furniture Associates Corp. • Sundart International, Ltd. separate rate applies only to entries from January • • Denny’s International Co., Ltd. 1, 2010 through August 17, 2010. All other entries Techniwood (Macao Commercial • Der Cheng Furniture Co., Ltd. of subject merchandise from Ever Spring Furniture Offshore) Limited • Der Cheng Wooden Works Company Ltd.; S.Y.C. Family Enterprise Co., Ltd. • Tradewinds International • Dong Guan Golden Fortune during 2010 are subject to the PRC-wide rate. Enterprise Ltd. Assessment instructions for 2010 entries to which • Houseware Co., Ltd.68 the PRC-wide rate applies will not be issued until Trendex Industries Ltd. • Dongguan Chunsan Wood Products completion of the instant review. Co., Ltd.69 72 Green River Wood (Dongguan) Ltd. lost its 76 Nanjing Nanmu Furniture Co., Ltd. lost its • Dongguan Hua Ban Furniture Co., separate rate on August 18, 2010 (see 4th Review separate rate on August 18, 2010 (see 4th Review 70 Final Results). The separate rate applies only to Final Results). The separate rate applies only to Ltd. entries from January 1, 2010 through August 17, entries from January 1, 2010 through August 17, 2010. All other entries of subject merchandise from 2010. All other entries of subject merchandise from 67 Brother Furniture Manufacture Co., Ltd. lost its Green River Wood (Dongguan) Ltd. during 2010 are Nanjing Nanmu Furniture Co., Ltd. during 2010 are separate rate on August 18, 2010 (see 4th Review subject to the PRC-wide rate. Assessment subject to the PRC-wide rate. Assessment Final Results). This rate applies only to entries from instructions for 2010 entries will not be issued until instructions for 2010 entries will not be issued until January 1, 2010 through August 17, 2010. All other completion of the instant review. completion of the instant review. entries of subject merchandise from Brother 73 King Kei Trading Company Limited lost its 77 Ever Spring Furniture Company Ltd.; S.Y.C. Furniture Manufacture Co., Ltd. during 2010 are separate rate on August 18, 2010 (see 4th Review Family Enterprise Co., Ltd. lost its separate rate on subject to the PRC-wide rate. Assessment Final Results). The separate rate applies only to August 18, 2010 (see 4th Review Final Results). The instructions for 2010 entries will not be issued until entries from January 1, 2010 through August 17, separate rate applies only to entries from January completion of the instant review. 2010. All other entries of subject merchandise from 1, 2010 through August 17, 2010. All other entries 68 Dong Guan Golden Fortune Houseware Co., King Kei Trading Company Limited during 2010 are of subject merchandise from Ever Spring Furniture Ltd. lost its separate rate on August 18, 2010 (see subject to the PRC-wide rate. Assessment Company Ltd.; S.Y.C. Family Enterprise Co., Ltd. 4th Review Final Results). This rate applies only to instructions for 2010 entries will not be issued until during 2010 are subject to the PRC-wide rate. entries from January 1, 2010 through August 17, completion of the instant review. Assessment instructions for 2010 entries to which 2010. All other entries of subject merchandise from 74 King’s Way Furniture Industries Co., Ltd.; the PRCwide rate applies will not be issued until Dong Guan Golden Fortune Houseware Co., Ltd. Kingsyear Ltd. lost its separate rate on August 18, completion of the instant review. during 2010 are subject to the PRC-wide rate. 2010 (see 4th Review Final Results). The separate 78 Shanghai Aosen Furniture Co., Ltd. lost its Assessment instructions for 2010 entries will not be rate applies only to entries from January 1, 2010 separate rate on August 18, 2010 (see 4th Review issued until completion of the instant review. through August 17, 2010. All other entries of Final Results). The separate rate applies only to 69 Dongguan Chunsan Wood Products Co., Ltd. subject merchandise from King’s Way Furniture entries from January 1, 2010 through August 17, lost its separate rate on August 18, 2010 (see 4th Industries Co., Ltd.; Kingsyear Ltd. during 2010 are 2010. All other entries of subject merchandise from Review Final Results). The separate rate applies subject to the PRC-wide rate. Assessment Shanghai Aosen Furniture Co., Ltd. during 2010 are only to entries from January 1, 2010 through August instructions for 2010 entries will not be issued until subject to the PRC-wide rate. Assessment 17, 2010. All other entries of subject merchandise completion of the instant review. instructions for 2010 entries will not be issued until from Dongguan Chunsan Wood Products Co., Ltd. 75 King’s Way Furniture Industries Co., Ltd.; completion of the instant review. during 2010 are subject to the PRC-wide rate. Kingsyear Ltd. lost its separate rate on August 18, 79 Starwood Furniture Manufacturing Co., Ltd. Assessment instructions for 2010 entries will not be 2010 (see 4th Review Final Results). The separate lost its separate rate on August 18, 2010 (see 4th issued until completion of the instant review. rate applies only to entries from January 1, 2010 Review Final Results). The separate rate applies 70 Dongguan Hua Ban Furniture Co., Ltd. lost its through August 17, 2010. All other entries of only to entries from January 1, 2010 through August separate rate on August 18, 2010 (see 4th Review subject merchandise from King’s Way Furniture 17, 2010. All other entries of subject merchandise Final Results). The separate rate applies only to Industries Co., Ltd.; Kingsyear Ltd. during 2010 are from Starwood Furniture Manufacturing Co., Ltd. entries from January 1, 2010 through August 17, subject to the PRC-wide rate. Assessment during 2010 are subject to the PRC-wide rate. 2010. All other entries of subject merchandise from instructions for 2010 entries will not be issued until Assessment instructions for 2010 entries will not be Dongguan Hua Ban Furniture Co., Ltd. during 2010 completion of the instant review. issued until completion of the instant review.

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• Wan Bao Chen Group Hong Kong of antidumping duties prior to merchandise produced in NME Co., Ltd.80 liquidation of the relevant entries countries, importers will sometimes • World Design International Co., Ltd. during this review period. Failure to declare in their entry documentation a • Xilinmen Furniture Co., Ltd. comply with this requirement could cash deposit rate that is associated with • Xingli Arts & Crafts Factory of result in the Secretary’s presumption a company which has a company- Yangchun 81 that reimbursement of antidumping specific rate, as opposed to the NME- • Yuexing Group Co., Ltd. duties occurred and the subsequent wide rate, but the sales underlying the • Zhejiang Shaoxing Huaweimei assessment of double antidumping particular entry are not reported to or Furniture Co., Ltd. duties. reviewed by the Department in the • Zhong Shan Heng Fu Furniture Co. The Department is issuing and course of the administrative review • Zhongshan Fengheng Furniture Co., publishing these preliminary results of covering that company. As a result, Ltd. administrative review in accordance there may be suspended entries to • Zhongshan Yiming Furniture Co., with section 777(i)(1) of the Act, and which the Department’s final review Ltd. 19 CFR 351.221(b)(4). results do not apply. Previously, in such Cash Deposit Requirements Dated: October 3, 2011. situations, it was the Department’s practice to instruct CBP to assess AD Ronald K. Lorentzen, The following cash deposit duties at the cash deposit rate in effect requirements will be effective upon Deputy Assistant Secretary for Import at the time of entry for such entries of Administration. publication of the final results of this merchandise. review for shipments of subject [FR Doc. 2011–27280 Filed 10–21–11; 8:45 am] In response to the Proposed Policy, merchandise from the PRC entered, or BILLING CODE 3510–DS–M the Department received comments withdrawn from warehouse, for from thirteen parties. After careful consumption on or after the publication consideration of these comments, the date, as provided by sections 751(a)(1) DEPARTMENT OF COMMERCE Department has determined to and (a)(2)(C) of the Act: (1) For all International Trade Administration implement the proposed refinement in respondents receiving a separate rate, practice. The Department will instruct the cash deposit rate will be that rate Non-Market Economy Antidumping CBP to apply the NME-wide rate to established in the final results of this Proceedings: Assessment of entries suspended at a reviewed review; (2) for previously investigated or Antidumping Duties exporter’s rate, but which are not reviewed PRC and non-PRC exporters reported to or reviewed by the not listed above that have separate rates, AGENCY: Import Administration, Department during the administrative the cash deposit rate will continue to be International Trade Administration, review process. For further detail on the exporter-specific rate published for Department of Commerce. what entries this policy affects, see the the most recent period; (3) for all PRC ACTION: Notice of Policy Concerning ‘‘Applicability’’ section below. Assessment of Antidumping Duties. exporters of subject merchandise that Final Refinement in Practice have not been found to be entitled to a SUMMARY: After consideration of public separate rate, the cash deposit rate will In AD proceedings, the Department comments, the Department of be the PRC-wide rate established in the establishes a cash deposit rate for each Commerce (‘‘the Department’’) is hereby final results of this review; and (4) for company subject to the investigation or adopting a refinement in its practice all non-PRC exporters of subject review. In NME cases, if an exporter with respect to the rate at which it merchandise which have not received does not receive a separate rate, the instructs U.S. Customs and Border their own rate, the cash deposit rate will NME-wide rate applies as the cash Protection (‘‘CBP’’) to liquidate certain be the rate applicable to the PRC deposit rate at the time of entry to non-reviewed entries. Specifically, the exporters that supplied the non-PRC entries of merchandise it exports. Department is refining its practice to exporter. These deposit requirements, Previously, for merchandise entered at instruct CBP to liquidate such entries at when imposed, shall remain in effect the separate rate applicable to a the non-market economy (‘‘NME’’)-wide until further notice. reviewed exporter, but which were not rate. reported to the Department in the Notification to Importers FOR FURTHER INFORMATION CONTACT: Julia review and thus not covered by the final This notice also serves as a reminder Hancock, Special Assistant, China/NME results of the review, the Department to importers of their responsibility Unit, Office of Antidumping and instructed CBP to liquidate such entries under 19 CFR 351.402(f) to file a Countervailing Operations, Import at the cash deposit rate in effect at the certificate regarding the reimbursement Administration, U.S. Department of time of entry. Commerce, at 202–482–1394. With the publication of this notice, 80 Wan Bao Chen Group Hong Kong Co., Ltd. lost SUPPLEMENTARY INFORMATION: the Department implements a policy its separate rate on August 18, 2010 (see 4th Review refinement regarding the rate at which Final Results). The separate rate applies only to Background it will instruct CBP to liquidate such entries from January 1, 2010 through August 17, On June 10, 2011, the Department non-reviewed entries. For entries that 2010. All other entries of subject merchandise from Wan Bao Chen Group Hong Kong Co., Ltd. during proposed a refinement to its practice are not reported in the reviewed 2010 are subject to the PRC-wide rate. Assessment regarding the rate at which it instructs company’s U.S. sales databases instructions for 2010 entries will not be issued until CBP to liquidate certain entries from submitted to the Department during an completion of the instant review. non-reviewed exporters. See Non- administrative review, or otherwise 81 Xingli Arts & Crafts Factory of Yangchun lost its separate rate on August 18, 2010 (see 4th Review Market Economy Antidumping determined not covered by the review Final Results). The separate rate applies only to Proceedings: Assessment of (i.e., the reviewed exporter claims no entries from January 1, 2010 through August 17, Antidumping Duties, 76 FR 34046 (June shipments), the Department will 2010. All other entries of subject merchandise from 10, 2011) (‘‘Proposed Policy’’). As instruct CBP to liquidate such entries at Xingli Arts & Crafts Factory of Yangchun during 2010 are subject to the PRC-wide rate. Assessment explained in the Proposed Policy, in the NME-wide rate as opposed to the instructions for 2010 entries will not be issued until administrative reviews of antidumping company-specific rate declared by the completion of the instant review. duty (‘‘AD’’) orders covering importer at the time of entry.

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This practice in NME proceedings Within the framework of an SUMMARY: The Department of Commerce will be consistent with the application administrative review, the Department (‘‘Department’’) is extending the time of the same liquidation practice in is able to examine additional limit for the final results of the first new market economy (‘‘ME’’) proceedings. documentation to decide which entity shipper review of uncovered The goal of this practice in ME was the exporter for purposes of making innerspring units (‘‘innersprings’’) from proceedings, the accurate assignment of NME AD determinations. the People’s Republic of China (‘‘PRC’’). duties based on information obtained in Because the importer is the party most The review covers the period of review a review, is not unique to ME likely to have the best information and (‘‘POR’’) of February 1, 2010, through proceedings but is necessary in all appropriate documentation regarding July 31, 2010. antidumping proceedings. See the transactions relevant to the entries, DATES: Effective Date: October 24, 2011. Antidumping and Countervailing Duty the Department considers it to be the Proceedings: Assessment of importer’s responsibility to ensure that FOR FURTHER INFORMATION CONTACT: Paul Antidumping Duties, 68 FR 23954 (May the documentation of the sales Walker, AD/CVD Operations, Office 9, 6, 2003). Interested parties have the transaction supports the cash deposit Import Administration, International right to request an administrative review rate the importer claims for its entries. Trade Administration, U.S. Department of their entries, or to participate in an In order to facilitate the proper of Commerce, 14th Street and administrative review, to ensure that the identification of the exporter, the Constitution Avenue, NW., Washington, entries are liquidated at the rate the Department will coordinate with CBP to DC 20230; telephone: (202) 482–0413. provide guidance to importers. interested party believes is proper. See Background 19 CFR 351.103, et seq. Likewise, as explained above, any interested party can file a notice of On August 4, 2011, the Department Applicability appearance with the Department to published in the Federal Register the The Department intends to apply the ensure that its entries are liquidated in Preliminary Results of the new shipper policy to all non-reviewed entries from accordance with its expectations. review of innersprings from the PRC.1 exporters which are selected for Implementation The respondent in this new shipper individual examination, whether or not review is Foshan Nanhai Jiujiang Quan the Department is aware of the As stated in the Proposed Policy, the Li Spring Hardware Factory (‘‘Quan involvement of a third party. Department intends to apply this policy Li’’). The final results are currently due Additionally, if the Department to all entries for which the anniversary no later than October 24, 2011. determines that an exporter under month for requesting an administrative review had no shipments of the subject review is the month after the date of Statutory Time Limits merchandise, any suspended entries publication of this final notice. See Section 751(a)(2)(B)(iv) of the Tariff that entered under that exporter’s case Proposed Policy. This implementation is Act of 1930, as amended (the ‘‘Act’’), number (i.e., at that exporter’s rate) will consistent with our ME Reseller Practice and section 351.214(i)(1) of the be liquidated at the NME-wide rate. See and with the Federal Circuit’s opinion Department’s regulations, require the Magnesium Metal from the Russian in Parkdale Int’l v. United States, 475 Department to issue the final results in Federation: Final Results of F.3d 1375, 1378–79 (CAFC 2007) (‘‘the a new shipper review 90 days after the Antidumping Duty Administrative primary effect of the policy is date on which the preliminary results review, 75 FR 56989 (September 17, prospective, i.e., it applies to are issued. The Department may, 2010). This refinement will not apply to liquidations post-dating its adoption, however, extend the deadline for entries suspended at the cash deposit [accordingly] we conclude that its effect completion of the final results of a new cannot properly be considered rate for exporters for which a review is shipper review to 150 days if it impermissibly retroactive’’). Therefore, not initiated. Nor does this refinement determines that the case is this policy refinement will apply to all apply to entries suspended at the rate of extraordinarily complicated.2 exporters under review but which are relevant entries, regardless of when not selected for individual examination entered, for which the anniversary Extension of Time Limit for Final (i.e., the separate rate companies), month for requesting a review of the Results of Review except where the Department has order is November, 2011 or later. We determine that this case is determined that the exporter had no Dated: October 17, 2011. extraordinarily complicated because the shipments covered by the review. Ronald K. Lorentzen, Department requires additional time to Definition of Exporter Deputy Assistant Secretary for Import analyze interested parties’ case and Administration. In response to the Proposed Policy, rebuttal briefs concerning the bona fide certain parties argued that the [FR Doc. 2011–27459 Filed 10–21–11; 8:45 am] nature of the sale under review. Department should clarify the term BILLING CODE 3510–DS–P Therefore, in accordance with section ‘‘exporter’’ for this refinement in 751(a)(2)(B)(iv) of the Act, and section 351.214(i)(2) of the Department’s practice to provide notice to the DEPARTMENT OF COMMERCE importers regarding which entity the regulations, we are extending the time for the completion of the final results of importer should consider to be the International Trade Administration exporter in a multi-leg transaction for this review until November 22, 2011. the purpose of claiming the correct cash [A–570–928] We are issuing and publishing this deposit rate and having the entry notice in accordance with sections Uncovered Innerspring Units From the 751(a)(2)(B) and 777(i)(1) of the Act. liquidated in accordance with that People’s Republic of China: Extension expectation. Because of the variances in of Final Results of Antidumping Duty 1 See Uncovered Innerspring Units From the commercial practice, it is the New Shipper Review Department’s established practice to People’s Republic of China: Preliminary Intent To Rescind New Shipper Review, 76 FR 47151 (August evaluate an export transaction on a case- AGENCY: Import Administration, 4, 2011) (‘‘Preliminary Results’’). by-case basis within the context of an International Trade Administration, 2 See section 751(a)(2)(B)(iv) of the Act and 19 administrative review or investigation. Department of Commerce. CFR 351.214(i)(2).

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Dated: October 11, 2011. DEPARTMENT OF COMMERCE business community in the United Christian Marsh, States and Brazil. Each government Deputy Assistant Secretary for Antidumping International Trade Administration appoints the members to its respective and Countervailing Duty Operations. Section. The Committee provides Request for Applicants for the [FR Doc. 2011–27449 Filed 10–21–11; 8:45 am] recommendations to the two Appointment to the United States- BILLING CODE 3510–DS–P governments that reflect private sector Brazil CEO Forum views, needs and concerns regarding the AGENCY: International Trade creation of an economic environment in DEPARTMENT OF COMMERCE Administration, Department of which their respective private sectors Commerce. can partner, thrive and enhance bilateral International Trade Administration ACTION: Notice. commercial ties to expand trade between the United States and Brazil. Battelle Energy Alliance, et al.; Notice SUMMARY: In March 2007, the of Consolidated Decision on Candidates are currently sought to fill Governments of the United States and up to three current vacancies on the Applications for Duty-Free Entry of Brazil established the U.S.-Brazil CEO Electron Microscope U.S. Section of the Forum. Each Forum. This notice announces candidate must be the Chief Executive This is a decision consolidated membership opportunities for up to Officer or President (or have a pursuant to Section 6(c) of the three individuals for appointment as comparable level of responsibility) of a Educational, Scientific, and Cultural American representatives to the current U.S.-owned or -controlled company that Materials Importation Act of 1966 (Pub. U.S. Section of the Forum. The current is incorporated in and has its main L. 89–651, as amended by Pub. L. 106– U.S. Section term will expire on August headquarters in the United States and 36; 80 Stat. 897; 15 CFR part 301). 12, 2013. that is currently doing business in both Related records can be viewed between DATES: Applications should be received Brazil and the United States. Each 8:30 a.m. and 5 p.m. in Room 3720, U.S. no later than November 4, 2011. candidate also must be a U.S. citizen or Department of Commerce, 14th and ADDRESSES: Please send requests for otherwise legally authorized to work in Constitution Avenue, NW., Washington, consideration to Lorrie Fussell, Office of the United States and able to travel to DC. South America, U.S. Department of Brazil and locations in the United States Docket Number: 11–056. Applicant: Commerce, either by e-mail at to attend official Forum meetings as Battelle Energy Alliance, Idaho Falls, ID [email protected] or by mail to well as independent U.S. Section and 83415. Instrument: Electron Microscope. U.S. Department of Commerce, 1401 Committee meetings. In addition, the Manufacturer: FEI Company, the Constitution Avenue, NW., Room 3203, candidate may not be a registered Netherlands. Intended Use: See notice at Washington, DC 20230. foreign agent under the Foreign Agents 76 FR 56156, September 12, 2011. FOR FURTHER INFORMATION CONTACT: Registration Act of 1938, as amended. Docket Number: 11–057. Applicant: Lorrie Fussell, Office of South America, Applicants may not be federally- Battelle Energy Alliance, Idaho Falls, ID U.S. Department of Commerce, registered lobbyists, and, if appointed, 83415. Instrument: Electron Microscope. telephone: (202) 482–4157. will not be allowed to continue to serve Manufacturer: FEI Company, Czech SUPPLEMENTARY INFORMATION: The as members of the U.S. Section of the Republic. Intended Use: See notice at Secretary of Commerce and the Deputy Committee if the member becomes a 76 FR 56156, September 12, 2011. Assistant to the President and Deputy federally-registered lobbyist. Docket Number: 11–058. Applicant: National Security Advisor for Evaluation of applications for University of Texas at Austin, Austin, International Economic Affairs, together membership in the U.S. Section by TX 78712. Instrument: Electron with the Planalto Casa Civil Minister eligible individuals will be based on the Microscope. Manufacturer: FEI (Presidential Chief of Staff) and the following criteria: Company, the Netherlands. Intended Brazilian Minister of Development, Use: See notice at 76 FR 56156, —A demonstrated commitment by the Industry and Foreign Trade, co-chair the individual’s company to the Brazilian September 12, 2011. U.S.-Brazil CEO Forum, pursuant to the Comments: None received. Decision: market either through exports or Terms of Reference signed in March Approved. No instrument of equivalent investment. 2007 by the U.S. and Brazilian scientific value to the foreign —A demonstrated strong interest in governments, which set forth the instrument, for such purposes as these Brazil and its economic development. objectives and structure of the Forum. instruments are intended to be used, The Terms of Reference may be viewed —The ability to offer a broad was being manufactured in the United at: http://trade.gov/press/press_releases/ perspective and business experience States at the time the instruments were 2007/brazilceo_02.asp. The Forum, to the discussions. ordered. Reasons: Each foreign consisting of both private and public —The ability to address cross-cutting instrument is an electron microscope sector members, brings together leaders issues that affect the entire business and is intended for research or scientific of the respective business communities community. educational uses requiring an electron of the United States and Brazil to —The ability to initiate and be microscope. We know of no electron discuss issues of mutual interest, responsible for activities in which the microscope, or any other instrument particularly ways to strengthen the Forum will be active. suited to these purposes, which was economic and commercial ties between Members will be selected on the basis being manufactured in the United States the two countries. The Forum consists of who will best carry out the objectives at the time of order of each instrument. of the U.S. and Brazilian co-chairs and of the Forum as stated in the Terms of Dated: October 18, 2011. a Committee comprised of private sector Reference establishing the U.S.-Brazil Gregory W. Campbell, members. The Committee will be CEO Forum. The U.S. Section of the Director, Subsidies Enforcement Office, composed of two Sections, each Forum should also include members Import Administration. consisting of ten to twelve members that represent a diversity of business [FR Doc. 2011–27456 Filed 10–21–11; 8:45 am] from the private sector, representing the sectors and geographic locations. To the BILLING CODE 3510–DS–P views and interests of the private sector extent possible, U.S. Section members

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also should represent a cross-section of research on nine cetacean species off the porpoise (Phocoena phocoena). The small, medium, and large firms. California coast. study would also examine impacts of U.S. members will receive no DATES: Written, telefaxed, or e-mail persistent organic pollutants (POPs) in compensation for their participation in comments must be received on or before coastal bottlenose dolphins along the Forum-related activities. Individual November 23, 2011. California coast. Research would occur members will be responsible for all ADDRESSES: The application and related primarily in the waters of the Southern travel and related expenses associated documents are available for review by California Bight (San Diego area), with their participation in the Forum, selecting ‘‘Records Open for Public Monterey Bay, and San Francisco Bay including attendance at Committee and Comment’’ from the Features box on the areas. For each stock, up to 2,400 Section meetings. Only appointed Applications and Permits for Protected individuals may be approached members may participate in official Species (APPS) home page, https:// annually for photo-identification and Forum meetings; substitutes and apps.nmfs.noaa.gov, and then selecting behavioral studies and up to 60 alternates will not be designated. U.S. File No. 16685 from the list of available individuals may be biopsy sampled over members will normally serve for two applications. the life of the permit. The permit would year terms, but may be reappointed. These documents are also available be valid for a period of five years. To be considered for membership, upon written request or by appointment In compliance with the National please submit the following information in the following offices: Environmental Policy Act of 1969 as instructed in the ADDRESSES and Permits and Conservation Division, (42 U.S.C. 4321 et seq.), an initial DATES captions above: Name(s) and Office of Protected Resources, NMFS, determination has been made that the title(s) of the individual(s) requesting 1315 East-West Highway, Room 13705, activity proposed is categorically consideration; name and address of Silver Spring, MD 20910; phone (301) excluded from the requirement to company’s headquarters; location for 427–8401; fax (301) 713–0376; and prepare an environmental assessment or incorporation; size of the company; size Southwest Region, NMFS, 501 West environmental impact statement. of company’s export trade, investment, Ocean Blvd., Suite 4200, Long Beach, Concurrent with the publication of and nature of operations or interest in CA 90802–4213; phone (562) 980–4001; this notice in the Federal Register, Brazil; an affirmative statement that the fax (562) 980–4018. NMFS is forwarding copies of the applicant is not a federally-registered Written comments on this application application to the Marine Mammal lobbyist, and that the applicant should be submitted to the Chief, Commission and its Committee of understands that if appointed, the Permits, Conservation and Education Scientific Advisors. applicant will not be allowed to Division, at the address listed above. Dated: October 19, 2011. continue to serve as a member of the Comments may also be submitted by P. Michael Payne, U.S. Section of the Forum if the facsimile to (301) 713–0376, or by e- Chief, Permits and Conservation Division, applicant becomes a federally registered mail to [email protected]. Office of Protected Resources, National lobbyist; and a brief statement of why Please include the File No. in the Marine Fisheries Service. the candidate should be considered, subject line of the e-mail comment. [FR Doc. 2011–27472 Filed 10–21–11; 8:45 am] including information about the Those individuals requesting a public BILLING CODE 3510–22–P candidate’s ability to initiate and be hearing should submit a written request responsible for activities in which the to the Chief, Permits, Conservation and Forum will be active. Applications will Education Division at the address listed DEPARTMENT OF COMMERCE be considered as they are received. All above. The request should set forth the candidates will be notified of whether specific reasons why a hearing on this National Oceanic and Atmospheric they have been selected. application would be appropriate. Administration FOR FURTHER INFORMATION CONTACT: Dated: October 14, 2011. RIN 0648–XA765 Anne Driscoll, Laura Morse or Carrie Hubard, (301) Director for the Office of South America. 427–8401. Fisheries of the Northeastern United SUPPLEMENTARY INFORMATION [FR Doc. 2011–27115 Filed 10–21–11; 8:45 am] : The States; Atlantic Surfclam and Ocean subject permit is requested under the BILLING CODE 3510–DS–M Quahog Fisheries; 2012 Cage Tags authority of the Marine Mammal Protection Act of 1972, as amended AGENCY: National Marine Fisheries DEPARTMENT OF COMMERCE (MMPA; 16 U.S.C. 1361 et seq.), and the Service (NMFS), National Oceanic and regulations governing the taking and Atmospheric Administration (NOAA), National Oceanic and Atmospheric importing of marine mammals (50 CFR Commerce. Administration part 216). ACTION: Notice of vendor to provide The proposed permit would authorize fishing year 2012 cage tags. RIN 0648–XA772 research on the population biology and SUMMARY: NMFS informs surfclam and Marine Mammals; File No. 16685 the impacts of Navy training operations on California stocks of nine cetacean ocean quahog individual transferable AGENCY: National Marine Fisheries species including bottlenose (Tursiops quota (ITQ) allocation holders that they Service (NMFS), National Oceanic and truncatus), Risso’s (Grampus griseus), will be required to purchase their Atmospheric Administration (NOAA), short-beaked common (Delphinus fishing year 2012 (January 1, 2012– Commerce. delphis), long-beaked common (D. December 31, 2012) cage tags from the National Band and Tag Company. The ACTION: Notice; receipt of application. capensis), Pacific white-sided (Lagenorhynchus obliquidens), and intent of this notice is to comply with SUMMARY: Notice is hereby given that northern right whale dolphins regulations for the Atlantic surfclam and Thomas A. Jefferson, PhD, Clymene (Lissodelphis borealis); killer whale ocean quahog fisheries and to promote Enterprises, 5495 Camino Playa Malaga, (Orcinus orca, excluding Southern efficient distribution of cage tags. San Diego, CA 92124, has applied in resident stock); Dall’s porpoise ADDRESSES: Written inquiries may be due form for a permit to conduct (Phocoenoides dalli) and harbor sent to: Regional Administrator,

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National Marine Fisheries Service, required information and warrants NMFS Northeast Region Web site: Northeast Regional Office, 55 Great further consideration. http://www.nero.noaa.gov/sfd/clams. Republic Drive, Gloucester, MA 01930– DATES: Comments must be received on This project is a pilot program with 2298. or before November 8, 2011. the goal of determining if the shellfish FOR FURTHER INFORMATION CONTACT: harvested from the GB Closure Area are ADDRESSES: Comments on this notice Anna Macan, Fishery Management safe for human consumption under the may be submitted by e-mail. The U.S. Food and Drug Administration Specialist, (978) 282–8483; fax (978) mailbox address for providing e-mail 281–9135. (FDA) International Shellfish Sanitation comments is [email protected]. Conference (ISSC) guidelines and SUPPLEMENTARY INFORMATION: The Include in the subject line of the e-mail Federal Atlantic surfclam and ocean requirements. The protocol in this pilot comment the following document program will be presented to the ISSC quahog fishery regulations at 50 CFR identifier: ‘‘Comments on 2012 GB PSP 648.75(b) authorize the Regional meeting in October 2011 to adopt the Closed Area Exemption.’’ protocol into the National Shellfish Administrator of the Northeast Region, Written comments should be sent to NMFS, to specify in the Federal Sanitation Program (NSSP) and change Patricia A. Kurkul, Regional it from a pilot program to a permanent Register a vendor from whom cage tags, Administrator, NMFS, Northeast part of the U.S. FDA ISSC Shellfish required under the Atlantic Surfclam Regional Office, 55 Great Republic Sanitation Program. If adopted, and Ocean Quahog Fishery Management Drive, Gloucester, MA 01930. Mark the additional vessel participants would be Plan (FMP), shall be purchased. Notice outside of the envelope ‘‘Comments on required to obtain an EFP to participate is hereby given that National Band and 2012 GB PSP Closed Area Exemption.’’ in this or similar projects. Tag Company of Newport, KY, is the Comments may also be sent via The proposed project would continue authorized vendor of cage tags required facsimile (fax) to (978) 281–9135. to conduct a trial for the sampling for the fishing year 2012 Federal Copies of supporting documents protocol in an exemption zone within surfclam and ocean quahog fisheries. referenced in this notice are available the larger 1990 GB Closure Area with Detailed instructions for purchasing from NMFS, 55 Great Republic Drive, one fishing vessel. The exemption zone these cage tags will be provided in a Gloucester, MA 01930, and are available would not include any Northeast letter to ITQ allocation holders in these via the Internet at http:// multispecies or essential fish habitat fisheries from NMFS within the next www.nero.noaa.gov/sfd/clams. year-round closure areas. This proposed several weeks. FOR FURTHER INFORMATION CONTACT: exempted fishing activity would occur Authority: 16 U.S.C. 1801 et seq. Jason Berthiaume, Fishery Management during the 2012 calendar year, using Dated: October 19, 2011. Specialist, phone 978–281–9177. surfclam quota allocated to Truex Emily H. Menashes, Enterprises under the Federal SUPPLEMENTARY INFORMATION: The individual transferable quota program. Acting Director, Office of Sustainable applicant, Wallace & Associates, of Fisheries, National Marine Fisheries Service. The applicant has estimated a harvest of Cambridge, MD, requests on behalf of 250,000 bushels (8,809,768 L) of [FR Doc. 2011–27477 Filed 10–21–11; 8:45 am] Truex Enterprises a renewal of their surfclams from the exemption area. The BILLING CODE 3510–22–P current EFP, which is due to expire on exemption area has been tested in December 31, 2011, to allow the catch cooperation with the FDA from 2006 to and retention for sale of Atlantic DEPARTMENT OF COMMERCE the present. surfclams and ocean quahog from It is expected that harvesting under an within the Atlantic surfclam and ocean National Oceanic and Atmospheric EFP would occur on approximately 60– quahog Georges Bank (GB) Closure Area. Administration 70 days during 2012. Species to be The GB Closed Area is located east of harvested are surfclams and ocean RIN 0648–XA730 69°00’ W. long. and south of 42°20’ N. quahogs, utilizing a 170-inch (4.3 m) lat and has been closed since May 25, hydraulic clam dredge. Approximately Magnuson-Stevens Act Provisions; 1990, due to the presence of a toxin 30 tows per day would be made for 10 General Provisions for Domestic (saxotoxins) that cause paralytic minutes each, at a speed of about 2.5 Fisheries; Application for Exempted shellfish poisoning (PSP). Due, in part, knots. There are no discards or known Fishing Permit to the inability to test and monitor this interactions with protected species. AGENCY: National Marine Fisheries area for the presence of PSP, this closure Harvesting under an EFP is not expected Service (NMFS), National Oceanic and was made permanent through to exceed two trips per week. Harvested Atmospheric Administration (NOAA), Amendment 12 to the Atlantic Surfclam clams would be delivered to Sea Watch Department of Commerce. and Ocean Quahog Fishery Management International in New Bedford, MA. Plan in 1999. ACTION: Notice; request for comments. Harvests would be predominantly The primary goal of the proposed surfclams from the area known as SUMMARY: NMFS is soliciting public study is to test the efficacy of a sampling Cultivator Shoals. comment on an exempted fishing permit protocol that was developed by state The U.S. FDA would receive samples application that would exempt one and Federal regulatory agencies to test from each trip for their information and commercial fishing vessel from the for presence of saxotoxins in shellfish, independent analyses in addition to the Atlantic surfclam and ocean quahog and thus has been in a trial period onboard screening and the dockside Georges Bank Closure Area to continue through previous EFPs since 2006. This testing. Onboard screening is conducted testing the safety and efficacy of protocol would facilitate the harvest of on five samples taken from each corner harvesting Atlantic surfclams and ocean shellfish from waters susceptible to and the center of each lot to be quahogs from the closure area. This harmful algal blooms, which produce harvested (not more than 3-square miles would be a continuation of a research the saxotoxins, but that are not currently (4.8 square kilometers)) by Jellett Rapid project that has been ongoing since under rigorous water quality monitoring Test Kits and Abraxis Kits. Dockside 2006. NMS has made a preliminary programs by either state or Federal testing would be conducted by the determination that the exempted fishing management agencies. A copy of the Massachusetts Division of Marine permit application contains all of the sampling protocol is available from the Fisheries laboratory in Gloucester, MA.

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State and Federal agencies would be Dated: October 18, 2011. measures being considered include notified of each trip, the place and time Emily H. Menashes, increases in size limits, decreases in bag of landing, the results of onboard Acting Director, Office of Sustainable limits, a commercial trip limit, and a screening, and dockside laboratory Fisheries, National Marine Fisheries Service. spawning season closure. The results. Federal and state agencies are [FR Doc. 2011–27479 Filed 10–21–11; 8:45 am] amendment also includes actions to provided a copy of the Declaration of BILLING CODE 3510–22–P update management parameters based Harvest form from each trip, which on the 2011 Southeast Data, Assessment details the location of harvest, cage tag and Review (SEDAR) stock assessment numbers, and results of onboard DEPARTMENT OF COMMERCE for black sea bass, consider screening. modifications to the rebuilding strategy National Oceanic and Atmospheric to account for an increasing biomass, The applicant has obtained Administration and improve the accuracy, timing and endorsements for the EFP and the RIN 0648–XA779 quantity of fisheries data. sampling protocol from the states of Amendment 20A addresses the Rhode Island, New Jersey, Delaware, South Atlantic Fishery Management current Individual Transferable Quota and Massachusetts, the states in which Council; Public Meetings (ITQ) program currently in place for the it intends to land and process the wreckfish fishery. The amendment AGENCY: National Marine Fisheries product harvested under the EFP. Each includes measures to adjust the state is responsible for regulating the Service (NMFS), National Oceanic and Atmospheric Administration, distribution of wreckfish shares in order molluscan shellfish industry within its Commerce. to remove inactive effort and allow the jurisdiction and ensuring the safety of commercial sector’s Annual Catch Limit ACTION: Notice of public hearing series. shellfish harvested within or entering its (ACL) to be harvested effectively. borders. The sampling protocol and the SUMMARY: The South Atlantic Fishery Amendment 24 to the Snapper pilot project that would be authorized Management Council (Council) will Grouper FMP addresses the by this EFP have also since been hold a series of public hearings implementation of a rebuilding plan for endorsed by the Executive Board of the regarding Amendments 18A, 20A, and red grouper in the South Atlantic as ISSC. 24 to the Snapper Grouper Fishery required by the Magnuson-Stevens Regulations under the Magnuson- Management Plan (FMP) for the South Fishery Conservation and Management Stevens Fishery Conservation and Atlantic Region. See SUPPLEMENTARY Act (MSFCMA). The rebuilding plan would specify ACLs, annual catch Management Act require publication of INFORMATION. targets and accountability measures for this notification to provide interested Dates and Location: The series of seven public hearings will be held from the red grouper fishery. The amendment parties the opportunity to comment on November 14, 2011 through December also establishes sector allocations. applications for proposed exempted 6, 2011. The hearings will be held from Public Hearing Schedule: fishing permits. The Assistant Regional 4 p.m. until 7 p.m. with the exception 1. November 14, 2011—Avista Resort, Administrator has made an initial of two hearings. The hearings on 300 N. Ocean Blvd., North Myrtle determination that, based on a November 15, 2011 in Charleston, SC Beach, SC 29582; telephone: (843) 249– preliminary review of the proposed and the hearing on December 6, 2011 in 2521; subject research and the criteria Raleigh, NC will be conducted from 5:30 2. November 14, 2011—Hampton Inn provided in section 5.05a-c and section p.m.–7:30 p.m. Note that in some cases & Suites Savannah/Midtown, 20 6.03c.3(a) of NOAA’s Administrative consecutive hearings will be held on the Johnson Street, Savannah, GA 31405; Order 216–6, a Categorical Exclusion same date. Council staff will present an telephone: (912) 721–3700; appears to be justified for this EFP. In overview of the amendments and will 3. November 15, 2011—Charleston accordance with NOAA’s be available for informal discussions Marriott Hotel, 170 Lockwood Blvd., Administrative Order 216–6, a and to answer questions. Members of Charleston, SC 29403; telephone: (843) Categorical Exclusion, or other the public will have an opportunity to 723–3000; appropriate National Environmental go on record at any time during the 4. November 15, 2011—Jacksonville Policy Act document, would be meeting hours to record their comments Marriott, 4670 Salisbury Road, completed prior to the issuance of the on the public hearing topics for Jacksonville, FL 32256; telephone: (904) exempted fishing permit. Further review consideration by the Council. Local 296–2222; and consultation may be necessary Council representatives will attend the 5. November 16, 2011—Radisson before a final determination is made to meetings and take public comment. Resort at the Port, 8701 Astronaut issue the exempted fishing permit. Written comments will be accepted Boulevard, Cape Canaveral, FL 32920; telephone: (321) 784–0000; If approved, the applicant may from October 21, 2011 until 5 p.m. on 6. November 17, 2011—Key Largo Bay request minor modifications and November 21, 2011, See SUPPLEMENTARY Marriott, 103800 Overseas Hwy., Key extensions to the EFP throughout the INFORMATION. Largo, FL 33037; telephone: (305) 453– year. EFP modifications and extensions SUPPLEMENTARY INFORMATION: 0000; may be granted without further notice if Amendment 18A is being developed by the Council to address overcapacity in 7. December 6, 2011—Holiday Inn they are deemed essential to facilitate Brownstone, 1707 Hillsborough Street, completion of the proposed research the commercial black sea bass pot fishery and reduce the rate of harvest for Raleigh, NC 27605; Phone: (919) 828– and have minimal impacts that do not both commercial and recreational 0811. change the scope or impact of the sectors. The amendment includes ADDRESSES: Written comments should initially approved EFP request. Any actions to limit participation and effort be sent to Bob Mahood, Executive fishing activity conducted outside the in the black sea bass pot fishery, limit Director, South Atlantic Fishery scope of the exempted fishing activity bycatch in the commercial pot fishery, Management Council, 4055 Faber Place would be prohibited. and modify the current system of Drive, Suite 201, North Charleston, SC Authority: 16 U.S.C. 1801 et seq. accountability measures. Management 29405, or via e-mail to:

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[email protected] individuals whom may be selected to was created specifically for Atlantic for Amendment 18A (black sea bass); consider data and advise NMFS oceanic sharks, it may be expanded to [email protected] regarding the scientific information, include other HMS, as needed. for Amendment 20A (wreckfish); and including but not limited to data and The primary purpose of the [email protected] for models, used in stock assessments for individuals in the SEDAR Pool is to Amendment 24 (red grouper) to the oceanic sharks in the Atlantic Ocean, review, at SEDAR workshops, the Snapper Grouper FMP. Written Gulf of Mexico, and Caribbean Sea. scientific information, including but not comments will be received from Nominations are being sought for a 3- limited to data and models, used in October 21, 2011 until 5 p.m. on year appointment (2012–2015). stock assessments that are used to November 21, 2011. Individuals with definable interests in advise NMFS, as a delegate to the Copies of the public hearing the recreational and commercial fishing Secretary of Commerce (Secretary), documents are available by contacting and related industries, environmental about the conservation and management Kim Iverson, Public Information Officer, community, academia, and non- of the Atlantic HMS, specifically but not South Atlantic Fishery Management governmental organizations will be limited to, Atlantic sharks. Individuals Council, 4055 Faber Place Drive, Suite considered for membership on the in the SEDAR Pool, if selected, may 201, North Charleston, SC 29405; SEDAR Pool. participate in the various data, telephone: (843) 571–4366 or toll free at DATES: Nominations must be received assessment, and review workshops (866) SAFMC–10. Copies will also be on or before November 23, 2011. during the SEDAR process of any HMS available online at www.safmc.net as ADDRESSES: You may submit stock assessment. In order to ensure that they become available. nominations and request the SEDAR the peer review is unbiased, individuals FOR FURTHER INFORMATION CONTACT: Kim Pool Statement of Organization, who participated in a data and/or Iverson, South Atlantic Fishery Practices, and Procedures by any of the assessment workshop for a particular Management Council, 4055 Faber Place following methods: stock assessment will not be allowed to Drive, Suite 201, North Charleston, SC • E-mail: [email protected]. serve as reviewers for the same stock 29405; telephone: (843) 571–4366; fax: • Mail: Karyl Brewster-Geisz, Highly assessment. However, these individuals (843) 769–4520; e-mail address: Migratory Species Management may be asked to attend the review [email protected]. Division, NMFS, 1315 East-West workshop to answer specific questions Highway, Silver Spring, MD 20910. from the reviewers concerning the data Special Accommodations Include on the envelope the following and/or assessment workshops. Members These meetings are physically identifier: ‘‘SEDAR Pool Nomination.’’ of the SEDAR Pool may serve as accessible to people with disabilities. • Fax: 301–713–1917. members of other APs concurrent with, Requests for sign language Additional information on SEDAR or following, their service on the SEDAR interpretation or other auxiliary aids and the SEDAR guidelines can be found Pool. at http://www.sefsc.noaa.gov/sedar/. should be directed to the Council office Procedures and Guidelines (see ADDRESSES) 3 days prior to the start The terms of reference for the SEDAR of each meeting. Pool, along with a list of current A. Participants members, can be found at http:// Dated: October 19, 2011. The SEDAR Pool is comprised of www.nmfs.noaa.gov/sfa/hms/SEDAR/ individuals representing the commercial Tracey L. Thompson, SEDAR.htm. Acting Director, Office of Sustainable and recreational fishing communities Fisheries, National Marine Fisheries Service. FOR FURTHER INFORMATION CONTACT: for Atlantic HMS, the environmental [FR Doc. 2011–27390 Filed 10–21–11; 8:45 am] Delisse Ortiz or Karyl Brewster-Geisz, community active in the conservation (301) 425–8503. and management of Atlantic HMS, and BILLING CODE 3510–22–P SUPPLEMENTARY INFORMATION: the academic community that have relevant expertise either with sharks or Introduction DEPARTMENT OF COMMERCE shark-like species and/or stock Section 302(g)(2) of the Magnuson- assessment methodologies for marine National Oceanic and Atmospheric Stevens Fishery Conservation and fish species. Members of the SEDAR Administration Management Act (Magnuson-Stevens Pool must have demonstrated Act), 16 U.S.C. 1801 et seq., states that experience in the fisheries, related RIN 0648–XA776 each Council shall establish such industries, research, teaching, writing, Atlantic Highly Migratory Species; advisory panels as are necessary or conservation, or management of marine Advisory Panel for Atlantic Highly appropriate to assist it in carrying out its organisms. The distribution of Migratory Species Southeast Data, functions under the Act. For the representation among the interested Assessment, and Review Workshops purposes of this section in the parties is not defined or limited. Magnuson-Stevens Act, NMFS Additional members of the SEDAR AGENCY: National Marine Fisheries considers the Council provision to be Pool may also include representatives Service (NMFS), National Oceanic and applicable to the HMS Management from each of the five Atlantic Regional Atmospheric Administration (NOAA), Division. As such, NMFS has Fishery Management Councils, each of Commerce. established the SEDAR Pool under this the 18 constituent states, both the U.S. ACTION: Notice. section. The SEDAR Pool currently Virgin Islands and Puerto Rico, and consists of 30 individuals who can be each of the constituent interstate SUMMARY: NMFS solicits nominations selected to review data and advise commissions: the Atlantic States Marine for the Advisory Panel (AP) for Atlantic NMFS regarding the scientific Fisheries Commission and the Gulf Highly Migratory Species (HMS) information, including but not limited States Marine Fisheries Commission. Southeast Data, Assessment, and to data and models, used in stock If NMFS requires additional members Review (SEDAR) Workshops (this AP is assessments for oceanic sharks in the to ensure a diverse pool of individuals also called the ‘‘SEDAR Pool’’). The Atlantic Ocean, Gulf of Mexico, and to draw from for data or assessment SEDAR Pool is comprised of a group of Caribbean Sea. While the SEDAR Pool workshops, NMFS may request

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individuals to become members of the assessments at the discretion of the PLACE: Hearing Room 420, Bethesda SEDAR Pool outside of the annual Office of Sustainable Fisheries, NMFS. Towers, 4330 East West Highway, nomination period. Stock assessment timing, frequency, and Bethesda, Maryland. Panel members serve at the discretion relevant species will vary depending on of the Secretary. Not all members will the needs determined by NMFS and STATUS: Closed to the Public. attend each SEDAR workshop. Rather, SEDAR staff. Meetings and meeting MATTER TO BE CONSIDERED: NMFS will invite certain members to logistics will be determined according participate at specific stock assessment to the SEDAR Guidelines. All meetings Compliance Status Report workshops dependent on their ability to are open for observation by the public. participate, discuss, and recommend The Commission staff will brief the Dated: October 19, 2011. scientific decisions regarding the Commission on the status of compliance species being assessed. If an invited Emily H. Menashes, matters. For a recorded message SEDAR Pool member is unable to attend Acting Director, Office of Sustainable containing the latest agenda the workshop, the member may send a Fisheries, National Marine Fisheries Service. information, call (301) 504–7948. [FR Doc. 2011–27474 Filed 10–21–11; 8:45 am] designee who may represent them and CONTACT PERSON FOR MORE INFORMATION: BILLING CODE 3510–22–P participate in the activities of the Todd A. Stevenson, Office of the workshop. In order to ensure the Secretary, U.S. Consumer Product designee meets the requirements of Safety Commission, 4330 East West participating in the data and/or Highway, Bethesda, MD 20814, (301) assessment workshop, the designee CONSUMER PRODUCT SAFETY 504–7923. must receive written approval of the COMMISSION Dated: October 19, 2011. Director of the Office of Sustainable Sunshine Act Meeting Notice Fisheries at least six weeks in advance Todd A Stevenson, of the beginning of the relevant data DATES: Time and Date: Wednesday, Secretariat. and/or assessment workshop. Written October 26, 2011, 10 a.m.–12 p.m. [FR Doc. 2011–27500 Filed 10–20–11; 11:15 am] notification must include the name, PLACE: Room 420, Bethesda Towers, BILLING CODE 6355–01–P address, telephone, e-mail, and position of the individual designated. A designee 4330 East West Highway, Bethesda, may not name another designee. Maryland. NMFS is not obligated to fulfill any STATUS: Commission Meeting—Open to DEPARTMENT OF DEFENSE requests (e.g., requests for an assessment the Public. Office of the Secretary of a certain species) that may be made Matters To Be Considered by the SEDAR Pool or its individual members. Members of the SEDAR Pool Public Hearing: Alternative Testing [Transmittal Nos. 11–35] who are invited to attend stock Requirements for Small Batch assessment workshops will not be Manufacturers. 36(b)(1) Arms Sales Notification compensated for their services but may A live webcast of the Meeting can be be reimbursed for their travel-related viewed at http://www.cpsc.gov/webcast. AGENCY: Department of Defense, Defense expenses to attend such workshops. For a recorded message containing the Security Cooperation Agency. latest agenda information, call (301) ACTION: Notice. B. Nomination Procedures for 504–7948. Appointments to the SEDAR Pool CONTACT PERSON FOR MORE INFORMATION: SUMMARY: The Department of Defense is Member tenure will be for 3 years. Todd A. Stevenson, Office of the Nominations are sought for terms publishing the unclassified text of a Secretary, U.S. Consumer Product section 36(b)(1) arms sales notification. beginning February 2012 and expiring Safety Commission, 4330 East West January 2015. Nomination packages This is published to fulfill the Highway, Bethesda, MD 20814, (301) requirements of section 155 of Public should include: 504–7923. 1. The name, address, phone number, Law 104–164 dated July 21, 1996. Dated: October 19, 2011. and e-mail of the applicant or nominee; FOR FURTHER INFORMATION CONTACT: Ms. Todd A. Stevenson, 2. A description of his/her interest in B. English, DSCA/DBO/CFM, (703) 601– Atlantic shark stock assessments or the Secretariat. 3740. Atlantic shark fishery; [FR Doc. 2011–27499 Filed 10–20–11; 11:15 am] 3. A statement of background and/or BILLING CODE 6355–01–P The following is a copy of a letter to qualifications; and the Speaker of the House of 4. A written commitment that the Representatives, Transmittal 11–35 with applicant or nominee shall participate CONSUMER PRODUCT SAFETY attached transmittal and policy actively and in good faith in the tasks COMMISSION justification. of the SEDAR Pool, as requested. Sunshine Act Meeting Notice Dated: October 18, 2011. C. Meeting Schedule Aaron Siegel, Individual members of the SEDAR TIME AND DATE: Wednesday, October 26, Alternate OSD Federal Register Liaison Pool meet to participate in stock 2011; 2 p.m.–3 p.m. Officer, Department of Defense.

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Transmittal No. 11–35—Notice of (iii) Description and Quantity or Time Fuzes, 20-foot Intermodal Proposed Issuance of Letter of Offer Quantities of Articles or Services under Containers for transporting ammunition, Pursuant to Section 36(b)(1) of the Arms Consideration for Purchase: 44,608 publications and technical data, Export Control Act, as Amended M107 155mm High Explosive Projectiles personnel training and training and 9,328 M485A2 155mm Illumination equipment, U.S. Government and (i) Prospective Purchaser: Iraq. projectiles; also included are, M231 contractor engineering, logistics, and (ii) Total Estimated Value: Propelling charges, M232A1 155mm technical support services, and other Modular Artillery Charge System related elements of logistics support. In millions Propelling charges, M739 Fuzes, (iv) Military Department: Army (UEL). M762A1 Electronic Time Fuzes, M82 (v) Prior Related Cases, if any: None. Major Defense Equipment* ...... $27 (vi) Sales Commission, Fee, etc., Paid, Other ...... 55 Percussion primers, M767A1 Electronic Offered, or Agreed to be Paid: None. Total ...... 82 * As defined in Section 47(6) of the Arms Export (vii) Sensitivity of Technology Control Act. Contained in the Defense Article or

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Defense Services Proposed to be Sold: ACTION: List of Correspondence from environment requirements in Part B of None. January 1, 2011 through March 31, 2011. the IDEA that apply to children with (viii) Date Report Delivered to disabilities who reside in a residential Congress: 5 October 2011. SUMMARY: The Secretary is publishing facility located in the district. the following list pursuant to section Æ Letter dated March 7, 2011, to Policy Justification—Iraq—Howitzer 607(f) of the Individuals with Statewide Parent Ammunition Disabilities Education Act (IDEA). Advocacy Network of New Jersey The Government of Iraq has requested Under section 607(f) of the IDEA, the Executive Co-Director Diana Autin, a possible sale of 44,608 M107 155mm Secretary is required, on a quarterly regarding whether certain placements High Explosive Projectiles and 9,328 basis, to publish in the Federal Register for children with autism may be M485A2 155mm Illumination a list of correspondence from the U.S. permissible under Part B of the IDEA. projectiles; also included are, M231 Department of Education (Department) Topic Addressed: Children in Private Propelling charges, M232A1 155mm received by individuals during the Schools Modular Artillery Charge System previous quarter that describes the Propelling charges, M739 Fuzes, interpretations of the Department of the Æ Letter dated January 5, 2011, to M762A1 Electronic Time Fuzes, M82 IDEA or the regulations that implement New York State Education Department Percussion primers, M767A1 Electronic the IDEA. This list and the letters or Associate Commissioner Rebecca Cort, Time Fuzes, 20-foot Intermodal other Departmental documents regarding whether, absent a ruling by a Containers for transporting ammunition, described in this list, with personally court or hearing officer, a local publications and technical data, identifiable information redacted, as educational agency (LEA) can reach an personnel training and training appropriate, can be found at: http:// agreement to provide tuition www2.ed.gov/policy/speced/guid/idea/ equipment, U.S. Government and reimbursement to a parent who index.html. contractor engineering, logistics, and unilaterally places his or her child with technical support services, and other FOR FURTHER INFORMATION CONTACT: a disability at a private school that the related elements of logistics support. Jessica Spataro or Mary Louise Dirrigl. State has not approved to provide The estimated cost is $82 million. Telephone: (202) 245–7468. special education. If you use a telecommunications This proposed sale will contribute to Topic Addressed: General Supervisory the foreign policy and national security device for the deaf (TDD), you can call the Federal Relay Service (FRS), toll Authority of the United States by helping to Æ improve the security of a friendly free, at 1–800–877–8339. Letter dated March 2, 2011, to country. This proposed sale directly Individuals with disabilities can District of Columbia Acting State supports the Iraq government and serves obtain a copy of this list and the letters Superintendent of Education Hosanna the interests of the Iraqi people and the or other Departmental documents Mahaley, reiterating the Office of U.S. described in this list in an accessible Special Education Programs’ (OSEP’s) The proposed sale will help Iraq’s format (e.g., braille, large print, previous guidance that the IDEA makes efforts to develop an integrated ground audiotape, or computer diskette) by no provision for funding special defense capability, a strong national contacting Jessica Spataro or Mary education and related services for defense, and dedicated military force. Louise Dirrigl at (202) 245–7468. individuals with disabilities As the drawdown of coalition forces SUPPLEMENTARY INFORMATION: The incarcerated in Federal prisons. continues, the Iraqi military continues following list identifies correspondence Section 613—Local Educational Agency to develop a force capable of assuming from the Department issued from Eligibility the lead in providing for the security of January 1, 2011 through March 31, 2011. the Iraqi people. Included on the list are those letters that Topic Addressed: Use of Federal Funds The proposed sale of this ammunition contain interpretations of the Æ Letter dated January 6, 2011, to will not alter the basic military balance requirements of the IDEA and its Washington Office of Superintendent of in the region. implementing regulations, as well as Public Instruction Special Education The ammunition will be supplied letters and other documents that the Section Director Douglas Gill, regarding from U.S. Army stock. There are no Department believes will assist the whether there are any restrictions on known offset agreements proposed in public in understanding the maintenance of effort reductions that connection with this potential sale. requirements of the law and its may have been available to LEAs as a Implementation of this proposed sale regulations. The date of and topic result of the increase in Part B of the will not require the assignment of any addressed by each letter are identified, IDEA funding under the American additional U.S. Government or and summary information is also Recovery and Reinvestment Act of 2009. contractor representatives to Iraq. provided, as appropriate. To protect the Section 614—Evaluations, Eligibility There will be no adverse impact on privacy interests of the individual or Determinations, Individualized U.S. defense readiness as a result of this individuals involved, personally Education Programs, and Educational proposed sale. identifiable information has been redacted, as appropriate. Placements [FR Doc. 2011–27354 Filed 10–21–11; 8:45 am] BILLING CODE 5001–06–P Part B—Assistance for Education of All Topic Addressed: Evaluations, Parental Children With Disabilities Consent and Reevaluations Section 612—State Eligibility Æ Letter dated January 6, 2011, to Lehigh University Professor of DEPARTMENT OF EDUCATION Topic Addressed: Least Restrictive Education and Law Perry A. Zirkel, Environment List of Correspondence clarifying how LEAs that use a Æ Letter dated January 5, 2011, to response- to- intervention (RTI) process AGENCY: Office of Special Education and Texas West Independent School District can determine whether a child enrolled Rehabilitative Services; Department of Assistant Superintendant Jan Hungate, in a private school by his or her parents Education. regarding the least restrictive has a specific learning disability.

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Æ Letter dated February 10, 2011, to www.federalregister.gov. Specifically, records referenced in this notice on or non-attorney advocate Amber Mintz, through the advanced search feature at before November 23, 2011. regarding the review of existing this site, you can limit your search to The Department filed a report evaluation data on the child. documents published by the describing the new system of records Department. covered by this notice with the Chair of Topic Addressed: Individualized the Senate Committee on Homeland Education Program (Catalog of Federal Domestic Assistance Security and Governmental Affairs, the Æ Number 84.027, Assistance to States for Letter dated January 24, 2011, to Education of Children with Disabilities) Chair of the House Committee on individual (personally identifiable Oversight and Government Reform, and information redacted), regarding the Dated: October 18, 2011. Alexa Posny, the Administrator of the Office of participation of an individual who can Information and Regulatory Affairs, interpret the instructional implications Assistant Secretary for Special Education and Rehabilitative Services. Office of Management and Budget of evaluation results on the (OMB) on October 4, 2011. This system [FR Doc. 2011–27453 Filed 10–21–11; 8:45 am] individualized education program (IEP) of records will become effective at the Team. BILLING CODE 4000–01–P later date of—(1) The expiration of the Section 615—Procedural Safeguards 40-day period for OMB review on DEPARTMENT OF EDUCATION November 14, 2011; or (2) November 23, Topic Addressed: Independent 2011, unless the system of records needs Educational Evaluations Privacy Act of 1974; System of to be changed as a result of public Æ Letter dated January 19, 2011, to Records comment or OMB review. individual (personally identifiable ADDRESSES: Address all comments about AGENCY: Institute of Education Sciences, information redacted), regarding this new system of records to Dr. Department of Education. whether States and school districts may Meredith Larson, Associate Research establish criteria governing how and ACTION: Notice of a new system of Scientist, National Center for Education when parents must provide the results records. Research, Institute of Education of a private evaluation if the public SUMMARY: In accordance with the Sciences, U.S. Department of Education, agency wishes to schedule an IEP Team Privacy Act of 1974, as amended 555 New Jersey Avenue, NW., Room meeting to discuss that evaluation. (Privacy Act), the Department of 618, Washington, DC 20208–5500. If Part C—Infants and Toddlers With Education (Department) publishes this you prefer to send comments through Disabilities notice of a new system of records the Internet, use the following address: entitled ‘‘IES Research Training Program [email protected]. Section 637—State Application and You must include the term ‘‘IES Assurances Surveys: Predoctoral Survey, Postdoctoral Survey, Special Education Research Training Program Surveys’’ in Topic Addressed: Early Childhood Postdoctoral Survey’’ (18–13–25). the subject line of your electronic Transition The Institute of Education Sciences message. During and after the comment period, Letter dated February 9, 2011, to (IES) Research Training Program you may inspect all comments about Infant and Toddler Coordinators Surveys: Predoctoral Survey, this notice at the National Center for Association President Brad Hutton and Postdoctoral Survey, Special Education Education Research, Institute of National Association of State Directors Postdoctoral Survey system will be Education Sciences, Department of of Special Education Director Bill East, used: (1) To assess the satisfaction of clarifying certain requirements in Parts fellows who have participated in the Education, 6th Floor, 555 New Jersey B and C of the IDEA that were explained Education Research Training programs Avenue, NW., Washington, DC, between in OSEP’s Early Childhood Transition funded by the IES’ National Center for the hours of 8:30 a.m. and 5:00 p.m., Frequently Asked Questions (FAQ) Education Research (IES/NCER) and Eastern time, Monday through Friday of document, which is available on the National Center for Special Education each week except Federal holidays. Technical Assistance Network’s Web Research (IES/NCSER) in order to Assistance to Individuals With site at http://www.nectac.org/∼pdfs/ determine whether there are program Disabilities in Reviewing the topics/transition/ areas that need improvement; and (2) to Rulemaking Record ECTransitionFAQs12_01_09.pdf. track the fellows’ professional Electronic Access to This Document: accomplishments both during and On request, we will supply an The official version of this document is following their fellowship years in order appropriate aid, such as a reader or the document published in the Federal to assess how well the individual print magnifier, to an individual with a Register. Free Internet access to the programs are fulfilling the mission of disability who needs assistance to official edition of the Federal Register the IES training programs, which is to review the comments or other and the Code of Federal Regulations is increase the supply of young researchers documents in the public rulemaking available via the Federal Digital System trained and ready to do rigorous record for this notice. If you want to at: http://www.gpo.gov/fdsys. At this research in education. The Pre- and schedule an appointment for this type of site you can view this document, as well Postdoctoral Fellowship Customer aid, please contact the person listed as all other documents of this Satisfaction Survey system will contain under FOR FURTHER INFORMATION Department published in the Federal records containing information such as CONTACT. Register, in text or Adobe Portable IES-funded fellows’ names, e-mail FOR FURTHER INFORMATION CONTACT: Dr. Document Format (PDF). To use PDF addresses, and citizenship status. Meredith Larson. Telephone number: you must have Adobe Acrobat Reader, DATES: The Department seeks comment (202) 219–2025. If you use a which is available free at the site. on the new system of records described telecommunications device for the deaf You may also access documents of the in this notice, in accordance with the (TDD), call the Federal Relay Service Department published in the Federal requirements of the Privacy Act. We (FRS), toll free, at 1–800–877–8339. Register by using the article search must receive your comments about the Individuals with disabilities may feature at: http:// proposed routine uses for the system of obtain this document in an alternative

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format (e.g., braille, large print, Dated: October 18, 2011. Act of 2002 (ESRA) (20 U.S.C. 9531–34 audiotape, or computer diskette) on John Q. Easton, and 9579). request to the contact person listed in Director, Institute of Education Sciences. PURPOSE(S): the preceding paragraph. For the reasons discussed in the The information contained in the SUPPLEMENTARY INFORMATION: preamble, the Director of the Institute of records maintained in this system is Introduction Education Sciences, U.S. Department of used for the following purposes: (1) To Education publishes a notice of a new assess the satisfaction of the fellows The Privacy Act (5 U.S.C. 552a(e)(4)) system of records, to read as follows: requires the Department to publish in with their IES training programs in the Federal Register this notice of a new System Number: order to determine whether there are program areas that need improvement; system of records maintained by the 18–13–25 Department. The Department’s and (2) to track the fellows’ professional regulations implementing the Privacy SYSTEM NAME: accomplishments both during and following their fellowship years in order Act are contained in part 5b of title 34 IES Research Training Program to assess how well the individual of the Code of Federal Regulations Surveys: Predoctoral Survey, programs are fulfilling the mission of (CFR). Postdoctoral Survey, Special Education the IES training programs, which is to The Privacy Act applies to a record Postdoctoral Survey. about an individual that is maintained increase the supply of young researchers in a system of records from which SECURITY CLASSIFICATION: trained and ready to do rigorous individually identifying information is None. research in education. retrieved by a unique identifier ROUTINE USES OF RECORDS MAINTAINED IN THE SYSTEM LOCATIONS: associated with each individual, such as SYSTEM, INCLUDING CATEGORIES OF USERS AND a name or Social Security number. The National Center for Education THE PURPOSES OF SUCH USES: information about each individual is Research, Program Officer Staff, The Department may disclose called a ‘‘record,’’ and the system, Institute of Education Sciences (IES), information contained in a record in whether manual or computer-based, is U.S. Department of Education this system of records without the called a ‘‘system of records.’’ (Department), 555 New Jersey Avenue, consent of the individual if the The Privacy Act requires each agency NW., Suite 618, Washington, DC 20208– disclosure is compatible with the to publish a system of records notice in 5530. purposes for which the record was the Federal Register and to submit, collected. The Department may make whenever the agency publishes a new CATEGORIES OF INDIVIDUALS COVERED BY THE these disclosures on a case-by-case system of records or makes a significant SYSTEM: basis, or, if the Department has change to an established system of The system contains records on pre- complied with the computer matching records, a report to the Administrator of and postdoctoral fellows who have been requirements of the Computer Matching the Office of Information and Regulatory funded through the IES Pre- and and Privacy Protection Act of 1988, as Affairs, OMB. Each agency is also Postdoctoral Education Research amended, under a computer matching required to send copies of the report to Training Grants and the IES agreement. Any disclosure of the Chair of the House Committee on Postdoctoral Special Education individually identifiable information Oversight and Government Reform and Research Training Grants. to the Chair of the Senate Committee on from a record in this system must also Homeland Security and Governmental CATEGORIES OF RECORDS IN THE SYSTEM: comply with the requirements of section Affairs. These reports are inc1uded to The system contains records regarding 183 of the ESRA (20 U.S.C. 9573) permit an evaluation of the probable fellows’: (1) Names; (2) e-mail providing for confidentiality standards effect of the proposal on the privacy addresses; (3) personal characteristics, that apply to all collections, reporting, rights of individuals. such as gender, race/ethnicity, and and publication of data by IES. Electronic Access to This Document: citizenship status; (4) information on Contract Disclosure. If the Department The official version of this document is the training program attended including contracts with an entity for the purposes the document published in the Federal the average GRE scores of program of performing any function that requires Register. Free Internet access to the participants and fellows per program; disclosure of records in this system to official edition of the Federal Register (5) responses to survey items regarding employees of the contractor, the and the Code of Federal Regulations is the quality of the training program they Department may disclose the records to available via the Federal Digital System attended; (6) academic information those employees. Before entering into at: http://www.gpo.gov/fdsys. At this including past field of study, Ph.D. such a contract, the Department shall site you can view this document, as well completion and year of Ph.D., require the contractor to maintain as all other documents of this completion of fellowship program, Privacy Act safeguards as required Department published in the Federal research conducted during and after under 5 U.S.C. 552a(m) with respect to Register, in text or Adobe Portable attending the training program the records in the system. Document Format (PDF). To use PDF including the number and type of DISCLOSURE TO CONSUMER REPORTING you must have Adobe Acrobat Reader, publications and presentations made; AGENCIES: which is available free at the site. and (7) information on positions held None. You may also access documents of the and type of research done after Department published in the Federal completing the training program POLICIES AND PRACTICES FOR STORING, Register by using the article search RETRIEVING, ACCESSING, RETAINING, AND including plans to or submission of a DISPOSING OF RECORDS IN THE SYSTEM: feature at: http:// grant proposal. www.federalregister.gov. Specifically, STORAGE: through the advanced search feature at AUTHORITY FOR MAINTENANCE OF THE SYSTEM: Records are maintained in a database this site, you can limit your search to The evaluation is authorized under on the Department’s secure servers. No documents published by the sections 131 through 134 and section paper records will be kept as part of this Department. 189 of the Education Sciences Reform system.

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RETRIEVABILITY: the system manager. Your request must Purpose of the Board: The purpose of Records are retrieved by the fellows’ meet the requirements of regulations in the Board is to make recommendations names. 34 CFR 5b.5, including proof of identity. to DOE–EM and site management in the areas of environmental restoration, SAFEGUARDS: CONTESTING RECORD PROCEDURE: waste management, and related Access to the records is limited to If you wish to contest the content of activities. authorized personnel only. All physical a record regarding you in the system of access to the Department’s site where records, contact the system manager. Tentative Agenda: this system of records is maintained, is Your request must meet the Monday, November 14, 2011 controlled and monitored by security requirements of the regulations in 34 personnel who check each individual CFR 5b.7, including proof of identity. 1 p.m. Combined Committee Session entering the buildings for his or her 5 p.m. Adjourn RECORD SOURCE CATEGORIES: employee or visitor badge. Tuesday, November 15, 2011 The computer system employed by Information maintained in this system the Department offers a high degree of of records is obtained from both the 8:30 a.m. Approval of Minutes, Chair resistance to tampering and fellows and their training programs. Update circumvention. This security system Fellows provide information on their Agency Updates limits data access to Department and individual characteristics, e-mail Public Comment Session contract staff on a ‘‘need-to-know’’ addresses, views on the quality of the Administrative Committee Report basis, and controls an individual user’s training program, and information on Nuclear Materials Committee Report ability to access and alter records within their dissertation, papers, positions, and Strategic & Legacy Management the system. All users of this system of follow-on research. The training Committee Report records are given a unique user programs provide information on the Public Comment Session identification. The Department’s programs themselves and the fellows’ 12 p.m. Lunch Break Information Security Privacy Policy status within the programs, initial 1 p.m. Waste Management Committee requires the enforcement of a complex student e-mail addresses at the Report password policy. In addition, users are university (students then provide their Facilities Disposition & Site required to change their password at preferred e-mail addresses), and Remediation Committee Report least every 60 to 90 days in accordance information on student dissertations Public Comment Session with the Department’s information and paper. 4:30 p.m. Adjourn technology standards. EXEMPTIONS CLAIMED FOR THIS SYSTEM: If needed, time will be allotted after RETENTION AND DISPOSAL: None. public comments for items added to the The records associated with [FR Doc. 2011–27337 Filed 10–21–11; 8:45 am] agenda. predoctoral and postdoctoral fellows’ BILLING CODE 4000–01–P Public Participation: The EM SSAB, progress will be maintained as long as Savannah River Site, welcomes the they are professionally active in attendance of the public at its advisory education research. Records will be DEPARTMENT OF ENERGY committee meetings and will make maintained and disposed of in every effort to accommodate persons accordance with the Department’s Environmental Management Site- with physical disabilities or special Records Disposition Schedules. These Specific Advisory Board, Savannah needs. If you require special records are currently unscheduled. A River Site accommodations due to a disability, records retention schedule will be please contact Gerri Flemming at least AGENCY: Department of Energy. developed and submitted to the seven days in advance of the meeting at National Archives and Records ACTION: Notice of Open Meeting. the phone number listed above. Written Administration (NARA) for approval. SUMMARY: This notice announces a statements may be filed with the Board No records will be destroyed until a meeting of the Environmental either before or after the meeting. NARA-approved records retention Management Site-Specific Advisory Individuals who wish to make oral schedule is in place. Board (EM SSAB), Savannah River Site. statements pertaining to agenda items should contact Gerri Flemming’s office SYSTEM MANAGER(S) AND ADDRESS: The Federal Advisory Committee Act (Pub. L. 92–463, 86 Stat. 770) requires at the address or telephone listed above. Dr. Meredith Larson is the Program Requests must be received five days Officer for the IES Research Training that public notice of this meeting be announced in the Federal Register. prior to the meeting and reasonable Program Surveys, and her address is provision will be made to include the DATES: Institute of Education Sciences, presentation in the agenda. The Deputy Monday, November 14, 2011, 1 p.m.–5 Department of Education, 555 New Designated Federal Officer is p.m. Jersey Avenue, NW., Suite 618, empowered to conduct the meeting in a Tuesday, November 15, 2011, 8:30 a.m.– Washington, DC 20208–5530. fashion that will facilitate the orderly 4:30 p.m. NOTIFICATION PROCEDURE: conduct of business. Individuals ADDRESSES: USC Aiken Convention If you wish to determine whether a wishing to make public comments will Center, 471 University Parkway, Aiken, be provided a maximum of five minutes record exists regarding you in the SC 29801. system of records, contact the system to present their comments. FOR FURTHER INFORMATION CONTACT: manager. Your request must meet the Minutes: Minutes will be available by Gerri Flemming, Office of External requirements of regulations in 34 CFR writing or calling Gerri Flemming at the Affairs, Department of Energy, 5b.5, including proof of identity. address or phone number listed above. Savannah River Operations Office, P.O. Minutes will also be available at the RECORD ACCESS PROCEDURE: Box A, Aiken, SC 29802; Phone: (803) following Web site: http://www.srs.gov/ If you wish to gain access to your 952–7886. general/outreach/srs-cab/ record in the system of records, contact SUPPLEMENTARY INFORMATION: meeting_summaries_2011.html.

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Issued at Washington, DC on October 18, conditioner and heat pump test EPCA provides that ‘‘the test procedures 2011. procedures for its Multi V SYNC II and shall be those generally accepted LaTanya R. Butler, Multi V Water II VRF multi-split industry testing procedures or rating Acting Deputy Committee Management commercial equipment. The waiver procedures developed or recognized by Officer. requires LG to use the alternate test the Air-Conditioning and Refrigeration [FR Doc. 2011–27435 Filed 10–21–11; 8:45 am] procedure provided in this notice to test Institute [ARI] or by the American BILLING CODE 6450–01–P and rate the specified models of its Society of Heating, Refrigerating and Multi V SYNC II and Multi V Water II Air-Conditioning Engineers [ASHRAE], VRF multi-split commercial equipment as referenced in ASHRAE/IES Standard DEPARTMENT OF ENERGY line (as identified below). 90.1 and in effect on June 30, 1992.’’ (42 Today’s decision prohibits LG from U.S.C. 6314(a)(4)(A)) Under 42 U.S.C. Office of Energy Efficiency and making any representations concerning 6314(a)(4)(B), the statute further directs Renewable Energy the energy efficiency of this equipment the Secretary to amend the test unless the equipment has been tested [Case No. CAC–032] procedure for covered commercial consistent with the provisions and equipment if the industry test procedure Decision and Order Granting a Waiver restrictions in the alternate test is amended, unless the Secretary to LG Electronics, Inc. From the procedure set forth in the Decision and determines, by rule and based on clear Department of Energy Commercial Order below, and the representations and convincing evidence, that such a Package Air Conditioner and Heat fairly disclose the test results. (42 U.S.C. modified test procedure does not meet Pump Test Procedures 6314(d)) Distributors, retailers, and the statutory criteria set forth in 42 private labelers are held to the same U.S.C. 6314(a)(2) and (3). AGENCY: Office of Energy Efficiency and standard when making representations On December 8, 2006, DOE published Renewable Energy, Department of regarding the energy efficiency of this a final rule adopting test procedures for Energy. equipment. Id. commercial package air-conditioning ACTION: Decision and Order. Issued in Washington, DC, on October 18, and heating equipment, effective 2011. January 8, 2007. 71 FR 71340. Table 1 SUMMARY: This notice publishes the U.S. Kathleen B. Hogan, to Title 10 of the Code of Federal Department of Energy’s (DOE) Decision Regulations (10 CFR) 431.96 directs and Order in Case No. CAC–032, which Deputy Assistant Secretary for Energy Efficiency, Energy Efficiency and Renewable manufacturers of commercial package grants LG Electronics, Inc. (LG) a waiver Energy. air conditioning and heating equipment from the existing DOE test procedures to use the appropriate procedure when applicable to commercial package air- Decision and Order measuring energy efficiency of this source and water-source central air In the Matter of: LG Electronics, Inc. equipment. For small commercial conditioners and heat pumps. The (LG) (Case No. CAC–032). packaged water-source heat pumps with waiver is specific to the LG Multi V capacities less than 135,000 Btu/h, ISO SYNC II and Multi V Water II variable Background Standard 13256–1 (1998) is the refrigerant flow (VRF) multi-split Title III, part C of the Energy Policy applicable test procedure. For commercial heat pumps. As a condition and Conservation Act of 1975 (EPCA), commercial package air-source of this waiver, LG must use the alternate Public Law 94–163 (42 U.S.C. 6311– equipment with capacities between test procedure set forth in this notice to 6317, as codified, added by Public Law 65,000 and 760,000 Btu/h, ARI Standard test and rate its Multi V SYNC II and 95–619, Title IV, 441(a)) established the 340/360–2004 is the applicable test Multi V Water II VRF multi-split Energy Conservation Program for procedure. commercial heat pumps. Certain Industrial Equipment, a program DOE’s regulations for covered DATES: This Decision and Order is covering commercial air conditioning products and equipment permit a effective October 24, 2011. and heating equipment, which includes person to seek a waiver from the test the Multi V SYNC II and Multi V Water procedure requirements for covered FOR FURTHER INFORMATION CONTACT: Dr. II VRF multi-split heat pumps that are commercial equipment if at least one of Michael G. Raymond, U.S. Department the focus of this notice.1 Part C the following conditions is met: (1) The of Energy, Building Technologies specifically includes definitions (42 petitioner’s basic model contains one or Program, Mailstop EE–2J, 1000 U.S.C. 6311), test procedures (42 U.S.C. more design characteristics that prevent Independence Avenue, SW., 6314), labeling provisions (42 U.S.C. testing according to the prescribed test Washington, DC 20585–0121. 6315), energy conservation standards procedures; or (2) the prescribed test Telephone: (202) 586–9611. E-mail: (42 U.S.C 6313), and the authority to procedures may evaluate the basic [email protected]. require information and reports from model in a manner so unrepresentative Ms. Jennifer Tiedeman, U.S. manufacturers. 42 U.S.C. 6316. With of its true energy consumption as to Department of Energy, Office of the respect to test procedures, Part C provide materially inaccurate General Counsel, Mail Stop GC–71, authorizes the Secretary of Energy (the comparative data. 10 CFR 431.401(a)(1). 1000 Independence Avenue, SW., Secretary) to prescribe test procedures Petitioners must include in their Washington, DC 20585–0103, (202) 287– that are reasonably designed to produce petition any alternate test procedures 6111; E-mail: Jennifer.Tiedeman@hq. results that measure energy efficiency, known to the petitioner to evaluate the doe.gov. energy use, and estimated annual basic model in a manner representative SUPPLEMENTARY INFORMATION: In operating costs, and that are not unduly of its energy consumption. 10 CFR accordance with Title 10 of the Code of burdensome to conduct. (42 U.S.C. 431.401(b)(1)(iii). The Assistant Federal Regulations (10 CFR) 6314(a)(2)) Secretary for Energy Efficiency and 431.401(f)(4), DOE is providing notice of For commercial package air- Renewable Energy (Assistant Secretary) the issuance of the Decision and Order conditioning and heating equipment, may grant a waiver subject to set forth below. In this Decision and conditions, including adherence to Order, DOE grants LG a waiver from the 1 For editorial reasons, upon codification in the alternate test procedures. 10 CFR existing DOE commercial package air U.S. Code, part C was re-designated part A–1. 431.401(f)(4). Waivers remain in effect

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pursuant to the provisions of 10 CFR (April 9, 2007) (Mitsubishi); 76 FR Conditioning and Heat Pump 431.401(g). 19069 (April 6, 2011) (Daikin); 76 FR Equipment.’’ This test procedure has The waiver process also permits 19078 (April 6, 2011) (Mitsubishi). been incorporated into ASHRAE 90.1— parties submitting a petition for waiver On May 23, 2011, DOE published 2010. DOE is currently assessing ANSI/ to file an application for interim waiver LG’s petition for waiver in the Federal AHRI 1230–2010 in light of the of the applicable test procedure Register, seeking public comment requirements for test procedures requirements. 10 CFR 431.401(a)(2). The pursuant to 10 CFR 431.401(b)(1)(iv), specified by EPCA (42 U.S.C. Assistant Secretary will grant an interim and granted the application for interim 6314(a)(4)(B)), and will provide a waiver request if it is determined that waiver. 76 FR 29733. DOE received no preliminary determination regarding the applicant will experience economic comments on the LG petition. those test procedures in a future notice hardship if the application for interim of proposed rulemaking. waiver is denied, if it appears likely that Assertions and Determinations LG’s petition proposed that DOE the petition for waiver will be granted, LG’s Petition for Waiver apply the same alternate test procedure and/or the Assistant Secretary DOE approved in the previous waiver LG seeks a waiver from the applicable determines that it would be desirable for decisions to its Multi V SYNC II and DOE test procedures under 10 CFR public policy reasons to grant Multi V Water II VRF multi-split 431.96 on the grounds that its Multi V immediate relief pending a commercial heat pumps as a condition SYNC II and Multi V Water II VRF determination on the petition for of its requested waiver. As stated above, multi-split commercial heat pumps waiver. 10 CFR 431.401(e)(3). An DOE has not received any comments interim waiver remains in effect for 180 contain design characteristics that regarding the LG petition. days or until DOE issues its prevent them from being tested using DOE issues today’s Decision and determination on the petition for the current DOE test procedures. As Order granting LG a test procedure waiver, whichever occurs first. It may be stated above, LG asserts that the two waiver for its commercial Multi V SYNC extended by DOE for an additional 180 primary factors that prevent testing of II and Multi V Water II VRF multi-split days. 10 CFR 431.401(e)(4). multi-split variable speed equipment are commercial heat pumps. As a condition On April 8, 2011, LG filed a petition the same factors that led DOE to grant of this waiver, LG must use the alternate for waiver from the test procedure at 10 waivers to other manufacturers for test procedure described below. CFR 431.96 applicable to commercial similar lines of commercial multi-split Alternate Test Procedure package air-source and water-source heat pumps: (1) Testing laboratories central air conditioners and heat pumps, cannot test systems with so many The alternate test procedure as well as an application for interim indoor units; and (2) there are too many prescribed by DOE in previous multi- waiver. LG’s petition requested a waiver possible combinations of indoor and split commercial heat pump waivers, for the LG Multi V SYNC II VRF multi- outdoor units to test. For reasons similar including the interim waiver granted to split air-source heat pumps with to those published in these prior LG in response to the current petition, capacities from 76,400 Btu/h to 310,000 notices, DOE believes that an alternate consists of a definition of a ‘‘tested Btu/h. The applicable test procedure for test procedure is appropriate in this combination’’ and a prescription for these heat pumps is ARI 340/360–2004. instance. representations. ANSI/AHRI 1230–2010 LG’s petition also requested a waiver for The Multi V SYNC II and Multi V also includes a definition of ‘‘tested its LG Multi V Water II water-source Water II heat pump systems consist of combination,’’ and the two definitions heat pumps with capacities ranging multiple indoor units connected to an are identical in all relevant respects. from 72,000 Btu/h to 95,900 Btu/h. The air-cooled outdoor unit. These multi- The alternate test procedure applicable test procedure for these split systems are used in zoned systems prescribed by DOE in previous multi- products is ISO Standard 13256–1 where an outdoor or water-source unit split commercial heat pump waivers (1998). Manufacturers are directed to can be connected with up to 16 to 64 provides for efficiency rating of a non- use these test procedures pursuant to separate indoor units, which need not tested combination in one of two ways: Table 1 of 10 CFR 431.96. be the same models. According to LG, (1) At an energy efficiency level LG seeks a waiver from the applicable the various indoor and outdoor models determined using a DOE-approved test procedures under 10 CFR 431.96 on can be connected in a multitude of alternative rating method or (2) at the the grounds that its Multi V SYNC II configurations, with millions of possible efficiency level of the tested and Multi V Water II VRF multi-split combinations. Consequently, LG combination utilizing the same outdoor commercial heat pumps contain design requested that DOE grant a waiver from unit. ANSI/AHRI 1230–2010 requires an characteristics that prevent testing the applicable test procedures for its additional test and in this respect is according to the current DOE test Multi V SYNC II and Multi V Water II similar to the residential test procedure procedures. Specifically, LG asserts that VRF equipment designs until a suitable set forth in 10 CFR part 430, subpart B, the two primary factors that prevent test method can be prescribed. appendix M. Under AHRI 1230, multi- testing of this multi-split variable speed After DOE granted a waiver for split manufacturers must test two or equipment are the same factors stated in Mitsubishi’s R22 multi-split equipment, more combinations of indoor units with the waivers that DOE has granted to 69 FR 52660 (Aug. 27, 2004), ARI each outdoor unit. The first system Mitsubishi Electric & Electronics USA, formed a committee to discuss testing combination is tested using only non- Inc. (Mitsubishi) and other issues and to develop a testing protocol ducted indoor units that meet the manufacturers for similar lines of for variable refrigerant flow systems. definition of a tested combination. The commercial multi-split air-conditioning The committee has developed a test rating given to any untested multi-split systems: procedure which has been adopted by system combination having the same • Testing laboratories cannot test the Air-Conditioning, Heating and outdoor unit and all non-ducted indoor products with so many indoor units; Refrigeration Institute (AHRI) and the units is set equal to the rating of the and American National Standards Institute tested system having all non-ducted • There are too many possible (ANSI), ANSI/AHRI 1230—2010: indoor units. The second system combinations of indoor and outdoor ‘‘Performance Rating of Variable combination is tested using only ducted units to test. See, e.g., 72 FR 17528 Refrigerant Flow (VRF) Multi-Split Air- indoor units that meet the definition of

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a tested combination. The rating given capacity greater than 300,000 Btu/hr,2 cooling capacity of 95,900 Btu/h. The to any untested multi-split system except that tests of both ducted and maximum number of connectable indoor combination having the same outdoor non-ducted indoor units must now be units is 16. unit and all ducted indoor units is set conducted. Compatible indoor units for the above- equal to the rating of the tested system listed air-source and water-source units: Consultations With Other Agencies Wall Mounted: ARNU073SEL2, having all ducted indoor units. The DOE consulted with the Federal Trade ARNU093SEL2, ARNU123SEL2, rating given to any untested multi-split ARNU153SEL2, ARNU183S5L2, and system combination having the same Commission (FTC) staff concerning the ARNU243S5L2, with nominally rated cooling outdoor unit and a mix of non-ducted LG petition for waiver. The FTC staff capacities of 7,500, 9,600, 12,300, 15,400, and ducted indoor units is set equal to did not have any objections to issuing 19,100, and 24,200 Btu/h, respectively. the average of the ratings for the two a waiver to LG. Art Cool Mirror: ARNU073SE*2, required tested combinations. ARNU093SE*2, ARNU123SE*2, Conclusion ARNU153SE*2, ARNU183S3*2, and With regard to the laboratory testing After careful consideration of all the ARNU243S3*2, with nominally rated cooling of commercial equipment, some of the materials submitted by LG, the absence capacities of 7,500, 9,600, 12,300, 15,400, difficulties associated with the existing of any comments, and consultation with 19,100, and 24,200 Btu/h, respectively. DOE test procedure are avoided through the FTC staff, it is ordered that: 4 Way Cassette: ARNU073TEC2, the alternate test procedure’s ARNU093TEC2, ARNU123TEC2, (1) The petition for waiver filed by LG ARNU153TEC2, ARNU183TEC2, requirements for choosing the indoor (Case No. CAC–032) is hereby granted as ARNU243TPC2, ARNU283TPC2, units to be used in the manufacturer- set forth in the paragraphs below. ARNU363TNC2, ARNU423TMC2, and specified tested combination. For (2) LG shall not be required to test or ARNU483TMC2, with nominally rated example, in addition to limiting the rate its Multi V SYNC II and Multi V cooling capacities of 7,500, 9,600, 12,300, number of indoor units, another Water II VRF multi-split commercial 15,400, 19,100, 24,200, 28,000, 36,200, requirement is that all the indoor units heat pump models listed below 42,000, and 48,100 Btu/h, respectively. must be subject to the same minimum according to the test procedures cited in 2 Way Cassette: ARNU183TLC2 and external static pressure. This 10 CFR 431.96, which incorporates by ARNU243TLC2, with nominally rated capacities of 19,100 and 24,200 Btu/h, requirement enables the test laboratory reference ARI 340/360–2004 for the respectively. to manifold the outlets from each indoor Multi V SYNC II air-source equipment 1 Way Cassette: ARNU073TJC2, unit into a common plenum that and ISO Standard 13256–1 (1998) for ARNU093TJC2, and ARNU123TJC2, with supplies air to a single airflow the Multi V Water II water-source nominally rated capacities of 7,500, 9,600, measuring apparatus, thereby equipment. Instead, LG shall be and 12,300 Btu/h, respectively. eliminating situations in which some of required to test and rate such equipment Ceiling Concealed Duct—Low Static: the indoor units are ducted and some according to the alternate test procedure ARNU073B1G2, RNU093B1G2, as set forth in paragraph (3). ARNU123B1G2, ARNU153B1G2, are non-ducted. Without this ARNU183B2G2, and ARNU243B2G2, with requirement, the laboratory would have Multi V Series Air-Source Heat nominally rated capacities of 7,500, 9,600, to evaluate the capacity of a subgroup of Pumps Heat Recovery Units: 12,300, 15,400, 19,100, and 24,200 Btu/h, indoor coils separately and then sum SYNC II 3; 460V 60 Hz models: respectively. the separate capacities to obtain the ARUB076DT2, ARUB096DT2, ARUB115DT2, Ceiling Concealed Duct—Built-in: overall system capacity. Measuring ARUB134DT2, ARUB154DT2, ARUB173DT2, ARNU073B3G2, ARNU093B3G2, capacity in this way would require that ARUB192DT2, ARUB211DT2, ARUB230DT2, ARNU123B3G2, ARNU153B3G2, the test laboratory be equipped with ARUB250DT2, ARUB270DT2, ARUB290DT2, ARNU183B4G2, and ARNU243B4G2, with ARUB310DT2, with normally rated cooling nominally rated capacities of 7,500, 9,600, multiple airflow measuring apparatuses. 12,300, 15,400, 19,100, and 24,200 Btu/h, It is unlikely that any test laboratory capacities of 76,400, 95,900, 114,700, 133,800, 152,900, 172,000, 191,100, 211,000, respectively. would be equipped with the necessary 230,000, 250,000, 270,000, 290,000, and Ceiling Concealed Duct—High Static: number of such apparatuses. 310,000 Btu/h, respectively. The maximum ARNU073BHA2, ARNU093BHA2, Alternatively, the test laboratory could number of connectable indoor units is 13, 16, ARNU123BHA2, ARNU153BHA2, connect its one airflow measuring 20, 23, 26, 29, 32, 35, 39, 42, 49, and 52, ARNU183BHA2, ARNU243BHA2, apparatus to one or more common respectively. ARNU283BGA2, ARNU363BGA2, ARNU423BGA2, ARNU483BRA2, indoor units until the contribution of Multi V Series Water-Source Heat each indoor unit had been measured. URNU763B8A2, and URNU963B8A2, with Pumps Water-Source Units: nominally rated capacities of 7,500, 9,600, However, that approach would be so ; 12,300, 15,400, 19,100, 24,200, 28,000, time-consuming as to be impractical. Water II 3 460V 60 Hz model: ARWN096DA2 with nominally rated cooling 36,200, 42,000, 48,100, 76,400, and 95,500 For the reasons discussed above, DOE capacity of 95,900 Btu/h. The maximum Btu/h, respectively. believes LG’s Multi V SYNC II and number of connectable indoor units is 16. Ceiling & Floor: ARNU093VEA2 and Multi V Water II VRF multi-split Water II 3; 208/230V 60 Hz model: ARNU123VEA2, with nominally rated commercial heat pumps cannot be ARWN072BA2 with nominally rated cooling capacities of 9,600 and 12,300 Btu/h, capacity of 72,000 Btu/h. The maximum respectively. tested using the procedures prescribed Ceiling Suspended: ARNU183VJA2 and in 10 CFR 431.96. After careful number of connectable indoor units is 16. Water II Heat Recovery 3; 208/230V 60 Hz ARNU243VJA2, with nominally rated consideration, DOE has decided to model: ARWB072BA2 with nominally rated capacities of 19,100 and 24,200 Btu/h, prescribe ANSI/AHRI 1230–2010 as the cooling capacity of 72,000 Btu/h. The respectively. alternate test procedure for LG’s maximum number of connectable indoor Floor Standing with Case: ARNU073CEA2, commercial multi-split products with units is 16. ARNU093CEA2, ARNU123CEA2, cooling capacities less than or equal to Water II Heat Recovery 3; 460V 60 Hz ARNU153CEA2, ARNU183CFA2, and 300,000 Btu/hr (the maximum size model: ARWB096DA2 with nominally rated ARNU243CFA2, with nominally rated covered by ANSI/AHRI 1230–2010) and capacities of 7,500, 9,600, 12,300, 15,400, 19,100, and 24,200 Btu/h, respectively. the alternate test procedure specified in 2 There is no technical justification for the 300,000 Btu/hr limit, which was simply the largest Floor Standing without Case: LG’s interim waiver for its multi-split multi-split capacity at the time ANSI/AHRI 1230 ARNU073CEU2, ARNU093CEU2, commercial heat pumps with cooling was drafted. ARNU123CEU2, ARNU153CEU2,

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ARNU183CFU2, and ARNU243CFU2, with of the nominal cooling capacity of the materials provided by the petitioner are nominally rated capacities of 7,500, 9,600, outdoor unit; valid. DOE may revoke or modify the 12,300, 15,400, 19,100, and 24,200 Btu/h, (iii) Not, individually, have a nominal waiver at any time if it determines that respectively. cooling capacity that is greater than the factual basis underlying the petition Vertical Air Handler: ARNU183NJA2, 50% of the nominal cooling capacity of ARNU243NJA2, ARNU303NJA2, for waiver is incorrect, or the results ARNU363NJA2, ARNU423NKA2, the outdoor unit; from the alternate test procedure are ARNU483NKA2, and ARNU543NKA2, with (iv) Operate at fan speeds that are unrepresentative of the basic models’ nominally rated capacities of 18,000, 24,000, consistent with the manufacturer’s true energy consumption characteristics. 30,000, 36,000, 42,100, 48,000 and 54,000 specifications; and (6) This waiver applies only to those Btu/h, respectively. (v) Be subject to the same minimum basic models set out in LG’s petition for external static pressure requirement (3) Alternate test procedure. waiver. while being configurable to produce the (A) LG shall be required to test the (7) Grant of this waiver does not same static pressure at the exit of each equipment with cooling capacities of release a petitioner from the outlet plenum when manifolded as per 300,000 Btu/h and below listed in certification requirements set forth at 10 section 2.4.1 of 10 CFR Part 430, subpart paragraph (2) above according to the test CFR part 429. B, appendix M. procedure prescribed in ANSI/AHRI Issued in Washington, DC, on October 18, (D) Representations. In making 1230–2010. 2011. representations about the energy (B) LG shall be required to test the Kathleen B. Hogan, efficiency of its Multi V SYNC II and equipment listed in paragraph (2) above Multi V Water II VRF multi-split Deputy Assistant Secretary, Energy Efficiency with cooling capacities above 300,000 and Renewable Energy. commercial heat pumps, for Btu/h according to the test procedures compliance, marketing, or other [FR Doc. 2011–27409 Filed 10–21–11; 8:45 am] for commercial central air conditioners purposes, LG must fairly disclose the BILLING CODE 6450–01–P and heat pumps prescribed by DOE at results of testing under the DOE test 10 CFR 431.96, except that LG shall test procedure in a manner consistent with each model of outdoor unit with two or DEPARTMENT OF ENERGY the provisions outlined below: more combinations of indoor units. The (i) For Multi V SYNC II and Multi V first system combination shall be tested Office of Energy Efficiency and Water II VRF multi-split combinations Renewable Energy using only non-ducted indoor units that tested in accordance with this alternate meet the definition of a tested test procedure, LG may make [Case No. CAC–037] combination, as set forth in paragraph C. representations based on those test The second system combination shall be results. Decision and Order Amending Waivers tested using only ducted indoor units (ii) For Multi V SYNC II and Multi V Granted to Mitsubishi Electric & that meet the definition of a tested Water II VRF multi-split combinations Electronics USA, Inc. From the combination, as set forth in paragraph C. that are not tested, LG may make Department of Energy Commercial LG shall make representations representations based on the testing Package Air Conditioner and Heat concerning the Multi V SYNC II and results for the tested combination and Pump Test Procedures Multi V Water II VRF multi-split heat that are consistent with one of the AGENCY: Office of Energy Efficiency and pump equipment covered in this waiver following methods: according to the provisions of Renewable Energy, Department of (a) Rating of non-tested combinations Energy. subparagraph (D). according to an alternative rating (C) Tested combination. The term method approved by DOE. ACTION: Decision and Order. tested combination means a sample (b) Rating of non-tested combinations SUMMARY: This notice publishes the U.S. basic model comprised of units that are having the same outdoor unit and all production units, or are representative Department of Energy’s (DOE) Decision non-ducted indoor units shall be set and Order in Case No. CAC–037, which of production units, of the basic model equal to the rating of the tested system being tested. For the purposes of this amends the current waivers applicable having all non-ducted indoor units. to Mitsubishi’s S&L Class and WR2 and waiver, the tested combination shall (c) Rating of non-tested combinations WY Series products to require the use have the following features: having the same outdoor unit and all of Air-conditioning, Heating and (1) The basic model of a variable ducted indoor units shall be set equal to Refrigeration Institute 1230 (AHRI) as refrigerant flow system used as a tested the rating of the tested system having all the alternative test procedure. combination shall consist of one ducted indoor units. To be considered a outdoor unit, with one or more ducted unit, the indoor unit must be DATES: This Decision and Order is compressors, that is matched with intended to be connected with ductwork effective October 24, 2011. between two and five indoor units. (For and have a rated external static pressure FOR FURTHER INFORMATION CONTACT: Dr. systems with nominal cooling capacities capability greater than zero (0). Michael G. Raymond, U.S. Department greater than 150,000 Btu/h, as many as (d) Rating of non-tested combinations of Energy, Building Technologies eight indoor units may be used, so as to having the same outdoor unit and a mix Program, Mailstop EE–2J, 1000 be able to test non-ducted indoor unit of non-ducted and ducted indoor units Independence Avenue, SW., combinations). For multi-split systems, shall be set equal to the average of the Washington, DC 20585–0121. each of these indoor units shall be ratings for the two required tested Telephone: (202) 586–9611. E-mail: designed for individual operation. combinations. [email protected]. (2) The indoor units shall— (4) This waiver shall remain in effect Ms. Elizabeth Kohl, U.S. Department (i) Represent the highest sales model from the date this Decision and Order is of Energy, Office of the General Counsel, family or another indoor model family issued, consistent with the provisions of Mail Stop GC–71, Forrestal Building, if the highest sales model family does 10 CFR 431.401(g). 1000 Independence Avenue, SW., not provide sufficient capacity (see ii); (5) This waiver is issued on the Washington, DC 20585–0103. (ii) Together, have a nominal cooling condition that the statements, Telephone: (202) 586–7796. E-mail: capacity that is between 95% and 105% representations, and documentary mailto:[email protected].

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SUPPLEMENTARY INFORMATION: DOE and reports from manufacturers (42 provide materially inaccurate issues notice of this Decision and Order U.S.C. 6316). With respect to test comparative data. 10 CFR 431.401(a)(1). in accordance with Title 10 of the Code procedures, Part C authorizes the Petitioners must include in their of Federal Regulations (10 CFR) Secretary of Energy (the Secretary) to petition any alternate test procedures 431.401(f)(4). In this Decision and prescribe test procedures that are known to the petitioner to evaluate the Order, DOE amends the current waivers reasonably designed to produce results basic model in a manner representative applicable to Mitsubishi’s S&L Class that measure energy efficiency, energy of its energy consumption. 10 CFR and WR2 and WY Series products to use, and estimated annual operating 431.401(b)(1)(iii). The Assistant require the use of AHRI 1230 as the costs, and that are not unduly Secretary for Energy Efficiency and alternative test procedure. Amendment burdensome to conduct. (42 U.S.C. Renewable Energy (Assistant Secretary) is appropriate in this specific 6314(a)(2)) may grant a waiver subject to circumstance because DOE has recently For commercial package air- conditions, including adherence to issued waivers to other manufacturers conditioning and heating equipment, alternate test procedures. 10 CFR using AHRI 1230 as the alternate test EPCA provides that ‘‘the test procedures 431.401(f)(4). Waivers remain in effect procedure for the same types of shall be those generally accepted according to the provisions of 10 CFR equipment, and AHRI 1230 is very industry testing procedures or rating 431.401(g). similar to the alternate test procedure procedures developed or recognized by On December 15, 2009, DOE granted previously prescribed to Mitsubishi, but the Air-Conditioning and Refrigeration Mitsubishi waivers from the DOE will provide a more conservative Institute [ARI] or by the American commercial air conditioner and heat estimate of the energy consumed by this Society of Heating, Refrigerating and pump test procedures for Mitsubishi’s equipment. The waiver requires Air-Conditioning Engineers [ASHRAE], CITY MULTI WR2 and WY Series Mitsubishi use AHRI 1230 to test and as referenced in ASHRAE/IES Standard equipment and its CITY MULTI S&L rate specified models from its CITY 90.1 and in effect on June 30, 1992.’’ (42 Class equipment. 74 FR 66311; 74 FR MULTI WR2 and WY Series and CITY U.S.C. 6314(a)(4)(A)) Under 42 U.S.C. 66315. On July 11, 2011, DOE granted MULTI S&L Class multi-split equipment 6314(a)(4)(B), if the industry test Mitsubishi a waiver for additional line. procedure for commercial package air- indoor units. 76 FR 40714. On August Today’s decision requires Mitsubishi conditioning and heating equipment is 11, 2011, Mitsubishi requested that DOE to make representations concerning the amended, EPCA directs the Secretary to amend its orders granting test procedure energy efficiency of this equipment amend the corresponding DOE test waivers for these products to allow consistent with the provisions and procedure unless the Secretary Mitsubishi to test and rate its WR2 and restrictions of the alternate test determines, by rule and based on clear WY Series products, and those S&L procedure in the Decision and Order and convincing evidence, that such a Class systems that have capacities less below, and the representations must modified test procedure does not meet than or equal to 300,000 Btu/h, fairly disclose the test results. (42 U.S.C. the statutory criteria set forth in 42 according to the American National 6314(d)) The same standard applies to U.S.C. 6314(a)(2) and (3). Standards Institute (ANSI)/Air- distributors, retailers, and private On December 8, 2006, DOE published conditioning, Heating and Refrigeration labelers when making representations of a final rule adopting test procedures for Institute (AHRI) Standard 1230–2010: the energy efficiency of this equipment. commercial package air-conditioning Performance Rating of Variable Id. and heating equipment, effective Refrigerant Flow (VRF) Multi-Split Air- January 8, 2007. 71 FR 71340. Table 1 Conditioning and Heat Pump Issued in Washington, DC, on October 18, to Title 10 of the Code of Federal 2011. Equipment (AHRI 1230). Mitsubishi also Regulations (10 CFR) 431.96 directs requested that DOE amend the Kathleen B. Hogan, manufacturers of commercial package definition of ‘‘tested combination’’ in Deputy Assistant Secretary for Energy air conditioning and heating equipment the current alternate test procedure to Efficiency, Energy Efficiency and Renewable to use the appropriate procedure when Energy. allow for the use of up to 12 indoor measuring energy efficiency of this units in the configuration of a basic Decision and Order equipment. For small commercial model. The alternate test procedure packaged water-source heat pumps with In the Matter of: Mitsubishi Electric & Mitsubishi is currently permitted to use capacities less than 135,000 Btu/h, ISO Electronics USA, Inc. (Mitsubishi) (Case specifies a maximum of eight indoor No. CAC–037). Standard 13256–1 (1998) is the applicable test procedure. For units for testing. Background commercial package air-source Assertions and Determinations equipment with capacities between Title III, Part C of the Energy Policy Mitsubishi’s Petition for Waiver 65,000 and 760,000 Btu/h, ARI Standard and Conservation Act of 1975 (EPCA), Amendment Pub. L. 94–163 (42 U.S.C. 6311–6317), 340/360–2004 is the applicable test established the Energy Conservation procedure. Mitsubishi’s S&L Class and WR2 and Program for certain industrial DOE’s regulations for covered WY Series products are part of equipment, which includes commercial products and equipment permit a Mitsubishi’s CITY MULTI Variable air conditioning equipment, the focus of person to seek a waiver from the test Refrigerant Flow (VRF) line of multi- this decision and order.1 procedure requirements for covered split central air conditioners and heat Part C specifically includes commercial equipment if at least one of pumps. As explained in Mitsubishi’s definitions (42 U.S.C. 6311), test the following conditions is met: (1) the waivers for the WR2 and WY Series and procedures (42 U.S.C. 6314), labeling petitioner’s basic model contains one or the S&L Class products, these systems provisions (42 U.S.C. 6315), energy more design characteristics that prevent cannot be tested according to the conservation standards (42 U.S.C 6313), testing according to the prescribed test prescribed test procedures for and the authority to require information procedures; or (2) the prescribed test commercial products. Specifically, they procedures may evaluate the basic contain one or more design 1 For editorial reasons, upon codification in the model in a manner so unrepresentative characteristic that prevents testing U.S. Code, Part C was re-designated Part A–1. of its true energy consumption as to according to the test procedures.

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According to DOE’s grant of the using a DOE-approved alternative rating range. Thus, similar to DOE’s decision December 2009 and July 2011 waivers, method; or (2) at the efficiency level of in the Daikin and Carrier waivers, Mitsubishi is not required to test or rate the tested combination utilizing the Mitsubishi requested that DOE prescribe the products listed in the waivers based same outdoor unit. In AHRI 1230, AHRI 1230 as the alternate test on the current DOE test procedure. similar to the residential test procedure procedure for Mitsubishi’s WR2 and WY Instead, Mitsubishi is required to test set forth in 10 CFR part 430, subpart B, Series products. and rate these products according to the appendix M, multi-split manufacturers Mitsubishi’s S&L Class product line alternate test procedure set forth in the must also test two or more combinations includes outdoor units with individual waivers. of indoor units with each outdoor unit. capacities from 65,000 to 144,000 Btu/ The alternate test procedure The first system combination is tested h, which can be combined into systems prescribed in the December 2009 and using only non-ducted indoor units that with capacities from 130,000 to 480,000 July 2011 waivers was first prescribed in meet the definition of a tested Btu/h. Although the individual 2007, in response to two other petitions combination. The rating given to any capacities of these outdoor units fall for waiver from Mitsubishi. DOE untested multi-split system combination within AHRI 1230’s capacity range, specified alternate test procedures for having the same outdoor unit and all some of the combinations of outdoor representing the energy efficiency of non-ducted indoor units is set equal to units have capacities that are greater Mitsubishi’s R410A and R22 CITY the rating of the tested system having all than the capacity range for AHRI 1230. MULTI multi-split products. The non-ducted indoor units. The second Thus, similar to DOE’s decision in the alternate test procedure was published system combination is tested using only Daikin waiver, Mitsubishi requested on April 9, 2007. 72 FR 17528, 72 FR ducted indoor units that meet the that DOE prescribe AHRI 1230 as the 17533. Since then, DOE has prescribed definition of a tested combination. The alternate test procedure for those S&L the same alternate test procedure for rating given to any untested multi-split Class products that have capacities less other manufacturers of multi-split system combination having the same than or equal to 300,000 Btu/h. For products. outdoor unit and all ducted indoor units those S&L Class system that have After DOE granted a waiver to is set equal to the rating of the tested capacities greater than 300,000 Btu/h, Mitsubishi’s CITY MULTI products, the system having all ducted indoor units. Mitsubishi will continue to use the Air-Conditioning and Refrigeration The rating given to any untested multi- alternate test procedure specified in the Institute (ARI) (now AHRI) formed a split system combination having the S&L Class waiver. committee to develop a general testing same outdoor unit and a mix of non- DOE has determined that use of AHRI protocol for VRF systems. The ducted and ducted indoor units is set 1230 is appropriate for Mitsubishi’s committee developed AHRI 1230, which equal to the average of the ratings for the WR2 and WY Series products and its has been incorporated into ASHRAE two required tested combinations. S&L Class products for the reasons set 90.1–2010. AHRI 1230 establishes a test Third, the alternate test procedure forth below. procedure for VRF multi-split air and AHRI 1230 require the use of As discussed above, AHRI 1230 conditioners and heat pumps. The test different line lengths for the cooling requires longer line lengths for the procedure covers matched VRF systems refrigerant line when performing cooling refrigerant line during testing, with cooling and heating capacities for efficiency testing. AHRI 1230 requires depending on the type and capacity of outdoor units between 12,000 Btu/h and longer line lengths depending on the the connected indoor units. This 300,000 Btu/h. DOE is assessing AHRI type and capacity of the connected difference affects the resulting energy 1230 with respect to the requirements indoor units. efficiency determination. Testing EPCA specifies for test procedures, and As DOE continues to evaluate AHRI according to AHRI 1230’s requirements will make a preliminary determination 1230, DOE has granted manufacturers’ provides a more conservative estimate regarding AHRI 1230 in a future request to use AHRI 1230 as the of energy consumption because it rulemaking. alternate test procedure for testing and results in a slightly lower efficiency AHRI 1230 is very similar to the rating their commercial multi-split rating than testing according to the alternate test procedure in the products subject to a waiver of DOE’s alternate test procedure. commercial multi-split waivers that test procedures. DOE prescribed AHRI In addition, the definition of ‘‘tested DOE previously granted to Mitsubishi 1230 as the alternate test procedure for combination’’ in AHRI 1230 is more and other manufacturers, but contains those Daikin AC (Americas) Inc. appropriate for these Mitsubishi minor differences in the definition of (‘‘Daikin’’) commercial multi-split products than the definition in the tested combination, the testing of products that have cooling capacities current alternate test procedure. As ducted versus non-ducted indoor units, less than or equal to 300,000 Btu/h, and defined in the current alternate test and the line lengths. These differences for Carrier Corporation’s (‘‘Carrier’’) procedures for Mitsubishi’s products, are discussed below. commercial multi-split products. 76 FR the ‘‘tested combination’’ of a VRF First, the definition of ‘‘tested 34685 (June 14, 2011); 76 FR 31951 system is defined as one outdoor unit combination’’ in AHRI 1230 and the (June 2, 2011). matched with between two and eight alternate test procedure prescribed by Consistent with the requests of these indoor units. The indoor units must DOE in the earlier multi-split waivers other manufacturers, Mitsubishi represent the highest sales model are identical in all relevant respects, requested that DOE permit it to use family, and, together, must have a except that AHRI 1230 allows the use of AHRI 1230 as the alternate test nominal cooling capacity that is up to 12 indoor units, as opposed to procedure to test and rate its WR2 and between 95% and 105% of the nominal eight in the earlier alternate test WY Series units and those S&L Class cooling capacity of the outdoor unit. procedure. systems that have capacities less than or Due to the relative size of some of Second, ANSI/AHRI 1230–2010 equal to 300,000 Btu/h. AHRI 1230 Mitsubishi’s outdoor units and indoor requires an additional test. The earlier covers multi-split products with cooling units, permitting the matching of up to alternate test procedure provides for and heating capacities for outdoor units only eight indoor units may not be efficiency rating of a non-tested from 12,000 Btu/h to 300,000 Btu/h. The sufficient to comply with the combination in one of two ways: (1) at outdoor units of Mitsubishi’s WR2 and requirement that the indoor units must an energy efficiency level determined WY Series products fall within that have a combined capacity that is

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between 95% and 105% of the nominal according to the provisions of (d) Rating of non-tested combinations cooling capacity of the outdoor unit. subparagraph (C): having the same outdoor unit and a mix AHRI 1230, as revised in March 2011, (a) Equipment listed in the WR2 and of non-ducted and ducted indoor units permits the use of up to twelve indoor WY Series waiver granted December 15, shall be set equal to the average of the units. For consistency purposes, DOE 2009 (74 FR 66311); ratings for the two required tested also agrees with Mitsubishi’s request (b) Equipment listed in the S&L Class combinations. that DOE amend the definition of waiver granted December 15, 2009 (74 (D) This waiver amendment shall ‘‘tested combination’’ in the current FR 66315); and remain in effect from the date this alternate test procedure to make it (c) Basic models of CITY MULTI WR2 Decision and Order is issued, consistent identical to the definition in AHRI 1230 and WY Series and CITY MULTI S&L with the provisions of 10 CFR for those units with capacities greater Class equipment listed in the waiver 431.401(g). than 300,000 Btu/h that are outside the granted July 11, 2011 (76 FR 40714). (B) Tested combination. The term Issued in Washington, DC, on October 18, scope of AHRI 1230. 2011. For the reasons discussed above, and ‘‘tested combination’’ means a sample basic model comprised of units that are Kathleen B. Hogan, because DOE’s prescribed AHRI 1230 as Deputy Assistant Secretary for Energy the alternate test procedure in waivers production units, or are representative of production units, of the basic model Efficiency, Energy Efficiency and Renewable granted to Carrier and Daikin, DOE Energy. being tested. For the purposes of this determined that allowing Mitsubishi to [FR Doc. 2011–27431 Filed 10–21–11; 8:45 am] use AHRI 1230 instead of the alternate waiver, the tested combination shall BILLING CODE 6450–01–P test procedure provided in the WR2 and have the following features: The basic WY Series Waiver and the S&L Class model of a variable refrigerant flow Waiver is in the public interest. system (‘‘VRF system’’) used as a tested combination shall consist of an outdoor DEPARTMENT OF ENERGY Conclusion unit (an outdoor unit can include Federal Energy Regulatory After careful consideration of all the multiple outdoor units that have been Commission materials submitted by Mitsubishi, it is manifolded into a single refrigeration ordered that: system, with a specific model number) Combined Notice of Filings #1 (A)(1) Mitsubishi is not required to that is matched with between 2 and 12 Take notice that the Commission test the following equipment with indoor units; for multi-split systems, received the following electric corporate cooling capacities of 300,000 Btu/h and each of these indoor units shall be filings: below according to the test procedure designed for individual operation. for commercial package air conditioners (C) Representations. In making Docket Numbers: EC12–8–000. and heat pumps prescribed by DOE at representations about the energy Applicants: Plymouth Rock Energy, 10 CFR 431.96 (ARI Standard 340/360– efficiency of its S&L Class and WR2 and LLC. 2004 (incorporated by reference in 10 WY Series multi-split products, for Description: Application for Approval CFR 431.95(b)(2)-(3)), but instead shall compliance, marketing, or other Under Section 203 of Plymouth Rock use as the alternate test procedure purposes, Mitsubishi must fairly Energy, LLC. ANSI/AHRI 1230–2010: disclose the results of testing under the Filed Date: 10/13/2011. DOE test procedure in a manner Accession Number: 20111013–5161. (a) Equipment listed in the WR2 and consistent with the provisions outlined Comment Date: 5 p.m. Eastern Time WY Series waiver granted December 15, below: on Thursday, November 03, 2011. 2009 (74 FR 66311); (i) For multi-split combinations tested Take notice that the Commission (b) Equipment listed in the S&L Class in accordance with this alternate test waiver granted December 15, 2009 (74 received the following electric rate procedure, Mitsubishi may make filings: FR 66315); and representations based on those test (c) Basic models of CITY MULTI WR2 Docket Numbers: ER10–1577–001. results. Applicants: Dogwood Energy LLC. and WY Series and CITY MULTI S&L (ii) For multi-split combinations that Description: Notification of Change in Class equipment listed in the waiver are not tested, Mitsubishi may make Status of Dogwood Energy LLC. granted July 11, 2011 (76 FR 40714). representations based on the testing Filed Date: 10/13/2011. (2) Mitsubishi shall be required to test results for the tested combination and Accession Number: 20111013–5124. the following equipment with cooling that are consistent with one of the Comment Date: 5 p.m. Eastern Time capacities above 300,000 Btu/h following methods: on Thursday, November 03, 2011. according to the test procedures for (a) Rating of non-tested combinations central air conditioners and heat pumps according to an alternative rating Docket Numbers: ER11–4330–001. prescribed by DOE at 10 CFR 431.96, method approved by DOE; or Applicants: ISO New England Inc., except that Mitsubishi shall test each (b) Rating of non-tested combinations Vermont Electric Cooperative, Inc. model of outdoor unit with two or more having the same outdoor unit and all Description: ISO New England Inc. combinations of indoor units. The first non-ducted indoor units shall be set submits tariff filing per 35.17(b): system combination shall be tested equal to the rating of the tested system Supplemental Filing to Schedule 21– using only non-ducted indoor units that having all non-ducted indoor units. VEC Revisions to be effective 4/1/2011. meet the definition of a tested (c) Rating of non-tested combinations Filed Date: 10/13/2011. combination as set forth in having the same outdoor unit and all Accession Number: 20111013–5033. subparagraph (B). The second system ducted indoor units shall be set equal to Comment Date: 5 p.m. Eastern Time combination shall be tested using only the rating of the tested system having all on Thursday, November 03, 2011. ducted indoor units that meet the ducted indoor units. To be considered a Docket Numbers: ER11–4673–002. definition of a tested combination as set ducted unit, the indoor unit must be Applicants: Air Liquide Large forth in subparagraph (B). Mitsubishi intended to be connected with ductwork Industries U.S. LP. shall make representations concerning and have a rated external static pressure Description: Air Liquide Large the products covered in this waiver capability greater than zero (0). Industries U.S. LP submits tariff filing

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per 35: MBR Tariff to be effective 10/12/ Applicants: Public Power & Utility, Docket Numbers: ER12–81–000. 2011. Inc. Applicants: Public Service Company Filed Date: 10/13/2011. Description: Public Power & Utility, of Colorado. Accession Number: 20111013–5125. Inc. submits tariff filing per 35: Revised Description: Notice of Termination of Comment Date: 5 p.m. Eastern Time Tariff to be effective 10/13/2011. on Thursday, November 03, 2011. Filed Date: 10/14/2011. Service Agreement 280–PSCo bewteen PSCo and TSGT. Docket Numbers: ER12–71–000. Accession Number: 20111014–5002. Applicants: ISO New England Inc., Comment Date: 5 p.m. Eastern Time Filed Date: 10/14/2011. The United Illuminating Company. on Friday, November 04, 2011. Accession Number: 20111014–5072. Description: ISO New England Inc. Docket Numbers: ER12–76–000. Comment Date: 5 p.m. Eastern Time submits tariff filing per 35.13(a)(2)(iii: Applicants: Pacific Gas and Electric on Friday, November 04, 2011. United Illuminating Company Schedule Company. 21 Tariff Revisions to be effective 12/1/ Description: Pacific Gas and Electric Docket Numbers: ER12–82–000. 2011. Company submits tariff filing per Applicants: Public Service Company Filed Date: 10/13/2011. 35.13(a)(2)(iii: Balancing Account of Colorado. Accession Number: 20111013–5038. Update 2012 (TRBAA, RSBAA, and Description: Public Service Company Comment Date: 5 p.m. Eastern Time ECRBAA) to be effective 1/1/2012. of Colorado submits tariff filing per on Thursday, November 03, 2011. Filed Date: 10/14/2011. 35.13(a)(2)(iii: 2011–10– Docket Numbers: ER12–72–000. Accession Number: 20111014–5005. 14_PSCo_WAPA Malta SS Maint Agrmt Comment Date: 5 p.m. Eastern Time Applicants: Public Service Company 319 to be effective 10/15/2011. on Friday, November 04, 2011. of New Mexico. Filed Date: 10/14/2011. Docket Numbers: ER12–77–000. Description: Public Service Company Accession Number: 20111014–5076. of New Mexico submits tariff filing per Applicants: California Independent 35.13(a)(2)(iii: PNM Revised NITSA and System Operator Corporation. Comment Date: 5 p.m. Eastern Time Revised NOA with Navopache Electric Description: Petition for Approval of on Friday, November 04, 2011. Disposition of Proceeds of Penalty Cooperative to be effective 11/14/2011. Take notice that the Commission Assessment of the California Filed Date: 10/13/2011. received the following electric securities Independent System Operator Accession Number: 20111013–5137. filings: Comment Date: 5 p.m. Eastern Time Corporation. on Thursday, November 03, 2011. Filed Date: 10/13/2011. Docket Numbers: ES11–48–000. Accession Number: 20111013–5164. Docket Numbers: ER12–73–000. Applicants: Kentucky Utilities Comment Date: 5 p.m. Eastern Time Company. Applicants: Pacific Gas and Electric on Thursday, November 03, 2011. Company. Description: Amendment to Description: Pacific Gas and Electric Docket Numbers: ER12–78–000. Application of Kentucky Utilities Applicants: Carolina Power & Light Company submits tariff filing per Company. Company. 35.13(a)(2)(iii: Section 205 Filing to Description: Carolina Power & Light Filed Date: 10/05/2011. Recover Abandonment Costs and TO Company submits tariff filing per Accession Number: 20111005–5115. Tariff Modification to be effective 12/ 35.13(a)(2)(iii: Rate Schedule No. 134 of 13/2011. Comment Date: 5 p.m. Eastern Time Carolina Power and Light Company to Filed Date: 10/13/2011. on Monday, October 24, 2011. be effective 12/13/2011. Accession Number: 20111013–5146. Filed Date: 10/14/2011. The filings are accessible in the Comment Date: 5 p.m. Eastern Time Accession Number: 20111014–5030. Commission’s eLibrary system by on Thursday, November 03, 2011. Comment Date: 5 p.m. Eastern Time clicking on the links or querying the Docket Numbers: ER12–74–000. on Friday, November 04, 2011. docket number. Applicants: Southwest Power Pool, Docket Numbers: ER12–79–000. Any person desiring to intervene or Inc. Applicants: Carolina Power & Light protest in any of the above proceedings Description: Southwest Power Pool, Company. must file in accordance with Rules 211 Inc. submits tariff filing per Description: Carolina Power & Light and 214 of the Commission’s 35.13(a)(2)(iii: Incorporate Formulaic Company submits tariff filing per Regulations (18 CFR 385.211 and Process to Update Transmission Owner 35.13(a)(2)(iii: Revised Rate Schedule 385.214) on or before 5 p.m. Eastern Formula Rates to be effective 12/13/ No. 173 of Carolina Power and Light time on the specified comment date. 2011. Company to be effective 12/13/2011. Protests may be considered, but Filed Date: 10/13/2011. Filed Date: 10/14/2011. intervention is necessary to become a Accession Number: 20111013–5151. Accession Number: 20111014–5031. party to the proceeding. Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time eFiling is encouraged. More detailed on Thursday, November 03, 2011. on Friday, November 04, 2011. information relating to filing Docket Numbers: ER12–75–000. Docket Numbers: ER12–80–000. requirements, interventions, protests, Applicants: Public Power & Utility, Applicants: Carolina Power & Light service, and qualifying facilities filings Inc. Company. can be found at: http://www.ferc.gov/ Description: Public Power & Utility, Description: Carolina Power & Light docs-filing/efiling/filing-req.pdf. For Inc. submits tariff filing per 35.1: Market Company submits tariff filing per other information, call (866) 208–3676 Based Rate Tariff Baseline to be effective 35.13(a)(2)(iii: Revised Rate Schedule (toll free). For TTY, call (202) 502–8659. 10/13/2011. No. 182 of Carolina Power and Light Dated: October 14, 2011. Filed Date: 10/14/2011. Company to be effective 12/13/2011. Accession Number: 20111014–5000. Filed Date: 10/14/2011. Nathaniel J. Davis, Sr., Comment Date: 5 p.m. Eastern Time Accession Number: 20111014–5033. Deputy Secretary. on Friday, November 04, 2011. Comment Date: 5 p.m. Eastern Time [FR Doc. 2011–27315 Filed 10–21–11; 8:45 am] Docket Numbers: ER12–75–001. on Friday, November 04, 2011. BILLING CODE 6717–01–P

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DEPARTMENT OF ENERGY Docket Numbers: ER12–86–000. 385.214) on or before 5 p.m. Eastern Applicants: ISO New England Inc., time on the specified comment date. Federal Energy Regulatory New England Power Pool Participants Protests may be considered, but Commission Committee. intervention is necessary to become a Description: ISO New England Inc. party to the proceeding. Combined Notice of Filings #2 submits tariff filing per 35.13(a)(2)(iii: eFiling is encouraged. More detailed Take notice that the Commission Revisions to Financial Assurance Pol. information relating to filing received the following electric rate Related to Submittal of Fin. Statements requirements, interventions, protests, filings: to be effective 11/23/2011. service, and qualifying facilities filings Filed Date: 10/14/2011. can be found at: http://www.ferc.gov/ Docket Numbers: ER10–3246–001; Accession Number: 20111014–5086. docs-filing/efiling/filing-req.pdf. For ER11–2044–003; ER11–3876–002; Comment Date: 5 p.m. Eastern Time other information, call (866) 208–3676 ER10–2605–001. on Friday, October 21, 2011. Applicants: MidAmerican Energy (toll free). For TTY, call (202) 502–8659. Company, Cordova Energy Company, Docket Numbers: ER12–87–000. Dated: October 14, 2011. LLC, PacifiCorp, Yuma Cogeneration Applicants: PJM Interconnection, Nathaniel J. Davis, Sr., L.L.C. Associates. Deputy Secretary. Description: Supplement to Notice of Description: PJM Interconnection, L.L.C. submits tariff filing per [FR Doc. 2011–27316 Filed 10–21–11; 8:45 am] Change in Status. BILLING CODE 6717–01–P Filed Date: 10/07/2011. 35.13(a)(2)(iii: Queue No. W3–001; Accession Number: 20111007–5046. Original Service Agreement No. 3075 to be effective 9/19/2011. Comment Date: 5 p.m. Eastern Time DEPARTMENT OF ENERGY on Friday, October 28, 2011. Filed Date: 10/14/2011. Accession Number: 20111014–5087. Docket Numbers: ER12–70–000. Federal Energy Regulatory Comment Date: 5 p.m. Eastern Time Applicants: Cleco Power LLC, Cleco Commission on Friday, November 4, 2011. Evangeline LLC. Description: Cleco Power et al. Docket Numbers: ER12–88–000. Combined Notice of Filings Applicants: PJM Interconnection, submits joint application for a short- Take notice that the Commission has term power purchase agreement. L.L.C. Description: PJM Interconnection, received the following Natural Gas Filed Date: 10/07/2011. Pipeline Rate and Refund Report filings: Accession Number: 20111013–0203. L.L.C. submits tariff filing per Comment Date: 5 p.m. Eastern Time 35.13(a)(2)(iii: Queue No. W3–171; Filings Instituting Proceedings Original Service Agreement No. 3079 to on Friday, October 28, 2011. Docket Numbers: RP12–18–000. be effective 9/19/2011. Docket Numbers: ER12–83–000. Applicants: Transcontinental Gas Filed Date: 10/14/2011. Applicants: San Diego Gas & Electric Pipe Line Company. Accession Number: 20111014–5115. Company. Description: Transcontinental Gas Comment Date: 5 p.m. Eastern Time Description: San Diego Gas & Electric Pipe Line Company, LLC submits tariff on Friday, November 4, 2011. Company submits tariff filing per filing per 154.204: Non-Conforming 35.13(a)(2)(iii): Errata to SDG&E and Docket Numbers: ER12–89–000. Agreements—Patriots Energy Group— Cogentrix Energy E&P Agreement to be Applicants: New York Independent PSFT to be effective 9/3/2011. effective 10/14/2011. System Operator, Inc. Filed Date: 10/13/2011. Filed Date: 10/14/2011. Description: New York Independent Accession Number: 20111013–5111. Accession Number: 20111014–5083. System Operator, Inc. submits tariff Comment Date: 5 p.m. Eastern Time Comment Date: 5 p.m. Eastern Time filing per 35.13(a)(2)(iii: NYISO filing of on Tuesday, October 25, 2011. on Friday, November 4, 2011. revised Operating Cost Allocations to be Docket Numbers: RP12–19–000. Docket Numbers: ER12–84–000. effective 1/1/2012. Applicants: Transcontinental Gas Applicants: California Independent Filed Date: 10/14/2011. Pipe Line Company. System Operator Corporation. Accession Number: 20111014–5116. Description: Transcontinental Gas Description: California Independent Comment Date: 5 p.m. Eastern Time Pipe Line Company, LLC submits tariff System Operator Corporation submits on Friday, November 4, 2011. filing per 154.204: Update to List of tariff filing per 35.13(a)(2)(iii): 2011–10– Docket Numbers: ER12–90–000. Non-Conforming Service Agreements 14 Transition Agreement with Valley Applicants: Nordic Energy Services. (PSFT) to be effective Electric to be effective 12/15/2011. Description: Nordic Energy Services 11/13/2011. Filed Date: 10/14/2011. submits tariff filing per 35.1: FERC Filed Date: 10/13/2011. Accession Number: 20111014–5084. Electric MBR Baseline Tariff Filing to be Accession Number: 20111013–5148. Comment Date: 5 p.m. Eastern Time effective 10/14/2011. Comment Date: 5 p.m. Eastern Time on Friday, November 4, 2011. Filed Date: 10/14/2011. on Tuesday, October 25, 2011. Docket Numbers: ER12–85–000. Accession Number: 20111014–5136. Docket Numbers: RP12–20–000. Applicants: Owens Corning Sales, Comment Date: 5 p.m. Eastern Time Applicants: Millennium Pipeline LLC. on Friday, November 4, 2011. Company, LLC. Description: Owens Corning Sales, The filings are accessible in the Description: Millennium Pipeline LLC submits tariff filing per 35.12: Commission’s eLibrary system by Company, LLC submits tariff filing per Owens Corning Rate Schedule FERC No. clicking on the links or querying the 154.204: Negotiated Rate Service 1 Baseline Filing to be effective 10/14/ docket number. Agreements Filing to be effective 2011. Any person desiring to intervene or 11/1/2011. Filed Date: 10/14/2011. protest in any of the above proceedings Filed Date: 10/13/2011. Accession Number: 20111014–5085. must file in accordance with Rules 211 Accession Number: 20111013–5153. Comment Date: 5 p.m. Eastern Time and 214 of the Commission’s Comment Date: 5 p.m. Eastern Time on Friday, November 4, 2011. Regulations (18 CFR 385.211 and on Tuesday, October 25, 2011.

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Docket Numbers: RP12–21–000. Dated: October 17, 2011. Accession Number: 20111014–5138. Applicants: Centra Pipelines Nathaniel J. Davis, Sr., Comment Date: 5 p.m. Eastern Time Minnesota Inc. Deputy Secretary. on Friday, November 04, 2011. Description: Centra Pipelines [FR Doc. 2011–27384 Filed 10–21–11; 8:45 am] Docket Numbers: ER12–92–000. Minnesota Inc. submits tariff filing per BILLING CODE 6717–01–P Applicants: Duke Energy Kentucky, 154.204: Revised Index of Shippers, to Inc., PJM Interconnection, LLC, Duke be effective 12/1/2011. Energy Ohio, Inc. Filed Date: 10/14/2011. DEPARTMENT OF ENERGY Description: Duke Energy Kentucky, Accession Number: 20111014–5032. Inc. submits tariff filing per Comment Date: 5 p.m. Eastern Time Federal Energy Regulatory 35.13(a)(2)(iii: Duke submits revisions to on Wednesday, October 26, 2011. Commission the PJM OATT, OA, RAA and TOA re Docket Numbers: RP12–22–000. the DEOK Integration to be effective 1/ Combined Notice of Filings #1 Applicants: Alliance Pipeline L.P. 1/2012. Description: Alliance Pipeline L.P. Take notice that the Commission Filed Date: 10/14/2011. submits tariff filing per 154.204: received the following electric rate Accession Number: 20111014–5139. Auction October 2011 to be effective 11/ filings: Comment Date: 5 p.m. Eastern Time 1/2011. on Friday, November 04, 2011. Filed Date: 10/14/2011. Docket Numbers: ER11–4019–000. Accession Number: 20111014–5080. Applicants: Midwest Independent Docket Numbers: ER12–93–000. Comment Date: 5 p.m. Eastern Time Transmission System Operator, Inc., Applicants: Commonwealth Edison on Wednesday, October 26, 2011. International Transmission Company. Company. Description: International Description: Commonwealth Edison Docket Numbers: RP12–23–000. Applicants: Liberty Gas Storage, LLC. Transmission Company submits tariff Co. submits Notices of Cancellation. Description: Liberty Gas Storage, LLC filing per 35.19a(b): ITC–Harvest E&P Filed Date: 10/14/2011. submits tariff filing per 154.602: Liberty Refund Report to be effective N/A. Accession Number: 20111014–5149. Gas Storage, LLC, Cancellation of FERC Filed Date: 10/11/2011. Comment Date: 5 p.m. Eastern Time Gas Tariff to be effective 10/14/2011. Accession Number: 20111011–5115. on Friday, November 04, 2011. Filed Date: 10/14/2011. Comment Date: 5 p.m. Eastern Time The filings are accessible in the Accession Number: 20111014–5108. on Tuesday, November 01, 2011. Commission’s eLibrary system by Comment Date: 5 p.m. Eastern Time Docket Numbers: ER11–4119–000. clicking on the links or querying the on Wednesday, October 26, 2011. Applicants: Michigan Electric docket number. Docket Numbers: RP12–24–000. Transmission Company, LLC. Any person desiring to intervene or Applicants: Midwestern Gas Description: Michigan Electric protest in any of the above proceedings Transmission Company. Transmission Company, LLC submits must file in accordance with Rules 211 Description: 2010–2011 Cashout tariff filing per 35.19a(b): Filing of and 214 of the Commission’s Report of Midwestern Gas Transmission Refund Report to be effective N/A. Regulations (18 CFR 385.211 and Company. Filed Date: 10/13/2011. 385.214) on or before 5 p.m. Eastern Filed Date: 10/14/2011. Accession Number: 20111013–5077. time on the specified comment date. Accession Number: 20111014–5117. Comment Date: 5 p.m. Eastern Time Protests may be considered, but Comment Date: 5 p.m. Eastern Time on Thursday, November 03, 2011. intervention is necessary to become a on Wednesday, October 26, 2011. Docket Numbers: ER11–4438–001. party to the proceeding. Any person desiring to intervene or Applicants: San Diego Gas & Electric eFiling is encouraged. More detailed protest in any of the above proceedings Company. information relating to filing must file in accordance with Rules 211 Description: San Diego Gas & Electric requirements, interventions, protests, and 214 of the Commission’s Company submits tariff filing per service, and qualifying facilities filings Regulations (18 CFR 385.211 and 35.17(b): Errata to SDG&E and Cogentrix can be found at: http://www.ferc.gov/ 385.214) on or before 5 p.m. Eastern Energy E&P Agreement to be effective docs-filing/efiling/filing-req.pdf. For time on the specified comment date. 10/17/2011. other information, call (866) 208–3676 Protests may be considered, but Filed Date: 10/14/2011. (toll free). For TTY, call (202) 502–8659. intervention is necessary to become a Accession Number: 20111014–5140. Dated: October 17, 2011. Comment Date: 5 p.m. Eastern Time party to the proceeding. Nathaniel J. Davis, Sr., on Friday, November 04, 2011. The filings are accessible in the Deputy Secretary. Commission’s eLibrary system by Docket Numbers: ER12–91–000. [FR Doc. 2011–27383 Filed 10–21–11; 8:45 am] clicking on the links or querying the Applicants: Duke Energy Kentucky, docket number. Inc., PJM Interconnection, LLC, Duke BILLING CODE 6717–01–P eFiling is encouraged. More detailed Energy Ohio, Inc. information relating to filing Description: Duke Energy Kentucky, DEPARTMENT OF ENERGY requirements, interventions, protests, Inc. submits tariff filing per and service can be found at: http:// 35.13(a)(2)(iii: Duke submits revisions to Federal Energy Regulatory www.ferc.gov/docs-filing/efiling/filing- the PJM OATT, OA, RAA and TOA re Commission req.pdf. For other information, call (866) the DEOK Integration to be effective 1/ 208–3676 (toll free). For TTY, call (202) 1/2012. Notice of Effectiveness of Exempt 502–8659. Filed Date: 10/14/2011. Wholesale Generator Status

Docket No.

Michigan Wind 2, LLC ...... EG11–100–000 Bishop Hill Energy LLC ...... EG11–101–000 Bishop Hill Energy III LLC ...... EG11–102–000

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Docket No.

Bishop Hill Energy II LLC ...... EG11–103–000 CSOLAR IV South, LLC ...... EG11–104–000 Gratiot County Wind LLC ...... EG11–105–000 Invenergy Wind Development Michigan LLC ...... EG11–106–000 Trinity Hills Wind Farm LLC ...... EG11–107–000 High Plains Ranch II, LLC ...... EG11–108–000 Double ‘‘C’’ Limited ...... EG11–109–000 High Sierra Limited ...... EG11–110–000 Kern Front Limited ...... EG11–111–000 Cogentrix of Alamosa, LLC ...... EG11–112–000 Hudson Ranch Power I LLC ...... EG11–113–000 TPW Petersburg, LLC ...... EG11–114–000

Take notice that during the month of field to access the document. For DEPARTMENT OF ENERGY September 2011, the status of the above- assistance, contact FERC Online captioned entities as Exempt Wholesale Support at Federal Energy Regulatory Generators became effective by [email protected] or toll- Commission operation of the Commission’s free at 1–866–208–3676, or for TTY, [Project No. 12470–001] regulations. 18 CFR 366.7(a). (202) 502–8659. Dated: October 17, 2011. You may also register online at City of Broken Bow, OK; Notice of Kimberly D. Bose, http://www.ferc.gov/docs-filing/ Availability of Final Environmental Secretary. esubscription.asp to be notified via e- Assessment [FR Doc. 2011–27318 Filed 10–21–11; 8:45 am] mail of new filings and issuances In accordance with the National BILLING CODE 6717–01–P related to this or other pending projects. Environmental Policy Act of 1969 and For assistance, contact FERC Online the Federal Energy Regulatory Support. DEPARTMENT OF ENERGY Commission’s (Commission or FERC) Any comments should be filed within regulations, 18 CFR part 380 (Order No. Federal Energy Regulatory 30 days from the date of this notice. 486, 52 FR 47897), the Office of Energy Commission Comments may be filed electronically Projects has reviewed the application via the Internet. See 18 CFR for an Original Major License for the [Project No. 2713–082–New York] 385.2001(a)(1)(iii) and the instructions Broken Bow Re-Regulation Dam Hydropower Project (FERC Project No. Erie Boulevard Hydropower, L.P.; on the Commission’s Web site http:// 12470–001). The Broken Bow Re- Notice of Availability of Environmental www.ferc.gov/docs-filing/efiling.asp. Regulation Dam Project is proposed to Assessment Commenters can submit brief comments up to 6,000 characters, without prior be located on the Mountain Fork River In accordance with the National registration, using the eComment system in McCurtain County, Oklahoma, at the Environmental Policy Act of 1969 and at http://www.ferc.gov/docs-filing/ U.S. Army Corps of Engineers’ Broken the Federal Energy Regulatory ecomment.asp. You must include your Bow Re-Regulation Dam. The project would occupy a total of 8.21 acres of Commission’s (Commission) name and contact information at the end regulations, 18 CFR part 380 (Order No. federal lands administered by the Tulsa of your comments. 486, 52 FR 47897), the Office of Energy District of the Corps and 2.32 acres of Projects has reviewed the application For assistance, please contact FERC federal lands within the Ouachita for license for the multi-development Online Support. Although the National Forest. Oswegatchie River Hydroelectric Commission strongly encourages Staff prepared a final environmental Project, located along a 90-mile stretch electronic filing, documents may also be assessment (EA), which analyzes the of the Oswegatchie River in St. paper-filed. To paper-file, mail an potential environmental effects of Lawrence County, New York, and has original and seven copies to: Kimberly licensing the project, and concludes that prepared an Environmental Assessment D. Bose, Secretary, Federal Energy licensing the project, with appropriate (EA) for the project. The project does Regulatory Commission, 888 First environmental protective measures, not occupy any federal land. Street, NE., Washington, DC 20426. would not constitute a major federal The EA contains the staff’s analysis of action that would significantly affect the For further information contact John the potential environmental impacts of quality of the human environment. Baummer at (202) 502–6837. the project and concludes that licensing A copy of the final EA is available for the project, with appropriate Dated: October 18, 2011. review at the Commission in the Public environmental protective measures, Kimberly D. Bose, Reference Room or may be viewed on would not constitute a major federal Secretary. the Commission’s Web site at http:// action that would significantly affect the [FR Doc. 2011–27429 Filed 10–21–11; 8:45 am] www.ferc.gov, using the ‘‘eLibrary’’ link. quality of the human environment. Enter the docket number excluding the A copy of the EA is available for BILLING CODE 6717–01–P last three digits in the docket number review at the Commission in the Public field to access the document. For Reference Room or may be viewed on assistance, contact FERC Online the Commission’s Web site at http:// Support at www.ferc.gov using the ‘‘eLibrary’’ link. [email protected] or toll- Enter the docket number excluding the free at 1–866–208–3676, or for TTY, last three digits in the docket number 202–502–8659.

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You may also register online at review in the Commission’s Public eRegistration link. Select the eFiling http://www.ferc.gov/docs-filing/ Reference Room in Washington, DC. link to log on and submit the esubscription.asp to be notified via e- There is an ‘‘eSubscription’’ link on the intervention or protests. mail of new filings and issuances Web site that enables subscribers to Persons unable to file electronically related to this or other pending projects. receive email notification when a should submit an original and 14 copies For assistance, contact FERC Online document is added to a subscribed of the intervention or protest to the Support. docket(s). For assistance with any FERC Federal Energy Regulatory Commission, For further information, please Online service, please email 888 First Street, NE., Washington, DC contact Aaron Liberty at 202–502–6862, [email protected], or call 20426. or at [email protected]. (866) 208–3676 (toll free). For TTY, call The filings in the above-referenced Dated: October 18, 2011. (202) 502–8659. proceeding are accessible in the Kimberly D. Bose, Comment Date: 5 p.m. Eastern Time Commission’s eLibrary system by on October 25, 2011. clicking on the appropriate link in the Secretary. above list. They are also available for [FR Doc. 2011–27425 Filed 10–21–11; 8:45 am] Dated: October 18, 2011. Kimberly D. Bose, review in the Commission’s Public BILLING CODE 6717–01–P Reference Room in Washington, DC. Secretary. There is an eSubscription link on the [FR Doc. 2011–27427 Filed 10–21–11; 8:45 am] Web site that enables subscribers to DEPARTMENT OF ENERGY BILLING CODE 6717–01–P receive e-mail notification when a Federal Energy Regulatory document is added to a subscribed dockets(s). For assistance with any Commission DEPARTMENT OF ENERGY FERC Online service, please e-mail [Docket No. EF11–14–000] Federal Energy Regulatory [email protected]. or call Commission (866) 208–3676 (toll free). For TTY, call Western Area Power Administration; (202) 502–8659. Notice of Filing [Docket No. ER12–60–000] Dated: October 17, 2011. Take notice that on September 23, Tenaska Power Management, LLC; Nathaniel J. Davis, Sr., 2011, Western Area Power Supplemental Notice That Initial Deputy Secretary. Administration submitted its Rate Order Market-Based Rate Filing Includes [FR Doc. 2011–27317 Filed 10–21–11; 8:45 am] No. WAPA–151 concerning rate and Request for Blanket Section 204 BILLING CODE 6717–01–P repayment data for Network Integration Authorization Transmission Service and Western Area Lower Colorado Balancing Authority This is a supplemental notice in the DEPARTMENT OF ENERGY Ancillary Services, for confirmation and above-referenced proceeding of Tenaska approval on a final basis, effective Power Management, LLC’s application Federal Energy Regulatory October 1, 2011, and ending September for market-based rate authority, with an Commission 30, 2016. accompanying rate tariff, noting that Any person desiring to intervene or to such application includes a request for [ Docket No. ER12–85–000] protest this filing must file in blanket authorization, under 18 CFR Owings Corning Sales, LLC; accordance with Rules 211 and 214 of part 34, of future issuances of securities Supplemental Notice That Initial the Commission’s Rules of Practice and and assumptions of liability. Market-Based Rate Filing Includes Procedure (18 CFR 385.211, 385.214). Any person desiring to intervene or to Request for Blanket Section 204 Protests will be considered by the protest should file with the Federal Authorization Commission in determining the Energy Regulatory Commission, 888 appropriate action to be taken, but will First Street, NE., Washington, DC 20426, This is a supplemental notice in the not serve to make protestants parties to in accordance with Rules 211 and 214 above-referenced proceeding of Owings the proceeding. Any person wishing to of the Commission’s Rules of Practice Corning Sales, LLC’s application for become a party must file a notice of and Procedure (18 CFR 385.211 and market-based rate authority, with an intervention or motion to intervene, as 385.214). Anyone filing a motion to accompanying rate tariff, noting that appropriate. Such notices, motions, or intervene or protest must serve a copy such application includes a request for protests must be filed on or before the of that document on the Applicant. blanket authorization, under 18 CFR comment date. On or before the Notice is hereby given that the part 34, of future issuances of securities comment date, it is not necessary to deadline for filing protests with regard and assumptions of liability. serve motions to intervene or protests to the applicant’s request for blanket Any person desiring to intervene or to on persons other than the Applicant. authorization, under 18 CFR part 34, of protest should file with the Federal The Commission encourages future issuances of securities and Energy Regulatory Commission, 888 electronic submission of protests and assumptions of liability, is November 1, First Street, NE., Washington, DC 20426, interventions in lieu of paper using the 2011. in accordance with Rules 211 and 214 ‘‘eFiling’’ link at http://www.ferc.gov. The Commission encourages of the Commission’s Rules of Practice Persons unable to file electronically electronic submission of protests and and Procedure (18 CFR 385.211 and should submit an original and 14 copies interventions in lieu of paper, using the 385.214). Anyone filing a motion to of the protest or intervention to the FERC Online links at http:// intervene or protest must serve a copy Federal Energy Regulatory Commission, www.ferc.gov. To facilitate electronic of that document on the Applicant. 888 First Street, NE., Washington, DC service, persons with Internet access Notice is hereby given that the 20426. who will eFile a document and/or be deadline for filing protests with regard This filing is accessible on-line at listed as a contact for an intervenor to the applicant’s request for blanket http://www.ferc.gov, using the must create and validate an authorization, under 18 CFR part 34, of ‘‘eLibrary’’ link and is available for eRegistration account using the future issuances of securities and

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assumptions of liability, is November 1, of the Commission’s Rules of Practice a preliminary permit, pursuant to 2011. and Procedure (18 CFR 385.211 and section 4(f) of the Federal Power Act The Commission encourages 385.214). Anyone filing a motion to (FPA), proposing to study the feasibility electronic submission of protests and intervene or protest must serve a copy of the Regional Watershed Supply interventions in lieu of paper, using the of that document on the Applicant. Project. The project would consist of FERC Online links at http://www.ferc. Notice is hereby given that the hydropower development along a gov. To facilitate electronic service, deadline for filing protests with regard proposed 501-mile-long buried water persons with Internet access who will to the applicant’s request for blanket supply pipeline that would extend from eFile a document and/or be listed as a authorization, under 18 CFR part 34, of two points of diversion in Wyoming contact for an intervenor must create future issuances of securities and (one from the Green River and one from and validate an eRegistration account assumptions of liability, is November 1, Flaming Gorge Reservoir) to a storage using the eRegistration link. Select the 2011. terminus near Pueblo, Colorado. The eFiling link to log on and submit the The Commission encourages pipeline would be located in Adams, intervention or protests. electronic submission of protests and Arapahoe, Elbert, El Paso, Larimer, Persons unable to file electronically interventions in lieu of paper, using the Pueblo, and Weld Counties in Colorado; should submit an original and 14 copies FERC Online links at http:// and Albany, Carbon, Laramie, and of the intervention or protest to the www.ferc.gov. To facilitate electronic Sweetwater Counties in Wyoming. Federal Energy Regulatory Commission, service, persons with Internet access The sole purpose of a preliminary 888 First Street, NE., Washington, DC who will eFile a document and/or be permit, if issued, is to grant the permit 20426. listed as a contact for an intervenor holder priority to file a license The filings in the above-referenced must create and validate an application for its proposed proceeding are accessible in the eRegistration account using the hydroelectric facilities during the Commission’s eLibrary system by eRegistration link. Select the eFiling permit term. Because the Commission clicking on the appropriate link in the link to log on and submit the would only have jurisdiction with above list. They are also available for intervention or protests. regard to the proposed hydroelectric review in the Commission’s Public Persons unable to file electronically development, only one component of Reference Room in Washington, DC. should submit an original and 14 copies the proposed 501-mile-long water There is an eSubscription link on the of the intervention or protest to the supply pipeline project, construction of Web site that enables subscribers to Federal Energy Regulatory Commission, substantial parts of this proposed receive e-mail notification when a 888 First Street, NE., Washington, DC pipeline may require permits from other document is added to a subscribed 20426. federal agencies. dockets(s). For assistance with any The filings in the above-referenced A preliminary permit does not authorize the permit holder to perform FERC Online service, please e-mail proceeding are accessible in the any land-disturbing activities or [email protected]. or call Commission’s eLibrary system by otherwise enter upon lands or waters (866) 208–3676 (toll free). For TTY, call clicking on the appropriate link in the owned by others without the owners’ (202) 502–8659. above list. They are also available for express permission. Dated: October 18, 2011. review in the Commission’s Public The proposed project would direct Nathaniel J. Davis, Sr., Reference Room in Washington, DC. water obtained from the Green River There is an eSubscription link on the Deputy Secretary. basin to southeastern Wyoming and the Web site that enables subscribers to Front Range of Colorado for use by [FR Doc. 2011–27386 Filed 10–21–11; 8:45 am] receive e-mail notification when a BILLING CODE 6717–01–P municipalities, agriculture, and document is added to a subscribed hydropower. Along the pipeline route, dockets(s). For assistance with any the project would include two pumped FERC Online service, please e-mail DEPARTMENT OF ENERGY storage hydroelectric developments and [email protected]. or call five conventional hydropower Federal Energy Regulatory (866) 208–3676 (toll free). For TTY, call developments, with a total installed Commission (202) 502–8659. capacity of about 550 megawatts (MW). Dated: October 18, 2011. The project would consist of the [ Docket No. ER12–96–000 ] Nathaniel J. Davis, Sr., following: (1) A water withdrawal South Chesnut, LLC; Supplemental Deputy Secretary. facility on Flaming Gorge reservoir and Notice That Initial Market-Based Rate [FR Doc. 2011–27387 Filed 10–21–11; 8:45 am] a second facility on the Green River; (2) about nine natural-gas-powered pump Filing Includes Request for Blanket BILLING CODE 6717–01–P Section 204 Authorization stations; (3) about 501 miles of buried pipeline (between 72 and 120 inches in This is a supplemental notice in the DEPARTMENT OF ENERGY diameter); (4) the 240–MW Lake Hattie above-referenced proceeding of South Pumped Storage Hydroelectric Chesnut, LLC’s application for market- Federal Energy Regulatory Development, using a new reservoir on based rate authority, with an Commission Sheep Mountain as the upper reservoir accompanying rate tariff, noting that and the existing Lake Hattie reservoir as such application includes a request for [Project No. P–14263–000] the lower reservoir; (5) the 240–MW blanket authorization, under 18 CFR Wyco Power and Water, Inc.; Notice of Wild Horse Canyon Pumped Storage part 34, of future issuances of securities Preliminary Permit Application Hydroelectric Development, with a new and assumptions of liability. Accepted for Filing and Soliciting 10,300 acre-foot upper reservoir and a Any person desiring to intervene or to Comments, Motions To Intervene, and new lower reservoir; (6) five protest should file with the Federal Competing Applications conventional 14–MW in-line Energy Regulatory Commission, 888 hydroelectric developments; and (7) First Street, NE., Washington, DC 20426, On September 1, 2011, Wyco Power seven proposed transmission lines, in accordance with Rules 211 and 214 and Water, Inc. filed an application for about 30.59 miles in length, extending

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from the switchyards near the seven DEPARTMENT OF ENERGY DEPARTMENT OF ENERGY proposed powerhouses to the interconnected system. Federal Energy Regulatory Federal Energy Regulatory Commission For water distribution purposes, the Commission project would also include four [Docket No. CP12–3–000] reservoirs: (1) The proposed Cactus Hill [Project No. 14136–000; Project No. 14139– Reservoir (185,000 acre-feet in capacity), 000] Kern River Gas Transmission near Fort Collins, Colorado; (2) the Company; Notice of Request Under proposed T–Cross Reservoir (25,000 Lock+ Hydro Friends Fund XXXV, Blanket Authorization Riverbank Hydro No. 4, LLC; Notice acre-feet in capacity) in El Paso County, Take notice that on October 6, 2011, Colorado; (3) a new reservoir along the Announcing Preliminary Permit Kern River Gas Transmission Company western part of the pipeline system to Drawing (Kern River) filed a prior notice manage withdrawals from the Green application pursuant to sections River; and (4) a terminus reservoir near The Commission has received two 157.205, 157.208 and 157.210 of the Pueblo, Colorado. competing preliminary permit Federal Energy Regulatory Applicant Contact: Aaron Million, applications deemed filed at the same Commission’s regulations under the Wyco Power and Water, Inc., 1436 West time for proposed hydropower projects Natural Gas Act (NGA), and Kern Oak, Fort Collins, CO 80521, phone at the U.S. Army Corps of Engineers’ River’s blanket certificate issued in (970) 215–2603. Lock and Dam No. 5, located on the Docket No. CP89–2048, to relocate Mississippi River near Minnesota City, FERC Contact: Jim Fargo; phone: (202) approximately 1.2 mile segments of Minnesota, in Winona County, 502–6095. each of Kern River’s 36-inch-diameter Minnesota, and Buffalo County, mainlines in Salt Lake County, Utah. Deadline for filing comments, motions Wisconsin.1 The applications were filed Kern River proposed the relocation to to intervene, competing applications by Lock+ Hydro Friends Fund XXXV for accommodate construction of the (without notices of intent), or notices of Project No. 14136 and Riverbank Hydro Mountain View Corridor highway, a intent to file competing applications: 60 No. 4, LLC, for Project No. 14139. project of the Utah Department of days from the issuance of this notice. Transportation. Kern River States that Competing applications and notices of On October 27, 2011, at 2 p.m. the replacement facilities will have the intent must meet the requirements of 18 (eastern time), the Secretary of the same throughput capacity as the current CFR 4.36. Comments, motions to Commission, or her designee, will facilities, all as more fully set forth in intervene, notices of intent, and conduct a random drawing to determine the application, which is open to the competing applications may be filed the filing priority of the applicants public for inspection. The filing may electronically via the Internet. See 18 identified in this notice. The also be viewed on the Web at http:// CFR 385.2001(a)(1)(iii) and the Commission will select among www.ferc.gov using the ‘‘eLibrary’’ link. instructions on the Commission’s Web competing permit applications, as Enter the docket number excluding the site http://www.ferc.gov/docs-filing/ provided in section 4.37 of its last three digits in the docket number efiling.asp. Commenters can submit regulations.2 The priority established by field to access the document. For brief comments up to 6,000 characters, this drawing will be used to determine assistance, contact FERC at without prior registration, using the which applicant will be considered to [email protected] or call eComment system at http:// have the first-filed application. toll-free, (866) 208–3676 or TTY, (202) www.ferc.gov/docs-filing/ The drawing is open to the public and 502–8659. ecomment.asp. You must include your Any questions regarding this will be held in room 2C, the name and contact information at the end application should be directed to of your comments. For assistance, Commission Meeting Room, located at Michael Loeffler, Senior Director, please contact FERC Online Support. 888 First St., NE., Washington, DC Certificates, Kern River Gas Although the Commission strongly 20426. A subsequent notice will be Transmission Company, 1111 South 103 encourages electronic filing, documents issued by the Secretary announcing the Street, Omaha, Nebraska 68124, at (402) may also be paper-filed. To paper-file, results of the drawing. 398–7103, or to Sheldon Byde, Senior mail an original and seven copies to: Dated: October 18, 2011. Regulatory Analyst, Kern River Gas Kimberly D. Bose, Secretary, Federal Nathaniel J. Davis, Sr., Transmission Company, 2755 E. Energy Regulatory Commission, 888 Cottonwood Parkway, Suite 300, Salt Deputy Secretary. First Street, NE., Washington, DC 20426. Lake City, Utah 84121, at (801) 937– [FR Doc. 2011–27385 Filed 10–21–11; 8:45 am] More information about this project, 6163. including a copy of the application, can BILLING CODE 6717–01–P Any person may, within 60 days after be viewed or printed on the ‘‘eLibrary’’ the issuance of the instant notice by the link of Commission’s Web site at Commission, file pursuant to Rule 214 http://www.ferc.gov/docs-filing/ of the Commission’s Procedural Rules elibrary.asp. Enter the docket number (18 CFR 385.214) a motion to intervene (P–14263–000) in the docket number or notice of intervention. Any person field to access the document. For filing to intervene or the Commission’s 1 assistance, contact FERC Online The applications were received after staff may, pursuant to section 157.205 of Commission business hours on March 31, 2011. Support. the Commission’s Regulations under the Under the Commission’s Rules of Practice and NGA (18 CFR 157.205) file a protest to Procedure, any document received after regular Dated: October 18, 2011. the request. If no protest is filed within Kimberly D. Bose, business hours is considered filed at 8:30 a.m. on the next regular business day. 18 CFR the time allowed therefore, the proposed Secretary. 385.2001(a)(2) (2011). Therefore, the applications activity shall be deemed to be [FR Doc. 2011–27428 Filed 10–21–11; 8:45 am] are deemed filed at 8:30 a.m. on April 1, 2011. authorized effective the day after the BILLING CODE 6717–01–P 2 18 CFR 4.37 (2011). time allowed for protest. If a protest is

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filed and not withdrawn within 30 days announces that an Information a.m. to 4:30 p.m., Monday through after the time allowed for filing a Collection Request (ICR) has been Friday, excluding legal holidays. The protest, the instant request shall be forwarded to the Office of Management telephone number for the Reading Room treated as an application for and Budget (OMB) for review and is 202–566–1744, and the telephone authorization pursuant to section 7 of approval. This is a request to renew an number for Air Docket is 202–566–1742. the NGA. existing approved collection. The ICR, Use EPA’s electronic docket and Persons who wish to comment only which is abstracted below, describes the comment system at http:// on the environmental review of this nature of the information collection and www.regulations.gov, to submit or view project should submit an original and its estimated burden and cost. public comments, access the index two copies of their comments to the DATES: Additional comments may be listing of the contents of the docket, and Secretary of the Commission. submitted on or before November 23, to access those documents in the docket Environmental commentors will be 2011. that are available electronically. Once in placed on the Commission’s the system, select ‘‘docket search,’’ then environmental mailing list, will receive ADDRESSES: Submit your comments, key in the docket ID number identified copies of the environmental documents, referencing Docket ID No. EPA–HQ– above. Please note that EPA’s policy is and will be notified of meetings OAR–2011–0085, to (1) EPA online that public comments, whether associated with the Commission’s using http://www.regulations.gov (our submitted electronically or in paper, environmental review process. preferred method), by e-mail to a-and- will be made available for public Environmental commentors will not be [email protected], or by mail to: EPA viewing at http://www.regulations.gov required to serve copies of filed Docket Center, Environmental as EPA receives them and without documents on all other parties. Protection Agency, Air and Radiation change, unless the comment contains However, the non-party commentors Docket, Mail Code 28221T, 1200 copyrighted material, confidential will not receive copies of all documents Pennsylvania Ave., NW., Washington, business information (CBI), or other filed by other parties or issued by the DC 20460, and (2) OMB by mail to: information whose public disclosure is Commission (except for the mailing of Office of Information and Regulatory restricted by statute. For further environmental documents issued by the Affairs, Office of Management and information about the electronic docket, Commission) and will not have the right Budget (OMB), Attention: Desk Officer go to http://www.regulations.gov. to seek court review of the for EPA, 725 17th Street, NW., Title: Protection of Stratospheric Commission’s final order. Washington, DC 20503. Ozone: Critical Use Exemption from the The Commission strongly encourages FOR FURTHER INFORMATION CONTACT: Phaseout of Methyl Bromide (Renewal). electronic filings of comments, protests, Jeremy Arling, Stratospheric Protection ICR numbers: EPA ICR No. 2031.06, and interventions via the internet in lieu Division, Office of Atmospheric OMB Control No. 2060–0482. of paper. See 18 CFR 385.2001(a)(1)(iii) Programs (6205J), Environmental ICR status: This ICR is scheduled to expire on October 31, 2011. Under OMB and the instructions on the Protection Agency, 1200 Pennsylvania regulations, the Agency may continue to Commission’s Web site (http:// Ave., NW., Washington, DC 20460; conduct or sponsor the collection of www.ferc.gov) under the ‘‘e-Filing’’ link. telephone number: (202) 343–9055; fax information while this submission is Persons unable to file electronically number: (202) 343–2338; e-mail pending at OMB. An Agency may not should submit an original and 14 copies address: [email protected]. You conduct or sponsor, and a person is not of the protest or intervention to the may also visit the Ozone Depletion Web required to respond to, a collection of Federal Energy Regulatory Commission, site of EPA’s Stratospheric Protection information, unless it displays a 888 First Street, NE., Washington, DC Division at http://www.epa.gov/ozone/ currently valid OMB control number. 20426. strathome.html for further information The OMB control numbers for EPA’s Dated: October 18, 2011. about EPA’s Stratospheric Ozone Protection regulations, the science of regulations in title 40 of the CFR, after Kimberly D. Bose, ozone layer depletion, and related appearing in the Federal Register when Secretary. topics. approved, are listed in 40 CFR part 9 [FR Doc. 2011–27426 Filed 10–21–11; 8:45 am] and are displayed either by publication SUPPLEMENTARY INFORMATION BILLING CODE 6717–01–P : EPA has in the Federal Register or by other submitted the following ICR to OMB for appropriate means, such as on the review and approval according to the related collection instrument or form, if ENVIRONMENTAL PROTECTION procedures prescribed in 5 CFR 1320.12. applicable. The display of OMB control AGENCY On March 2, 2011 (76 FR 11447), EPA numbers in certain EPA regulations is sought comments on this ICR pursuant consolidated in 40 CFR part 9. [EPA–HQ–OAR–2011–0085; FRL–9482–6] to 5 CFR 1320.8(d). EPA received one Abstract: EPA is seeking to renew this comment during the comment period, ICR, which allows EPA to collect methyl Agency Information Collection which is addressed in the ICR. Any bromide Critical Use Exemption (CUE) Activities; Submission to OMB for additional comments on this ICR should applications from regulated entities on Review and Approval; Comment be submitted to EPA and OMB within an annual basis, and which requires the Request; Protection of Stratospheric 30 days of this notice. submission of data from regulated Ozone: Critical Use Exemption From EPA has established a public docket industries to the EPA and recordkeeping the Phaseout of Methyl Bromide for this ICR under Docket ID No. EPA– of key documents to ensure compliance (Renewal) HQ–OAR–2011–0085, which is with the Montreal Protocol on AGENCY: Environmental Protection available for online viewing at http:// Substances that Deplete the Ozone Agency (EPA). www.regulations.gov, or in person Layer (Protocol) and the CAA. ACTION: Notice. viewing at the Air Docket in the EPA Entities applying for this exemption Docket Center (EPA/DC), EPA West, are asked to submit to EPA applications SUMMARY: In compliance with the Room 3334, 1301 Constitution Ave., with necessary data to evaluate the need Paperwork Reduction Act (PRA) (44 NW., Washington, DC. The EPA/DC for a critical use exemption. This U.S.C. 3501 et seq.), this document Public Reading Room is open from 8:30 information collection is conducted to

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meet U.S. obligations under Article 2H claimed as confidential under 40 CFR of applications and other data and of the Montreal Protocol on Substances part 2, subpart b, and will be disclosed frequent EPA communication with that Deplete the Ozone Layer (Protocol). only if EPA determines that the methyl bromide stakeholders. The information collection request is information is not entitled to Dated: October 18, 2011. required to obtain a benefit under confidential treatment. If no claim of John Moses, Section 604(d)(6) of the CAA, added by confidentiality is asserted when the Section 764 of the 1999 Omnibus information is received by EPA, it may Director, Collection Strategies Division. Consolidated and Emergency be made available to the public without [FR Doc. 2011–27438 Filed 10–21–11; 8:45 am] Supplemental Appropriations Act (Pub. further notice to the respondents (40 BILLING CODE 6560–50–P L. 105–277; October 21, 1998). CFR 2.203). Individual reporting data Since 2002, entities have applied to may be claimed as sensitive and will be EPA for a critical use exemption that treated as confidential information in ENVIRONMENTAL PROTECTION would allow for the continued accordance with procedures outlined in AGENCY production and import of methyl 40 CFR part 2. [FRL–9482–7] bromide after the phaseout in January Burden Statement: The annual public 2005. These exemptions are for reporting and recordkeeping burden for Notification of Two Public consumption only in those agricultural this collection of information is Teleconferences; Clean Air Scientific sectors that have demonstrated that estimated to average 1 hour per Advisory Committee there are no technically or economically response. Burden means the total time, feasible alternatives to methyl bromide. effort, or financial resources expended AGENCY: Environmental Protection The applications are rigorously assessed by persons to generate, maintain, retain, Agency (EPA). and analyzed by EPA staff, including or disclose or provide information to or ACTION: Notice. experts from the Office of Pesticide for a Federal agency. This includes the Programs. On an annual basis, EPA uses time needed to review instructions; SUMMARY: The Environmental Protection the data submitted by end users to develop, acquire, install, and utilize Agency (EPA or Agency) Science create a nomination of critical uses, technology and systems for the purposes Advisory Board (SAB) Staff Office which the U.S. Government submits to of collecting, validating, and verifying announces two public teleconferences the Protocol’s Ozone Secretariat for information, processing and of the chartered Clean Air Scientific review by an international panel of maintaining information, and disclosing Advisory Committee (CASAC) to experts and advisory bodies. These and providing information; adjust the discuss its draft review of EPA’s advisory bodies include the Methyl existing ways to comply with any Integrated Science Assessment for Lead Bromide Technical Options Committee previously applicable instructions and (First External Review Draft, May 2011) (MBTOC) and the Technical and requirements which have subsequently and EPA’s draft Near-Road NO2 Economic Assessment Panel (TEAP). changed; train personnel to be able to Monitoring Technical Assistance The uses authorized internationally by respond to a collection of information; Document. the Parties to the Protocol are made search data sources; complete and DATES: A public teleconference call will available in the U.S. on an annual basis. review the collection of information; be held on November 28, 2011 from The applications will enable EPA to: and transmit or otherwise disclose the 10 a.m. to 12 p.m. (Eastern Time). (1) Maintain consistency with the information. Another teleconference will be held on Protocol by supporting critical use Respondents/Affected Entities: January 27, 2012 from 10 a.m. to 12 p.m. nominations to the Parties to the Producers, importers, distributors, and ADDRESSES: Protocol, in accordance with paragraph The public teleconferences custom applicators of methyl bromide, will be conducted by telephone only. 2 of Decision IX/6 of the Protocol; (2) organizations, consortia, and ensure that critical use exemptions associations of methyl bromide users, as FOR FURTHER INFORMATION CONTACT: Any comply with Section 604(d)(6); and (3) well as individual methyl bromide member of the public wishing further provide EPA with necessary data to users. information regarding this Notice and evaluate the technical and economic Estimated Number of Respondents: public teleconference may contact Dr. feasibility of methyl bromide 1,919. Holly Stallworth, Designated Federal alternatives in the circumstance of the Frequency of Response: Quarterly, Officer (DFO), SAB Staff Office, by specific use, as presented in an Annually, Occasionally. telephone/voice mail at (202) 564–2073; application for a critical use exemption. Estimated Total Annual Hour Burden: by fax at (202) 565–2098 or via e-mail The reported data will enable EPA to: 3,258. at [email protected]. General (1) Ensure that critical use exemptions Estimated Total Annual Cost: information concerning the EPA CASAC comply with Section 604(d)(6); (2) $988,840 in labor costs. can be found at the EPA CASAC Web maintain compliance with the Protocol Change in Estimates: There is a site at http://www.epa.gov/casac. Any requirements for annual data decrease of 1,660 hours in the total inquiry regarding EPA’s Integrated submission on the production of ozone estimated burden currently identified in Science Assessment for Lead (First depleting substances; and (3) analyze the OMB Inventory of Approved ICR External Review Draft, May 2011) technical use data to ensure that Burdens. The primary reason for the should be directed to Dr. Ellen Kirrane, exemptions are used in accordance with decrease in burden hours is a decrease EPA Office of Research and requirements included in the annual in the number of applicants and a Development, at [email protected] allocation rulemakings. related decline in the number of end or 919–541–1340. Any inquiry regarding EPA informs respondents that they users. Stakeholders are also more EPA’s draft Near-Road NO2 Monitoring may assert claims of business familiar with the critical use exemption Technical Assistance Document should confidentiality for any of the program and have already organized be directed to Mr. Nealson Watkins, information they submit. Information associations to apply on behalf of EPA Office of Air Quality Planning and claimed to be confidential will be multiple growers. Other reasons for Standards (OAQPS) at treated in accordance with the burden reduction include the [email protected] or 919–541– procedures for handling information encouragement of electronic submission 5522.

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SUPPLEMENTARY INFORMATION: Availability of Meeting Materials: The publish documents with signatures on Background: The CASAC was agendas and other materials in support its Web sites. Members of the public established pursuant to the under the of these teleconferences will be placed should be aware that their personal Clean Air Act (CAA) Amendments of on the EPA CASAC Web site at http:// contact information, if included in any 1977, codified at 42 U.S.C. 7409D(d)(2), www.epa.gov/casac in advance of the written comments, may be posted to the to provide advice, information, and each teleconference. CASAC Web site. Copyrighted material recommendations to the Administrator Procedures for Providing Public Input: will not be posted without explicit on the scientific and technical aspects of Public comment for consideration by permission of the copyright holder. issues related to the criteria for air EPA’s federal advisory committees and Accessibility: For information on quality standards, research related to air panels has a different purpose from access or services for individuals with quality, sources of air pollution, and the public comment provided to EPA disabilities, please contact Dr. Holly strategies to attain and maintain air program offices. Therefore, the process Stallworth at the phone number or quality standards and to prevent for submitting comments to a federal e-mail address noted above, preferably significant deterioration of air quality. advisory committee is different from the at least ten days prior to the meeting, to The CASAC is a Federal Advisory process used to submit comments to an give EPA as much time as possible to Committee chartered under the Federal EPA program office. process your request. Federal advisory committees and Advisory Committee Act (FACA), 5 Dated: October 17, 2011 U.S.C., App. 2. Pursuant to FACA and panels, including scientific advisory Vanessa T. EPA policy, notice is hereby given that committees, provide independent the chartered CASAC will hold a public advice to EPA. Members of the public Director, EPA Science Advisory Board Staff Office. teleconference call to review draft can submit comments for a federal letters on Integrated Science Assessment advisory committee to consider as it [FR Doc. 2011–27433 Filed 10–21–11; 8:45 am] for Lead (First External Review Draft, develops advice for EPA. Input from the BILLING CODE 6560–50–P May 2011) and EPA’s draft Near-Road public to the CASAC will have the most impact if it provides specific scientific NO Monitoring Technical Assistance 2 or technical information or analysis for ENVIRONMENTAL PROTECTION Document and EPA’s. CASAC to consider or if it relates to the AGENCY The Office of Research and clarity or accuracy of the technical Development has requested CASAC information. Members of the public [FRL–9482–4] review of the Integrated Science wishing to provide comment on this Assessment supporting EPA’s review of advisory activity should contact the Proposed Reissuance of the NPDES the National Ambient Air Quality Designated Federal Officer for the General Permit for Facilities Related to Standards for lead. The CASAC Lead relevant advisory committee directly. Oil and Gas Extraction in the Territorial Review Panel reviewed the EPA’s Oral Statements: In general, Seas of Texas Integrated Science Assessment for Lead individuals or groups requesting an oral (First External Review Draft, May 2011) presentation at this public AGENCY: Environmental Protection and is preparing a draft report for teleconference will be limited to three Agency. review by the chartered CASAC. The minutes per speaker. Interested parties ACTION: Notice of availability for chartered CASAC will review the draft should contact Dr. Holly Stallworth, comment. review of the CASAC Lead Review DFO, in writing (preferably via e-mail), Panel on November 28, 2011 from at the contact information noted above, SUMMARY: The Director of the Water 10 a.m. to 12 p.m. More information at least one week prior to each Quality Protection Division, EPA Region about this advisory activity can be teleconference. To be placed on the 6 today proposes to issue the National found at http://yosemite.epa.gov/sab/ public speaker list for the November 28, Pollutant Discharge Elimination System _ sabproduct.nsf/fedrgstr activites/ 2011 teleconference, please contact Dr. (NPDES) general permit for the Lead%20ISA?OpenDocument. Stallworth by November 21, 2011. Territorial Seas of Texas (No. EPA’s Office of Air and Radiation Likewise, to be placed on the public TXG260000) for discharges from (OAR) requested CASAC review of a speaker list for the January 27, 2012 existing and new dischargers and New draft technical document entitled teleconference, please contact Dr. Sources in the Offshore Subcategory of ‘‘Near-Road NO2 Monitoring Technical Stallworth by January 20, 2012. the Oil and Gas Extraction Point Source Assistance Document’’ (Draft, August Written Statements: Written Category as authorized by section 402 of 11, 2011) to provide state and local air statements should be received in the the Clean Water Act, 33 U.S.C. 1342. monitoring agencies with SAB Staff Office by the same deadlines The permit will supersede the previous recommendations and ideas on how to enumerated above (one week prior) so general permit (TXG260000) issued on successfully implement near-road NO2 that the information may be made September 6, 2005 and published in the monitors required by the 2010 revisions available to the Panel for their Federal Register at 70 FR 171. This to the NO2 minimum monitoring consideration. Written statements permit renewal authorizes discharges requirements. The CASAC Air should be supplied to the DFO in from exploration, development, and Monitoring and Methods Subcommittee electronic format via e-mail (acceptable production facilities located in and is preparing a draft report for review by file formats: Adobe Acrobat PDF, discharging to the territorial seas off the chartered CASAC. The chartered WordPerfect, MS Word, MS PowerPoint, Texas. CASAC will review the draft letter on or Rich Text files in IBM–PC/Windows January 27, 2012 from 10 a.m. to 12 p.m. 98/2000/XP format). It is the SAB Staff DATES: Comments must be received by More information about this advisory Office general policy to post written December 8, 2011. activity can be found at http:// comments on the Web page for the ADDRESSES: Comments should be sent yosemite.epa.gov/sab/sabproduct.nsf/ advisory meeting or teleconference. to: Ms. Diane Smith (6WQ–NP), U.S. fedrgstr_activites/Near-road Submitters are requested to provide an Environmental Protection Agency, %20Network%20Design? unsigned version of each document Region 6, 1445 Ross Avenue, Dallas, OpenDocument. because the SAB Staff Office does not Texas 75202–2733.

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Comments may also be submitted via action, you should carefully examine Other Legal Requirements e-mail to the following address: smith. the applicability criteria in Part I, Oil Spill Requirements [email protected]. Section A.1 of the permit. If you have questions regarding the applicability of Section 311 of the CWA, ‘‘the Act’’, Public Meeting Information this action to a particular entity, consult prohibits the discharge of oil and EPA Region 6 will be holding an the person listed in the FOR FURTHER hazardous materials in harmful informal public meeting which will INFORMATION CONTACT section above. The quantities. Discharges that are in include a presentation on the proposed proposed permit contains limitations compliance with NPDES permits under general permit and a question and conforming to EPA’s Oil and Gas normal operational conditions are answer session. Advance notice of the extraction, Offshore Subcategory excluded from the provisions of Section time and date for this meeting was Effluent Limitation Guidelines at 311. However, the permit does not provided in the Houston Chronicle, 40 CFR part 435 and additional preclude the institution of legal action Corpus Christi Caller Times, and requirements assuring that regulated or relieve permittees from any Beaumont Enterprise newspapers on discharges will not cause unreasonable responsibilities, liabilities, or penalties September 30, 2011, and via EPA’s Web degradation of the marine environment, for other, unauthorized discharges of oil site at http://www.epa.gov/region6/ as required by section 403(c) of the and hazardous materials which are water/npdes/genpermit/index.htm. Clean Water Act. Limitations and covered by Section 311 of the Act. This Because informal public meetings conditions are also included to ensure general permit does not authorize accommodate group discussion and compliance with State Water Quality discharges beyond normal exploration, question and answer sessions, public Standards. Specific information on the development, and production of oil and meetings have been used for many derivation of those limitations and gas extraction activities. For instance, an general permits and appear to be more conditions is contained in the fact sheet. oil spill caused by explosion, like the Deepwater Horizon event that extended valuable than formalized public Specifically, the draft permit proposes hearings in helping the public from April 20, 2010 to September 19, to prohibit the discharge of drilling 2010, when oil flowed from a well in understand a proposed general permit fluids, drill cuttings and produced sand. and in identifying the issues of concern. the outer continental shelf portion of the Produced water discharges are limited Gulf of Mexico, or any potential gas Written, but not oral, comments for the for oil and grease, 7-day chronic administrative record will be accepted spill is not covered by this general toxicity, and 24-hour acute end-of-pipe permit. at the public meetings. Written toxicity. In addition to limits on oil and comments generated from what was grease, the proposed permit includes a Endangered Species Act learned at a public meeting may also be prohibition of the discharge of priority The Environmental Protection Agency submitted any time up to the end of the pollutants except in trace amounts in evaluated the potential effects of comment period. The public meeting well treatment, completion, and issuance of this permit reissuance upon will be held at South Regional Branch workover fluids. A limit of ‘‘No Free listed threatened or endangered species. Library, First Floor Lobby Meeting Oil’’ is proposed for miscellaneous Based on that evaluation, EPA has Room, 2101 Lake Robbins Drive, The discharges, such as non-contact cooling determined that authorization of the Woodlands, TX 77380; Time: 6 p.m.– water and ballast water, and on deck discharges is not likely to adversely 8:30 p.m.; and Date: Tuesday, November drainage discharges. Discharges of affect any listed threatened or 8, 2011. seawater and freshwater which have endangered species. EPA has initiated FOR FURTHER INFORMATION CONTACT: Ms. been used to pressure test existing section 7 consultations in accordance Diane Smith, Region 6, U.S. pipelines and piping, to which with the Endangered Species Act with Environmental Protection Agency, 1445 treatment chemicals have been added, the U.S. Fish and Wildlife Service Ross Avenue, Dallas, Texas 75202–2733. are proposed to be subject to limitations (FWS) and the National Marine Telephone: (214) 665–2145. on free oil, concentration of treatment Fisheries Service (NMFS). The FWS A complete draft permit and a fact chemicals, and acute toxicity. New concurred with EPA’s determination sheet more fully explaining the proposal facilities withdrawing water greater than (Consultation No. 21410–2004–I–0051) may be obtained from Ms. Smith. In 2 million gallons per day (MGD) are on July 15, 2011. EPA is still working addition, the Agency’s current required to have the best technology with the NMFS on its concurrence. administrative record on the proposal is available for minimizing fish/shellfish available for examination at the Region’s impingement mortality and entrainment National Environmental Policy Act Dallas offices during normal working caused by cooling water intake EPA issued a final Environmental hours after providing Ms. Smith 24 structures. EPA also proposes to require Impact Statement (EIS) which was hours advance notice. Additionally, a produced water effluent characteristics published in the Federal Register at 69 copy of the proposed permit, fact sheet, study and sediment monitoring in order FR 15829 on March 26, 2004, to and this Federal Register Notice may be to collect information on how produced evaluate the potential environmental found on the EPA Region 6 Web site at: water discharged to the Texas territorial consequences of this Federal (general http://www.epa.gov/region6/water/ seas may impact water quality and the permit) action, pursuant to its npdes/genpermit/index.htm. marine environment. EPA will then responsibilities under the National SUPPLEMENTARY INFORMATION: EPA evaluate the data with respect to further Environmental Policy Act of 1969 intends to use the proposed reissued action in order to minimize potential (NEPA). EPA responded to all issues permit to regulate oil and gas extraction adverse impacts caused by produced raised on the Final EIS and issued a facilities located in the territorial seas water on aquatic life and/or human Record of Decision on January 11, 2005. off Texas. To obtain discharge health. EPA is also soliciting comments EPA has prepared a Supplemental authorization, operators of such on whether or not to prohibit the Information Report (SIR) to the 2005 facilities must submit a new Notice of discharge of produced water from new issued final EIS. The SIR is posted on Intent (NOI). To determine whether production wells or even to apply ‘‘no the Internet at: http://www.epa.gov/ your (facility, company, business, discharge’’ of produced water to all region6/water/npdes/genpermit/index. organization, etc.) is regulated by this facilities. htm.

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Ocean Discharge Criteria Evaluation Coastal Zone Management Act is estimated that the time required to EPA has determined that the activities prepare the request for coverage and For discharges into waters of the discharge monitoring reports for this territorial sea, contiguous zone, or which are proposed to be authorized by this permit are consistent with the local permit will be the same. A new facility oceans, CWA section 403 requires EPA may need more time to prepare to consider guidelines for determining and state Coastal Zone Management Plans. The proposed permit and information for cooling water intake potential degradation of the marine structure requirements. This proposal environment in issuance of NPDES consistency determination will be submitted to the State of Texas for requires electronic reporting for permits. These Ocean Discharge Criteria interagency review during the comment discharge monitoring reports, and it will (40 CFR 125, Subpart M) are intended period of the public notice. It should be save some reporting time. to ‘‘prevent unreasonable degradation of However, the alternative to obtaining noted that decisions to allow oil and gas the marine environment and to authorization to discharge under this exploration and production in the authorize imposition of effluent general permit is to obtain an individual territorial seas are made by the State of permit. The burden of obtaining limitations, including a prohibition of Texas and not the EPA. discharge, if necessary, to ensure this authorization to discharge under the goal’’ (45 FR 65942, October 3, 1980). State Certification general permit is expected to be EPA prepared a report on ‘‘Ocean Under section 401(a)(1) of the Act, significantly less than the burden of Discharge Criteria Evaluation for the EPA may not issue an NPDES permit obtaining an individual permit. NPDES General Permit for the until the State in which the discharge Regulatory Flexibility Act Territorial Seas of the State of Texas’’ will originate grants or waives The Regulatory Flexibility Act, 5 dated October 25, 2002, when EPA certification to ensure compliance with U.S.C. 601 et seq., requires that EPA proposed the reissuance of the general appropriate requirements of the Act and prepare a regulatory flexibility analysis permit in 2004, and concluded that State law. Section 301(b)(1)(C) of the for regulations that have a significant reissuance of the Oil and Gas General Act requires that NPDES permits impact on a substantial number of small Permit for the Territorial Seas of Texas contain conditions that ensure entities. The permit renewal proposed would not result in unreasonable compliance with applicable state water today is not a ‘‘rule’’ subject to the degradation of the marine environment. quality standards or limitations. The Regulatory Flexibility Act. EPA EPA has reevaluated the ten (10) criteria proposed permit contains limitations prepared a regulatory flexibility in the SIR mentioned above. intended to ensure compliance with analysis, however, on the promulgation state water quality standards and has Marine Protection, Research, and of the Offshore Subcategory guidelines been determined by EPA Region 6 to be Sanctuaries Act on which many of the permit’s effluent consistent with Texas Water Quality limitations are based. That analysis has Standards and the corresponding The Marine Protection, Research and shown that issuance of this permit implementation guidance. The Region Sanctuaries Act (MPRSA) of 1972 would not have a significant impact on will solicit the 401 certification from the regulates the dumping of all types of a substantial number of small entities. materials into ocean waters and Texas Railroad Commission. Dated: October 14, 2011. establishes a permit program for ocean Paperwork Reduction Act dumping. In addition the MPRSA William K. Honker, The information collection required establishes the Marine Sanctuaries Acting Director, Water Quality Protection by this permit has been approved by the Division, EPA Region 6. Program, implemented by the National Office of Management and Budget Oceanographic and Atmospheric [FR Doc. 2011–27421 Filed 10–21–11; 8:45 am] (OMB) under the provisions of the Administration (NOAA), which requires BILLING CODE 6560–50–P Paperwork Reduction Act, 44 U.S.C. NOAA to designate ocean waters as 3501 et seq., in submission made for the marine sanctuaries for the purpose of NPDES permit program and assigned preserving or restoring their EXPORT-IMPORT BANK OF THE U.S. OMB control numbers 2040–0086 conservation, recreational, ecological or (NPDES permit application) and 2040– [Public Notice 2011–076] aesthetic values. Pursuant to the Marine 0004 (discharge monitoring reports). Protection and Sanctuaries Act, NOAA Agency Information Collection This reissued permit requires Activities: Final Collection; Comment has not designated any marine reporting and application requirements Request sanctuaries within the area covered for new facilities to comply with cooling under the permit. The proposed permit water intake structure requirements and AGENCY: Export-Import Bank of the U.S. also prohibits discharges to marine therefore it requires more reporting sanctuary areas. ACTION: Submission for OMB review and burdens for new facilities from those comments request. Magnuson-Stevens Fishery Management under the previous general permit. and Conservation Act Since this permit is very similar in Form Title: Used Equipment reporting and application requirements Questionnaire (EIB 11–03). EPA has determined that reissuance in discharges which are required to be SUMMARY: The Export-Import Bank of of this general permit is not likely to monitored as the Western Gulf of the United States (Ex-Im Bank), as a part adversely affect Essential Fish Habitat Mexico Outer Continental Shelf (OCS) of its continuing effort to reduce established under the 1996 amendments general permit (GMG290000) which also paperwork and respondent burden, to the Magnuson-Stevens Fishery has cooling water intake structure invites the general public and other Management and Conservation Act. In requirements, the paperwork burdens Federal Agencies to comment on the the letter of June 17, 2011, National are expected to be nearly identical. EPA proposed information collection, as Marine Fisheries Service (NMFS) estimated it would take an affected required by the Paperwork Reduction concurred with the determination that facility 3 hours to prepare the request Act of 1995. issuance of the permit has no adverse for coverage and 3 hours per month to The collection will provide effect to Essential Fish Habitat. prepare discharge monitoring reports. It information needed to determine

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compliance and creditworthiness for to the Commission regarding matters and use a screen reader to read transaction requests submitted to Ex-Im within the jurisdiction of the displayed documents. You can also Bank under its insurance, guarantee, Commission and to facilitate the watch the video with open captioning. and direct loan programs. Information participation of all consumers in The website to access Accessible Event presented in this form will be proceedings before the Commission. is http://accessibleevent.com. The web considered in the overall evaluation of DATES: The next meeting of the page prompts for an Event Code which the transaction, including Export-Import Committee will take place on November is, 005202376. To learn about the Bank’s determination of the appropriate 4, 2011, 9 a.m. to 4 p.m., at the features of Accessible Event, consult its term for the transaction. Commission’s Headquarters Building, User’s Guide at: http:// The form can be view at: http:// Room TW–C305. accessibleevent.com/doc/user_guide/. www.exim.gov/pub/pending/eib11- ADDRESSES: Federal Communications Other reasonable accommodations for 03.pdf. Commission, 445 12th Street, SW., people with disabilities are available DATES: Comments should be received on Washington, DC 20554. upon request. The request should or before December 23, 2011 to be FOR FURTHER INFORMATION CONTACT: include a detailed description of the assured of consideration. Scott Marshall, Consumer and accommodation needed and contact information. Please provide as much ADDRESSESES: Comments maybe Governmental Affairs Bureau, (202) advance notice as possible; last minute submitted electronically on http:// 418–2809 (voice or TTY), or e-mail requests will be accepted, but may be www.regulations.gov or by mail to Ms. [email protected]. impossible to fill. Send an e-mail to Michele Kuester, Export-Import Bank of SUPPLEMENTARY INFORMATION: This is a [email protected] or call the Consumer the United States, 811 Vermont Ave., summary of the Commission’s and Governmental Affairs Bureau at NW., Washington, DC 20571 document DA 11–1708 released 202–418–0530 (voice), 202–418–0432 SUPPLEMENTARY INFORMATION: October 14, 2011, announcing the (TTY). Titles and Form Number: EIB 11–03 agenda, date and time of the Used Equipment Questionnaire. Committee’s next meeting. Federal Communications Commission. OMB Number: 3048–xxxx. William D. Freedman, Type of Review: New. Meeting Date, Time and Agenda Acting Deputy Chief, Consumer and Need and Use: The information The next meeting of the Consumer Governmental Affairs Bureau. collected will provide information Advisory Committee will take place on [FR Doc. 2011–27103 Filed 10–21–11; 8:45 am] needed to determine compliance and November 4, 2011, from 9 a.m. to 4 p.m. BILLING CODE 6712–01–P creditworthiness for transaction at the Commission’s headquarters requests submitted to the Export Import building, Room TW–C305, 445 12th Bank under its insurance, guarantee, Street, SW., Washington, DC 20554. FEDERAL DEPOSIT INSURANCE and direct loan programs. At its November 4, 2011 meeting, it is CORPORATION Affected Public: This form affects expected that the Committee will entities involved in the export of U.S. consider a recommendation from its Update to Notice of Financial goods and services. USF Working Group regarding the Institutions for Which the Federal Annual Number of Respondents: Lifeline Linkup programs and a Deposit Insurance Corporation has 1,000. recommendation from its Consumer been Appointed Either Receiver, Estimated Time per Respondent: Empowerment Working Group Liquidator, or Manager 15 minutes. regarding cramming. The Committee AGENCY: Federal Deposit Insurance Government Annual Burden Hours: may also consider other Corporation. 250 hours. recommendations from its working Frequency of Reporting or Use: On groups. ACTION: Update listing of financial Occasion. A limited amount of time will be institutions in liquidation. available on the agenda for comments Total Cost to the Government: SUMMARY: Notice is hereby given that from the public. Alternatively, Members $9,680.00. the Federal Deposit Insurance of the public may send written Corporation (Corporation) has been Sharon A. Whitt, comments to: Scott Marshall, appointed the sole receiver for the Agency Clearance Officer. Designated Federal Officer of the following financial institutions effective [FR Doc. 2011–27246 Filed 10–21–11; 8:45 am] Committee at the address provided as of the Date Closed as indicated in the BILLING CODE 6690–01–P above. The meeting is open to the public and listing. This list (as updated from time the site is fully accessible to people to time in the Federal Register) may be relied upon as ‘‘of record’’ notice that FEDERAL COMMUNICATIONS using wheelchairs or other mobility the Corporation has been appointed COMMISSION aids. Sign language interpreters, open captioning, assistive listening devices, receiver for purposes of the statement of [DA 11–1708] and Braille copies of the agenda and policy published in the July 2, 1992 issue of the Federal Register (57 FR Consumer Advisory Committee handouts will be provided on site. Meetings are also broadcast live with 29491). For further information AGENCY: Federal Communications open captioning over the Internet from concerning the identification of any Commission. the FCC Live web page at http:// institutions which have been placed in liquidation, please visit the Corporation ACTION: Notice. www.fcc.gov/live/. Simultaneous with the webcast, the Web site at www.fdic.gov/bank/ SUMMARY: The Commission announces meeting will be available through individual/failed/banklist.html or the next meeting date, time, and agenda Accessible Event, a service that works contact the Manager of Receivership of its Consumer Advisory Committee with your web browser to make Oversight in the appropriate service (‘‘Committee’’). The purpose of the presentations accessible to people with center. Committee is to make recommendations disabilities. You can listen to the audio Dated: October 17, 2011.

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Federal Deposit Insurance Corporation, Pamela Johnson, Regulatory Editing Specialist.

INSTITUTIONS IN LIQUIDATION [In alphabetical order]

FDIC Ref. No. Bank Name City State Date Closed

10401 ...... Blue Ridge Savings Bank, Inc...... Asheville ...... NC 10/14/2011 10402 ...... Country Bank ...... Aledo ...... IL 10/14/2011 10403 ...... First State Bank ...... Cranford ...... NJ 10/14/2011 10404 ...... Piedmont Community Bank ...... Gray ...... GA 10/14/2011

[FR Doc. 2011–27330 Filed 10–21–11; 8:45 am] (12 CFR 225.41) to acquire shares of a The applications listed below, as well BILLING CODE 6714–01–P bank or bank holding company. The as other related filings required by the factors that are considered in acting on Board, are available for immediate the notices are set forth in paragraph 7 inspection at the Federal Reserve Bank FEDERAL MINE SAFETY AND HEALTH of the Act (12 U.S.C. 1817(j)(7)). indicated. The application also will be REVIEW COMMISSION The notices are available for available for inspection at the offices of immediate inspection at the Federal the Board of Governors. Interested Sunshine Act Meeting Notice Reserve Bank indicated. The notices persons may express their views in writing on the standards enumerated in October 12, 2011. also will be available for inspection at the offices of the Board of Governors. the BHC Act (12 U.S.C. 1842(c)). If the TIME AND DATE: 10 a.m., Wednesday, Interested persons may express their proposal also involves the acquisition of October 19, 2011. views in writing to the Reserve Bank a nonbanking company, the review also PLACE: The Richard V. Backley Hearing indicated for that notice or to the offices includes whether the acquisition of the Room, 9th Floor, 601 New Jersey of the Board of Governors. Comments nonbanking company complies with the Avenue, NW., Washington, DC. must be received not later than standards in section 4 of the BHC Act STATUS: Open. November 8, 2011. (12 U.S.C. 1843). Unless otherwise MATTERS TO BE CONSIDERED: The A. Federal Reserve Bank of noted, nonbanking activities will be Commission will consider and act upon Minneapolis (Jacqueline G. King, conducted throughout the United States. the following in open session: White Community Affairs Officer) 90 Unless otherwise noted, comments Buck Coal Co., Docket No. WEVA 2011– Hennepin Avenue, Minneapolis, regarding each of these applications 1361; H & K Materials, Inc., Docket No. Minnesota 55480–0291: must be received at the Reserve Bank indicated or the offices of the Board of PENN 2011–308–M; and Graymont (PA) 1. Mark E. Davis, St. Peter, Minnesota; Governors not later than November 17, Inc., Docket No. PENN 2011–258–M. to acquire voting shares of Riverland 2011. (Issues include whether motions to Bancorporation, and thereby indirectly A. Federal Reserve Bank of Dallas (E. reopen each of the cases should be acquire control of Riverland Bank, both Ann Worthy, Vice President) 2200 granted.) in Jordan, Minnesota. Any person attending this meeting North Pearl Street, Dallas, Texas 75201– who requires special accessibility Board of Governors of the Federal Reserve 2272: features and/or auxiliary aids, such as System, October 19, 2011. 1. Happy Bancshares, Inc., Canyon, sign language interpreters, must inform Robert deV. Frierson, Texas, and SBI Acquisition Corp., the Commission in advance of those Deputy Secretary of the Board. Amarillo, Texas; to acquire 100 percent needs. Subject to 29 CFR 2706.150(a)(3) [FR Doc. 2011–27437 Filed 10–21–11; 8:45 am] of the voting shares of Signature and 2706.160(d). BILLING CODE 6210–01–P Bancshares, Inc., and thereby indirectly CONTACT PERSON FOR MORE INFORMATION: acquire voting shares of Signature Bank, Jean Ellen, (202) 434–9950/(202) 708– both in Dallas, Texas. In addition, SBI 9300 for TDD Relay/1–800–877–8339 FEDERAL RESERVE SYSTEM Acquisition Corp., also has applied to become a bank holding company. for toll free. Formations of, Acquisitions by, and Board of Governors of the Federal Reserve Emogene Johnson, Mergers of Bank Holding Companies System, October 18, 2011. Administrative Assistant. The companies listed in this notice Robert deV. Frierson, [FR Doc. 2011–27590 Filed 10–20–11; 4:15 pm] have applied to the Board for approval, Deputy Secretary of the Board. BILLING CODE 6735–01–P pursuant to the Bank Holding Company [FR Doc. 2011–27325 Filed 10–21–11; 8:45 am] Act of 1956 (12 U.S.C. 1841 et seq.) BILLING CODE 6210–01–P (BHC Act), Regulation Y (12 CFR Part FEDERAL RESERVE SYSTEM 225), and all other applicable statutes Change in Bank Control Notices; and regulations to become a bank FEDERAL TRADE COMMISSION Acquisitions of Shares of a Bank or holding company and/or to acquire the Bank Holding Company assets or the ownership of, control of, or Sunshine Act Meeting Notice the power to vote shares of a bank or The notificants listed below have bank holding company and all of the AGENCY: Federal Trade Commission. applied under the Change in Bank banks and nonbanking companies ACTION: Oral argument. Control Act (12 U.S.C. 1817(j)) and owned by the bank holding company, § 225.41 of the Board’s Regulation Y including the companies listed below. DATES: October 28, 2011 at 2 p.m.

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PLACE: Federal Trade Commission DATES: Submit comments on or before: contracts may impose unique Building, Room 532, 600 Pennsylvania November 23, 2011. information collection/reporting Avenue, NW., Washington, DC 20580. FOR FURTHER INFORMATION CONTACT: requirements on contractors, not STATUS: Part of this meeting will be William Clark, Procurement Analyst, required by regulation, but necessary to open to the public. The rest of the Acquisition Policy Division, at evaluate particular program meeting will be closed to the public. telephone (202) 219–1813 or e-mail accomplishments and measure success MATTERS TO BE CONSIDERED: [email protected]. in meeting special program objectives. Portion Open to the Public: ADDRESSES: Submit comments B. Annual Reporting Burden (1) Oral Argument in The North identified by Information Collection Respondents: 126,870. Carolina Board of Dental Examiners, 3090–0163, Information Specific to a Responses per Respondent: 1.35. Docket 9343 Contract or Contracting Action (Not Total Responses: 171,275. Portion Closed to the Public: Required by Regulation), by any of the Hours per Response: .40. (2) Executive Session to follow Oral following methods: Total Burden Hours: 68,510. Argument in The North Carolina Board • Regulations.gov: http:// Obtaining Copies of Proposals: of Dental Examiners, Docket 9343. www.regulations.gov. Submit comments Requesters may obtain a copy of the CONTACT PERSON FOR MORE INFORMATION: via the Federal eRulemaking portal by information collection documents from Mitch Katz, FTC, Office of Public inputting ‘‘Information Collection 3090– the General Services Administration, Affairs, 600 Pennsylvania Avenue, NW., 0163, Information Specific to a Contract Regulatory Secretariat (MVCB), 1275 Washington, DC 20580, (202) 326–2180; or Contracting Action (Not Required by First Street, NE., Washington, DC 20417, Recorded Message: (202) 326–2711 Regulation),’’ under the heading ‘‘Enter telephone (202) 501–4755. Please cite Keyword or ID’’ and selecting ‘‘Search.’’ OMB Control No. 3090–0163, By direction of the Commission. Select the link ‘‘Submit a Comment’’ Information Specific to a Contract or Donald S. Clark, that corresponds with ‘‘Information Contracting Action (Not Required by Secretary. Collection 3090–0163, Information Regulation), in all correspondence. [FR Doc. 2011–27261 Filed 10–21–11; 8:45 am] Specific to a Contract or Contracting Dated: October 18, 2011. BILLING CODE 6750–01–M Action (Not Required by Regulation).’’ Laura Auletta, Follow the instructions provided at the Acting Director, Office of Governmentwide ‘‘Submit a Comment’’ screen. Please Acquisition Policy, Office of Acquisition GENERAL SERVICES include your name, company name (if Policy. ADMINISTRATION any), and ‘‘Information Collection 3090– [FR Doc. 2011–27440 Filed 10–21–11; 8:45 am] 0163, Information Specific to a Contract [OMB Control No. 3090–0163; Docket 2011– or Contracting Action (Not Required by BILLING CODE 6820–61–P 0079; Sequence 5] Regulation),’’ on your attached Submission for OMB Review; General document. • Fax: 202–501–4067. DEPARTMENT OF HEALTH AND Services Administration; Information • HUMAN SERVICES Specific to a Contract or Contracting Mail: General Services Administration, Regulatory Secretariat Action; (Not Required by Regulation) Centers for Disease Control and (MVCB), 1275 First Street, NE., Prevention (CDC) AGENCY: Office of the Chief Acquisition Washington, DC 20417. Attn: Hada Officer, GSA. Flowers/IC 3090–0163, Information Advisory Committee on Childhood ACTION: Notice of request for comments Specific to a Contract or Contracting Lead Poisoning Prevention (ACCLPP) regarding a renewal to an existing OMB Action (Not Required by Regulation). clearance. Instructions: Please submit comments Correction: This notice was published only and cite Information Collection in the Federal Register on October 6, SUMMARY: Under the provisions of the 3090–0163, Information Specific to a 2011, Volume 76, Number 194, page Paperwork Reduction Act, the Contract or Contracting Action (Not 62071. Contact information changed to Regulatory Secretariat will be Required by Regulation), in all delete Nikki Walker’s name and submitting to the Office of Management correspondence related to this telephone number and replaced with and Budget (OMB) a request to review collection. All comments received will Tiffany Turner’s name and telephone and approve an extension of a be posted without change to http:// number. previously approved information www.regulations.gov, including any CONTACT PERSONS FOR MORE collection requirement regarding personal and/or business confidential INFORMATION: Claudine Johnson, information specific to a contract or information provided. Program Operation Assistant or Tiffany contracting action (not required by SUPPLEMENTARY INFORMATION: Turner, Healthy Homes and Lead regulation). A notice was published in Poisoning Prevention Branch, Division the Federal Register at 76 FR 38396, on A. Purpose of Environmental Emergency Health June 30, 2011. No comments were The General Services Administration Services, NCEH, CDC, 4770 Buford received. (GSA) has various mission Highway, NE., Mailstop F–60, Atlanta, Public comments are particularly responsibilities related to the Georgia 30341, telephone (770) 488– invited on: Whether this collection of acquisition and provision of supplies, 3629; Tiffany Turner (770) 488–0554; information is necessary and whether it transportation, information technology, fax (770) 488–3635. will have practical utility; whether our telecommunications, real property The Director, Management Analysis estimate of the public burden of this management, and disposal of real and and Services Office has been delegated collection of information is accurate and personal property. These mission the authority to sign Federal Register based on valid assumptions and responsibilities generate requirements notices pertaining to announcements of methodology; and ways to enhance the that are realized through the solicitation meetings and other committee quality, utility, and clarity of the and award of public contracts. management activities, for both the information to be collected. Individual solicitations and resulting Centers for Disease Control and

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Prevention, and the Agency for Toxic NIOSH, CDC, 395 E Street, SW., Suite 9200, U.S.C. 3507. An Agency may not Substances and Disease Registry. Patriots Plaza Building, Washington, DC conduct or sponsor, and a person is not 20201, telephone (202) 245–0655, fax (202) Dated: October 17, 2011. required to respond to, a collection of 245–0664. information unless it displays a Elaine L. Baker, The Director, Management Analysis and currently valid OMB control number. Director, Management Analysis and Services Services Office, has been delegated the Office, Centers for Disease Control and authority to sign Federal Register notices OMB has now approved the information Prevention. pertaining to announcements of meetings and collection and has assigned OMB [FR Doc. 2011–27396 Filed 10–21–11; 8:45 am] other committee management activities for control number 0910–0623. The both the Centers for Disease Control and approval expires on September 30, BILLING CODE 4163–18–P Prevention and the Agency for Toxic 2014. A copy of the supporting Substances and Disease Registry. statement for this information collection DEPARTMENT OF HEALTH AND Dated: October 17, 2011. is available on the Internet at http:// HUMAN SERVICES Elaine L. Baker, www.reginfo.gov/public/do/PRAMain. Director, Management Analysis and Services Dated: October 18, 2011. Centers for Disease Control and Office, Centers for Disease Control and Leslie Kux, Prevention Prevention. Acting Assistant Commissioner for Policy. [FR Doc. 2011–27403 Filed 10–21–11; 8:45 am] Board of Scientific Counselors, [FR Doc. 2011–27388 Filed 10–21–11; 8:45 am] BILLING CODE 4163–18–P National Institute for Occupational BILLING CODE 4160–01–P Safety and Health (BSC, NIOSH) In accordance with section 10(a)(2) of DEPARTMENT OF HEALTH AND DEPARTMENT OF HEALTH AND the Federal Advisory Committee Act HUMAN SERVICES HUMAN SERVICES (Pub. L. 92–463), the Centers for Disease Control and Prevention (CDC) Food and Drug Administration Food and Drug Administration announces the following meeting for the [Docket No. FDA–2011–N–0264] [Docket No. FDA–2011–N–0424] aforementioned committee: Agency Information Collection Time and Dates: 8:30 a.m.–3:15 p.m., Agency Information Collection November 15, 2011. Activities; Announcement of Office of Activities; Announcement of Office of Place: Patriots Plaza I, 395 E Street, SW., Management and Budget Approval; Management and Budget Approval; Room 9000, Washington, DC 20201. Request for Designation as Country Temporary Marketing Permit Status: Open to the public, limited only by Not Subject to the Restrictions Applications the space available. The meeting room Applicable to Human Food and accommodates approximately 50 people. Cosmetics Manufactured From, AGENCY: Food and Drug Administration, This meeting is available by teleconference. Processed With, or Otherwise HHS. Please dial (877) 328–2816 and enter code ACTION: 6558291. Containing, Material From Cattle Notice. Purpose: The Secretary, the Assistant AGENCY: Food and Drug Administration, SUMMARY: The Food and Drug Secretary for Health, and by delegation the Director, Centers for Disease Control and HHS. Administration (FDA) is announcing Prevention, are authorized under Sections ACTION: Notice. that a collection of information entitled 301 and 308 of the Public Health Service Act ‘‘Temporary Marketing Permit to conduct directly or by grants or contracts, SUMMARY: The Food and Drug Applications’’ has been approved by the research, experiments, and demonstrations Administration (FDA) is announcing Office of Management and Budget relating to occupational safety and health and that a collection of information entitled (OMB) under the Paperwork Reduction to mine health. The Board of Scientific ‘‘Request for Designation as Country Not Act of 1995. Counselors shall provide guidance to the Subject to the Restrictions Applicable to FOR FURTHER INFORMATION CONTACT: Director, National Institute for Occupational Human Food and Cosmetics Safety and Health on research and prevention Denver Presley, Jr., Office of Information programs. Specifically, the Board shall Manufactured From, Processed With, or Management, Food and Drug provide guidance on the Institute’s research Otherwise Containing, Material From Administration, 1350 Piccard Dr., PI50– activities related to developing and Cattle’’ has been approved by the Office 400B, Rockville, MD 20850, 301–796– evaluating hypotheses, systematically of Management and Budget (OMB) 3793. documenting findings and disseminating under the Paperwork Reduction Act of SUPPLEMENTARY INFORMATION: results. The Board shall evaluate the degree 1995. On August to which the activities of the National 23, 2011, the Agency submitted a Institute for Occupational Safety and Health: FOR FURTHER INFORMATION CONTACT: proposed collection of information (1) Conform to appropriate scientific Denver Presley, Jr., Office of Information entitled ‘‘Temporary Marketing Permit standards; (2) address current, relevant Management, Food and Drug Applications’’ to OMB for review and needs; and (3) produce intended results. Administration, 1350 Piccard Dr., PI50– clearance under 44 U.S.C. 3507. An Matters To Be Discussed: The agenda will 400B, Rockville, MD 20850, 301–796– Agency may not conduct or sponsor, include the following: (1) Director Update; 3793. (2) Implementation of the National and a person is not required to respond Academies Program Recommendations for SUPPLEMENTARY INFORMATION: On June to, a collection of information unless it Respiratory Diseases, Hearing Loss 28, 2011, the Agency submitted a displays a currently valid OMB control Prevention, Personal Protective proposed collection of information number. OMB has now approved the Technologies, and Health Hazard entitled ‘‘Request for Designation as information collection and has assigned Evaluations; (3) Occupational Safety and Country Not Subject to the Restrictions OMB control number 0910–0133. The Health Workforce Needs Assessment; (4) and Applicable to Human Food and approval expires on September 30, Future Directions for Extramural Research. Agenda items are subject to change as Cosmetics Manufactured From, 2014. A copy of the supporting priorities dictate. Processed With, or Otherwise statement for this information collection Contact Person for More Information: Containing, Material From Cattle’’ to is available on the Internet at http:// Roger Rosa, Designated Federal Officer, BSC, OMB for review and clearance under 44 www.reginfo.gov/public/do/PRAMain.

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Dated: October 18, 2011. ‘‘Collection of information’’ is defined of the FD&C Act, FDA issued part 207.1 Leslie Kux, in 44 U.S.C. 3502(3) and 5 CFR Under current § 207.20, manufacturers, Acting Assistant Commissioner for Policy. 1320.3(c) and includes Agency requests repackers, and relabelers that engage in [FR Doc. 2011–27391 Filed 10–21–11; 8:45 am] or requirements that members of the the manufacture, preparation, BILLING CODE 4160–01–P public submit reports, keep records, or propagation, compounding, or provide information to a third party. processing of human or veterinary drugs Section 3506(c)(2)(A) of the PRA (44 and biological products, including bulk DEPARTMENT OF HEALTH AND U.S.C. 3506(c)(2)(A)) requires Federal drug substances and bulk drug HUMAN SERVICES Agencies to provide a 60-day notice in substances for prescription the Federal Register concerning each compounding, and drug premixes as Food and Drug Administration proposed collection of information, well as finished dosage forms, whether prescription or over-the-counter, are [Docket No. FDA–2011–N–0742] including each proposed extension of an existing collection of information, required to register their establishment. Agency Information Collection before submitting the collection to OMB In addition, manufacturers, repackers, Activities; Proposed Collection; for approval. To comply with this and relabelers are required to submit a Comment Request; Registration of requirement, FDA is publishing notice listing of every drug or biological Producers of Drugs and Listing of of the proposed collection of product in commercial distribution. Drugs in Commercial Distribution information set forth in this document. Owners or operators of establishments With respect to the following that distribute under their own label or AGENCY: Food and Drug Administration, collection of information, FDA invites trade name a drug product HHS. comments on these topics: (1) Whether manufactured by a registered ACTION: Notice. the proposed collection of information establishment are not required either to is necessary for the proper performance register or list. However, distributors SUMMARY: The Food and Drug may elect to submit drug listing Administration (FDA) is announcing an of FDA’s functions, including whether the information will have practical information in lieu of the registered opportunity for public comment on the establishment that manufactures the proposed collection of certain utility; (2) the accuracy of FDA’s estimate of the burden of the proposed drug product. Foreign drug information by the Agency. Under the establishments must also comply with Paperwork Reduction Act of 1995 (the collection of information, including the validity of the methodology and the establishment registration and PRA), Federal Agencies are required to product listing requirements if they publish notice in the Federal Register assumptions used; (3) ways to enhance the quality, utility, and clarity of the import or offer for import their products concerning each proposed collection of into the United States. information, including each proposed information to be collected; and (4) ways to minimize the burden of the Under current § 207.21, extension of an existing collection of establishments, both domestic and information, and to allow 60 days for collection of information on respondents, including through the use foreign, must register with FDA within public comment in response to the 5 days after beginning the manufacture of automated collection techniques, notice. This notice solicits comments on of drugs or biologicals, or within 5 days when appropriate, and other forms of requirements governing the registration after the submission of a drug information technology. of producers of drugs and listing of application or biological license drugs in commercial distribution. Registration of Producers of Drugs and application. In addition, establishments DATES: Submit either electronic or Listing of Drugs in Commercial must register annually. Changes in written comments on the collection of Distribution—21 CFR Part 207—(OMB individual ownership, corporate or information by December 23, 2011. Control Number 0910–0045)—Extension partnership structure, location, or drug- handling activity must be submitted as ADDRESSES: Submit electronic Requirements for drug establishment amendments to registration under comments on the collection of registration and drug listing are set forth current § 207.26 within 5 days of such information to http:// in section 510 of the Federal Food, changes. Under § 207.20(b), private label www.regulations.gov. Submit written Drug, and Cosmetic Act (the FD&C Act) distributors may request their own comments on the collection of (21 U.S.C. 360) and section 351 of the labeler code and elect to submit drug information to the Division of Dockets Public Health Service Act, and part 207 listing information to FDA. In such Management (HFA–305), Food and Drug (21 CFR part 207). Fundamental to instances, at the time of submitting or Administration, 5630 Fishers Lane, rm. FDA’s mission to protect the public 1061, Rockville, MD 20852. All health is the collection of this comments should be identified with the 1 This document addresses the information information, which is used for collection in current part 207. In the Federal docket number found in brackets in the important activities such as postmarket Register of August 29, 2006 (71 FR 51276), FDA heading of this document. surveillance for serious adverse drug proposed to revise part 207. The proposed revisions FOR FURTHER INFORMATION CONTACT: would reorganize, consolidate, clarify, and modify reactions, inspection of drug current regulations concerning who must register Juanmanuel Vilela, Office of manufacturing and processing facilities, establishments and list, and describes when and Information Management, Food and and monitoring of drug products how to register and list, and what information must Drug Administration, 1350 Piccard Dr., imported into the United States. be submitted for registration and listing. In PI50–400B, Rockville, MD 20850, 301– addition, the proposal would make certain changes Comprehensive, accurate, and up-to- to the National Drug Code (NDC) system and would 796–7651, date information is critical to require the appropriate NDC number to appear on [email protected]. conducting these activities with the labels for drugs subject to the listing efficiency and effectiveness. requirements. The proposed regulations generally SUPPLEMENTARY INFORMATION: Under the also require the electronic submission of all PRA (44 U.S.C. 3501–3520), Federal Under section 510 of the FD&C Act, registration and most listing information. The Agencies must obtain approval from the FDA is authorized to establish a system August 29, 2006, proposed rule requested Office of Management and Budget for registration of producers of drugs comments on the information collection for revised and for listing of drugs in commercial part 207. When the proposal is finalized, the (OMB) for each collection of information collection for revised part 207 will information they conduct or sponsor. distribution. To implement section 510 replace the information collection in this document.

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updating drug listing information, discontinued; (3) all drug or biological • For registered foreign drug private label distributors must certify to products for which a notice of establishments, the name, address, and the registered establishment that discontinuance was submitted and for telephone number of its U.S. agent manufactured, prepared, propagated, which commercial distribution has been (§ 207.40(c)); compounded, or processed (which resumed; and (4) any material change in • The name of each importer that is includes, among other things, any information previously submitted. known to the establishment (the U.S. repackaging and relabeling) the listed No update is required if no changes company or individual in the United drug that the drug listing submission have occurred since the previously States that is an owner, consignee, or was made. Establishments must, within submitted list. recipient of the foreign establishment’s 5 days of beginning the manufacture of Historically, drug establishment drug that is imported into the United drugs or biologicals, submit to FDA a registration and drug listing information States. An importer does not include the listing for every drug or biological have been submitted in paper form consumer or patient who ultimately product in commercial distribution at using FDA Form 2656 (Registration of purchases, receives, or is administered that time. Private label distributors may Drug Establishment/Labeler Code the drug, unless the foreign elect to submit to FDA a listing of every Assignment), FDA Form 2657 (Drug establishment ships the drug directly to drug product they place in commercial Product Listing), and FDA Form 2658 the consumer or the patient) (section distribution. Registered establishments (Registered Establishments’ Report of 510(i)(1)(A) of the FD&C Act); and must submit to FDA drug product Private Label Distributors) (collectively • The name of each person who listing for those private label referred to as FDA Forms). imports or offers for import (the name distributors who do not elect to submit Changes in the FD&C Act resulting of each agent, broker, or other entity, listing information. from enactment of the Food and Drug other than a carrier, that the foreign Under § 207.25, product listing Administration Amendments Act of drug establishment uses to facilitate the information submitted to FDA by 2007 (Pub. L. 110–85) (FDAAA) require import of their drug into the United domestic and foreign manufacturers that drug establishment registration and States) (section 510(i)(1)(A) of the FD&C must, depending on the type of product drug listing information be submitted Act). being listed, include any new drug electronically unless a waiver is FDA also recommends the voluntary application number or biological granted. Before the enactment of submission of the following additional establishment license number, copies of FDAAA, section 510(p) of the FD&C Act information, when applicable: current labeling and a sampling of expressly provided for electronic • To facilitate correspondence advertisements, a quantitative listing of submission of drug establishment between foreign establishments and the active ingredient for each drug or registration information upon a finding FDA, the email address for the U.S. biological product not subject to an that electronic receipt was feasible, and agent, and the telephone number(s) and approved application or license, the section 510(j) of the FD&C Act provided email address for the importer and NDC number, and any drug imprinting that drug listing information be person who imports or offers for import information. submitted in the form and manner their drug; In addition to the product listing prescribed by FDA. Section 224 of • A site-specific Data Universal information required, FDA may also FDAAA, which amends section 510(p) Numbering System number for each require, under § 207.31, a copy of all of the FD&C Act, now expressly requires entity (e.g., the registrant, advertisements and a quantitative listing electronic drug listing in addition to establishments, U.S. agent, importer); of all ingredients for each listed drug or drug establishment registration. • The NDC product code for the biological product not subject to an In certain cases, if it is unreasonable source drug that is repacked or approved application or license; the to expect a person to submit registration relabeled; basis for a determination, by the and listing information electronically, • Distinctive characteristics of certain establishment, that a listed drug or FDA may grant a waiver from the listed drugs, i.e., the flavor, the color, biological product is not subject to electronic format requirement. and image of the actual solid dosage marketing or licensing approval In the Federal Register of June 1, 2009 form; and requirements; and a list of certain drugs (74 FR 26248), FDA announced the • Registrants may indicate that they or biological products containing a availability of a guidance for industry view as confidential the registrant’s particular ingredient. FDA may also entitled ‘‘Providing Regulatory business relationship with an request, but not require, the submission Submissions in Electronic Format— establishment, or an inactive ingredient. of a qualitative listing of the inactive Drug Establishment Registration and In addition to the collection of ingredients for all listed drugs or Drug Listing.’’ The document provides information, there is additional burden biological products, and a quantitative guidance to industry on the statutory for the following activities: listing of the active ingredients for all requirement to submit electronically • Preparing a standard operating listed drugs or biological products drug establishment registration and drug procedure (SOP) for the electronic subject to an approved application or listing information. The guidance submission of drug establishment license. describes the types of information to registration and drug listing Under § 207.30, establishments must include for purposes of drug information; update their product listing information establishment registration and drug • Creating the SPL file, including every June and December or, at the listing and how to prepare and submit accessing and reviewing the technical discretion of the establishment, when the information in an electronic format specifications and instructional any change occurs. These updates must (Structured Product Labeling (SPL) files) documents provided by FDA (accessible include the following information: (1) A that FDA can process, review, and at http://www.fda.gov/ForIndustry/ listing of all drug or biological products archive. DataStandards/ introduced for commercial distribution In addition to the information that StructuredProductLabeling/ that have not been included in any previously was collected by the FDA default.htm); previously submitted list; (2) all drug or Forms, the guidance addresses • Reviewing and selecting biological products formerly listed for electronic submission of other required appropriate terms and codes used to which commercial distribution has been information as follows: create the SPL file (accessible at http://

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www.fda.gov/ForIndustry/ registration and drug listing information provided in table 2 of this document, DataStandards/ in electronic format, the Agency also FDA estimates that approximately 1,000 StructuredProductLabeling/ amended its burden estimates for OMB firms will have to expend a one-time default.htm); control number 0910–0045 to include burden to prepare, review, and approve • Obtaining the digital certificate the additional burden for collection of an SOP, and the Agency estimates that used with FDA’s electronic submission information that had not been submitted it will take 40 hours per recordkeeper to gateway and uploading the SPL file for using the FDA Forms, and to create and create 1,000 new SOPs for a total of submission (accessible at http:// upload the SPL file. The amended 40,000 hours. www.fda.gov/ForIndustry/ burden estimates included the one-time The information collection ElectronicSubmissionsGateway/ preparation of an SOP for creating and requirements of the drug listing and default.htm); and uploading the SPL file. Although most establishment registration regulations • Requests for waivers from the firms will already have prepared an SOP have been grouped according to the electronic submission process as for the electronic submission of drug information collection areas of the described in the draft guidance. establishment registration and drug regulations. When FDA published the 2009 listing information, each year additional FDA estimates the burden of this guidance on submitting establishment firms will need to create an SOP. As collection of information as follows:

TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN1

Number of Number of responses Total Average Activity respondents per annual burden per Total hours respondent responses response

New registrations, including new labeler codes requests ... 39 14.72 574 4.5 2,583 Annual updates of registration information ...... 3,256 2.99 9,735 4.5 43,808 New drug listings ...... 1,567 6.57 10,295 4.5 46,328 New listings for private label distributor ...... 146 10.06 1,469 4.5 6,611 June and December updates of all drug listing information 1,677 11.21 18,799 4.5 84,596 Waiver requests ...... 1 1 1 1 1

Total ...... 183,927 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

TABLE 2—ESTIMATED ANNUAL RECORDKEEPING BURDEN1

Number of Average Activity resulting from section 510(p) of the FD&C act Number of records per Total annual burden per Total hours as amended by FDAAA recordkeepers recordkeeper records recordkeeping

One-time preparation of SOP ...... 1,000 1 1,000 40 40,000 SOP maintenance ...... 3,295 1 3,295 1 3,295

Total ...... 43,295 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

Dated: October 18, 2011. that a collection of information entitled control number 0910–0545. The Leslie Kux, ‘‘Health and Diet Survey’’ has been approval expires on September 30, Acting Assistant Commissioner for Policy. approved by the Office of Management 2014. A copy of the supporting [FR Doc. 2011–27389 Filed 10–21–11; 8:45 am] and Budget (OMB) under the Paperwork statement for this information collection BILLING CODE 4160–01–P Reduction Act of 1995. is available on the Internet at http:// FOR FURTHER INFORMATION CONTACT: www.reginfo.gov/public/do/PRAMain. Denver Presley, Jr., Office of Information Dated: October 18, 2011. DEPARTMENT OF HEALTH AND Management, Food and Drug HUMAN SERVICES Administration, 1350 Piccard Dr., PI50– David Dorsey, 400B, Rockville, MD 20850, 301–796– Acting Associate Commissioner for Policy and Food and Drug Administration 3793. Planning. [FR Doc. 2011–27397 Filed 10–21–11; 8:45 am] [Docket No. FDA–2011–N–0001] SUPPLEMENTARY INFORMATION: On May 27, 2011, the Agency submitted a BILLING CODE 4160–01–P Agency Information Collection proposed collection of information Activities; Announcement of Office of entitled ‘‘Health and Diet Survey’’ to Management and Budget Approval; OMB for review and clearance under 44 Health and Diet Survey U.S.C. 3507. An Agency may not AGENCY: Food and Drug Administration, conduct or sponsor, and a person is not HHS. required to respond to, a collection of ACTION: Notice. information unless it displays a currently valid OMB control number. SUMMARY: The Food and Drug OMB has now approved the information Administration (FDA) is announcing collection and has assigned OMB

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DEPARTMENT OF HEALTH AND Office of Management and Budget The Generic Animal Drug and Patent HUMAN SERVICES (OMB) for each collection of Term Registration Act of 1988 (Pub. L. information they conduct or sponsor. 100–670) permitted generic drug Food and Drug Administration ‘‘Collection of information’’ is defined manufacturers to copy those pioneer [Docket No. FDA–2011–N–0747] in 44 U.S.C. 3502(3) and 5 CFR drug products that were no longer 1320.3(c) and includes Agency requests subject to patent or other marketing Agency Information Collection or requirements that members of the exclusivity protection. The approval for Activities; Proposed Collection; public submit reports, keep records, or marketing these generic products is Comment Request; Waiver of In Vivo provide information to a third party. based, in part, upon a demonstration of Demonstration of Bioequivalence of Section 3506(c)(2)(A) of the PRA (44 bioequivalence between the generic Animal Drugs in Soluble Powder Oral U.S.C. 3506(c)(2)(A)) requires Federal product and pioneer product. This Dosage Form Products and Type A Agencies to provide a 60-day notice in guidance clarifies circumstances under Medicated Articles the Federal Register concerning each which FDA believes the demonstration proposed collection of information, of bioequivalence required by the AGENCY: Food and Drug Administration, including each proposed extension of an statute does not need to be established HHS. existing collection of information, on the basis of in vivo studies for ACTION: Notice. before submitting the collection to OMB soluble powder oral dosage form for approval. To comply with this products and Type A medicated articles. SUMMARY: The Food and Drug requirement, FDA is publishing notice Administration (FDA) is announcing an The data submitted in support of the of the proposed collection of waiver request are necessary to validate opportunity for public comment on the information set forth in this document. proposed collection of certain the waiver decision. The requirement to With respect to the following establish bioequivalence through in vivo information by the Agency. Under the collection of information, FDA invites Paperwork Reduction Act of 1995 (the studies (blood level bioequivalence or comments on these topics: (1) Whether clinical endpoint bioequivalence) may PRA), Federal Agencies are required to the proposed collection of information publish notice in the Federal Register be waived for soluble powder oral is necessary for the proper performance dosage form products or Type A concerning each proposed collection of of FDA’s functions, including whether information, including each proposed medicated articles in either of two the information will have practical alternative ways. A biowaiver may be extension of an existing collection of utility; (2) the accuracy of FDA’s information, and to allow 60 days for granted if it can be shown that the estimate of the burden of the proposed generic soluble powder oral dosage form public comment in response to the collection of information, including the product or Type A medicated article notice. This notice solicits comments on validity of the methodology and contains the same active and inactive the current burden hours on regulated assumptions used; (3) ways to enhance ingredient(s) and is produced using the industry of complying with the the quality, utility, and clarity of the same manufacturing processes as the guidance underlying this collection of information to be collected; and (4) approved comparator product or article. information. ways to minimize the burden of the Alternatively, a biowaiver may be collection of information on DATES: Submit either electronic or granted without direct comparison to respondents, including through the use written comments on the collection of the pioneer product’s formulation and of automated collection techniques, information by December 23, 2011. manufacturing process if it can be when appropriate, and other forms of ADDRESSES: Submit electronic shown that the active pharmaceutical information technology. comments on the collection of ingredient(s) (API) is the same as the information to http:// Agency Information Collection pioneer product, is soluble, and that www.regulations.gov. Submit written Activities; Proposed Collection; there are no ingredients in the comments on the collection of Comment Request; Waiver of In Vivo formulation likely to cause adverse information to the Division of Dockets Demonstration of Bioequivalence of pharmacologic effects. For the purpose Management (HFA–305), Food and Drug Animal Drugs in Soluble Powder Oral of evaluating soluble powder oral Administration, 5630 Fishers Lane, rm. Dosage Form Products and Type A dosage form products and Type A 1061, Rockville, MD 20852. All Medicated Articles—21 CFR 514.1(b)(7) medicated articles, solubility can be comments should be identified with the and (b)(8) (OMB Control Number 0910– demonstrated in one of two ways: ‘‘USP docket number found in brackets in the 0575)—Extension definition’’ approach or ‘‘Dosage heading of this document. The Center for Veterinary Medicine adjusted’’ approach. The respondents FOR FURTHER INFORMATION CONTACT: has written this guidance to address a for this collection of information are Juanmanuel Vilela, Office of perceived need for Agency guidance in pharmaceutical companies Information Management, Food and its work with the animal health manufacturing animal drugs. FDA Drug Administration, PI50–400B, 1350 industry. This guidance describes the estimates the burden for this collection Piccard Dr., Rockville, MD 20850, 301– procedures that the Agency of information as follows in tables 1 and 796–7651, recommends for the review of requests 2 of this document. The source of the [email protected]. for waiver of in vivo demonstration of above data is records of generic drug SUPPLEMENTARY INFORMATION: Under the bioequivalence for generic soluble applications over the past 10 years. PRA (44 U.S.C. 3501–3520), Federal powder oral dosage form products and FDA estimates the burden of this Agencies must obtain approval from the Type A medicated articles. collection of information as follows:

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TABLE 1—ESTIMATED ANNUAL REPORTING BURDEN FOR WATER SOLUBLE POWDERS 1

Number of Re- Average Bur- Number of Re- sponses per Total Annual den per Re- Total Hours spondents Respondent Responses sponse

Same Formulation/Manufacturing Process Approach ...... 1 1 1 5 5 Same API/Solubility Approach ...... 5 5 5 10 50

Total Burden Hours ...... 55 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

TABLE 2—ESTIMATED ANNUAL REPORTING BURDEN FOR TYPE A MEDICATED ARTICLES 1

No. of Re- Average Bur- No. of Re- sponses per Total Annual den per Re- Total Hours spondents Respondent Responses sponse

Same Formulation/Manufacturing Process Approach ...... 2 2 2 5 10 Same API/Solubility Approach ...... 10 10 10 20 200

Total Burden Hours ...... 210 1 There are no capital costs or operating and maintenance costs associated with this collection of information.

Dated: October 18, 2011. Center for Food Safety and Applied accordance with the Agency’s GGPs Leslie Kux, Nutrition (HFS–317), Food and Drug regulation. Acting Assistant Commissioner for Policy. Administration, 5100 Paint Branch The guidance is intended to provide [FR Doc. 2011–27392 Filed 10–21–11; 8:45 am] Pkwy., College Park, MD 20740. Send growers information on how to evaluate BILLING CODE 4160–01–P one self-addressed adhesive label to the safety of flood-affected food crops assist that office in processing your for human consumption. The requests. See the SUPPLEMENTARY recommendations in this guidance are DEPARTMENT OF HEALTH AND INFORMATION section for electronic consistent with existing FDA’s positions HUMAN SERVICES access to the guidance document. on the safety of flood-affected food Submit electronic comments on the crops. This guidance reiterates FDA’s Food and Drug Administration guidance to http://www.regulations.gov. positions and includes additional Submit written comments to the [Docket No. FDA–2011–D–0733] information to help growers assess the Division of Dockets Management (HFA– safety of food from flood-affected crops Guidance for Industry on Evaluating 305), Food and Drug Administration, for human consumption. Specifically, the Safety of Flood-Affected Food 5630 Fishers Lane, rm. 1061, Rockville, the guidance addresses: (1) Safety of Crops for Human Consumption; MD 20852. food crops when flood waters contacted Availability FOR FURTHER INFORMATION CONTACT: the edible portions of the crops, (2) Yinqing Ma, Center for Food Safety and safety of food crops when flood waters AGENCY: Food and Drug Administration, Applied Nutrition/Office of Food Safety, did not contact the edible portions of HHS. Food and Drug Administration, 5100 the crops, (3) assessment of flood- ACTION: Notice. Paint Branch Pkwy., College Park, MD, affected fields before replanting, and (4) 240–402–2479. additional controls to avoid cross- SUMMARY: The Food and Drug SUPPLEMENTARY INFORMATION: contamination after flooding. Administration (FDA) is announcing the The guidance represents the Agency’s availability of a guidance entitled I. Background current thinking on the safety of flood- ‘‘Guidance for Industry: Evaluating the FDA is announcing the availability of affected food crops for human Safety of Flood-Affected Food Crops for a guidance for industry entitled consumption. It does not create or Human Consumption.’’ Flooding events ‘‘Evaluating the Safety of Flood-affected confer any rights for or on any person can present a potentially hazardous Food Crops for Human Consumption’’ and does not operate to bind FDA or the public health risk. Flood waters may This guidance is being issued consistent public. An alternative approach may be have been exposed to sewage, with FDA’s good guidance practices used if such approach satisfies the chemicals, heavy metals, pathogenic (GGP) regulation (§ 10.115 (21 CFR requirements of the applicable statutes microorganisms, or other contaminants. 10.115)). This guidance is being and regulations. The growers are responsible to ensure implemented without prior public the safety of the flood-affected food comment because the Agency has II. Comments crops. The guidance is intended to determined that prior public Interested persons may submit to the provide growers information on how to participation is not feasible or Division of Dockets Management (see evaluate the safety of flood-affected food appropriate (§ 10.115(g)(2)). The Agency ADDRESSES) either electronic or written crops for human consumption. made this determination because the comments regarding this document. It is DATES: Submit either electronic or guidance deals with highly time- only necessary to send one set of written comments on Agency guidances sensitive issues and requires immediate comments. It is no longer necessary to at any time. implementation for public health send two copies of mailed comments. ADDRESSES: Submit written requests for reasons. Although this guidance Identify comments with the docket single copies of this guidance to the document is immediately in effect, it number found in brackets in the Division of Plant and Dairy Food Safety, remains subject to comment in heading of this document. Received

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comments may be seen in the Division 10.115(g)(5)), to ensure that the Agency implementation of the aDHQ documents of Dockets Management between 9 a.m. considers your comment on this draft under 21 CFR 601.12. and 4 p.m., Monday through Friday. guidance before it begins work on the The draft guidance is being issued final version of the guidance, submit III. Electronic Access consistent with FDA’s good guidance either electronic or written comments practices regulation (21 CFR 10.115). Persons with access to the Internet on the draft guidance by January 23, The draft guidance, when finalized, will may obtain the document at either 2012. http://www.fda.gov/ represent FDA’s current thinking on this ADDRESSES: Submit written requests for RegulatoryInformation/Guidances/ topic. It does not create or confer any single copies of the draft guidance to the default.htm or http:// rights for or on any person and does not Office of Communication, Outreach and www.regulations.gov. Always access an operate to bind FDA or the public. An Development (HFM–40), Center for FDA guidance document by using alternative approach may be used if Biologics Evaluation and Research FDA’s Web site listed previously to find such approach satisfies the requirement (CBER), Food and Drug Administration, the most current version of the of the applicable statutes and 1401 Rockville Pike, suite 200N, guidance. regulations. Rockville, MD 20852–1448. Send one Dated: October 18, 2011. self-addressed adhesive label to assist II. Paperwork Reduction Act of 1995 Leslie Kux, the office in processing your requests. The draft guidance refers to Acting Assistant Commissioner for Policy. The draft guidance may also be obtained previously approved collections of [FR Doc. 2011–27382 Filed 10–21–11; 8:45 am] by mail by calling CBER at 1–800–835– information found in FDA regulations. BILLING CODE 4160–01–P 4709 or 301–827–1800. See the These collections of information are SUPPLEMENTARY INFORMATION section for subject to review by the Office of electronic access to the draft guidance Management and Budget (OMB) under DEPARTMENT OF HEALTH AND document. the Paperwork Reduction Act of 1995 HUMAN SERVICES Submit electronic comments on the (44 U.S.C. 3501–3520). The collections draft guidance to http:// of information in 21 CFR 601.12 have Food and Drug Administration www.regulations.gov. Submit written been approved under OMB Control No. comments to the Division of Dockets [Docket No. FDA–2011–D–0722] 0910–0338; the collections of Management (HFA–305), Food and Drug information in 21 CFR 606.171 have Draft Guidance for Industry: Administration, 5630 Fishers Lane, rm. been approved under OMB Control No. Implementation of Acceptable 1061, Rockville, MD 20852. Abbreviated Donor History 0910–0458; and the collections of FOR FURTHER INFORMATION CONTACT: information in 21 CFR 640.3 have been Questionnaire and Accompanying Tami Belouin, Center for Biologics Materials for Use in Screening approved under OMB Control No. 0910– Evaluation and Research (HFM–17), 0116. Frequent Donors of Blood and Blood Food and Drug Administration, 1401 Components; Availability Rockville Pike, suite 200N, Rockville, III. Comments MD 20852–1448, 301–827–6210. AGENCY: Food and Drug Administration, The draft guidance is being SUPPLEMENTARY INFORMATION: HHS. distributed for comment purposes only ACTION: Notice. I. Background and is not intended for implementation SUMMARY: The Food and Drug FDA is announcing the availability of at this time. Interested persons may Administration (FDA) is announcing the a draft document entitled ‘‘Guidance for submit to the Division of Dockets availability of a draft document entitled Industry: Implementation of Acceptable Management (see ADDRESSES) either ‘‘Guidance for Industry: Implementation Abbreviated Donor History electronic or written comments of Acceptable Abbreviated Donor Questionnaire and Accompanying regarding this document. It is only History Questionnaire and Materials for Use in Screening Frequent necessary to send one set of comments. Accompanying Materials for Use in Donors of Blood and Blood It is no longer necessary to send two Screening Frequent Donors of Blood and Components’’ dated October 2011. The copies of mailed comments. Identify Blood Components’’ dated October draft guidance document recognizes the comments with the docket number 2011. The draft guidance document aDHQ documents, version 1.3 dated found in brackets in the heading of this recognizes the abbreviated donor history August 2011, prepared by the AABB document. Received comments may be questionnaire and accompanying Donor History Task Force, as an seen in the Division of Dockets materials (aDHQ documents), version acceptable mechanism for collecting Management between 9 a.m. and 4 p.m., 1.3 dated August 2011, as an acceptable blood donor history information from Monday through Friday. mechanism for collecting blood donor frequent donors of blood and blood IV. Electronic Access history information from frequent components that is consistent with donors of blood and blood components FDA’s requirements and Persons with access to the Internet that is consistent with FDA’s recommendations. The aDHQ may obtain the draft guidance at either requirements and recommendations for documents will provide blood http://www.fda.gov/BiologicsBlood collecting donor history information. establishments that collect blood and Vaccines/GuidanceCompliance The aDHQ documents will provide blood components with a specific RegulatoryInformation/Guidances/ blood establishments that collect blood process for administering questions to default.htm or http:// and blood components with a specific frequent donors of blood and blood www.regulations.gov. process for administering questions to components to determine their Dated: October 18, 2011. frequent donors of blood and blood eligibility to donate. The guidance also components to determine their advises licensed manufacturers who Leslie Kux, eligibility to donate. choose to implement the acceptable Acting Assistant Commissioner for Policy. DATES: Although you can comment on aDHQ documents on how to report the [FR Doc. 2011–27381 Filed 10–21–11; 8:45 am] any guidance at any time (see 21 CFR manufacturing change consisting of the BILLING CODE 4160–01–P

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DEPARTMENT OF HEALTH AND Inlyta (axitinib) tablets, application a disability, please contact Yvette HUMAN SERVICES submitted by Pfizer, Inc. The proposed Waples at least 7 days in advance of the indication (use) for this product is for meeting. Food and Drug Administration the treatment of patients with advanced FDA is committed to the orderly [Docket No. FDA–2011–N–0002] renal cell carcinoma (kidney cancer). conduct of its advisory committee During the afternoon session, the meetings. Please visit our Web site at Oncologic Drugs Advisory Committee; committee will discuss new drug http://www.fda.gov/ Notice of Meeting application (NDA) 202799, with the AdvisoryCommittees/ established name peginesatide injection, AboutAdvisoryCommittees/ AGENCY: Food and Drug Administration, application submitted by Affymax, Inc. ucm111462.htm for procedures on HHS. The proposed indication (use) for this public conduct during advisory ACTION: Notice. product is for the treatment of anemia committee meetings. associated with chronic renal failure in Notice of this meeting is given under This notice announces a forthcoming adult patients on dialysis. the Federal Advisory Committee Act (5 meeting of a public advisory committee FDA intends to make background U.S.C. app. 2). of the Food and Drug Administration material available to the public no later Dated: October 18, 2011. (FDA). The meeting will be open to the than 2 business days before the meeting. public. If FDA is unable to post the background Jill Hartzler Warner, Name of Committee: Oncologic Drugs material on its Web site prior to the Acting Associate Commissioner for Special Advisory Committee. meeting, the background material will Medical Programs. General Function of the Committee: be made publicly available at the [FR Doc. 2011–27327 Filed 10–21–11; 8:45 am] To provide advice and location of the advisory committee BILLING CODE 4160–01–P recommendations to the Agency on meeting, and the background material FDA’s regulatory issues. will be posted on FDA’s Web site after Date and Time: The meeting will be the meeting. Background material is DEPARTMENT OF HEALTH AND held on December 7, 2011, from 8 a.m. available at http://www.fda.gov/ HUMAN SERVICES to 5 p.m. AdvisoryCommittees/Calendar/ Food and Drug Administration Location: FDA White Oak Campus, default.htm. Scroll down to the 10903 New Hampshire Ave., Building appropriate advisory committee link. [Docket No. FDA–2011–N–0002] 31 Conference Center, the Great Room Procedure: Interested persons may (rm. 1503), Silver Spring, MD 20993– present data, information, or views, Psychopharmacologic Drugs Advisory 0002. Information regarding special orally or in writing, on issues pending Committee; Notice of Meeting accommodations due to a disability, before the committee. Written AGENCY: Food and Drug Administration, visitor parking, and transportation may submissions may be made to the contact HHS. be accessed at: http://www.fda.gov/ person on or before November 22, 2011. ACTION: Notice. AdvisoryCommittees/default.htm; under Oral presentations from the public will the heading ‘‘Resources for You,’’ click be scheduled between approximately This notice announces a forthcoming on ‘‘Public Meetings at the FDA White 10:30 a.m. to 11 a.m., and 3:30 p.m. to meeting of a public advisory committee Oak Campus.’’ Please note that visitors 4 p.m. Those individuals interested in of the Food and Drug Administration to the White Oak Campus must enter making formal oral presentations should (FDA). The meeting will be open to the through Building 1. notify the contact person and submit a public. Contact Person: Yvette Waples, Center brief statement of the general nature of Name of Committee: for Drug Evaluation and Research, Food the evidence or arguments they wish to Psychopharmacologic Drugs Advisory and Drug Administration, 10903 New present, the names and addresses of Committee. Hampshire Ave., Bldg. 31, rm. 2417, proposed participants, and an General Function of the Committee: Silver Spring, MD 20993–0002, 301– indication of the approximate time To provide advice and 796–9001, Fax: 301–847–8533, e-mail: requested to make their presentation on recommendations to the Agency on [email protected], or FDA Advisory or before November 14, 2011. Time FDA’s regulatory issues. Committee Information Line, 1–800– allotted for each presentation may be Date and Time: The meeting will be 741–8138 (301–443–0572 in the limited. If the number of registrants held on December 12, 2011, from 8 a.m. Washington, DC area), and follow the requesting to speak is greater than can to 5 p.m. prompts to the desired center or product be reasonably accommodated during the Location: The Marriott Inn and area. Please call the Information Line for scheduled open public hearing session, Conference Center, University of up-to-date information on this meeting. FDA may conduct a lottery to determine Maryland University College (UMUC), A notice in the Federal Register about the speakers for the scheduled open The Ballroom, 3501 University Blvd. last minute modifications that impact a public hearing session. The contact East, Adelphi, MD 20783. The previously announced advisory person will notify interested persons conference center’s telephone number is committee meeting cannot always be regarding their request to speak by 301–985–7300. published quickly enough to provide November 15, 2011. Contact Person: Philip Bautista, timely notice. Therefore, you should Persons attending FDA’s advisory Center for Drug Evaluation and always check the Agency’s Web site and committee meetings are advised that the Research, Food and Drug call the appropriate advisory committee Agency is not responsible for providing Administration, 10903 New Hampshire hot line/phone line to learn about access to electrical outlets. Ave., Bldg. 31, rm. 2417, Silver Spring, possible modifications before coming to FDA welcomes the attendance of the MD 20993–0002, 301–796–9001, Fax: the meeting. public at its advisory committee 301–847–8533, e-mail: Agenda: On December 7, 2011, during meetings and will make every effort to [email protected], or FDA Advisory the morning session, the committee will accommodate persons with physical Committee Information Line, 1–800– discuss new drug application (NDA) disabilities or special needs. If you 741–8138 (301–443–0572 in the 202324, with the proposed trade name require special accommodations due to Washington, DC area), and follow the

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prompts to the desired center or product Persons attending FDA’s advisory Contact Person: Charles H. Washabaugh, area. Please call the Information Line for committee meetings are advised that the PhD, Scientific Review Officer, Scientific up-to-date information on this meeting. Agency is not responsible for providing Review Branch, National Institute of A notice in the Federal Register about access to electrical outlets. Arthritis, Musculoskeletal and Skin Diseases, 6701 Democracy Blvd, Plaza Suite 800, last minute modifications that impact a FDA welcomes the attendance of the Bethesda, MD 20817, 301–594–4952, previously announced advisory public at its advisory committee [email protected]. committee meeting cannot always be meetings and will make every effort to Name of Committee: National Institute of published quickly enough to provide accommodate persons with physical Arthritis and Musculoskeletal and Skin timely notice. Therefore, you should disabilities or special needs. If you Diseases Special Emphasis Panel, always check the Agency’s Web site and require special accommodations due to Multidisciplinary Clinical Research Centers call the appropriate advisory committee a disability, please contact Philip Review (P60). hot line/phone line to learn about Bautista at least 7 days in advance of the Date: November 29–30, 2011. possible modifications before coming to meeting. Time: 8 a.m. to 5 p.m. the meeting. FDA is committed to the orderly Agenda: To review and evaluate grant Agenda: The committee will discuss conduct of its advisory committee applications. Place: Embassy Suites at the Chevy Chase safety and efficacy issues with new drug meetings. Please visit our Web site at Pavilion, 4300 Military Road, NW., application (NDA) 022549, ADASUVE http://www.fda.gov/ Washington, DC 20015. (loxapine) inhalation powder, Alexza AdvisoryCommittees/ Contact Person: Kan Ma, PhD, Scientific Pharmaceuticals, Inc., for the acute AboutAdvisoryCommittees/ Review Officer, Scientific Review Branch, treatment of agitation associated with ucm111462.htm for procedures on National Institute of Arthritis, schizophrenia or bipolar I disorder in public conduct during advisory Musculoskeletal and Skin Diseases, 6701 adults. Particular issues for discussion committee meetings. Democracy Blvd, Plaza Suite 800, Bethesda, are concerns regarding pulmonary Notice of this meeting is given under MD 20892–4872, 301–451–4838, [email protected]. safety. the Federal Advisory Committee Act (5 FDA intends to make background U.S.C. app. 2). Name of Committee: National Institute of Arthritis and Musculoskeletal and Skin material available to the public no later Dated: October 18, 2011. Diseases Special Emphasis Panel, Malignant than 2 business days before the meeting. Jill Hartzler Warner, Hyperthermia Grant Review. If FDA is unable to post the background Acting Associate Commissioner for Special Date: November 30, 2011. material on its Web site prior to the Medical Programs. Time: 1 p.m. to 4 p.m. meeting, the background material will Agenda: To review and evaluate grant [FR Doc. 2011–27326 Filed 10–21–11; 8:45 am] be made publicly available at the applications. location of the advisory committee BILLING CODE 4160–01–P Place: National Institutes of Health, One meeting, and the background material Democracy Plaza, 6701 Democracy will be posted on FDA’s Web site after Boulevard, Bethesda, MD 20892 (Telephone DEPARTMENT OF HEALTH AND Conference Call). the meeting. Background material is HUMAN SERVICES Contact Person: Michael L. Bloom, PhD, available at http://www.fda.gov/ Scientific Review Officer, Scientific Review AdvisoryCommittees/Calendar/ National Institutes of Health Branch, National Institute of Arthritis, default.htm. Scroll down to the Musculoskeletal and Skin Diseases, 6701 appropriate advisory committee link. National Institute of Arthritis and Democracy Blvd, Plaza Suite 800, Bethesda, Procedure: Interested persons may Musculoskeletal and Skin Diseases; MD 20892–487, 301–594–4953, present data, information, or views, Notice of Closed Meetings [email protected]. orally or in writing, on issues pending (Catalogue of Federal Domestic Assistance before the committee. Written Pursuant to section 10(d) of the Program Nos. 93.846, Arthritis, submissions may be made to the contact Federal Advisory Committee Act, as Musculoskeletal and Skin Diseases Research, National Institutes of Health, HHS) person on or before November 28, 2011. amended (5 U.S.C. App.), notice is Oral presentations from the public will hereby given of the following meetings. Dated: October 18, 2011. be scheduled between approximately 1 The meetings will be closed to the Jennifer S. Spaeth, p.m. and 2 p.m. Those individuals public in accordance with the Director, Office of Federal Advisory interested in making formal oral provisions set forth in sections Committee Policy. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., presentations should notify the contact [FR Doc. 2011–27412 Filed 10–21–11; 8:45 am] as amended. The grant applications and person and submit a brief statement of BILLING CODE 4140–01–P the general nature of the evidence or the discussions could disclose arguments they wish to present, the confidential trade secrets or commercial names and addresses of proposed property such as patentable material, DEPARTMENT OF HEALTH AND participants, and an indication of the and personal information concerning HUMAN SERVICES approximate time requested to make individuals associated with the grant their presentation on or before applications, the disclosure of which National Institutes of Health November 17, 2011. Time allotted for would constitute a clearly unwarranted National Institute of Allergy and each presentation may be limited. If the invasion of personal privacy. Infectious Diseases; Notice of Closed number of registrants requesting to Name of Committee: National Institute of Meeting speak is greater than can be reasonably Arthritis and Musculoskeletal and Skin accommodated during the scheduled Diseases Special Emphasis Panel, Clinical Pursuant to section 10(d) of the open public hearing session, FDA may Trials Grant Review. Federal Advisory Committee Act, as Date: November 21, 2011. conduct a lottery to determine the Time: 8 a.m. to 5 p.m. amended (5 U.S.C. App.), notice is speakers for the scheduled open public Agenda: To review and evaluate grant hereby given of the following meeting. hearing session. The contact person will applications. The meeting will be closed to the notify interested persons regarding their Place: Courtyard by Marriott, 5520 public in accordance with the request to speak by November 18, 2011. Wisconsin Avenue, Chevy Chase, MD 20815. provisions set forth in sections

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552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Date: November 1–2, 2011. individuals associated with the grant as amended. The grant applications and Time: 7 a.m. to 5 p.m. applications, the disclosure of which the discussions could disclose Agenda: To review and evaluate grant would constitute a clearly unwarranted confidential trade secrets or commercial applications. invasion of personal privacy. Place: National Institutes of Health, 6701 property such as patentable material, Rockledge Drive, Bethesda, MD 20892 Name of Committee: National Institute on and personal information concerning (Virtual Meeting). Deafness and Other Communication individuals associated with the grant Contact Person: Kenneth A Roebuck, PhD, Disorders Special Emphasis Panel, CDRC applications, the disclosure of which Scientific Review Officer, Center for Conflicts. would constitute a clearly unwarranted Scientific Review, National Institutes of Date: November 8, 2011. invasion of personal privacy. Health, 6701 Rockledge Drive, Room 5106, Time: 10:30 a.m. to 11:30 a.m. MSC 7852, Bethesda, MD 20892, (301) 435– Agenda Place: To review and evaluate Name of Committee: 1166, [email protected]. grant applications. National Institute of Allergy and Infectious This notice is being published less than 15 Place: National Institutes of Health, 6120 Diseases Special Emphasis Panel, NIAID days prior to the meeting due to the timing Executive Blvd., Rockville, MD 20852 Investigator Initiated Program Project limitations imposed by the review and (Telephone Conference Call). Application (P01). funding cycle. Contact Person: Christine A. Livingston, Date: November 16, 2011. Name of Committee: Center for Scientific PhD, Scientific Review Officer, Division of Time: 2 p.m. to 4 p.m. Review Special Emphasis Panel, Shared Extramural Activities, National Institutes of Agenda: To review and evaluate grant Instrumentation Grant Applications. Health/NIDCD, 6120 Executive Blvd.—MSC applications. Date: November 3, 2011. Place: National Institutes of Health, 6700B 7180, Bethesda, MD 20892, (301) 496–8683, Time: 12 p.m. to 1:30 p.m. Rockledge Drive, Bethesda, MD 20817, [email protected]. Agenda: To review and evaluate grant (Telephone Conference Call). Name of Committee: National Institute on applications. Contact Person: Ellen S. Buczko, PhD, Deafness and Other Communication Place: National Institutes of Health, 6701 Scientific Review Officer, Scientific Review Disorders Special Emphasis Panel, Clinical Rockledge Drive, Bethesda, MD 20892 Program, Division of Extramural Activities, Trials. National Institutes of Health/NIAID, 6700B (Telephone Conference Call). Date: November 11, 2011. Rockledge Drive, Room 3145, MSC 7616, Contact Person: Patricia Greenwel, PhD, Time: 1 p.m. to 2:30 p.m. Bethesda, MD 20892–7616, 301–451–2676, Scientific Review Officer, Center for Agenda Place: To review and evaluate [email protected]. Scientific Review, National Institutes of grant applications. Health, 6701 Rockledge Drive, Room 2178, (Catalogue of Federal Domestic Assistance Place: National Institutes of Health, 6120 MSC 7818, Bethesda, MD 20892, 301–435– Executive Blvd., Rockville, MD 20852, Program Nos. 93.855, Allergy, Immunology, 1169, [email protected]. and Transplantation Research; 93.856, (Telephone Conference Call). This notice is being published less than 15 Contact Person: Melissa Stick, PhD, Microbiology and Infectious Diseases days prior to the meeting due to the timing Research, National Institutes of Health, HHS) M.P.H., Chief, Scientific Review Branch, limitations imposed by the review and Scientific Review Branch, Division of Dated: October 18, 2011. funding cycle. Extramural Activities, NIDCD/NIH, 6120 Jennifer S. Spaeth, (Catalogue of Federal Domestic Assistance Executive Blvd., Bethesda, MD 20892, 301– Director, Office of Federal Advisory Program Nos. 93.306, Comparative Medicine; 496–8683. Committee Policy. 93.333, Clinical Research, 93.306, 93.333, Information is also available on the 93.337, 93.393–93.396, 93.837–93.844, [FR Doc. 2011–27414 Filed 10–21–11; 8:45 am] Institute’s/Center’s home page: http:// 93.846–93.878, 93.892, 93.893, National www.nidcd.nih.gov/about/groups/sep/, BILLING CODE 4140–01–P Institutes of Health, HHS) where an agenda and any additional Dated: October 17, 2011. information for the meeting will be posted when available. DEPARTMENT OF HEALTH AND Jennifer S. Spaeth, (Catalogue of Federal Domestic Assistance HUMAN SERVICES Director, Office of Federal Advisory Program Nos. 93.173, Biological Research Committee Policy. National Institutes of Health Related to Deafness and Communicative [FR Doc. 2011–27418 Filed 10–21–11; 8:45 am] Disorders, National Institutes of Health, HHS) Center for Scientific Review; Notice of BILLING CODE 4140–01–P Dated: October 18, 2011. Closed Meetings Jennifer S. Spaeth, Pursuant to section 10(d) of the DEPARTMENT OF HEALTH AND Director, Office of Federal Advisory Committee Policy. Federal Advisory Committee Act, as HUMAN SERVICES amended (5 U.S.C. App.), notice is [FR Doc. 2011–27417 Filed 10–21–11; 8:45 am] hereby given of the following meetings. National Institutes of Health BILLING CODE 4140–01–P The meetings will be closed to the National Institute on Deafness and public in accordance with the Other Communication Disorders; provisions set forth in sections DEPARTMENT OF HEALTH AND Notice of Closed Meetings 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., HUMAN SERVICES as amended. The grant applications and Pursuant to section 10(d) of the National Institutes of Health the discussions could disclose Federal Advisory Committee Act, as confidential trade secrets or commercial amended (5 U.S.C. App.), notice is National Human Genome Research property such as patentable material, hereby given of the following meetings. Institute; Amended Notice of Meeting and personal information concerning The meetings will be closed to the individuals associated with the grant public in accordance with the Notice is hereby given of a change in applications, the disclosure of which provisions set forth in sections the meeting of the National Human would constitute a clearly unwarranted 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Genome Research Institute Special invasion of personal privacy. as amended. The grant applications and Emphasis Panel, November 29, 2011, 8 Name of Committee: Center for Scientific the discussions could disclose a.m. to November 29, 2011, 5 p.m., Review Special Emphasis Panel, Small confidential trade secrets or commercial Residence Inn Bethesda, 7335 Business: AIDS/HIV Innovative Research property such as patentable material, Wisconsin Avenue, Bethesda, MD 20814 Applications. and personal information concerning which was published in the Federal

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Register on October 14, 2011, MSC 7806, Bethesda, MD 20892, 301–435– DEPARTMENT OF HOMELAND 76FR63932. 2681, [email protected]. SECURITY The meeting notice is amended to Name of Committee: Center for Scientific change the meeting end date from Review Special Emphasis Panel, Discovery, Federal Emergency Management November 29, 2011 to November 30, Design, and Development of Phosphonic Agency Acid Antibiotics. 2011. The meeting is closed to the [Internal Agency Docket No. FEMA–3340– public. Date: November 16–17, 2011. EM; Docket ID FEMA–2011–0001] Time: 9 a.m. to 5 p.m. Dated: October 18, 2011. Agenda: To review and evaluate grant Pennsylvania; Amendment No. 1 to Jennifer S. Spaeth, applications. Notice of an Emergency Declaration Director, Office of Federal Advisory Place: National Institutes of Health, 6701 Committee Policy. Rockledge Drive, Bethesda, MD 20892, AGENCY: Federal Emergency [FR Doc. 2011–27415 Filed 10–21–11; 8:45 am] (Virtual Meeting). Management Agency, DHS. BILLING CODE 4140–01–P Contact Person: William A. Greenberg, ACTION: Notice. PhD, Scientific Review Officer, Center for Scientific Review, National Institutes of SUMMARY: This notice amends the notice DEPARTMENT OF HEALTH AND Health, 6701 Rockledge Drive, Room 4168, of an emergency declaration for the HUMAN SERVICES MSC 7806, Bethesda, MD 20892, (301) 435– Commonwealth of Pennsylvania 1726, [email protected]. (FEMA–3340–EM), dated September 8, National Institutes of Health 2011, and related determinations. Name of Committee: Center for Scientific DATES: Effective Date: October 15, 2011. Center for Scientific Review; Notice of Review Special Emphasis Panel, Area FOR FURTHER INFORMATION CONTACT: Closed Meetings Project: Topics in Bioengineering, Computation, and Biological Modeling #2. Peggy Miller, Office of Response and Pursuant to section 10(d) of the Date: November 16–18, 2011. Recovery, Federal Emergency Federal Advisory Committee Act, as Time: 6 p.m. to 9 a.m. Management Agency, 500 C Street, SW., amended (5 U.S.C. App.), notice is Agenda: To review and evaluate grant Washington, DC 20472, (202) 646–3886. hereby given of the following meetings. applications. SUPPLEMENTARY INFORMATION: Notice is The meetings will be closed to the Place: National Institutes of Health, 6701 hereby given that the incident period for public in accordance with the Rockledge Drive, Bethesda, MD 20892, this emergency is closed effective provisions set forth in sections (Virtual Meeting). October 15, 2011. 552b(c)(4) and 552b(c)(6), Title 5 U.S.C., Contact Person: Joseph Thomas Peterson, (The following Catalog of Federal Domestic as amended. The grant applications and PhD, Scientific Review Officer, Center for Assistance Numbers (CFDA) are to be used the discussions could disclose Scientific Review, National Institutes of for reporting and drawing funds: 97.030, confidential trade secrets or commercial Health, 6701 Rockledge Drive, Room 4118, Community Disaster Loans; 97.031, Cora property such as patentable material, MSC 7814, Bethesda, MD 20892, 301–408– Brown Fund; 97.032, Crisis Counseling; and personal information concerning 9694, [email protected]. 97.033, Disaster Legal Services; 97.034, Disaster Unemployment Assistance (DUA); individuals associated with the grant Name of Committee: Center for Scientific Review Special Emphasis Panel, Member 97.046, Fire Management Assistance Grant; applications, the disclosure of which 97.048, Disaster Housing Assistance to Conflict: Biological Chemistry and would constitute a clearly unwarranted Individuals and Households in Presidentially invasion of personal privacy. Macromolecular Biophysics. Declared Disaster Areas; 97.049, Date: November 17–18, 2011. Presidentially Declared Disaster Assistance— Name of Committee: Center for Scientific Time: 10 a.m. to 5 p.m. Disaster Housing Operations for Individuals Review Special Emphasis Panel, Review of Agenda: To review and evaluate grant and Households; 97.050, Presidentially the National Resource for Mass Spectrometry applications. Declared Disaster Assistance to Individuals of Biological Macromolecules Place: National Institutes of Health, 6701 and Households—Other Needs; 97.036, Date: November 13–15, 2011. Disaster Grants—Public Assistance Time: 8 a.m. to 12 p.m. Rockledge Drive, Bethesda, MD 20892, (Virtual Meeting). (Presidentially Declared Disasters); 97.039, Agenda: To review and evaluate grant Hazard Mitigation Grant.) applications. Contact Person: Nuria E Assa-Munt, PhD, Place: Bentley Hotel, 500 East 62nd Street, Scientific Review Officer, Center for W. Craig Fugate, New York, NY 10065. Scientific Review, National Institutes of Administrator, Federal Emergency Contact Person: Mike Radtke, PhD, Health, 6701 Rockledge Drive, Room 4164, Management Agency. Scientific Review Officer, Center for MSC 7806, Bethesda, MD 20892, (301)451– [FR Doc. 2011–27471 Filed 10–21–11; 8:45 am] Scientific Review, National Institutes of 1323, [email protected]. BILLING CODE 9111–23–P Health, 6701 Rockledge Drive, Room 4176, (Catalogue of Federal Domestic Assistance MSC 7806, Bethesda, MD 20892, 301–435– Program Nos. 93.306, Comparative Medicine; 1728, [email protected]. 93.333, Clinical Research, 93.306, 93.333, DEPARTMENT OF HOMELAND Name of Committee: Center for Scientific 93.337, 93.393–93.396, 93.837–93.844, Review Special Emphasis Panel, SECURITY 93.846–93.878, 93.892, 93.893, National Macromolecular Insights on Nucleic Acids Optimized by Scattering. Institutes of Health, HHS) Federal Emergency Management Date: November 15–16, 2011. Dated: October 17, 2011. Agency Time: 7 a.m. to 7 p.m. Jennifer S. Spaeth, [Internal Agency Docket No. FEMA–1998– Agenda: To review and evaluate grant DR; Docket ID FEMA–2011–0001] applications. Director, Office of Federal Advisory Place: National Institutes of Health, 6701 Committee Policy. Iowa; Amendment No. 3 to Notice of a Rockledge Drive, Bethesda, MD 20892, [FR Doc. 2011–27420 Filed 10–21–11; 8:45 am] Major Disaster Declaration (Virtual Meeting). BILLING CODE 4140–01–P Contact Person: Kathryn M Koeller, PhD, AGENCY: Federal Emergency Scientific Review Officer, Center for Management Agency, DHS. Scientific Review, National Institutes of ACTION: Notice. Health, 6701 Rockledge Drive, Room 4166,

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SUMMARY: This notice amends the notice (FEMA–4030–DR), dated September 12, DATES: Effective Date: October 15, 2011. of a major disaster declaration for the 2011, and related determinations. FOR FURTHER INFORMATION CONTACT: State of Iowa (FEMA–1998–DR), dated DATES: Effective Date: October 14, 2011. Peggy Miller, Office of Response and June 27, 2011, and related FOR FURTHER INFORMATION CONTACT: Recovery, Federal Emergency determinations. Peggy Miller, Office of Response and Management Agency, 500 C Street, SW., DATES: Effective Date: October 18, 2011. Recovery, Federal Emergency Washington, DC 20472, (202) 646–3886. FOR FURTHER INFORMATION CONTACT: Management Agency, 500 C Street, SW., SUPPLEMENTARY INFORMATION: Notice is Peggy Miller, Office of Response and Washington, DC 20472, (202) 646–3886. hereby given that the incident period for Recovery, Federal Emergency SUPPLEMENTARY INFORMATION: The notice this disaster is closed effective October Management Agency, 500 C Street, SW., of a major disaster declaration for the 15, 2011. Washington, DC 20472, (202) 646–3886. Commonwealth of Pennsylvania is (The following Catalog of Federal Domestic hereby amended to include the SUPPLEMENTARY INFORMATION: The notice Assistance Numbers (CFDA) are to be used of a major disaster declaration for the following areas among those areas for reporting and drawing funds: 97.030, Community Disaster Loans; 97.031, Cora State of Iowa is hereby amended to determined to have been adversely affected by the event declared a major Brown Fund; 97.032, Crisis Counseling; include the Individual Assistance 97.033, Disaster Legal Services; 97.034, program for the following areas among disaster by the President in his declaration of September 12, 2011. Disaster Unemployment Assistance (DUA); those areas determined to have been 97.046, Fire Management Assistance Grant; adversely affected by the event declared Bedford, Huntingdon, Tioga, and Wayne 97.048, Disaster Housing Assistance to a major disaster by the President in his Counties for Public Assistance. Individuals and Households In Presidentially declaration of June 27, 2011. Bucks, Montgomery, Northumberland, Perry, Declared Disaster Areas; 97.049, Union, and York Counties for Public Presidentially Declared Disaster Assistance— Fremont, Harrison, Mills, Monona, and Assistance (already designated for Disaster Housing Operations for Individuals Pottawattamie Counties for Individual Individual Assistance). and Households; 97.050, Presidentially Assistance (already designated for Public (The following Catalog of Federal Domestic Declared Disaster Assistance to Individuals Assistance, including direct Federal Assistance Numbers (CFDA) are to be used and Households—Other Needs; 97.036, assistance). for reporting and drawing funds: 97.030, Disaster Grants—Public Assistance (The following Catalog of Federal Domestic Community Disaster Loans; 97.031, Cora (Presidentially Declared Disasters); 97.039, Assistance Numbers (CFDA) are to be used Brown Fund; 97.032, Crisis Counseling; Hazard Mitigation Grant.) for reporting and drawing funds: 97.030, 97.033, Disaster Legal Services; 97.034, Dated: October 18, 2011. Community Disaster Loans; 97.031, Cora Disaster Unemployment Assistance (DUA); W. Craig Fugate, Brown Fund; 97.032, Crisis Counseling; 97.046, Fire Management Assistance Grant; 97.033, Disaster Legal Services; 97.034, 97.048, Disaster Housing Assistance to Administrator, Federal Emergency Disaster Unemployment Assistance (DUA); Individuals and Households in Presidentially Management Agency. 97.046, Fire Management Assistance Grant; Declared Disaster Areas; 97.049, [FR Doc. 2011–27466 Filed 10–21–11; 8:45 am] 97.048, Disaster Housing Assistance to Presidentially Declared Disaster Assistance— BILLING CODE 9111–23–P Individuals and Households in Presidentially Disaster Housing Operations for Individuals Declared Disaster Areas; 97.049, and Households; 97.050, Presidentially Presidentially Declared Disaster Assistance— Declared Disaster Assistance to Individuals DEPARTMENT OF HOMELAND Disaster Housing Operations for Individuals and Households—Other Needs; 97.036, SECURITY and Households; 97.050, Presidentially Disaster Grants—Public Assistance Declared Disaster Assistance to Individuals (Presidentially Declared Disasters); 97.039, Transportation Security Administration and Households—Other Needs; 97.036, Hazard Mitigation Grant.) Disaster Grants—Public Assistance October 18, 2011. Extension of Agency Information (Presidentially Declared Disasters); 97.039, Hazard Mitigation Grant.) W. Craig Fugate, Collection Activity Under OMB Review: Administrator, Federal Emergency Employment Standards W. Craig Fugate, Management Agency. AGENCY: Transportation Security Administrator, Federal Emergency [FR Doc. 2011–27467 Filed 10–21–11; 8:45 am] Management Agency. Administration, DHS. BILLING CODE 9111–23–P [FR Doc. 2011–27473 Filed 10–21–11; 8:45 am] ACTION: 30-day Notice. BILLING CODE 9111–23–P SUMMARY: This notice announces that DEPARTMENT OF HOMELAND the Transportation Security SECURITY Administration (TSA) has forwarded the DEPARTMENT OF HOMELAND Information Collection Request (ICR), SECURITY Federal Emergency Management Office of Management and Budget Agency Federal Emergency Management (OMB) control number 1652–0006, Agency [Internal Agency Docket No. FEMA–4030– abstracted below to OMB for review and DR; Docket ID FEMA–2011–0001] approval of an extension of the [Internal Agency Docket No. FEMA–4030– currently approved collection under the DR; Docket ID FEMA–2011–0001] Pennsylvania; Amendment No. 4 to Paperwork Reduction Act (PRA). The Notice of a Major Disaster Declaration Pennsylvania; Amendment No. 3 to ICR describes the nature of the Notice of a Major Disaster Declaration AGENCY: Federal Emergency information collection and its expected Management Agency, DHS. burden. TSA published a Federal AGENCY: Federal Emergency ACTION: Notice. Register notice, with a 60-day comment Management Agency, DHS. period soliciting comments, of the ACTION: Notice. SUMMARY: This notice amends the notice following collection of information on of a major disaster declaration for the August 10, 2011, 76 FR 49503. The SUMMARY: This notice amends the notice Commonwealth of Pennsylvania collection involves the requirement for of a major disaster declaration for the (FEMA–4030–DR), dated September 12, airport and aircraft operators to Commonwealth of Pennsylvania 2011, and related determinations. maintain records of compliance with

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certain provisions of 49 CFR parts 1542 Type of Request: Extension of a January 20, 2012. U.S. Customs and and 1544 related to employment currently approved collection. Border Protection announces this date standards. The collection also requires OMB Control Number: 1652–0006. of payment for 2012 in accordance with airport operators to comply with a Forms(s): NA. the Tax Reform Act of 1986. security directive by maintaining Affected Public: Airport operators DATES: records for those employees with regulated under 49 CFR part 1542 and Payment of the 2012 Customs unescorted access privileges to secured aircraft operators regulated under 49 Broker User Fee is due January 20, 2012. areas, security identification display CFR part 1544. FOR FURTHER INFORMATION CONTACT: areas, sterile areas, and air operations Abstract: The purpose of this Russell Morris, Broker Compliance areas of the airport. information collection is to maintain Branch, Trade Policy and Programs, DATES: Send your comments by certain records relating to employment (202) 863–6543. standards needed to determine November 23, 2011. A comment to OMB SUPPLEMENTARY INFORMATION: is most effective if OMB receives it compliance with certain provisions of within 30 days of publication. 49 CFR parts 1542 and 1544. TSA Background requires that airport operators maintain ADDRESSES: Interested persons are records of criminal history records CBP Dec. 07–01 amended section invited to submit written comments on checks and security threat assessments 111.96 of title 19 of the Code of Federal the proposed information collection to in compliance with 49 CFR part 1542 Regulations (19 CFR 111.96(c)) pursuant the Office of Information and Regulatory and a related security directive for those to the amendment of section 13031 of Affairs, OMB. Comments should be employees with unescorted access the Consolidated Omnibus Budget addressed to Desk Officer, Department privileges to secured areas, security Reconciliation Act (COBRA) of 1985 (19 of Homeland Security/TSA, and sent via identification display areas, sterile U.S.C. 58c) by section 892 of the electronic mail to areas, and air operations areas of the American Jobs Creation Act of 2004, to [email protected] or faxed airport. TSA also requires that aircraft establish that effective April 1, 2007, an to (202) 395–6974. operators maintain records of annual user fee of $138 is to be assessed FOR FURTHER INFORMATION CONTACT: compliance with 49 CFR part 1544 for for each customs broker permit and Joanna Johnson, TSA PRA Officer, selected flight crew and security national permit held by an individual, Office of Information Technology (OIT), employees. TSA Transportation partnership, association, or corporation. TSA–11, Transportation Security Security Inspectors (TSIs) review these U.S. Customs and Border Protection Administration, 601 South 12th Street, records to ensure that the safety and (CBP) regulations provide that this fee is Arlington, VA 20598–6011; telephone security of the public is not payable for each calendar year in each (571) 227–3651; e-mail compromised, to include using this broker district where the broker was [email protected]. information to take corrective action issued a permit to do business by the when necessary. These regulations SUPPLEMENTARY INFORMATION: due date which is published in the establish procedures that airport and Federal Register annually. See 19 CFR Comments Invited aircraft operators must carry out to 24.22(h) and (i)(9). Broker districts are In accordance with the Paperwork protect persons and property against acts of criminal violence, aircraft piracy, defined in the General Notice entitled, Reduction Act of 1995 (44 U.S.C. 3501 ‘‘Geographical Boundaries of Customs et seq.), an agency may not conduct or and terrorist activities. Number of Respondents: 1,337. Brokerage, Cartage and Lighterage sponsor, and a person is not required to Districts’’ published in the Federal respond to, a collection of information Estimated Annual Burden Hours: An estimated 35,898 hours annually. Register on September 27, 1995 (60 FR unless it displays a valid OMB control 49971). number. The ICR documentation is Issued in Arlington, Virginia, on October available at http://www.reginfo.gov. 18, 2011. Section 1893 of the Tax Reform Act of Therefore, in preparation for OMB Joanna Johnson, 1986 (Pub. L. 99–514) provides that review and approval of the following TSA Paperwork Reduction Act Officer, Office notices of the date on which the information collection, TSA is soliciting of Information Technology. payment is due for each broker permit comments to— [FR Doc. 2011–27463 Filed 10–21–11; 8:45 am] shall be published by the Secretary of the Treasury in the Federal Register by (1) Evaluate whether the proposed BILLING CODE 9110–05–P information requirement is necessary for no later than 60 days before such due the proper performance of the functions date. Please note that section 403 of the of the agency, including whether the DEPARTMENT OF HOMELAND Homeland Security Act of 2002, 6 information will have practical utility; SECURITY U.S.C. 101 et seq., (Pub. L. 107–296) and (2) Evaluate the accuracy of the Treasury Department Order No. 100–16 agency’s estimate of the burden; Customs and Border Protection (see Appendix to19 CFR Part 0) (3) Enhance the quality, utility, and delegated general authority vested in the Customs Brokers User Fee Payment clarity of the information to be Secretary of the Treasury over customs for 2012 collected; and revenue functions (with certain specified exceptions) to the Secretary of (4) Minimize the burden of the AGENCY: Customs and Border Protection, collection of information on those who Department of Homeland Security. Homeland Security. are to respond, including using ACTION: General Notice. This document notifies customs appropriate automated, electronic, brokers that for calendar year 2012, the mechanical, or other technological SUMMARY: This document provides due date for payment of the user fee is collection techniques or other forms of notice to customs brokers that the January 20, 2012. It is anticipated that information technology. annual fee of $138 that is assessed for for subsequent years, the annual user fee each permit held by a broker, whether for customs brokers will be due on or Information Collection Requirement it may be an individual, partnership, about the twentieth of January of each Title: Employment Standards. association, or corporation, is due by year.

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Dated: October 17, 2011. ADDRESSES: Interested persons are of approximately 14,000 multifamily Richard F. DiNucci, invited to submit comments regarding and public housing properties annually. Acting Assistant Commissioner, Office of this proposal. Comments should refer to To conduct these inspections, HUD uses International Trade. the proposal by name/or OMB Control contract inspectors that are trained in [FR Doc. 2011–27413 Filed 10–21–11; 8:45 am] number and should be sent to: Colette the Uniform Physical Condition BILLING CODE 9111–14–P Pollard., Departmental Reports Standards protocol and certified by Management Officer, QDAM, HUD. Individuals who wish to be Department of Housing and Urban trained and certified by HUD are DEPARTMENT OF HOMELAND Development, 451 7th Street, SW., requested to electronically submit the SECURITY Room 4160, Washington, DC 20410– questionnaire via the Internet. The 5000; telephone 202.402.3400 (this is questionnaire provides HUD with basic Customs and Border Protection not a toll-free number) or e-mail Ms. knowledge of an individual’s inspection Pollard at [email protected]. skills and abilities. Revocation of Customs Broker Persons with hearing or speech Agency form number: Form HUD Licenses impairments may access this number 50002. AGENCY: U.S. Customs and Border through TTY by calling the toll-free Members of affected public: Protection, U.S. Department of Federal Information Relay Service at Individuals. Homeland Security. (800) 877–8339. (Other than the HUD Estimation of the total number of USER information line and TTY hours needed to prepare the information ACTION: General notice. numbers, telephone numbers are not collection including number of SUMMARY: Pursuant to section 641 of the toll-free.) respondents: The estimated number of Tariff Act of 1930, as amended, (19 FOR FURTHER INFORMATION CONTACT: respondents is 800 individuals that U.S.C. 1641) and the U.S. Customs and Arlette Mussington, Office of Policy, submit one questionnaire. The average Border Protection regulations (19 CFR Programs and Legislative Initiatives, time for each individual response is 1 111.51(b)), the following Customs PIH, Department of Housing and Urban hour, for a total reporting burden of 800 broker licenses and all associated Development, 451 7th Street, SW., hours. permits are revoked with prejudice. (L’Enfant Plaza, Room 2206), Status of the proposed information Washington, DC 20410; telephone 202– collection: Extension of currently approved collection. Name License Issuing port 402–4109, (this is not a toll-free No. number). Authority: Section 3506 of the Paperwork Reduction Act of 1995, 44 U.S.C. Chapter 35, SUPPLEMENTARY INFORMATION: Antonio Gonzalez 14309 San The as amended. Diego. Department will submit the proposed A. Gonzalez, Inc ... 16076 San information collection to OMB for Dated: October 18, 2011. Diego. review, as required by the Paperwork Merrie Nichols-Dixon, Reduction Act of 1995 (44 U.S.C. Deputy Director, for Office of Policy, Program Dated: October 17, 2011. Chapter 35, as amended). This Notice is and Legislative Initiatives. Richard F. DiNucci, soliciting comments from members of [FR Doc. 2011–27447 Filed 10–21–11; 8:45 am] Acting Assistant Commissioner, Office of the public and affected agencies BILLING CODE 4210–67–P International Trade. concerning the proposed collection of [FR Doc. 2011–27410 Filed 10–21–11; 8:45 am] information to: (1) Evaluate whether the DEPARTMENT OF HOUSING AND BILLING CODE 9111–14–P proposed collection of information is necessary for the proper performance of URBAN DEVELOPMENT the functions of the agency, including [Docket No. FR–5482–N–04] whether the information will have DEPARTMENT OF HOUSING AND practical utility; (2) evaluate the Notice of Submission of Proposed URBAN DEVELOPMENT accuracy of the agency’s estimate of the Information Collection to OMB; Limited [Docket No. FR–5487–N–17] burden of the proposed collection of English Proficiency Initiative (LEPI) information; (3) enhance the quality, Program Grant Application Notice of Proposed Information utility, and clarity of the information to Collection for Public Comment; be collected; and (4) minimize the AGENCY: Office of the Assistant Inspector Candidate Assessment burden of the collection of information Secretary for Fair Housing and Equal Questionnaire on those who are to respond, including Opportunity, HUD. the use of appropriate automated ACTION: Notice of proposed information AGENCY: Office of the Assistant collection techniques or other forms of collection. Secretary for Public and Indian information technology; e.g., permitting Housing, HUD. SUMMARY: The proposed information electronic submission of responses. collection requirement described below ACTION: Notice. This Notice also lists the following will be submitted to the Office of information: SUMMARY: The proposed information Title of Proposal: Inspector Candidate Management and Budget (OMB) for collection requirement described below Assessment Questionnaire. review and approval, as required by the will be submitted to the Office of OMB Control Number: 2577–0243. Paperwork Reduction Act of 1995. The Management and Budget (OMB) for Description of the need for the Department is soliciting public review, as required by the Paperwork information and proposed use: To meet comments on the subject proposal. Reduction Act. The Department is the requirements of the Uniform DATES: Comments Due Date: December soliciting public comments on the Physical Condition Standards (UPCS) 23, 2011. subject proposal. and the Public Housing Assessment ADDRESSES: Interested persons are DATES: Comments Due Date: December System (PHAS) rules, the Department invited to submit comments regarding 23, 2011. conducts physical condition inspections this proposal. Comments must be

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received within 60 days from the date report to HUD, award recipients must This announcement contains the of this Notice. Comments should refer to include a completed Logic Model consolidated names and addresses of the proposal by name and/or OMB (HUD96010). this year’s award recipients under the Control Number, and should be sent to: Agency form number(s), if applicable: CFCF program. HUD Desk Officer, Office of HUD forms have been identified in the FOR FURTHER INFORMATION CONTACT: For Management and Regulatory Affairs, Department’s General Section. questions concerning the CFCF Program Office of Management and Budget, New Members of affected public: Qualified awards, contact Jeffrey Riddel, Director, Executive Office Building, Washington, non-profit or faith-based community Office of Capital Improvements, Office DC 20503, e-mail organizations that have engaged in of Public Housing, Department of [email protected]. providing LEP services to diverse populations and communities. Housing and Urban Development, 451 FOR FURTHER INFORMATION CONTACT: Estimation of the total numbers of 7th Street, SW., Room 4130, Pamela Walsh, Director, Office of hours needed to prepare the information Washington, DC 20410, telephone 202– Policy, Legislative Initiatives, and collection including the number of 402–7378. Hearing or speech-impaired Outreach, Office of Fair Housing and respondents, frequency of response, and individuals may access this number via Equal Opportunity, e-mail to hours of response: On an annual basis TTY by calling the toll-free Federal [email protected]; telephone approximately 30 respondents Relay Service at 800–877–8339. number (202) 708–1145 (this is not a (applicants) will submit one (1) SUPPLEMENTARY INFORMATION: The CFCF toll-free number). Persons with hearing application to HUD with a burden hour and speech challenges may access the program provides grants to Public per response of 70 hrs. It is estimated Housing Agencies (PHAs) to develop above numbers via TTY (text telephone) that 2 hrs for the quarterly reporting by calling the Federal Relay Service at facilities to provide early childhood period will be required of the recipients education, adult education, and/or job 800–877–8339 (this is a toll-free to fulfill HUD reporting requirements, number). training programs for public housing for a total of 2,132 burden hours. residents. More specifically, in SUPPLEMENTARY INFORMATION: The Status of the proposed Information accordance with Section 9 of the United Department is submitting this proposed Collection: Extension of a currently States Housing Act of 1937 (42 U.S.C. information collection requirement to approved collection. 1437g) (1937 Act), and the Department OMB for processing, as described below. Authority: The Paperwork Reduction Act of Defense and Full-Year Continuing This notice is soliciting comments of 1995, 44 U.S.C. Chapter 35, as amended. Appropriations Act, 2011 (Pub. L. 112– from members of the public and affected Dated: October 18, 2011. 10, approved April 15, 2011), the CFCF agencies concerning the proposed Pamela D. Walsh, program provides grants to PHAs to (1) information collection in order to: (1) Construct new community facilities; (2) Evaluate whether the proposed Director, Office of Policy, Legislative Initiatives, and Outreach, Fair Housing and purchase or acquire facilities; or (3) information collection is necessary for Equal Opportunity. rehabilitate existing facilities to be used the proper performance of the functions [FR Doc. 2011–27448 Filed 10–21–11; 8:45 am] as education and training community of the agency, including whether the BILLING CODE 4210–67–P facilities by PHA residents. The information will have practical utility; facilities are for the predominant use of (2) Evaluate the accuracy of the agency’s PHA residents; however, non-public estimate of the proposed collection of DEPARTMENT OF HOUSING AND housing residents may participate. information; (3) Enhance the quality, URBAN DEVELOPMENT The FY 2011 awards announced in utility and clarity of the information this Notice were selected for funding in which must be collected; and (4) [Docket No. 5500–FA–05] a competition posted on HUD’s Web site Minimize the burden of the information on May 24, 2011. Applications were collection on those who are to respond, Announcement of Funding Awards; scored and selected for funding based including the use of appropriate Capital Fund Education and Training on the selection criteria in that NOFA. automated collection techniques or Community Facilities (CFCF) Program; other forms of information technology, Fiscal Year 2011 The amount appropriated in FY 2011 e.g., electronic transmission of data. AGENCY: Office of the Assistant to fund the CFCF program was Title of Proposal: Limited English Secretary for Public and Indian $15,000,000. Proficiency Initiative Program Housing, HUD. In accordance with Section Reporting. ACTION: Announcement of funding 102(a)(4)(C) of the Department of OMB Control Number, if applicable: awards. Housing and Urban Development 2529–0051. Reform Act of 1989 (103 Stat. 1987, Description of Information Collection: SUMMARY: In accordance with Section 42 U.S.C. 3545), the Department is The proposed information collection is 102(a)(4)(C) of the Department of publishing the names, addresses, and intended to enhance the dissemination Housing and Urban Development amounts of the 5 awards made under of LEP materials, and the delivery of Reform Act of 1989, this announcement the competition in Appendix A to this workshops and training sessions notifies the public of funding decisions document. concerning HUD programs and services made by the Department in a Dated: October 14, 2011. to LEP populations. LEPI grant competition for funding under the Sandra B. Henriquez, recipients must submit quarterly reports Fiscal Year 2011 (FY 2011) Notice of to HUD containing information required Funding Availability (NOFA) for the Assistant Secretary for Public and Indian Housing. by the LEPI program NOFA and the Capital Fund Education and Training General Section. As part of the required Community Facilities (CFCF) Program. Appendix A

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CAPITAL FUND EDUCATION AND TRAINING COMMUNITY FACILITIES (CFCF) PROGRAM AWARD FROM FY 2011 NOTICE OF FUNDING AVAILABILITY

Amount Name/address of applicant funded Activity funded Project description

Newark Housing Authority, 500 Broad Street, $5,000,000 Construction of a New Development of a facility at which the PHA will Newark, NJ 07102–3112. Facility. provide adult education, early childhood edu- cation, and job training. White Plains Housing Authority, 223 Dr. Martin 3,500,000 Construction of a New Development of a facility at which the PHA will Luther King, Jr. Boulevard, White Plains, NY Facility. provide adult education and job training. 10601–4105. Brewer Housing Authority, 15 Colonial Circle, 2,491,690 Construction of a New Development of a facility at which the PHA will Brewer, ME 04412. Facility. provide adult education and job training. Housing Authority of the City of Tacoma, 902 1,881,652 Construction of a New Development of a facility at which the PHA will South L Street, Tacoma, WA 98405–4037. Facility. provide adult education, early childhood edu- cation, and job training. Northwest Georgia Housing Authority, 800 North 1,662,643 Construction of a New Development of a facility at which the PHA will Fifth Avenue, PO Box 1428, Rome, GA Facility. provide adult education, early childhood edu- 30162–1428. cation, and job training.

[FR Doc. 2011–27444 Filed 10–21–11; 8:45 am] development area during the public Services Corporation (LCRA; applicant); BILLING CODE 4210–67–P comment period. The dates, times, and and locations of these meetings will be 2. LCRA has developed a draft habitat announced in local newspapers at least conservation plan (DHCP) as part of the DEPARTMENT OF THE INTERIOR 2 weeks before each meeting and will application for an ITP, which describes also be posted on the following Web the measures LCRA has agreed to Fish and Wildlife Service sites: http://www.fws.gov/southwest/es/ undertake to minimize and mitigate the effects of incidental take of federally [FWS–R2–ES–2011–N142; 20124–1112– AustinTexas/; http://www.lcra.org/ 0000–F2] energy/trans/crez/ listed species to the maximum extent fed_envrio_compliance.html. practicable, pursuant to section Draft Environmental Assessment and 10(a)(1)(B) of the Endangered Species ADDRESSES: To find out how to obtain Draft Habitat Conservation Plan for Act of 1973, as amended (Act). documents for review and where to Lower Colorado River Authority LCRA has applied for an ITP (TE– submit comments, see Reviewing Transmission Services Corporation in 46542A–0) under section 10(a)(1)(B) of Documents in SUPPLEMENTARY Central Texas the Act. The requested ITP, which INFORMATION. To submit comments, would be in effect for a period of 30 AGENCY: Fish and Wildlife Service, please use one of the following years if granted, would authorize Interior. methods, and note that your comment is incidental take of two federally listed ACTION: Notice of availability of in reference to permit number TE– species (covered species), golden- documents and announcement of public 46542A–0: cheeked warbler (Dendroica • _ _ hearings. E-mail: fw2 aues [email protected]. chrysoparia) and black-capped vireo • U.S. Mail: Field Supervisor, Austin (Vireo atricapilla). As described in the SUMMARY: The Lower Colorado River Ecological Services Field Office, 10711 DHCP, the proposed incidental take Authority Transmission Services Burnet Road, Suite 200, Austin, TX would occur in Gillespie, Kendall, Kerr, Corporation (applicant) has applied to 78758–4460. Kimble, Mason, Menard, Schleicher, the U.S. Fish and Wildlife Service • Fax: 512/490–0974. Sutton, and Tom Green Counties, Texas (Service) for an incidental take permit • We will also accept written and oral (Permit Area), and would result from under the Endangered Species Act of comments at both of the public meetings activities associated with construction, 1973, as amended. The applicant has (see DATES). maintenance, operation, and repair completed a draft Habitat Conservation (both routine and emergency) of two Plan (DHCP) as part of the application When submitting comments, please Competitive Renewable Energy Zone package. A draft Environmental reference permit number TE–46542A–0. (CREZ) transmission lines and their Assessment (DEA) that evaluates the FOR FURTHER INFORMATION CONTACT: Mr. associated access roads (Covered permit application in accordance with Adam Zerrenner, Field Supervisor, by Activities), which are required to be the requirements of the National U.S. mail at U.S. Fish and Wildlife constructed by the Public Utility Environmental Policy Act of 1969 has Service, 10711 Burnet Road, Suite 200, Austin, TX 78758, or by phone at 512/ Commission of Texas (PUC). also been prepared. We are making the The DEA considers the direct, 490–0057. permit application package, including indirect, and cumulative effects of the the application, DHCP, and DEA, SUPPLEMENTARY INFORMATION: Under the proposed action of permit issuance, available for public review and National Environmental Policy Act including the measures that will be comment. (NEPA), we advise the public that: implemented to minimize and mitigate DATES: Comment Period: To ensure 1. We have gathered the information such impacts to the maximum extent consideration of your written necessary to determine impacts and practicable. comments, we must receive them on or formulate alternatives for the draft before close of business (4:30 p.m. Environmental Assessment (DEA) Background C.S.T.) December 23, 2011. related to the potential issuance of an We initially prepared a notice of Public Meetings: Two public meetings incidental take permit (ITP) to Lower intent (NOI) to prepare an will be held in the transmission line Colorado River Authority Transmission Environmental Impact Statement and

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held public scoping meetings in Other Alternatives Considered • Department of the Interior, Natural connection with the applicant’s We considered two alternatives to the Resources Library, 1849 C. St., NW., requested permit. The NOI was proposed action. However, alternative Washington, DC 20240. published in the Federal Register on route selection was not considered as • U.S. Fish and Wildlife Service, 500 March 19, 2010 (75 FR 13299), and part of any alternatives, as neither the Gold Avenue, SW., Room 6034, opened a comment period which lasted applicant nor the Service had the Albuquerque, NM 87102. until June 17, 2010. A summary of authority to select alternative routes. • U.S. Fish and Wildlife Service, comments provided during the 2010 Route selection is solely within the legal 10711 Burnet Road, Suite 200, Austin, scoping period, which included public authority and discretion of the PUC. TX 78758. meetings held April 19, 2010, in San 1. No Action—No ITP would be Angelo, Texas; April 21, 2010, in issued. Under this alternative, the Persons wishing to review the Comfort, Texas; April 22, 2010, in applicant examined whether it was application may obtain a copy by Junction, Texas; April 26, 2010, in possible to construct transmission lines writing to the Regional Director, U.S. Lampasas, Texas; and April 27, 2010, in along the routes selected by the PUC Fish and Wildlife Service, P.O. Box Fredericksburg, Texas, is available on without the likelihood of causing take of 1306, Room 6034, Albuquerque, NM the U.S. Fish and Wildlife Service’s listed species. LCRA examined the (Service) Web site at http:// 87103. options for minimizing clearing of www.fws.gov/southwest/es/ potential habitat (including that Public Availability of Comments AustinTexas/ and on the applicant’s occurring within the rights-of-way) and Web site at http://www.lcra.org/energy/ Written comments we receive become conducting all clearing and construction trans/crez/fed_envrio_compliance.html. part of the public record associated with Prior to the applicant filing its formal activities outside of the breeding this action. Before including your seasons of the Covered Species. While application with the Service for an address, phone number, e-mail address, this would reduce the impacts to incidental take permit, the scope of the or other personal identifying Covered Species, it still resulted in anticipated covered activities was information in your comment, you reduced significantly. Specifically, what ‘‘take,’’ since their habitat occurs within the alignments for both transmission should be aware that your entire was once to be an application covering comment—including your personal take associated with construction, lines. In addition to the inability to avoid ‘‘take,’’ this alternative would also identifying information—may be made operation, maintenance, and repair of publicly available at any time. While four 345-killivolt (kV) transmission result in increased costs, increased you can request in your comment that lines, whose routes were unknown and safety and reliability concerns, and no we withhold your personal identifying which could touch all or a portion of 14 conservation benefit from mitigation for counties, is now an application for a the Covered Species. information from public review, we permit authorizing potential take of 2. Maximum Take Avoidance cannot guarantee that we will be able to listed species in connection with two Alternative—Under this alternative, the do so. We will not consider anonymous 345-kV transmission lines and their applicant would employ the avoidance comments. All submissions from associated access roads whose routes are and minimization measures described organizations or businesses, and from known. Potential impacts to species under the No Action alternative, but individuals identifying themselves as have been reduced substantially, and they would pursue an ITP for less take representatives or officials of mitigation for those impacts meets or than under the Proposed Alternative. organizations or businesses, will be exceeds mitigation levels accepted by This alternative would also result in made available for public disclosure in the Service in HCPs covering the same increased costs, increased safety and their entirety. species. reliability concerns, and less conservation benefit for the Covered Authority Proposed Action Species than under the Proposed We provide this notice under section The proposed action involves the Alternative. issuance of an ITP by the Service for the 10(c) of the Act (16 U.S.C. 1531 et seq.) Reviewing Documents Covered Activities in the Permit Area, and its implementing regulations (50 pursuant to section 10(a)(1)(B) of the You may obtain copies of the DEA CFR 17.22) and NEPA (42 U.S.C. 4321 Act. The ITP would cover ‘‘take’’ of the and DHCP by going to the Service’s Web et seq.) and its implementing Covered Species associated with the site at http://www.fws.gov/southwest/es/ regulations (40 CFR 1506.6). construction, maintenance, operation, AustinTexas/ or LCRA’s Web site at Section 9 of the Act and its and repair of the transmission lines and http://www.lcra.org/energy/trans/crez/ implementing regulations prohibit _ _ associated access roads occurring within fed envrio compliance.html. ‘‘take’’ of fish and wildlife species listed the Permit Area. Alternatively, you may obtain CD– as threatened or endangered under The requested term of the permit is 30 ROMs with electronic copies of these section 4 of the Act. However, section years. To meet the requirements of a documents by writing to Mr. Adam 10(a) of the ESA authorizes us to issue section 10(a)(1)(B) ITP, the applicant Zerrenner, Field Supervisor, U.S. Fish permits to take listed wildlife species has developed and proposes to and Wildlife Service, 10711 Burnet where such take is incidental to, and not implement its DHCP, which describes Road, Suite 200, Austin, TX 78758; the purpose of, otherwise lawful the conservation measures LCRA has calling 512/490–0057; or faxing 512/ activities and where the applicant meets agreed to undertake to minimize and 490–0974. A limited number of printed mitigate for the impacts of the proposed copies of the DEA and DHCP are also certain statutory requirements. incidental take of the Covered Species available, by request, from Mr. Joy E. Nicholopoulos, to the maximum extent practicable, and Zerrenner. Copies of the DEA and DHCP Acting Regional Director, Southwest Region, ensures that incidental take will not are also available for public inspection Albuquerque, New Mexico. appreciably reduce the likelihood of the and review at the following locations, [FR Doc. 2011–27395 Filed 10–21–11; 8:45 am] survival and recovery of these species in by appointment and written request the wild. only, 8 a.m. to 4:30 p.m.: BILLING CODE 4310–55–P

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DEPARTMENT OF THE INTERIOR Juan de Los Lagos, Moreno Valley, kV transmission line on public lands in California 92553–9046; e-mail: compliance with FLPMA, BLM ROW Bureau of Land Management [email protected]. Persons who use a regulations, and other applicable telecommunications device for the deaf Federal laws and regulations. The BLM [CACA 49698, CACA 51204, LLCAD07000, L51010000.FX0000, LVRWB10B3810, (TDD) may call the Federal Information will decide whether to approve, approve LVRWB10B3800] Relay Service (FIRS) at 1 (800) 877–8339 with modification, or deny issuance of to contact the above individual during ROW grants to Tule and SDG&E for the Notice of Availability of Joint Final normal business hours. The FIRS is proposed Tule and ECO Projects, Environmental Impact Statement/Final available 24 hours a day, 7 days a week, respectively. The BLM will take into Environmental Impact Report for the to leave a message or question with the consideration the provisions of the Tule Wind Project, California, and above individual. You will receive a Energy Policy Act of 2005 and Notice of Intent To Segregate Public reply during normal business hours. Secretarial Orders 3283 Enhancing Lands SUPPLEMENTARY INFORMATION: The BLM Renewable Energy Development on the has received applications for rights-of- Public Lands and 3285 Renewable AGENCY: Bureau of Land Management, way (ROW) for two separate, but related, Energy Development by the Department Interior. proposed projects in eastern San Diego of the Interior in responding to the Tule ACTION: Notice of availability. County. Tule Wind, LLC (Tule) has and SDG&E applications. submitted an application to construct, The proposed action analyzed in the SUMMARY: In accordance with the EIS/EIR is to approve the Tule Project operate, maintain, and decommission a National Environmental Policy Act of and the ECO Project in response to the 201 megawatt (MW) wind energy 1969, as amended (NEPA), and the applications received from Tule and generation facility known as the Tule Federal Land Policy and Management SDG&E, respectively. The BLM analyzed Project. The proposed project site is Act of 1976, as amended (FLPMA), the the following alternatives for the ECO located on approximately 15,477 acres Bureau of Land Management (BLM) and project: The Proposed Action, an of land under multiple jurisdictions the California Public Utilities Alternative Substation Site, a Partial summarized as follows: Private land— Commission (CPUC) have prepared a Undergrounding alternative for the 138 1,040 acres; California State Lands Final Environmental Impact Statement kV Transmission line, the Highway 80 Commission land—619 acres; BLM (EIS) and Final Environmental Impact 138 kV route alternative, the Highway Report (EIR) as a joint environmental land—12,200 acres; and Tribal land 80 138 kV undergrounding alternative, analysis document for Tule Wind, LLC’s belonging to the Campo Band of Mission and No Action alternatives. The BLM Tule Wind Project (Tule Project) and the Indians—8 acres for access roads only, also analyzed the following alternatives San Diego Gas and Electric’s (SDG&E) the Ewiiaapaayp Band of Kumayaay for the Tule Wind Project: the Proposed East County Substation Project (ECO Indians—1,598 acres, and the Manzanita Action, four alternate Gen-tie routes Project) and by this notice are Band of Mission Indians—12 acres for with the substation and the O&M announcing the availability of the Final access roads only. The project site is facilities on private lands or public EIS/EIR. By this Notice the BLM is also located in the In-Ko-Pah Mountains near lands, a reduced turbine alternative, and segregating the public lands within the the McCain Valley in San Diego County, a No Action alternative. Tule Project application area from north of the unincorporated community The BLM has used the NEPA process appropriation under the public land of Boulevard. The project will consist of to satisfy the public involvement laws including the Mining Law, but not up to 128 wind turbines (1.5 to 3.0 MW requirement for Section 106 of the the Mineral Leasing or Material Sales each) with a generating capacity of up National Historic Preservation Act (16 Act, for a period of 2 years. to 201 MW, an overhead and U.S.C. 470(f)) as provided in 36 CFR underground 34.5 kilovolt (kV) collector DATES: The BLM will not issue a final 800.2(d)(3). Separately, Native system leading to a collector substation, American Tribal consultations are being decision on the proposal for a minimum an operations and maintenance facility, of 30 days from the date that the conducted in accordance with BLM and and a 138 kV transmission line as the Department of the Interior policy, and Environmental Protection Agency generation tie-in to the existing publishes its notice in the Federal Tribal concerns will be given due Boulevard Substation. consideration, including impacts on Register. This notice initiates the 2-year SDG&E has submitted an application segregation period for the public lands Indian trust assets. The BLM has to construct the ECO Project, including entered into a Memorandum of within the Tule Project application area, a 138 kV transmission line that would effective as of October 24, 2011. The Understanding (MOU) with the CPUC to traverse approximately 1.5 miles of conduct a joint environmental review of segregation will terminate as described public land managed by the BLM. The the Tule/ECO Projects on Federal land below (see SUPPLEMENTARY INFORMATION ECO Project includes the construction of managed by the BLM. The CPUC is the section). a 500/230/138 kV substation on private lead agency under the California ADDRESSES: Copies of the EIS/EIR are land near the community of Jacumba, a Environmental Quality Act (CEQA), and available for public inspection at the short loop-in to the Southwest Power is responsible for preparing the EIR. BLM El Centro Field Office, 1661 S. 4th Link, the 138 kV transmission line Under NEPA, the BLM is the lead Street, El Centro, California 92243, and mentioned above, a rebuild of the agency preparing the EIS. The BLM and the BLM California Desert District existing Boulevard Substation, and a CPUC have agreed through the MOU to Office, 22835 Calle San Juan de Los rebuild of the existing White Star conduct joint environmental review of Lagos, Moreno Valley, California 92553. Communication Facility. the project in a single combined NEPA/ Interested persons may also review the The BLM’s purpose and need for the CEQA process and document. The Final Final EIS/EIR at the following Web site: Tule and ECO Projects is to respond to EIS/EIR is such a document. It evaluates http://www.ca.blm.gov/elcentro. Tule’s and SDG&E’s respective the potential impacts of the proposed FOR FURTHER INFORMATION CONTACT: Greg applications under Title V of FLPMA Tule and ECO Projects’ impacts on air Thomsen, Project Manager, telephone (43 U.S.C. 1761) for a ROW grant to quality, biological resources, cultural (951) 697–5237; address BLM California construct, operate, and decommission resources, water resources, geological Desert District Office, 22835 Calle San an energy generation project and a 138 resources and hazards, land use, noise,

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paleontological resources, public health, Sec. 5, Lots 5, 6, 7, S1⁄2NE1⁄4, S1⁄2NW1⁄4, District Resource Advisory Council socioeconomics, soils, traffic and E1⁄2SW1⁄4, SE1⁄4; (RAC), will meet as indicated below. Sec. 8, E1⁄2NW1⁄4, SW1⁄4SE1⁄4; transportation, visual resources, DATES: The meeting date is November Sec. 9, Lots 4, 5 and 6; wilderness characteristics, and other 16, 2011, at the BLM Farmington Sec. 10, W1⁄2W1⁄2; resources. A Notice of Intent to Prepare Sec. 15, NE1⁄4, E1⁄2NW1⁄4, NW1⁄4NW1⁄4; District Office, 1235 La Plata Highway, an EIS/EIR for the Tule and ECO Sec. 17, NW1⁄4NE1⁄4; and Farmington, NM 87401, from 10 a.m.– Projects in San Diego County, California Sec. 21, NE1⁄4, NE1⁄4NW1⁄4. 4:30 p.m. The public may send written was published in the Federal Register The areas described above aggregate comments to the RAC at the above on December 29, 2009 [74 FR 68860]. approximately 12,200 acres of public lands in address. The BLM held two public scoping San Diego County. FOR FURTHER INFORMATION CONTACT: Bill meetings in Jacumba and Boulevard, The BLM has determined that this Papich, BLM Farmington District Office, California, on January 27 and 28, 2010, temporary segregation is necessary to 1235 La Plata Highway, Farmington, respectively. The formal scoping period ensure the orderly administration of the NM 87401, 505–599–6324. Persons who ended on February 15, 2010. A Notice public lands by maintaining the status use a telecommunications device for the of Availability of the Draft EIS/EIR was quo while it processes Tule’s ROW deaf (TDD) may call the Federal published in the Federal Register on application for the above described Information Relay Service (FIRS) at 1– December 23, 2010 [75 FR 80807], and lands. The temporary segregation period 800–877–8229 to contact the above the BLM along with the CPUC held two will terminate and the lands will individual during normal business public meetings on the Draft EIS/EIR on automatically reopen to appropriation hours. The FIRS is available 24 hours a January 26, 2011, in Jacumba, and on under the public land laws, including day, 7 days a week, to leave a message February 2, 2011, in Boulevard. or question with the above individual. In connection with its processing of the Mining Law, if one of the following You will receive a reply during normal Tule’s application, the BLM is also events occurs: (1) The BLM issues a business hours. segregating the public lands within the decision granting, granting with Project application area for the Tule modifications, or denying Tule’s ROW SUPPLEMENTARY INFORMATION: The 10- Project from appropriation under public authorization request; (2) Publication in member RAC advises the Secretary of land laws, including the Mineral Law of the Federal Register of a notice the Interior, through the BLM, on a 1872, as amended, but not the Mineral terminating this segregation; or (3) No variety of planning and management Leasing or the Material Sales Acts, for further administrative action occurs at issues associated with public land a period of 2 years from the date of the end of this segregation. Any management in New Mexico. publication of this notice. This is done segregation made under this authority is Planned agenda items include a under the authority contained in 43 CFR effective only for a period of up to 2 welcome and introduction of new 2091.3–1(e) and 43 CFR 2804.25(e), and years. Council members, election of a is subject to valid existing rights. The Comments on the Draft EIR/EIS chairperson, discussion of charter and public lands contained within this received from the public and internal operating procedures, discussion of temporary segregation total BLM review were considered and issues and concerns related to the BLM approximately 12,200 acres and are incorporated as appropriate into the Farmington District, and discussion of described as follows: Final EIR/EIS. Public comments future project work for the Farmington resulted in the addition of clarifying District RAC. San Bernardino Meridian text, but did not significantly change the A half-hour public comment period T. 15 S., R. 6 E., analysis. during which the public may address Sec. 34; and Authority: 40 CFR 1506.6 and 1506.10. the RAC is scheduled to begin at 2:30 Sec. 35. p.m. on November 16, 2011. All RAC T. 16 S., R. 6 E., James Keeler, meetings are open to the public. 1 1 1 Sec. 2, Lot 3 and 4, S ⁄2NW ⁄4, SW ⁄4; Acting Deputy State Director, Natural Depending on the number of Sec. 3; Resources. individuals wishing to comment and Sec. 4; Sec. 9; [FR Doc. 2011–27514 Filed 10–20–11; 11:15 am] time available, the time for individual Sec. 10; BILLING CODE 4310–40–P oral comments may be limited. 1 1 1 1 Sec. 11, S ⁄2NE ⁄4, W ⁄2, SE ⁄4; Dave Evans, Sec. 12 S1⁄2N1⁄2, S1⁄2; Sec. 13; DEPARTMENT OF THE INTERIOR District Manager, Farmington. Sec. 14; and [FR Doc. 2011–27405 Filed 10–21–11; 8:45 am] Sec. 15, W1⁄2NE1⁄4, W1⁄2, S1⁄2SE1⁄4. Bureau of Land Management BILLING CODE 4310–VB–P T. 16 S., R. 7 E., Sec. 17, SW1⁄4; [LLNMF00000 L13110000.XH0000] Sec. 18, Lots 2, 3 and 4, E1⁄2NE1⁄4, DEPARTMENT OF THE INTERIOR SW1⁄4NE1⁄4, SE1⁄4NW1⁄4, E1⁄2SW1⁄4, SE1⁄4; Notice of Public Meeting, Farmington Sec. 19, Lots 1, 2 and 4, NE1⁄4NE1⁄4, District Resource Advisory Council Bureau of Land Management W1⁄2E1⁄2, E1⁄2W1⁄2; Meeting, New Mexico Sec. 20, NE1⁄4, E1⁄2NW1⁄4, NW1⁄4NW1⁄4, [LLAK910000–L13100000.PP0000– W1⁄2SE1⁄4, SE1⁄4SE1⁄4, SE1⁄4SW1⁄4; AGENCY: Bureau of Land Management, L.X.SS.052L0000] Sec. 28, W1⁄2SW1⁄4; Interior. Sec. 29, E1⁄2, E1⁄2NW1⁄4, SW1⁄4NW1⁄4, Notice of Public Meeting, BLM-Alaska ACTION: Notice of public meeting. NE1⁄4SW1⁄4; Resource Advisory Council 1 1 1 1 Sec. 30, Lot 1, E ⁄2NW ⁄4, NW ⁄4NE ⁄4; SUMMARY 1 1 1 : In accordance with the AGENCY: Sec. 32, E ⁄2, E ⁄2W ⁄2; and Bureau of Land Management, Federal Land Policy and Management Sec. 33, W1⁄2. Alaska State Office, Interior. T. 17 S., R. 7 E., Act and the Federal Advisory ACTION: Notice of public meeting. Sec. 3, Lots 3, 4, S1⁄2NW1⁄4, SW1⁄4 ; Committee Act of 1972, the U.S. Sec. 4, Lots 1, 2, 5, 6, SW1⁄4NE1⁄4, Department of the Interior, Bureau of SUMMARY: In accordance with the S1⁄2NW1⁄4, SW1⁄4, W1⁄2SE1⁄4; Land Management (BLM), Farmington Federal Land Policy and Management

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Act (FLPMA) and the Federal Advisory accommodations, should contact the General information concerning the Committee Act of 1972 (FACA), the U.S. BLM RAC Coordinator listed above. Commission may also be obtained by Department of the Interior, Bureau of Dated: October 17, 2011. accessing its Internet server (http:// Land Management (BLM) Alaska Julia Dougan, www.usitc.gov). The public record for Resource Advisory Council (RAC) will Acting State Director. this review may be viewed on the meet as indicated below. [FR Doc. 2011–27394 Filed 10–21–11; 8:45 am] Commission’s electronic docket (EDIS) DATES: The meeting will be held at http://edis.usitc.gov. BILLING CODE 4310–JA–P November 29 and 30, 2011, at the SUPPLEMENTARY INFORMATION: On Fairbanks Princess Riverside Lodge, 4477 Pikes Landing Road, Fairbanks, October 4, 2011, the Commission Alaska 99709–4619. On November 29, INTERNATIONAL TRADE determined that it should proceed to the meeting starts at 9 a.m. in the Jade COMMISSION full reviews in the subject five-year reviews pursuant to section 751(c)(5) of meeting room. On November 30, the [Investigation Nos. 701–TA–253 and 731– meeting begins in the same location, TA–132, 252, 271, 273, 532–534, and 536 the Act. The Commission found that the also at 9 a.m. and the council will (Third Review)] domestic interested party group accept public comment from 11 a.m.– response to its notice of institution (76 noon. Certain Pipe and Tube From Brazil, FR 38691, July 1, 2011) was adequate India, Korea, Mexico, Taiwan, Thailand, and that the respondent interested party FOR FURTHER INFORMATION CONTACT: and Turkey; Commission group responses with respect to Mexico, Thom Jennings, RAC Coordinator; BLM- Determination To Conduct Full Five- Thailand, and Turkey were adequate, Alaska State Office; 222 W. 7th Avenue Year Reviews and decided to conduct full reviews #13; Anchorage, AK 99513. Telephone 907–271–3335 or 907–271–4418 or e- AGENCY: United States International with respect to the countervailing duty mail [email protected]. Persons who use Trade Commission. order on welded carbon steel pipe and tube from Turkey and the antidumping a telecommunications device for the ACTION: Notice. deaf (TDD) may call the Federal duty orders on welded carbon steel pipe Information Relay Service (FIRS) at 1– SUMMARY: The Commission hereby gives and tube from Thailand and Turkey and 800–877–8339 to contact the above notice that it will proceed with full circular welded nonalloy steel pipe individual during normal business reviews pursuant to section 751(c)(5) of from Mexico. The Commission found hours. The FIRS is available 24 hours a the Tariff Act of 1930 (19 U.S.C. that the respondent interested party day, seven days a week, to leave a 1675(c)(5)) to determine whether group responses with respect to Brazil, message or question with the above revocation of the countervailing duty India, Korea, and Taiwan were individual. You will receive a reply order on welded carbon steel pipe and inadequate. However, the Commission during normal business hours. tube from Turkey, the antidumping duty determined to conduct full reviews SUPPLEMENTARY INFORMATION: The 15- orders on welded carbon steel pipe and concerning the antidumping duty orders member Council advises the Secretary tube from India, Thailand, and Turkey, on welded carbon steel pipe and tube of the Interior, through the Bureau of the antidumping duty orders on circular from India, circular welded nonalloy Land Management, on a variety of welded nonalloy steel pipe from Brazil, steel pipe from Brazil, Korea, and planning and management issues Korea, Mexico, and Taiwan, and the Taiwan, and small diameter carbon steel associated with public land antidumping duty order on small pipe and tube from Taiwan to promote management in Alaska. At this meeting, diameter carbon steel pipe and tube administrative efficiency in light of its from Taiwan would be likely to lead to topics planned for discussion include: decision to conduct full reviews with continuation or recurrence of material • Manager reports respect to certain pipe and tube orders injury within a reasonably foreseeable • Lands with Wilderness concerning Mexico, Thailand, and time. A schedule for the reviews will be Characteristics Policy update established and announced at a later Turkey. A record of the Commissioners’ • Resource management planning votes, the Commission’s statement on • date. For further information concerning Other topics of interest to the RAC the conduct of these reviews and rules adequacy, and any individual All meetings are open to the public. of general application, consult the Commissioner’s statements will be Depending on the number of people Commission;s Rules of Practice and available from the Office of the wishing to comment and time available, Procedure, part 201, subparts A through Secretary and at the Commission’s Web the time for individual oral comments E (19 CFR part 201), and part 207, site. may be limited, so be prepared to subparts A, D, E, and F (19 CFR part Authority: These reviews are being submit written comments if necessary. 207). Before including your address, phone conducted under authority of title VII of the number, e-mail address, or other DATES: Effective Date: October 4, 2011. Tariff Act of 1930; this notice is published pursuant to section 207.62 of the personal identifying information in your FOR FURTHER INFORMATION CONTACT: Commission’s rules. comment, you should be aware that Mary Messer (202–205–3193), Office of your entire comment—including your Investigations, U.S. International Trade By order of the Commission. personal identifying information—may Commission, 500 E Street, SW., James R. Holbein, be made publicly available at any time. Washington, DC 20436. Hearing- Secretary to the Commission. While you can ask us in your comment impaired persons can obtain [FR Doc. 2011–27355 Filed 10–21–11; 8:45 am] to withhold your personal identifying information on this matter by contacting information from public review, we the Commission’s TDD terminal on 202– BILLING CODE 7020–02–P cannot guarantee that we will be able to 205–1810. Persons with mobility do so. Individuals who plan to attend impairments who will need special and need special assistance, such as assistance in gaining access to the sign language interpretation, Commission should contact the Office transportation, or other reasonable of the Secretary at 202–205–2000.

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JUDICIAL CONFERENCE OF THE notifications disclosing all changes in disclosing all changes in planned UNITED STATES membership. activities. On April 11, 2001, DVD CCA filed its Patricia A. Brink, Hearing of the Judicial Conference original notification pursuant to Section Committee on Civil Rules Director of Civil Enforcement, Antitrust 6(a) of the Act. The Department of Division. AGENCY: Judicial Conference of the Justice published a notice in the Federal Register pursuant to Section 6(b) of the [FR Doc. 2011–27114 Filed 10–21–11; 8:45 am] United States, Advisory Committee on BILLING CODE 4410–11–M Civil Rules. Act on August 3, 2001 (66 FR 40727). ACTION: Notice of cancellation of open The last notification was filed with hearing. the Department on June 23, 2011. A DEPARTMENT OF JUSTICE notice was published in the Federal SUMMARY: The following public hearing Register pursuant to Section 6(b) of the Drug Enforcement Administration on proposed amendments to the Federal Act on July 20, 2011 (76 FR 43348). Rules of Civil Procedure has been Importer of Controlled Substances; Patricia A. Brink, canceled: Civil Rules Hearing, Notice of Registration November 7, 2011, in Washington, DC. Director of Civil Enforcement, Antitrust Division. FOR FURTHER INFORMATION CONTACT: By Notice dated August 9, 2011, and [FR Doc. 2011–27215 Filed 10–21–11; 8:45 am] Benjamin J. Robinson, Deputy Rules published in the Federal Register on Officer and Counsel, Rules Committee BILLING CODE M August 18, 2011, 76 FR 51399, Aptuit, Support Office, Administrative Office of 10245 Hickman Mills Drive, Kansas City, Missouri 64137, made application the United States Courts, Washington, DEPARTMENT OF JUSTICE DC 20544, telephone (202) 502–1820. by renewal to the Drug Enforcement Administration (DEA) to be registered as Antitrust Division Dated: October 18, 2011. an importer of the following basic Benjamin J. Robinson, Notice Pursuant to the National classes of controlled substances: Deputy Rules Officer and Counsel. Cooperative Research and Production Drug Schedule [FR Doc. 2011–27419 Filed 10–21–11; 8:45 am] Act of 1993—TAI and Southwest BILLING CODE 2210–55–P Research Institute Marihuana (7360) ...... I Poppy Straw Concentrate (9670) II Notice is hereby given that, on August DEPARTMENT OF JUSTICE 24, 2011, pursuant to Section 6(a) of the National Cooperative Research and The company plans to import a Antitrust Division Production Act of 1993, 15 U.S.C. 4301 finished pharmaceutical product et seq. (‘‘the Act’’), TAI and SwRI containing cannabis extracts in dosage Notice Pursuant to the National Consortium for Advanced Research for form for packaging for a clinical trial Cooperative Research and Production the Development of Telecommunication study. In addition, the company also Act of 1993—DVD Copy Control and Security Tools (‘‘TAISR’’) has filed plans to import an ointment for the Association written notifications simultaneously treatment of wounds which contains with the Attorney General and the trace amounts of the controlled Notice is hereby given that, on August substances normally found in poppy 26, 2011, pursuant to Section 6(a) of the Federal Trade Commission disclosing (1) the identities of the parties to the straw concentrate for packaging and National Cooperative Research and labeling for clinical trials. Production Act of 1993, 15 U.S.C. 4301 venture and (2) the nature and objective et seq. (‘‘the Act’’), DVD Copy Control of the venture. The notifications were Comments and requests for hearings Association (‘‘DVD CCA’’) has filed filed for the purpose of extending the on applications to import narcotic raw written notifications simultaneously Act’s provisions limiting the recovery of material are not appropriate. 72 FR 3417 with the Attorney General and the antitrust plaintiffs to actual damages (2007). Federal Trade Commission disclosing under specified circumstances. Pursuant DEA has considered the factors in 21 changes in its membership. The to Section 6(b) of the Act, the identities U.S.C. 823(a) and 952(a), and notifications were filed for the purpose of the parties to the venture are: determined that the registration of of extending the Act’s provisions Southwest Research Institute, San Aptuit to import the basic classes of limiting the recovery of antitrust Antonio, TX, and Tridex Associates, controlled substances is consistent with plaintiffs to actual damages under Inc., Woodbridge, VA. the public interest and with United specified circumstances. Specifically, The general area of TAISR’s planned States obligations under international NEC USA, Inc., New York, NY; activities is to advance the field of treaties, conventions, or protocols in Chicovery Co., Ltd., San Chung City, security and telecommunications tools effect on May 1, 1971. DEA has Taipei, Taiwan; Meiloon Industrial Co., research and development by organizing investigated Aptuit to ensure that the Ltd., Taoyuan City, Taiwan; MIT and implementing joint engineering and company’s registration is consistent Technology Co., Ltd., Dongguan, scientific research activities. These with the public interest. The Guangdong, People’s Republic of China; activities will encompass the investigation has included inspection and IMS International Media Service development of sophisticated and testing of the company’s physical S.p.A., Varese, Italy, have withdrawn as telecommunication tools and or security systems, verification of the parties to this venture. components in the engineering and company’s compliance with state and No other changes have been made in scientific areas of electronic systems, local laws, and a review of the either the membership or planned hardware design, packaging and rapid company’s background and history. activity of the group research project. prototyping. Therefore, pursuant to 21 U.S.C. 952(a) Membership in this group research Membership in this research group is and 958(a), and in accordance with 21 project remains open, and DVD CCA closed, and the participants intend to CFR 1301.34, the above named company intends to file additional written file additional written notification is granted registration as an importer of

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the basic classes of controlled American Radiolabeled Chemicals, Inc. NE., Third Floor, Washington, DC substances listed. to manufacture the listed basic classes 20530. The purpose of the meeting was Dated: October 3, 2011. of controlled substances is consistent to discuss four original jurisdiction Joseph T. Rannazzisi, with the public interest at this time. cases pursuant to 28 CFR 2.27. Four DEA has investigated American Commissioners were present, Deputy Assistant Administrator, Office of Diversion Control, Drug Enforcement Radiolabeled Chemicals Inc. to ensure constituting a quorum when the vote to Administration. that the company’s registration is close the meeting was submitted. [FR Doc. 2011–27430 Filed 10–21–11; 8:45 am] consistent with the public interest. The Public announcement further investigation has included inspection describing the subject matter of the BILLING CODE 4410–09–P and testing of the company’s physical meeting and certifications of the General security systems, verification of the Counsel that this meeting may be closed DEPARTMENT OF JUSTICE company’s compliance with state and by votes of the Commissioners present local laws, and a review of the were submitted to the Commissioners Drug Enforcement Administration company’s background and history. prior to the conduct of any other Therefore, pursuant to 21 U.S.C. 823(a), business. Upon motion duly made, Manufacturer of Controlled and in accordance with 21 CFR 1301.33, seconded, and carried, the following Substances; Notice of Registration the above named company is granted Commissioners voted that the meeting By Notice dated June 7, 2011, and registration as a bulk manufacturer of be closed: Isaac Fulwood, Cranston J. published in the Federal Register on the basic classes of controlled Mitchell, Patricia Cushwa and J. Patricia June 16, 2011, 76 FR 35243, American substances listed. Wilson Smoot. Radiolabeled Chemicals, Inc., 101 Arc Dated: October 3, 2011. (Pub. L. 94–409) (5 U.S.C. 552b) Drive, St. Louis, Missouri 63146, made Joseph T. Rannazzisi, In witness whereof, I make this official application by renewal to the Drug Deputy Assistant Administrator, Office of record of the vote taken to close this Enforcement Administration (DEA) to Diversion Control, Drug Enforcement meeting and authorize this record to be be registered as a bulk manufacturer of Administration. made available to the public. the following basic classes of controlled [FR Doc. 2011–27424 Filed 10–21–11; 8:45 am] Dated: September 15, 2011. substances: BILLING CODE 4410–09–P Isaac Fulwood, Drug Schedule Chairman, U.S. Parole Commission. DEPARTMENT OF JUSTICE [FR Doc. 2011–27571 Filed 10–20–11; 4:15 pm] Gamma Hydroxybutyric Acid I BILLING CODE 4410–01–P (2010). National Institute of Corrections Ibogaine (7260) ...... I Lysergic acid diethylamide (7315) I Advisory Board Meeting Tetrahydrocannabinols (7370) ..... I NATIONAL AERONAUTICS AND Dimethyltryptamine (7435) ...... I Time and Date: 8 a.m. to 4:30 p.m. on SPACE ADMINISTRATION 1-[1-(2-Thienyl) cyclohexyl] piper- I Wednesday, November 2, 2011, 8 a.m. [Notice (11–105)] idine (7470). to 4:30 p.m. on Thursday, November 3, Dihydromorphine (9145) ...... I Normorphine (9313) ...... I 2011. Aerospace Safety Advisory Panel; Amphetamine (1100) ...... II Place: Stanford University Law Charter Renewal Methamphetamine (1105) ...... II School, 550 Nathan Abbott Way, Amobarbital (2125) ...... II Stanford, California, (650) 724–6258. AGENCY: National Aeronautics and Phencyclidine (7471) ...... II Matters To Be Considered: Space Administration (NASA). Phenylacetone (8501) ...... II Organizational culture and change in ACTION: Notice of renewal and Cocaine (9041) ...... II the correctional environment; amendment of the charter of the NASA Codeine (9050) ...... II Performance Based Outcomes; Director’s Aerospace Safety Advisory Panel. Dihydrocodeine (9120) ...... II Oxycodone (9143) ...... II report; Presentations. Contact Person for More Information: SUMMARY: Pursuant to sections 14(b)(1) Hydromorphone (9150) ...... II and 9(c) of the Federal Advisory Ecgonine (9180) ...... II Thomas Beauclair, Deputy Director, Hydrocodone (9193) ...... II 202–307–3106, ext. 44254. Committee Act (Pub. L. 92–463), and Heroin (9200) ...... II after consultation with the Committee Morris L. Thigpen, Meperidine (9230) ...... II Management Secretariat, General Metazocine (9240) ...... II Director. Services Administration, the NASA Dextropropoxyphene, bulk (non- II [FR Doc. 2011–27157 Filed 10–21–11; 8:45 am] Administrator has determined that a dosage forms) (9273). BILLING CODE 4410–36–M renewal and amendment of the charter Morphine (9300) ...... II of the NASA Aerospace Safety Advisory Oripavine (9330) ...... II Panel is in the public interest in Thebaine (9333) ...... II DEPARTMENT OF JUSTICE Oxymorphone (9652) ...... II connection with the performance of duties imposed on NASA by law. The Phenazocine (9715) ...... II United States Parole Commission Fentanyl (9801) ...... II renewed charter is for a two-year period Sunshine Act Meeting; Record of Vote ending October 13, 2013. It is identical The company plans to manufacture of Meeting Closure to the previous charter in all respects small quantities of the listed controlled except it removes references to areas of substances as radiolabeled compounds I, Isaac Fulwood, of the United States responsibility that are no longer for biochemical research. Parole Commission, was present at a applicable, updates legal citations, and No comments or objections have been meeting of said Commission, which conforms the text to the most recent received. DEA has considered the started at approximately 11 a.m., on Congressional reauthorization for this factors in 21 U.S.C. 823(a) and Thursday, September 8, 2011, at the Federal advisory committee (Pub. L. determined that the registration of U.S. Parole Commission, 90 K Street, 111–314 on December 18, 2010).

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FOR FURTHER INFORMATION CONTACT: Ms. the public for inspection and, to the entitled ‘‘X-ray Diffraction Wafer Susan M. Burch, Advisory Committee extent permitted by law, will not be Mapping Method for Rhombohedral Management Division, Office of released under the Freedom of Super-Hetero-Epitaxy; and U.S. Patent International and Interagency Relations, Information Act, 5 U.S.C. 552. Application No. 12/254,016 entitled (202) 358–0550, National Aeronautics ADDRESSES: Objections relating to the ‘‘Thermoelectric Materials and and Space Administration, Washington, prospective license may be submitted to Devices,’’ to innoEpi Incorporated DC 20546–0001. Mr. James J. McGroary, Chief Patent having its principal place of business in October 18, 2011. Counsel/LS01, Marshall Space Flight Santa Clara, California. The patent P. Diane Rausch, Center, Huntsville, AL 35812, (256) rights in these inventions have been Advisory Committee Management Officer, 544–0013. assigned to the United States of America National Aeronautics and Space FOR FURTHER INFORMATION CONTACT: as represented by the Administrator of Administration. Sammy A. Nabors, Technology Transfer the National Aeronautics and Space [FR Doc. 2011–27407 Filed 10–21–11; 8:45 am] Office/ED10, Marshall Space Flight Administration. The prospective BILLING CODE 7510–13–P Center, Huntsville, AL 35812, (256) exclusive license will comply with the 544–5226. Information about other terms and conditions of 35 U.S.C. 209 NASA inventions available for licensing and 37 CFR 404.7. NATIONAL AERONAUTICS AND can be found online at http:// SPACE ADMINISTRATION technology.nasa.gov. DATES: The prospective exclusive license may be granted unless, within [Notice 11–102] Dated: October 18, 2011. Richard W. Sherman, fifteen (15) days from the date of this published notice, NASA receives Notice of intent to grant exclusive Deputy General Counsel. written objections including evidence license [FR Doc. 2011–27465 Filed 10–21–11; 8:45 am] and argument that establish that the AGENCY: National Aeronautics and BILLING CODE 7510–13–P grant of the license would not be Space Administration. consistent with the requirements of ACTION: Notice of intent to grant NATIONAL AERONAUTICS AND 35 U.S.C. 209 and 37 CFR 404.7. exclusive license. SPACE ADMINISTRATION Competing applications completed and received by NASA within fifteen (15) SUMMARY: This notice is issued in [Notice (11–103)] days of the date of this published notice accordance with 35 U.S.C. 209(e) and 37 CFR 404.7(a)(1)(i). NASA hereby gives Notice of intent to grant exclusive will also be treated as objections to the notice of its intent to grant an exclusive license grant of the contemplated partially exclusive license. license in the United States to practice AGENCY: National Aeronautics and the invention described and claimed in Space Administration. Objections submitted in response to MFS–32870–1 ‘‘Greener Electro- this notice will not be made available to ACTION: Notice of intent to grant Mechanical Slide Valve’’ to QM Power, the public for inspection and, to the exclusive license. Inc, having its principal place of extent permitted by law, will not be business in Lee’s Summit, MO. The SUMMARY: This notice is issued in released under the Freedom of intellectual property rights in this accordance with 35 U.S.C. 209(e) and Information Act, 5 U.S.C. 552. invention have been assigned to the 37 CFR 404.7(a)(1)(i). NASA hereby ADDRESSES: Objections relating to the United States of America as represented gives notice of its intent to grant an by the Administrator of the National exclusive license in the United States to prospective license may be submitted to Aeronautics and Space Administration. practice the inventions described and Patent Attorney, Office of Chief The prospective exclusive license will claimed in U.S. Patent No. 7,341,883 B2 Counsel, NASA Langley Research comply with the terms and conditions entitled ‘‘Silicon Germanium Center, MS 30, Hampton, VA 23681; of 35 U.S.C. 209 and 37 CFR 404.7. Semiconductive Alloy and Method of (757) 864–5057 (phone), (757) 864–9190 NASA has not yet made a determination Fabricating Same,’’ U.S. Patent No. (fax). to grant the requested license and may 7,514,726 B2 entitled ‘‘Graded Index FOR FURTHER INFORMATION CONTACT: deny the requested license even if no Silicon Germanium on Lattice Matched Thomas K. McBride Jr., Patent Attorney, objections are submitted within the Silicon Germanium Semiconductive Office of Chief Counsel, NASA Langley comment period. Alloy,’’ U.S. Patent No. 7,558,371 B2 Research Center, MS 30, Hampton, VA DATES: The prospective exclusive entitled ‘‘Method of Generating X–Ray 23681; (757) 864–5057; Fax: (757) 864– license may be granted unless, within Diffraction Data for Integral Detection of 9190. Information about other NASA fifteen (15) days from the date of this Twin Defects in Super-Hetero-Epitaxial inventions available for licensing can be published notice, NASA receives Materials,’’ U.S. Patent No. 7,906,358 B2 found online at http:// written objections including evidence entitled ‘‘Epitaxial Growth of Cubic and argument that establish that the Crystalline Semiconductor Alloys on technology.nasa.gov. grant of the license would not be Basal Plane of Trigonal or Hexagonal Dated: October 18, 2011. consistent with the requirements of Crystal,’’ U.S. Patent Application No. Richard W. Sherman, 35 U.S.C. 209 and 37 CFR 404.7. 12/254,134 entitled ‘‘Hybrid Bandgap Deputy General Counsel. Competing applications completed and Engineering for Super-Hetero-Epitaxial [FR Doc. 2011–27464 Filed 10–21–11; 8:45 am] received by NASA within fifteen (15) Semiconductor Materials, and Products days of the date of this published notice Thereof,’’ U.S. Patent Application No. BILLING CODE 7510–13–P will also be treated as objections to the 12/288,379 entitled ‘‘Rhombohedral grant of the contemplated exclusive Cubic Semiconductor Materials on license. Trigonal Substrate with Single Crystal Objections submitted in response to Properties and Devices Based on Such this notice will not be made available to Materials,’’ U.S. Patent No. 7,769,135 B2

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NATIONAL AERONAUTICS AND Development Revolving Loan Fund NATIONAL SCIENCE FOUNDATION SPACE ADMINISTRATION Access for Credit Unions. 2. Insurance Fund Report. Notice of Permit Modification Issued [Notice (11–104)] Under the Antarctic Conservation Act RECESS: 11:15 a.m. International Space Station (ISS) of 1978 National Laboratory Advisory TIME AND DATE: 11:30 a.m., Thursday, AGENCY: National Science Foundation. Committee; Charter Renewal October 27, 2011. ACTION: Notice of permit modification AGENCY: National Aeronautics and PLACE: Board Room, 7th Floor, Room issued under the Antarctic Conservation Space Administration (NASA). 7047, 1775 Duke Street, Alexandria, VA Act of 1978, Public Law 95–541. ACTION: Notice of renewal and 22314–3428. SUMMARY: The National Science amendment of the charter of the NASA STATUS: Closed. ISS National Laboratory Advisory Foundation (NSF) is required to publish Committee. Matters To Be Considered notice of permit modifications issued under the Antarctic Conservation Act of SUMMARY: Pursuant to sections 14(b)(1) 1. Consideration of Supervisory 1978. This is the required notice. Activities (4). Closed pursuant to some and 9(c) of the Federal Advisory FOR FURTHER INFORMATION CONTACT: Committee Act (Pub. L. 92–463), and or all of the following: exemptions (8), (9)(A)(ii) and 9(B). Nadene G. Kennedy, Permit Office, after consultation with the Committee Office of Polar Programs, Rm. 755, Management Secretariat, General 2. Merger Request Pursuant to Part National Science Foundation, 4201 Services Administration, the NASA 708b of NCUA’s Rules and Regulations. Wilson Boulevard, Arlington, VA 22230. Administrator has determined that Closed pursuant to exemption (8). SUPPLEMENTARY INFORMATION: On renewal and amendment of the charter FOR FURTHER INFORMATION CONTACT: of the NASA ISS National Laboratory September 16, 2011, the National Mary Rupp, Secretary of the Board, Science Foundation published a notice Advisory Committee is in the public Telephone: 703–518–6304. interest in connection with the in the Federal Register of a permit performance of duties imposed on Mary Rupp, application received. The permit was issued on October 17, 2011 to: NASA by law. The renewed charter is Board Secretary. for a two-year period ending October 6, [FR Doc. 2011–27614 Filed 10–20–11; 4:15 pm] Paul Morin, Permit No. 2012–007 2013. It is identical to the previous BILLING CODE 7535–01–P Nadene G. Kennedy, charter in all respects except it updates Permit Officer. the legal citation and the name of the NASA organizational element with [FR Doc. 2011–27323 Filed 10–21–11; 8:45 am] responsibility for management of this NATIONAL SCIENCE FOUNDATION BILLING CODE 7555–01–P Federal advisory committee. Notice of Permit Modification Issued FOR FURTHER INFORMATION CONTACT: NATIONAL SCIENCE FOUNDATION Ms. Susan M. Burch, Advisory Under the Antarctic Conservation Act Committee Management Division, Office of 1978 Notice of Permit Modification Issued of International and Interagency Under the Antarctic Conservation Act AGENCY: National Science Foundation. Relations, (202) 358–0550, National of 1978 Aeronautics and Space Administration, ACTION: Notice of permit issued under Washington, DC 20546–0001. the Antarctic Conservation Act of 1978, AGENCY: National Science Foundation. October 18, 2011. Public Law 95–541. ACTION: Notice of permit modification P. Diane Rausch, issued under the Antarctic Conservation Advisory Committee Management Officer, SUMMARY: The National Science of 1978, Public Law 95–541. National Aeronautics and Space Foundation (NSF) is required to publish Administration. notice of permits issued under the SUMMARY: The National Science Foundation (NSF) is required to publish [FR Doc. 2011–27416 Filed 10–21–11; 8:45 am] Antarctic Conservation Act of 1978. This is the required notice. notice of permit modifications issued BILLING CODE P under the Antarctic Conservation Act of FOR FURTHER INFORMATION CONTACT: 1978. This is the required notice. Nadene G. Kennedy, Permit Office, NATIONAL CREDIT UNION Office of Polar Programs, Rm. 755, FOR FURTHER INFORMATION CONTACT: ADMINISTRATION National Science Foundation, 4201 Nadene G. Kennedy, Permit Office, Wilson Boulevard, Arlington, VA 22230. Office of Polar Programs, Rm. 755, Sunshine Act; Notice of Agency National Science Foundation, 4201 Meeting SUPPLEMENTARY INFORMATION: On August Wilson Boulevard, Arlington, VA 22230. 17, 2011, the National Science SUPPLEMENTARY INFORMATION: On August Foundation published a notice in the TIME AND DATE: 10 a.m., Thursday, 8, 2011, the National Science Federal Register of waste permit October 27, 2011 Foundation published a notice in the application received. The permit was PLACE: Board Room, 7th Floor, Room Federal Register of a permit application issued on October 3, 2011 to: 7047, 1775 Duke Street (All visitors received. The permit was issued on must use Diagonal Road Entrance), Sebastian Copeland, Permit No. 2012 October 12, 2011 to: George Watters, Alexandria, VA 22314–3428. WM–003 Permit No. 2012–005. STATUS: Open. Nadene G. Kennedy, Nadene G. Kennedy, Matters To Be Considered Permit Officer. Permit Officer. 1. Final Rule—Part 705 of NCUA’s [FR Doc. 2011–27324 Filed 10–21–11; 8:45 am] [FR Doc. 2011–27322 Filed 10–21–11; 8:45 am] Rules and Regulations, Community BILLING CODE 7555–01–P BILLING CODE 7555–01–P

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NUCLEAR REGULATORY contact information, and therefore, they ML11286A027) requested an extension COMMISSION should not include any information in of the stated comment period for the their comments that they do not want purpose of providing sufficient review [NRC–2011–0212] publicly disclosed. You may submit while attending planned public Monitoring the Effectiveness of comments by any one of the following meetings related to the subject matter of Maintenance at Nuclear Power Plants methods: the proposed guide. It is the desire of • Federal Rulemaking Web Site: Go to the NRC to receive comments of a high AGENCY: Nuclear Regulatory http://www.regulations.gov and search quality from all stakeholders. Several Commission. for documents filed under Docket ID factors have been considered in granting ACTION: Draft regulatory guide; NRC–2011–0212. Address questions an extension. The requested comment extension of comment period. about NRC dockets to Carol Gallagher, period extension is reasonable and does telephone: 301–492–3668; e-mail: not affect NRC deadlines. The SUMMARY: On September 6, 2011 (76 FR [email protected]. additional time will allow stakeholders 55137), the U.S. Nuclear Regulatory • Mail comments to: Cindy Bladey, to discuss the proposed guide during Commission (NRC) re-issued Draft Chief, Rules, Announcements, and related meetings. Therefore the Regulatory Guide, DG–1278, Directives Branch (RADB), Office of comment submittal period is extended ‘‘Monitoring the Effectiveness of Administration, Mail Stop: TWB–05– from the original date of October 31, Maintenance at Nuclear Power Plants,’’ B01M, U.S. Nuclear Regulatory 2011 to November 11, 2011. in the Federal Register for a 60 day Commission, Washington, DC 20555– Dated at Rockville, Maryland, this 17th day public comment period. The NRC is 0001. of October, 2011. extending the public comment period • Fax comments to: RADB at 301– For the Nuclear Regulatory Commission. for DG–1278 from October 31, 2011 to 492–3446. November 11, 2011. This guide endorses You can access publicly available Thomas H. Boyce, Revision 4A to Nuclear Management documents related to this regulatory Chief, Regulatory Guide Development Branch, and Resources Council (NUMARC) 93– guide using the following methods: Division of Engineering, Office of Nuclear Regulatory Research. 01, ‘‘Industry Guideline for Monitoring • NRC’s Public Document Room the Effectiveness of Maintenance at (PDR): The public may examine and [FR Doc. 2011–27442 Filed 10–21–11; 8:45 am] Nuclear Power Plants,’’ which provides have copied, for a fee, publicly available BILLING CODE 7590–01–P methods that are acceptable to the NRC documents at the NRC’s PDR, O1–F21, staff for complying with the provisions One White Flint North, 11555 Rockville NUCLEAR REGULATORY of Section 50.65, ‘‘Requirements for Pike, Rockville, Maryland 20852. COMMISSION Monitoring the Effectiveness of • NRC’s Agencywide Documents Maintenance at Nuclear Power Plants,’’ Access and Management System [Docket No. 70–0036; NRC–2009–0278] of Title 10 of the Code of Federal (ADAMS): Publicly available documents Regulations, part 50, ‘‘Domestic created or received at the NRC are Environmental Assessment and Licensing of Production and Utilization available online in the NRC Library at Finding of No Significant Impact Facilities.’’ http://www.nrc.gov/reading-rm/ Related to Exemption of Material for Proposed Disposal Procedures for the DATES: Submit comments by November adams.html. From this page, the public Westinghouse Electric Company, LLC, 11, 2011. Comments received after this can gain entry into ADAMS, which Hematite Decommissioning Project, date will be considered if it is practical provides text and image files of the License No. SNM–33, Festus, MO to do so, but the NRC is able to ensure NRC’s public documents. If you do not have access to ADAMS or if there are consideration only for comments AGENCY: Nuclear Regulatory received on or before this date. problems in accessing the documents Commission located in ADAMS, contact the NRC’s Although a time limit is given, ACTION: Notice of Availability. comments and suggestions in PDR reference staff at 1–800–397–4209, 301–415–4737, or by e-mail to connection with items for inclusion in FOR FURTHER INFORMATION CONTACT: John [email protected]. The draft guides currently being developed or J. Hayes, Senior Project Manager, regulatory guide is available improvements in all published guides Decommissioning and Uranium electronically under ADAMS Accession are encouraged at any time. Recovery Licensing Directorate, Number ML111640267. ADDRESSES: Please include Docket ID Division of Waste Management and • Federal Rulemaking Web Site: NRC–2011–0212 in the subject line of Environmental Protection, Office of Public comments and supporting your comments. Comments submitted in Federal and State Materials and materials related to this regulatory guide writing or in electronic form will be Environmental Management Programs, can be found at http:// posted on the NRC Web site and on the U.S. Nuclear Regulatory Commission, www.regulations.gov by searching on Federal rulemaking Web site, http:// Washington, DC 20555, telephone: 301– Docket ID NRC–2011–0212. www.regulations.gov. Because your 415–5928; e-mail: [email protected]. FOR FURTHER INFORMATION CONTACT: comments will not be edited to remove SUPPLEMENTARY INFORMATION: any identifying or contact information, Robert G. Carpenter, U.S. Nuclear the NRC cautions you against including Regulatory Commission, Washington, I. Introduction any information in your submission that DC 20555–0001, telephone: 301–251– By letter dated May 21, 2009, the U.S. you do not want to be publicly 7483 or e-mail Nuclear Regulatory Commission (NRC) disclosed. [email protected]. received a license amendment The NRC requests that any party SUPPLEMENTARY INFORMATION: On application from Westinghouse Electric soliciting or aggregating comments September 6, 2011 (76 FR 55137), the Company LLC (WEC or the licensee), received from other persons for NRC published a notice of issuance and pertaining to its planned disposal of submission to the NRC inform those availability of DG–1278. By e-mail dated NRC-licensed source, byproduct, and persons that the NRC will not edit their October 11, 2011, the Nuclear Energy special nuclear materials. Regarding this comments to remove any identifying or Institute (ADAMS Accession No. material, WEC seeks approval, pursuant

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to Title 10 of the Code of Federal section, in preparing the EA. For this decommissioning of facilities Regulations (10 CFR) 20.2002, of action, a Notice of Availability specifically licensed for possession and proposed disposal procedures which are containing a draft EA and draft Finding use of special nuclear material (SNM) be not otherwise authorized by NRC of No Significant Impact (ADAMS No. completed and approved by the NRC regulations. WEC holds NRC License ML110870992) was prepared and after licensed activities cease. The no No. SNM–33, which authorizes the published in the Federal Register on action alternative would cause WEC to licensee to conduct decommissioning April 25, 2011. No comments were continue environmental monitoring and activities at its former fuel cycle facility received. surveillance, and to maintain located in Festus, Missouri. Since the II. EA Summary administrative and engineered controls fuel cycle facility operations have that are required to ensure facility safety ceased, the Hematite site is undergoing Under 10 CFR 20.2002, WEC proposes and security. Environmental impacts of preparation for decommissioning of the to dispose of about 23,000 m3 (30,000 the no-action alternative would be site. The facility is now referred to as yd3) of low level waste (LLW) from the bounded by impacts associated with the Hematite Decommissioning Project HDP that contains byproduct and normal operation of the facility prior to (HDP). The amendment request seeks special nuclear material at the USEI decommissioning. authorization allowing WEC to transfer hazardous waste disposal facility near Another alternative considered to the decommissioning waste to U.S. Ecology Grand View, Idaho. The LLW will be proposed action for disposal of LLW Idaho, Inc. (USEI), a Resource generated as part of decommissioning generated by decommissioning activities Conservation and Recovery Act Subtitle activities, which will include at the HDP is disposal of LLW in exhumation of existing burial pits, as C disposal facility located near Grand facilities specifically licensed by NRC described in the Hematite DP. There are View, Idaho. This facility is regulated by Agreement States for storage or disposal 40 unlined pits, each of which is the Idaho Department of Environmental of LLW. For the EA, the NRC evaluated approximately 12 meters (40 feet) long, Quality, and is not an NRC-licensed an alternative licensed facility available 6 meters (20 feet) wide, and 3.6 meters facility. Pursuant to 10 CFR 30.11 and to HDP—the EnergySolutions, LLC (12 feet) deep. The pits were used to 70.17, WEC’s application also requested (EnergySolutions) hazardous and dispose of waste generated by the exemptions from the licensing radioactive waste disposal facility near former owners of the facility from 1965 requirements of 10 CFR 30.3 and 70.3 Clive, Utah. to 1971. In addition, there are an for the byproduct and special nuclear The EnergySolutions LLW facility material it seeks to transfer. These estimated 20–25 burials for which there are no records. These burials are routinely manages amounts of LLW exemptions are necessary because the believed to be in the area between the above ground that contain low disposal of byproduct and special documented Burial Pits and the site concentrations of SNM, but in total nuclear material must occur at a facility buildings, under roadways in the quantities in excess of the critical mass licensed to possess such material, and eastern portion of the central tract area limits in 10 CFR part 150. Part 150 the USEI facility has no NRC license. of the HDP site. Additionally impacted provides that Agreement States may On July 6, 2009, the NRC issued a material may come from underneath the only license possession of quantities of Notice of Opportunity for Hearing site buildings. SNM up to the critical mass limits (e.g., (Agencywide Documents Access and In 2002, Westinghouse and the 350 g U–235, 200 g Pu-239). Above Management System (ADAMS) No. Missouri Department of Natural these limits, persons need a license from ML091740733) on the May 21, 2009, Resources (MDNR) entered into a Letter the NRC, in addition to the Agreement WEC license amendment request Agreement, which, among other things, State license. EnergySolutions has an (ADAMS No. ML091480071). The provided for MDNR oversight of certain NRC exemption from the requirements original notice of opportunity was studies and response actions in for an NRC license, provided certain extended to October 5, 2009, by Order accordance with the National Oil and conditions, as specified by an NRC dated September 4, 2009 (ADAMS No. Hazardous Substances Pollution Order, are met. At Clive, the NRC has ML092470425). On July 28, 2009, the Contingency Plan (NCP) under the specified SNM concentration limits, in NRC held a public meeting in the requirements of the Comprehensive lieu of mass limits, to ensure criticality community of Grand View, Idaho, to Environmental Response, safety. The NRC staff determined that inform the public and to provide an Compensation, and Liability Act, 42 there is no significant difference in the opportunity for the public to provide U.S.C. 9601 et seq. Subsequently, environmental impacts that result from comments and ask questions of the NRC Missouri and Westinghouse entered into WEC decision to utilize the USEI site for staff. On August 12, 2009, WEC a Consent Decree, and the Letter disposal of its waste as opposed to the submitted a Decommissioning Plan (DP) Agreement was terminated. The Consent EnergySolutions site. [ADAMS Nos. ML092330123, Decree provides for MDNR oversight of III. Finding of No Significant Impact ML092330125, ML092330127, those portions of the investigation and ML092330129, ML092330131, and selection of the remedy for Operable The NRC has concluded that the ML092330132] and supporting Units at the site that are not preempted proposed action to grant a license documents. This DP superseded all by the Atomic Energy Act of 1954, as amendment to WEC HDP, and an previous DPs for the HDP. An amended. exemption to USEI from the Environmental Report (ADAMS Nos. The no-action alternative was requirements for a license under 10 CFR ML092870403 and ML092870405) was considered for the site. The no-action 30.3 and 70.3 with respect to HDP’s included among the supporting alternative involves discontinuing disposal of approximately 23,000 m3 documents for the DP. The NRC relied ongoing decommissioning activities at (30,000 yd3) of soil and debris upon the information provided in the the HDP and leaving decommissioning containing low concentrations of May 21, 2009, license amendment waste, including waste buried in over 40 byproduct material and SNM, is request, the July 28, 2009, public documented onsite trenches, at the HDP authorized by law and will not endanger meeting, the July 2009 WEC site. This action would require an life or property or the common defense Environmental Report, and other exemption from the requirement in and security and is otherwise in the sources as noted in the EA’s references 70.38(d) of 10 CFR part 70 that public interest.

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On the basis of the EA, the NRC has PENSION BENEFIT GUARANTY 326–4024. (For TTY/TDD users, call the concluded that there are no significant CORPORATION Federal relay service toll-free at 1–800– environmental impacts and the issuance 877–8339 and ask to be connected to of a license amendment does not Proposed Submission of Information 202–326–4024.) warrant the preparation of an Collection for OMB Review; Comment SUPPLEMENTARY INFORMATION: PBGC’s Environmental Impact Statement. Request; Survey of Nonparticipating regulations prescribe actuarial valuation Accordingly, it has been determined Single Premium Group Annuity Rates methods and assumptions (including that a Finding of No Significant Impact AGENCY: Pension Benefit Guaranty interest rate assumptions) to be used in is appropriate. Corporation. determining the actuarial present value of benefits under single-employer plans ACTION: Notice of Intent to Request IV. Further Information that terminate (29 CFR part 4044) and Extension of OMB approval of under multiemployer plans that Documents related to this action, Information Collection. undergo a mass withdrawal of including the letter requesting the contributing employers (29 CFR part amendment and supporting SUMMARY: The Pension Benefit Guaranty 4281). Each month PBGC publishes the documentation, are available Corporation (‘‘PBGC’’) intends to request that the Office of Management interest rates to be used under those electronically at the NRC’s Electronic regulations for plans terminating or Reading Room at http://www.nrc.gov/ and Budget (‘‘OMB’’) extend approval, under the Paperwork Reduction Act, of undergoing mass withdrawal during the reading-rm/adams.html. The ADAMS a collection of information that is not next month. accession numbers for the documents contained in a regulation (OMB control The interest rates are intended to related to this notice are: number 1212–0030; expires March 31, reflect current conditions in the annuity (1) Hematite Decommissioning Project 2012). This voluntary collection of markets. To determine these interest Environmental Report (ML092870403 information is a quarterly survey of rates, PBGC gathers pricing data from and ML092870405); insurance company rates for pricing insurance companies that are providing annuity contracts to terminating (2) Hematite Decommissioning Plan annuity contracts. The American pension plans through a quarterly (ML092330123, ML092330125, Council of Life Insurers conducts this survey for PBGC. This notice informs ‘‘Survey of Nonparticipating Single ML092330127, ML092330129, Premium Group Annuity Rates.’’ The ML092330131, and ML092330132); the public of PBGC’s intent and solicits public comment on the collection of American Council of Life Insurers (3) Hematite Supplemental information. distributes the survey and provides Characterization Report—Books 1 and 2 PBGC with ‘‘blind’’ data (i.e., PBGC is (ML092870496 and ML092870506); DATES: Comments should be submitted unable to match responses with the by December 23, 2011. (4) Environmental Assessment companies that submitted them). PBGC ADDRESSES: Comments may be (ML110870992); and also uses the information from the submitted by any of the following survey in determining the interest rates (5) Notice of Opportunity for Hearing methods: it uses to value benefits payable to (ML091740733). Federal eRulemaking Portal: http:// participants and beneficiaries in PBGC- If you do not have access to ADAMS www.regulations.gov. Follow the Web trusteed plans for purposes of PBGC’s or if there are problems in accessing the site instructions for submitting financial statements. documents located in ADAMS, contact comments. The survey is directed at insurance the NRC’s Public Document Room (PDR) E-mail: companies that have volunteered to Reference staff at 800–397–4209, 301– [email protected]. participate, most or all of which are 415–4737, or by e-mail to Fax: 202–326–4224. members of the American Council of Mail or Hand Delivery: Legislative and [email protected]. Life Insurers. The survey is conducted Regulatory Department, Pension Benefit quarterly and will be sent to These documents may also be viewed Guaranty Corporation, 1200 K Street, approximately 22 insurance companies. electronically on the public computers NW., Washington, DC 20005–4026. Based on experience under the current located at the NRC’s PDR, O–1 F21, One PBGC will make all comments available approval, PBGC estimates that 6 White Flint North, 11555 Rockville on its Web site at http://www.pbgc.gov. insurance companies will complete and Pike, Rockville, MD 20852. The PDR Copies of the collection of return the survey. PBGC further reproduction contractor will copy information may be obtained without estimates that the average annual documents for a fee. charge by writing to the Disclosure burden of this collection of information Dated at Rockville, Maryland this 13th day Division of the Office of the General is 12 hours and $360. of October, 2011. Counsel of PBGC at the above address, OMB has approved this collection of visiting the Disclosure Division, faxing For the Nuclear Regulatory Commission. information under control number a request to 202–326–4042, or calling 1212–0030 through March 31, 2012. Keith I. McConnell, 202–326–4040 during normal business PBGC intends to request that OMB Deputy Director, Decommissioning and hours. (TTY and TDD users may call the extend its approval for another three Uranium Recovery Licensing Directorate, Federal relay service toll-free at 1–800– years. An agency may not conduct or Division of Waste Management and 877–8339 and ask to be connected to sponsor, and a person is not required to Environmental Protection, Office of Federal 202–326–4040.) respond to, a collection of information and State Materials and Environmental FOR FURTHER INFORMATION CONTACT: unless it displays a currently valid OMB Management Programs. Thomas H. Gabriel, Attorney, or control number. [FR Doc. 2011–27402 Filed 10–21–11; 8:45 am] Catherine B. Klion, Manager, Regulatory PBGC is soliciting public comments BILLING CODE 7590–01–P and Policy Division, Legislative and to— Regulatory Department, Pension Benefit • Evaluate whether the collection of Guaranty Corporation, 1200 K Street, information is necessary for the proper NW., Washington, DC 20005–4026, 202– performance of the functions of the

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agency, including whether the revision, change, or addition. The Postal USPS 200.000 information will have practical utility; ServiceTM has reviewed its systems of SYSTEM NAME: • Evaluate the accuracy of the records and has determined that these agency’s estimate of the burden of the seventeen General Privacy Act Systems Labor Relations Records. collection of information, including the of Records should be revised to modify USPS 500.200 validity of the methodology and the system manager(s) and address and assumptions used; notification procedure. SYSTEM NAME: • Enhance the quality, utility, and I. Background Controlled Correspondence, FOIA, clarity of the information to be and Privacy Act Disclosure Records collected; and In 2011, the Postal Service under • Minimize the burden of the went a significant management and USPS 600.000 collection of information on those who organizational re-design. Many are to respond, including through the executive titles were updated to reflect SYSTEM NAME: use of appropriate automated, the new responsibilities of the Legal Records Related to Mail leadership teams. These changes are electronic, mechanical, or other USPS 600.100 technological collection techniques or proposed for the reasons discussed other forms of information technology, below. SYSTEM NAME: e.g., permitting electronic submission of II. Rationale for Changes to USPS General Legal Records responses. Privacy Act Systems of Records USPS 600.200 Issued in Washington, DC, this 18th day of On January 14, 2011, Patrick Donahoe October, 2011. was sworn in as the 73rd Postmaster SYSTEM NAME: John H. Hanley, General of the United States. Under his Privacy Act and FOIA Appeal and Director, Legislative and Regulatory leadership, some officer titles were Litigation Records Department, Pension Benefit Guaranty changed to meet the new structure of Corporation. the revised organization. USPS 600.300 [FR Doc. 2011–27411 Filed 10–21–11; 8:45 am] SYSTEM NAME: BILLING CODE 7700–01–P III. Description of Changes to Systems of Records Public and Confidential Financial The Postal Service is modifying Disclosure Reports POSTAL SERVICE seventeen systems of records: USPS USPS 600.400 200.000, Labor Relations Records; USPS Privacy Act of 1974; System of 500.200, Controlled Correspondence, SYSTEM NAME: Records FOIA, and Privacy Act Disclosure Administrative Litigation Records Records; USPS 600.000, Legal Records AGENCY: Postal Service.TM Related to Mail; USPS 600.100, General USPS 810.100 ACTION: Notice of modification to Legal Records; USPS 600.200, Privacy SYSTEM NAME: existing systems of records. Act and FOIA Appeal and Litigation http://www.usps.com Registration SUMMARY: The United States Postal Records; USPS 600.300, Public and Service® is proposing to modify Confidential Financial Disclosure USPS 810.300 seventeen of its General Privacy Act Reports; USPS 600.400, Administrative SYSTEM NAME: Systems of Records. These Litigation Records; USPS 810.100, modifications reflect the title and http://www.usps.com Registration; Offline Registration, Payment, and address changes resulting from an USPS 810.300, Offline Registration, Fulfillment Payment, and Fulfillment; USPS organizational re-design of the Postal USPS 820.100 Service. 820.100, Mailer Services—Applications and Approvals; USPS 820.200, Mail SYSTEM NAME: DATES: The revision will become Management and Tracking Activity; effective without further notice on Mailer Services—Applications and USPS 870.100, Trust Funds and Approvals October 24, 2011 unless comments Transaction Records; USPS 870.200, received on or before that date result in Postage Meter and PC Postage Customer USPS 820.200 a contrary determination. Data and Transaction Records; USPS SYSTEM NAME: ADDRESSES: Comments may be mailed 880.000, Post Office and Retail Services; or delivered to the Records Office, USPS 890.000, Sales, Marketing, Events, Mail Management and Tracking United States Postal Service, 475 and Publications; USPS 900.000, Activity L’Enfant Plaza, SW., Room 4541, International Services; and USPS USPS 870.100 Washington, DC 20260–2201. Copies of 910.000, Identity and Document all written comments will be available Verification Services. Pursuant to SYSTEM NAME: at this address for public inspection and 5 U.S.C. 552a(e)(11), interested persons Trust Funds and Transaction Records photocopying between 8 a.m. and are invited to submit written data, 4 p.m., Monday through Friday. views, or arguments on this proposal. A USPS 870.200 FOR FURTHER INFORMATION CONTACT: Jane report of the proposed modification has SYSTEM NAME: Eyre, Manager, Records Office, 202– been sent to Congress and to the Office 268–2608. of Management and Budget for their Postage Meter and PC Postage Customer Data and Transaction Records SUPPLEMENTARY INFORMATION: This evaluation. The Postal Service does not notice is in accordance with the Privacy expect this amended notice to have any USPS 880.000 Act requirement that agencies publish adverse effect on individual privacy their amended systems of records in the rights. The Postal Service proposes SYSTEM NAME: Federal Register when there is a amending the systems as shown below: Post Office and Retail Services

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USPS 890.000 General Counsel and Executive Vice 475 L’Enfant Plaza, SW., Washington, President, United States Postal Service, DC 20260. SYSTEM NAME: 475 L’Enfant Plaza, SW., Washington, * * * * * Sales, Marketing, Events, and DC 20260. Publications * * * * * USPS 820.100 USPS 900.000 SYSTEM NAME: USPS 600.200 SYSTEM NAME: Mailer Services—Applications and SYSTEM NAME: Approvals. International Services Privacy Act and FOIA Appeal and SYSTEM MANAGER(S) AND ADDRESS: USPS 910.000 Litigation Records. [CHANGE TO READ] SYSTEM NAME: SYSTEM MANAGER(S) AND ADDRESS: President and Chief Marketing/Sales Identity and Document Verification [CHANGE TO READ] Officer, United States Postal Service, Services General Counsel and Executive Vice 475 L’Enfant Plaza, SW., Washington, President, United States Postal Service, DC 20260. USPS 200.000 475 L’Enfant Plaza, SW., Washington, * * * * * SYSTEM NAME: DC 20260. USPS 820.200 Labor Relations Records. * * * * * SYSTEM NAME: SYSTEM MANAGER(S) AND ADDRESS: USPS 600.300 Mail Management and Tracking * * * * * SYSTEM NAME: Activity. [CHANGE TO READ] For records of non-REDRESS ADR Public and Confidential Financial SYSTEM MANAGER(S) AND ADDRESS: staff providers: General Counsel and Disclosure Reports. [CHANGE TO READ] Executive Vice President, United States SYSTEM MANAGER(S) AND ADDRESS: President and Chief Marketing/Sales Postal Service, 475 L’Enfant Plaza, SW., [CHANGE TO READ] Officer, United States Postal Service, Washington, DC 20260. General Counsel and Executive Vice 475 L’Enfant Plaza, SW., Washington, * * * * * President, United States Postal Service, DC 20260. * * * * * USPS 500.200 475 L’Enfant Plaza, SW., Washington, DC 20260. USPS 870.100 SYSTEM NAME: * * * * * Controlled Correspondence, FOIA, SYSTEM NAME: and Privacy Act Disclosure Records. USPS 600.400 Trust Funds and Transaction Records.

SYSTEM MANAGER(S) AND ADDRESS: SYSTEM NAME: SYSTEM MANAGER(S) AND ADDRESS: * * * * * Administrative Litigation Records. [CHANGE TO READ] [CHANGE TO READ] SYSTEM MANAGER(S) AND ADDRESS: President and Chief Marketing/Sales For other correspondence in this Officer, United States Postal Service, system: Vice President, Government * * * * * 475 L’Enfant Plaza, SW., Washington, Relations and Public Policy, United [CHANGE TO READ] DC 20260. General Counsel and Executive Vice States Postal Service, 475 L’Enfant * * * * * Plaza, SW., Washington, DC 20260. President, United States Postal Service, For FOIA and Privacy Act requests: 475 L’Enfant Plaza, SW., Washington, USPS 870.200 General Counsel and Executive Vice DC 20260. SYSTEM NAME: President, United States Postal Service, * * * * * 475 L’Enfant Plaza, SW., Washington, Postage Meter and PC Postage USPS 810.100 DC 20260. Customer Data and Transaction Records. * * * * * SYSTEM NAME: SYSTEM MANAGER(S) AND ADDRESS: USPS 600.000 http://www.usps.com Registration. [CHANGE TO READ] Vice President, Mail Entry and SYSTEM MANAGER(S) AND ADDRESS: SYSTEM NAME: Payment Technology, United States Legal Records Related to Mail. [CHANGE TO READ] Postal Service, 475 L’Enfant Plaza, SW., President and Chief Marketing/Sales Washington, DC 20260. SYSTEM MANAGER(S) AND ADDRESS: Officer, United States Postal Service, * * * * * [CHANGE TO READ] 475 L’Enfant Plaza, SW., Washington, General Counsel and Executive Vice DC 20260. USPS 880.000 President, United States Postal Service, * * * * * SYSTEM NAME: 475 L’Enfant Plaza, SW., Washington, DC 20260. USPS 810.300 Post Office and Retail Services. * * * * * SYSTEM NAME: SYSTEM MANAGER(S) AND ADDRESS: USPS 600.100 Offline Registration, Payment, and [CHANGE TO READ] Fulfillment. President and Chief Marketing/Sales SYSTEM NAME: Officer, United States Postal Service, SYSTEM MANAGER(S) AND ADDRESS: General Legal Records. 475 L’Enfant Plaza, SW., Washington, [CHANGE TO READ] DC 20260. SYSTEM MANAGER(S) AND ADDRESS: President and Chief Marketing/Sales Vice President, Delivery and Post [CHANGE TO READ] Officer, United States Postal Service, Office Operations, United States Postal

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Service, 475 L’Enfant Plaza, SW., Manager, Business Development and Commission, and recording secretaries Washington, DC 20260. Identity Protection Services, United will attend the Closed Meeting. Certain Vice President, Global Business, States Postal Service, 475 L’Enfant staff members who have an interest in United States Postal Service, 475 Plaza, SW., Room 5806, Washington, DC the matters also may be present. L’Enfant Plaza, SW., Washington, DC 20260. The General Counsel of the 20260. * * * * * Commission, or his designee, has * * * * * certified that, in his opinion, one or Stanley F. Mires, more of the exemptions set forth in USPS 890.000 Attorney, Legal Policy & Legislative Advice. 5 U.S.C. 552b(c)(3), (5), (7), 9(B) and (10) [FR Doc. 2011–27362 Filed 10–21–11; 8:45 am] and 17 CFR 200.402(a)(3), (5), (7), 9(ii) SYSTEM NAME: BILLING CODE 7710–12–P and (10) permit consideration of the Sales, Marketing, Events, and scheduled matter at the Closed Meeting. Publications. Commissioner Paredes, as duty SYSTEM MANAGER(S) AND ADDRESS: SECURITIES AND EXCHANGE officer, voted to consider the items listed for the Closed Meeting in a closed [CHANGE TO READ] COMMISSION session. President and Chief Marketing/Sales Sunshine Act Meeting The subject matter of the Closed Officer, United States Postal Service, Meeting scheduled for Wednesday, 475 L’Enfant Plaza, SW., Washington, Notice is hereby given, pursuant to October 26, 2011 will be: DC 20260. the provisions of the Government in the [ADD TEXT] Sunshine Act, Public Law 94–409, that Institution and settlement of injunctive Vice President, Consumer and the Securities and Exchange actions; Institution and settlement of Industry Affairs, United States Postal Commission will hold an Open Meeting administrative proceedings; Service, 475 L’Enfant Plaza, SW., on Wednesday, October 26, 2011 at 10 A litigation matter; and Washington, DC 20260. a.m., in the Auditorium, Room L–002. Other matters relating to enforcement The subject matter of the Open * * * * * proceedings. Meeting will be: NOTIFICATION PROCEDURE: The Commission will consider At times, changes in Commission * * * * * whether to adopt a rule requiring priorities require alterations in the [CHANGE TO READ] advisers to hedge funds and other scheduling of meeting items. Customers wanting to know if other private funds to report information for For further information and to information about them is maintained in use by the Financial Stability Oversight ascertain what, if any, matters have been this system of records must address Council in monitoring risk to the U.S. added, deleted or postponed, please inquiries in writing to the President and financial system. The new Advisers Act contact: Chief Marketing/Sales Officer, and rule would implement sections 404 and The Office of the Secretary at (202) include their name and address. 406 of the Dodd-Frank Act. 551–5400. * * * * * Commissioner Paredes, as duty October 19, 2011. officer, determined that no earlier notice Elizabeth M. Murphy, USPS 900.000 thereof was possible. Secretary. At times, changes in Commission SYSTEM NAME: [FR Doc. 2011–27518 Filed 10–20–11; 11:15 am] priorities require alterations in the BILLING CODE 8011–01–P International Services. scheduling of meeting item. SYSTEM MANAGER(S) AND ADDRESS: For further information and to ascertain what, if any, matters have been [CHANGE TO READ] SECURITIES AND EXCHANGE added, deleted or postponed, please Vice President, Global Business, COMMISSION contact: United States Postal Service, 475 The Office of the Secretary at (202) [Release No. 34–65585; File No. SR–FINRA– L’Enfant Plaza, SW., Washington, DC 551–5400. 2011–057] 20260. * * * * * Dated: October 20, 2011. Self-Regulatory Organizations; Elizabeth M. Murphy, Financial Industry Regulatory USPS 910.000 Secretary. Authority, Inc.; Notice of Filing of Proposed Rule Change To Adopt New SYSTEM NAME: [FR Doc. 2011–27562 Filed 10–20–11; 4:15 pm] BILLING CODE 8011–01–P FINRA Rule 5123 (Private Placements Identity and Document Verification of Securities) Services. October 18, 2011. SYSTEM MANAGER(S) AND ADDRESS: SECURITIES AND EXCHANGE COMMISSION Pursuant to Section 19(b)(1) of the [CHANGE TO READ] Securities Exchange Act of 1934 President and Chief Marketing/Sales Sunshine Act Meeting (‘‘Exchange Act’’) 1 and Rule 19b–4 Officer, United States Postal Service, thereunder,2 notice is hereby given that 475 L’Enfant Plaza, SW., Washington, Notice is hereby given, pursuant to on October 5, 2011, Financial Industry DC 20260. the provisions of the Government in the Regulatory Authority, Inc. (‘‘FINRA’’) * * * * * Sunshine Act, Public Law 94–409, that filed with the Securities and Exchange the Securities and Exchange Commission (‘‘SEC’’ or ‘‘Commission’’) NOTIFICATION PROCEDURE: Commission will hold a Closed Meeting the proposed rule change as described [DELETE TEXT] on Wednesday, October 26, 2011 at in Items I, II, and III below, which Items For authentication services, electronic 1 p.m. postmarks, and digital certificates, Commissioners, Counsel to the 1 15 U.S.C. 78s(b)(1). inquiries should be addressed to: Commissioners, the Secretary to the 2 17 CFR 240.19b–4.

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have been prepared by FINRA. The detailed information about the intended • Qualified purchasers, as defined in Commission is publishing this notice to use of offering proceeds, the offering Section 2(a)(51)(A) of the Investment solicit comments on the proposed rule expenses and offering compensation. In Company Act; change from interested persons. addition, new Rule 5123 would provide • Qualified institutional buyers, as FINRA, through a member ‘‘notice’’ defined in Securities Act Rule 144A; I. Self-Regulatory Organization’s filing requirement, with more timely • Investment companies, as defined Statement of the Terms of Substance of and detailed information about the in Section 3 of the Investment Company the Proposed Rule Change private placement activities of member Act; FINRA is proposing to adopt FINRA firms. • An entity composed exclusively of Rule 5123, which as described further Rule 5123(a) would prohibit a qualified institutional buyers, as defined below, would require that members and member or person associated with a in Securities Act Rule 144A; associated persons that offer or sell member from offering or selling any • Banks, as defined in Section 3(a)(2) applicable private placements (as security conducted in reliance on an of the Securities Act; and described in the Rule), or participate in available exemption from registration • Employees and affiliates of the the preparation of private placement under the Securities Act of 1933 issuer. memoranda (‘‘PPM’’), term sheets or (‘‘Securities Act’’) (‘‘private In addition, the Rule would exempt other disclosure documents in placement’’), or participating in the the following types of offerings: connection with such private preparation of a PPM, term sheet or • Offerings of exempted securities, as placements, provide relevant other disclosure document for such defined by Section 3(a)(12) of the disclosures to each investor prior to sale private placement, unless certain Exchange Act; • describing the anticipated use of conditions are met. In particular, the Offerings made pursuant to offering proceeds, and the amount and member or associated person must Securities Act Rule 144A or SEC type of offering expenses and offering provide a PPM or term sheet to each Regulation S; • compensation. FINRA Rule 5123 also investor prior to sale that describes the Offerings of exempt securities with would require that the PPM, term sheet anticipated use of offering proceeds, the short term maturities under Section or other disclosure document, and any amount and type of offering expenses, 3(a)(3) of the Securities Act; • exhibits thereto, be filed with FINRA no and the amount and type of Offerings of subordinated loans later than 15 calendar days after the date compensation provided or to be under Exchange Act Rule 15c3–1, of the first sale, and any material provided to sponsors, finders, Appendix D (see NASD Notice to Members 02–32 (June 2002)); amendments to such document, or any consultants, and members and their • amendments to the disclosures associated persons in connection with Offerings of ‘‘variable contracts’’ as defined in Rule 2320(b)(2); mandated by the Rule, be filed no later the offering. In addition, in a private • than 15 calendar days after the date placement without a PPM or term sheet, Offerings of modified guaranteed such document is provided to any a member or person associated with a annuity contracts and modified investor or prospective investor, as member must prepare a document that guaranteed life insurance policies, as referenced in Rule 5110(b)(8)(E); discussed further below. contains these disclosures and must • The text of the proposed rule change provide the document to each investor Offerings of non-convertible debt or is available on FINRA’s Web site at prior to sale. preferred securities by issuers that meet Proposed Rule 5123(b) would require the eligibility criteria for incorporation http://www.finra.org, at the principal 4 office of FINRA and for Web site ‘‘notice’’ filings of members’ private by reference in Forms S–3 and F–3; • Offerings of securities issued in viewing and printing at the placement activities. Specifically, the conversions, stock splits and Commission’s Public Reference Room. proposed Rule would require participating members to file the PPM, restructuring transactions that are II. Self-Regulatory Organization’s term sheet or other disclosure document executed by an already existing investor Statement of the Purpose of, and (including exhibits) with FINRA no later without the need for additional Statutory Basis for, the Proposed Rule than 15 calendar days after the date of consideration or investments on the part Change of the investor; first sale, and to file any material • In its filing with the Commission, amendments to such document, or any Offerings of securities of a FINRA included statements concerning amendments to the disclosures commodity pool operated by a the purpose of and basis for the mandated by the Rule, with FINRA no commodity pool operator as defined proposed rule change and discussed any later than 15 calendar days after the date under Section 1a(11) of the Commodity comments it received on the proposed such document is provided to any Exchange Act; and • Offerings filed with FINRA under rule change. The text of these statements investor or prospective investor. may be examined at the places specified Proposed Rule 5123(c) would exempt Rules 2310, 5110, 5121 and 5122. in Item IV below. FINRA has prepared from the requirements of the Rule These proposed exemptions are very summaries, set forth in sections A, B, several types of private placements. similar to the exemptions in existing and C below, of the most significant Exemptions include offerings sold only Rule 5122 (Member Private Offerings), aspects of such statements. to any one or more of the following upon which proposed Rule 5123 is purchasers: A. Self-Regulatory Organization’s • Approves Consolidated FINRA Rules Governing Institutional accounts, as defined in Books and Records). The text of proposed Rule 5123 Statement of the Purpose of, and 3 NASD Rule 3110(c)(4); will be amended to reflect this change after SR– Statutory Basis for, the Proposed Rule FINRA–2010–052 becomes effective. Change 3 The SEC approved SR–FINRA–2010–052, 4 FINRA notes that the Commission recently which, when it becomes effective on December 5, adopted amendments to remove any references to 1. Purpose 2011, will transfer the definition of ‘‘institutional credit ratings from its rules and forms promulgated FINRA is proposing to adopt new accounts’’ currently found in NASD Rule 3110(c)(4) under the Securities Act and the Exchange Act. See, to FINRA Rule 4512(c). See Securities Exchange Act e.g., Security Ratings, Securities Act Release No. Rule 5123 (Private Placements of Release No. 63784 (January 27, 2011), 76 FR 5850 9245 (July 27, 2011), 76 FR 46603 (August 3, 2011). Securities) to ensure that investors in (February 2, 2011) (Approving SR–FINRA–2010– FINRA is proposing to use the references described private placements are provided 052); Regulatory Notice 11–19 (April 2011) (SEC therein in the proposed rule change.

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based. The only differences in the provide FINRA with more timely and comments and FINRA’s response is exemptions are that the current detailed information about the private provided below. proposed Rule would not exempt (1) placement activities of member firms. The 11–04 Proposal Offerings in which a member acts in a As a result, FINRA believes that wholesaling capacity and (2) offerings of ensuring that investors have information The 11–04 Proposal would have certain credit derivatives, both of which about private placements will provide extended virtually all of the existing are exempted from Rule 5122.5 important investor protections in requirements of Rule 5122, i.e., those Wholesaling is typically engaged in by connection with private placements requiring disclosure, filing and broker-dealers affiliated with the issuer, without unduly restricting capital limitations on the use of offering and for reasons described in Section 5 formation through the private placement proceeds, to all private placements in below, FINRA does not intend to offering process. In addition, FINRA which a member participates (subject to incorporate that exemption into believes that the proposed rule change the listed exemptions). While many proposed Rule 5123. The exemption for will assist its efforts to identify commenters expressed support for the 7 offerings of equity and credit derivatives problematic terms and conditions in 11–04 Proposal, many, as discussed was intended to avoid attributing private placements, thereby helping to below, were critical of various certain derivative products on detect and prevent fraud in connection provisions. Most criticisms concerned unaffiliated issuers as a ‘‘member with private placements. proposed requirements regarding the private offering.’’ However, since use of offering proceeds and filing. B. Self-Regulatory Organization’s proposed Rule 5123 would apply to all FINRA has considered the comments Statement on Burden on Competition offerings in which a member received in response to the 11–04 Proposal. The proposed rule change participates, that distinction is not FINRA does not believe that the balances the goals of ensuring investors relevant to Rule 5123. proposed rule change will result in any and FINRA receive key information Proposed Rule 5123 contains burden on competition that is not about private placements while provisions identical to those in current necessary or appropriate in furtherance maintaining the flexibility and Rule 5122 regarding confidential of the purposes of the Exchange Act. expediency offered by private treatment and application for The proposed rule change requires that placements. Based on these exemption. Pursuant to proposed members and associated persons considerations, the current proposed paragraph 5123(d), FINRA would accord provide relevant disclosures to each confidential treatment to all documents rule change differs in several key investor prior to the sale of applicable respects from the 11–04 Proposal. and information filed pursuant to the private placements, and file disclosure Rule, and would use such documents documents with FINRA no later than 15 Comments Regarding Use of Offering and information solely for the purpose calendar days after the date of the first Proceeds of determining compliance with FINRA sale (or, in the case of material The issue generating the most rules or other applicable regulatory amendments, the date provided to an comment was the proposed use of purposes. Proposed paragraph 5123(e) investor or prospective investor). As proceeds limitation (i.e., the proposed would provide members a method for noted above, FINRA does not believe requirement that 85 percent of the application for an exemption from the that the proposed rule change will proceeds raised be used for the business provisions of the Rule for good cause unduly restrict capital formation purposes described in the disclosure pursuant to the Rule 9600 Series. through the private placement offering document). Many commenters FINRA will announce the process. FINRA believes that the expressed concerns about the ability of implementation date of the proposed relatively modest ‘‘burden’’ of the members to monitor an issuer’s use of rule change no later than 90 days proposed rule change is both necessary proceeds and the Rule’s potential for following Commission approval. The and appropriate in helping to prevent additional liability if the use of proceeds implementation date will be no more fraudulent and manipulative acts and deviates from that provided in the than 180 days following Commission practices, to promote just and equitable required disclosure document.8 Some approval. principles of trade, and, in general, to raised concerns that, as written, the 2. Statutory Basis protect investors and the public interest. proposed Rule would impose burdens on or attempt to regulate non-FINRA FINRA believes that the proposed rule C. Self-Regulatory Organization’s 9 Statement on Comments on the members. change is consistent with the provisions Some commenters asserted the Proposed Rule Change Received From of Section 15A(b)(6) of the Exchange proposed 85 percent limitation was an 6 Members, Participants, or Others Act, which requires, among other arbitrary ‘‘one size fits all’’ approach things, that FINRA rules must be In January 2011, FINRA published and could be a barrier to capital designed to prevent fraudulent and Regulatory Notice 11–04 requesting formation, especially for smaller manipulative acts and practices, to comment on proposed amendments to offerings or other specific types of promote just and equitable principles of expand Rule 5122 (the ‘‘11–04 offerings.10 Commenters suggested that trade, and, in general, to protect Proposal’’). A copy of the Notice is the fixed costs of smaller offerings, or investors and the public interest. The available on FINRA’s Web site at http: higher cost of specific types of offerings, proposed rule change will provide //www.finra.org. The comment period investors in private placements with expired on March 14, 2011. FINRA 7 See, e.g., letters from Cornell, FSI, Intellivest detailed information about the intended received 35 comments in response to Securities, Mick & Associates, NIBA and WSI. 8 See letters from 3PM, ABA, AOG, George, IPA, use of offering proceeds, the offering the Notice. A list of the commenters and expenses and offering compensation. In NYC Bar, NY State Bar, NIBA, Secore & Waller, abbreviations that were received in SIFMA and Sullivan & Cromwell. addition, the proposed rule change will response to the Notice are attached as 9 See letters from ABA, NYC Bar, Patrick, Saxony, Exhibit A, and copies of the comment SIFMA and Sullivan & Cromwell. 5 The proposed rule change also would, as noted 10 See letters from ABA, AOG, BFS, FSI, George, supra at note 4, replace references to credit ratings letters received in response to the Notice IMS, IPA, NY State Bar, Patrick, Rothwell with alternative language. are available on FINRA’s Web site at Consulting, Saxony, Schulten Ward, Secore & 6 15 U.S.C. 78o–3(b)(6). http://www.finra.org. A summary of the Waller, WSI and Weinstein Smith.

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could make this limitation unworkable. will encourage reasonable limits on the pending FINRA staff review and that A few commenters feared that use of offering proceeds for purposes filings would not be ‘‘approved’’ nor constraints on the allowable expenses other than generating a return on would the staff issue ‘‘no-objections’’ for such offerings could force issuers to investment.15 If the rigorous application opinions, commenters raised concerns explore alternative means of raising of the reasonable inquiry obligations about potential slowdowns of offerings capital without the assistance of outlined in Regulatory Notice 10–22 due to the filing requirement. Several member firms, including the use of does not achieve this result, FINRA will commenters believed that the 11–04 finders and unregistered persons.11 In reconsider the imposition of numerical Proposal’s filing requirement could addition, commenters raised limitations. In addition, eliminating the delay the offering process as firms interpretive questions regarding 85 percent requirement will simplify the would be reluctant to proceed with an whether certain expenses—including, administration of the Rule by removing offering without assurances or among other things, costs relating to due the need for members to determine clearances from FINRA.16 Commenters diligence, legal, travel, blue sky, stock whether various expenses would have also raised technical concerns about the grants, warrants, tail fees, rights of first been classified as ‘‘offering expenses,’’ proposed filing process, including refusal, conference expenses, trail fees, ‘‘compensation,’’ or ‘‘business concerns regarding who must file (e.g., management fees and appraisals and purposes’’ under the Rule. In the public each selling dealer in a private valuations—would be required to be offering context, FINRA’s Corporate placement), how members of a selling treated as ‘‘offering expenses’’ or would Financing Department staff’s review group would know if an offering constitute proceeds used for business process in connection with issuing a memorandum had been previously purposes.12 ‘‘no-objections’’ opinion ensures filed, and who bears the responsibility Some commenters recommended that consistent and accurate treatment of to file amendments.17 A few FINRA simply require greater various expenses. Since only a ‘‘notice’’ commenters, including the NYC Bar, disclosures about the various uses of filing is required in proposed Rule 5123, suggested that the application of the proceeds, offering expenses, and the lack of staff review and comment filing requirement would result in compensation as an alternative to could raise interpretive questions offerings structured to avoid application adopting a use of offering proceeds regarding the application of the 85 of the Rule, either by limiting the limitation.13 Based in large part on these percent requirement if the provision offering to exempted investors or comments, as discussed above, FINRA remained in the Rule. Lastly, moving the transaction offshore. has amended the proposal such that it eliminating the 85 percent requirement In response to these comments, no longer includes the substantive would eliminate any implication, as FINRA now proposes to require that a requirement that at least 85 percent of indicated by some comments, that the member file ‘‘no later than 15 calendar offering proceeds must be used for the 11–04 Proposal would create an days after the date of first sale.’’ This disclosed business purposes and has independent, continuing obligation for timing requirement is the same as the instead chosen to reorient the Rule members to monitor an unaffiliated filing requirement for Form D; towards disclosure. issuer’s use of proceeds after the closing synchronizing these timing While FINRA continues to believe of an offering. requirements may allow some filers to that the manner in which offering utilize operational efficiencies. proceeds are used is critically important Comments Regarding Filing Requirements Moreover, by requiring a ‘‘notice’’ filing, in a private placement—and that FINRA will remove any implication that offerings in which a large percentage of The 11–04 Proposal would have the FINRA staff will provide comments offering proceeds are for other than required a member to file information on a filing; that such filing with FINRA business purposes raise regulatory with FINRA by the time an offering could be a precondition to commencing concerns—FINRA believes that these document is provided to any investor. an offering; or that members should concerns can be addressed through the While the 11–04 Proposal states that expect to receive any FINRA staff input obligations of broker-dealers, under the offerings would not be held in abeyance before proceeding with an offering. The suitability and anti-fraud provisions of proposed filing requirement would 15 the securities laws and FINRA rules, to Members have an obligation to conduct a nevertheless provide FINRA staff with conduct a reasonable inquiry of an reasonable inquiry regarding the use of proceeds prior to making a recommendation in that security. timely access to information about the 14 issuer. FINRA appreciates the See, e.g., Regulatory Notice 10–22 (regarding private private placement business of FINRA importance of raising capital in the placements). Such a recommendation would not members. private placement market for certain comply with the requirements of FINRA’s The proposal would require that each issuers and recognizes commenters’ suitability rule if the description of the use of proceeds in the disclosure document is inconsistent member that participates in a private concerns that an across-the-board with the information obtained in the course of this placement make the requisite filing. application of the 85 percent inquiry. See NASD Rule 2310 (Recommendations to FINRA had considered requiring only requirement may impose unnecessary Customers (Suitability)). FINRA notes that the SEC one member to file, but determined that burdens on some offerings, especially has approved new FINRA Rule 2111 (Suitability). See Regulatory Notice 11–02 (January 2011) (SEC such a requirement would limit its smaller private placements. FINRA’s Approves Consolidated FINRA Rules Governing ability to gain timely access to expectation is that the reasonable Know-Your-Customer and Suitability Obligations). information about the private placement inquiry obligations of broker-dealers See also Securities Exchange Act Release No. 63325 (November 17, 2010), 75 FR 71479 (November 23, business of FINRA members that might 2010) (File No. SR–FINRA–2010–039; Order not file. Moreover, as the comment 11 See letters from ABA, Krieger & Prager and Granting Accelerated Approval, As Modified by letters indicate, requiring only one REISA. Amendment, to Proposed Rule Change to Adopt member to file would complicate the 12 See letters from ABA, IMS, Locke Lord, Mick FINRA Rules 2090 (Know Your Customer) and 2111 & Associates, Network 1, Patrick, REISA, Saxony, (Suitability) in the Consolidated FINRA Rulebook); ability of the other members to Secore & Waller, SIFMA, Sullivan & Cromwell and Securities Exchange Act Release No. 64260 (April Weinstein Smith. 8, 2011), 76 FR 20759 (April 13, 2011) (File No. SR– 16 See letters from ABA, Achates, IMS, Intellivest, 13 See letters from FSI, IPA, NIBA, REISA and FINRA–2011–016; Notice of Filing and Immediate IPA, George, LeGaye, Network 1, NIBA, NYC Bar, WSI. Effectiveness of Proposed Rule Change to Delay the NY State Bar, Patrick, REISA, Saxony, Secore & 14 See Regulatory Notice 10–22 (April 2010) Implementation Date of FINRA Rule 2090 (Know Waller and Sullivan & Cromwell. (Regulation D Offerings). Your Customer) and FINRA Rule 2111 (Suitability)). 17 See letters from Achates, FSI and Moloney.

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participate, since they would have to commodity pools and investment or similar letters by FINRA, and thus determine whether another member had funds.34 they could be discovered by a litigant filed and whether the filing complies FINRA believes the exemptions in the through appropriate legal action.39 with FINRA’s requirements. If one proposed rule change are appropriately FINRA believes that proposed paragraph member engaged in the private tailored and inclusive, and as noted 5123(d) addresses this issue and would placement under different above, are very similar to those in afford confidential treatment to all such compensation terms than another existing Rule 5122. Based upon its documents. member, then it could further experience with Rule 5122, FINRA does As a result of the differences between complicate such a single-filer regime. not believe it should expand the list of the 11–04 Proposal (and Rule 5122) and Therefore, it is more practical, and more exemptions. Further, FINRA notes that the current proposed Rule, as described helpful to FINRA’s need for timely the proposed Rule would provide a above, FINRA is proposing that the rule access to information about the private method by which a member may apply regarding private placements be a new placement business of members, to for an exemption from the provisions of rule separate from Rule 5122.40 require every member that participates the Rule for good cause pursuant to the in a particular private placement to Rule 9600 Series. III. Date of Effectiveness of the make the notice filing. Some commenters supported FINRA’s Proposed Rule Change and Timing for proposal not to incorporate the Commission Action Other Comments wholesaling exemption into the Rule,35 Within 45 days of the date of Comments regarding disclosure while others questioned the elimination 18 publication of this notice in the Federal ranged from support to requests for of this exemption, especially as the 11– Register or within such longer period (i) clarification or guidance regarding what 04 Proposal would have eliminated the as the Commission may designate up to would constitute adequate disclosure 19 exemption for member private offerings 90 days of such date if it finds such to claims that disclosure would be as well as private placements more longer period to be appropriate and duplicative of that provided to the SEC 36 generally. The basis for this publishes its reasons for so finding or pursuant to Regulation D.20 Some exemption in Rule 5122 was that (ii) as to which the self-regulatory requested clarification of specific types distribution of the private placement by organization consents, the Commission of disclosure (e.g., sponsor fees,21 non- independent retail broker-dealers would shall: (a) By order approve or variable third party costs 22 or the scope obviate the need for the rule, which disapprove such proposed rule change, of offering expenses 23). applies to private placements in which or (b) institute proceedings to determine Several commenters suggested the selling member or its control entity narrowing the scope of the Rule through whether the proposed rule change is the issuer. However, given that the should be disapproved. additional exemptions, including current proposed rule change reaches all adding exemptions for offers and sales IV. Solicitation of Comments 24 private placements, the reliance upon to: all accredited investors; small the efforts of an ‘‘independent’’ broker- groups of accredited investors; 25 or Interested persons are invited to dealer is no longer relevant. submit written data, views and alternatively a de minimis exemption Accordingly, the wholesaling exemption for sales to accredited investors; 26 other arguments concerning the foregoing, is not provided in proposed Rule 5123. registered broker-dealers in connection including whether the proposed rule Commenters also requested that the change is consistent with the Exchange with the establishment of a joint back Rule (or supplementary material) state office arrangement; 27 issuers that are Act. The Commission specifically that the exemption provisions may be requests comment on the following: reporting companies under the Federal combined without triggering the 28 • Whether the proposed rule would securities laws; knowledgeable 37 requirements of the Rule. FINRA notes impact issuers’ access to capital via the employees or officers of the issuing that the exemption provisions may be 29 private placement market, particularly company; or when there is a change combined. These exemptions are 30 small issuers. If so, how? in ownership. Others argued that derived from those in Rule 5122. In exemptions for the following types of • Whether the proposed rule would announcing the approval of Rule 5122, impact investors purchasing private securities should be added: insurance FINRA stated as follows: contracts; 31 mergers and acquisitions placement securities through a broker- structured as a stock sale either for cash Types of exemptions may be combined dealer subject to the new rule. If so, or for acquirer stock; 32 secondary sales without triggering the requirements of the how? For example, would knowledge of of securities; 33 and privately offered rule. For example, if an MPO is offered to the information contained in a both qualified purchasers and employees or mandatory disclosure improve an affiliates of the issuer or its control entities, 18 See, e.g., letter from WSI. as long as these purchasers qualify for investor’s ability to decide whether to 19 See, e.g., letter from LeGaye. exemptions under the rule, the MPO would invest in a private placement subject to 20 See letter from NY State Bar. be exempt from the rule’s requirements.38 the rule? 21 See letter from AOG. • Whether the proposed rule would 22 FINRA would make a similar statement See letter from Weinstein Smith. impact registered broker-dealers’ 23 See letters from IMS and Weinstein Smith. in connection with a Regulatory Notice participation in private placements. If 24 See letters from NYC Bar, SIFMA, Sullivan & regarding this Rule. Cromwell and Weinstein Smith. One commenter raised a concern that, so, how? 25 See letter from LeGaye. as proposed, the Rule would not afford Comments may be submitted by any 26 See letters from ABA, IMS, NYC Bar, Rothwell confidential treatment to any comment of the following methods: Consulting, SIFMA, St. Charles and Sullivan & Cromwell. 39 27 See letter from ABA. 34 See letter from MFA. See letter from ABA. 40 28 See letter from SIFMA. 35 See letters from Cornell, NIBA and SIFMA. FINRA believes that the provisions of existing 36 Rule 5122 are appropriate for the types of private 29 See letters from ABA, SIFMA and St. Charles. See letters from 3PM, LeGaye, SIFMA and WSI. offerings covered by that rule, i.e., the offering of 30 See letter from IMS. 37 See letters from ABA, NYC Bar, Rothwell securities issued by a member or its control affiliate. 31 See letter from Sutherland. Consulting and SIFMA. In addition, FINRA is not aware of any concerns 32 See letter from NYC Bar. 38 See Regulatory Notice 09–27 (May 2009) regarding the timing of Rule 5122’s filing 33 See letter from Sullivan & Cromwell. (Member Private Offerings). requirement.

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Electronic Comments 3. AOG Wealth Management (March SECURITIES AND EXCHANGE • Use the Commission’s Internet 14, 2011) (‘‘AOG’’). COMMISSION comment form (http://www.sec.gov/ 4. Balanced Financial Securities (February 12, 2011) (‘‘BFS’’). [Release No. 34–65588; File No. SR–ICC– rules/sro.shtml); or 2011–01] • Send an e-mail to rule- 5. Colonnade Securities LLC (March [email protected]. Please include File 10, 2011) (‘‘Colonnade’’). Self-Regulatory Organizations; ICE Number SR–FINRA–2011–057 on the 6. Cornell University Law School Clear Credit LLC; Order Approving subject line. (March 14, 2011) (‘‘Cornell’’). Proposed Rule Change To Add Rules 7. Financial Services Institute (March Related to the Clearing of Emerging Paper Comments 15, 2011) (‘‘FSI’’). Markets Sovereigns • Send paper comments in triplicate 8. Ken George (March 14, 2011) to Elizabeth M. Murphy, Secretary, (‘‘George’’). October 18, 2011. 9. Integrated Management Solutions Securities and Exchange Commission, I. Introduction 100 F Street, NE., Washington, DC USA LLC (March 14, 2011) (‘‘IMS’’). 20549–1090. 10. Investment Program Association On August 30, 2011, ICE Clear Credit (March 14, 2011) (‘‘IPA’’). LLC (‘‘ICC’’) filed with the Securities All submissions should refer to File 11. Intellivest Securities, Inc. (March Number SR–FINRA–2011–057. This file and Exchange Commission 10, 2011) (‘‘Intellivest Securities’’). (‘‘Commission’’) the proposed rule number should be included on the 12. Krieger & Prager, LLP (February subject line if e-mail is used. To help the change SR–ICC–2011–01 pursuant to 18, 2011) (‘‘Krieger & Prager’’). Section 19(b)(1) of the Securities Commission process and review your 13. The LeGaye Law Firm P.C. (March Exchange Act of 1934 (‘‘Act’’) 1 and Rule comments more efficiently, please use 14, 2011) (‘‘LeGaye’’). 19b–4 thereunder.2 The proposed rule only one method. The Commission will 14. Valerie Lewis (January 19, 2011) change was published for comment in post all comments on the Commission’s (‘‘Lewis’’). Internet Web site (http://www.sec.gov/ the Federal Register on September 9, 15. Locke Lord Bissell & Liddell LLP 3 rules/sro.shtml). Copies of the (March 11, 2011) (‘‘Locke Lord’’). 2011. The Commission received no submission, all subsequent 16. Moloney Securities Co., Inc. comment letters regarding the proposal. amendments, all written statements (March 7, 2011) (‘‘Moloney’’). For the reasons discussed below, the with respect to the proposed rule 17. Managed Funds Association Commission is granting approval of the change that are filed with the (March 14, 2011) (‘‘MFA’’). proposed rule change. Commission, and all written 18. Mick & Associates, P.C., LLO II. Description communications relating to the (March 10, 2011) (‘‘Mick & Associates’’). proposed rule change between the 19. National Investment Banking This rule change will amend Chapter Commission and any person, other than Association (March 14, 2011) (‘‘NIBA’’). 26 of ICC’s rules to add Sections 26D those that may be withheld from the 20. Network 1 Financial Securities, and 26E to provide for the clearance of public in accordance with the Inc. (March 10, 2011) (‘‘Network 1’’). Emerging Markets Standard Sovereign provisions of 5 U.S.C. 552, will be 21. New York City Bar Association CDS Contracts (‘‘SES Contracts’’). ICC available for Web site viewing and (March 14, 2011) (‘‘NYC Bar’’). will clear SES Contracts on four printing in the Commission’s Public 22. New York State Bar Association sovereign reference entities: the Reference Room, 100 F Street, NE., (March 28, 2011) (‘‘NY State Bar’’). Federative Republic of Brazil, the Washington, DC 20549, on official 23. Patrick Capital Markets, LLC United Mexican States, the Bolivian business days between the hours of 10 (March 14, 2011) (‘‘Patrick’’). Republic of Venezuela, and the a.m. and 3 p.m. Copies of such filing 24. Real Estate Investment Securities Argentine Republic. If ICC determines to also will be available for inspection and Association (March 14, 2011) list additional SES Contracts, it will copying at the principal office of (‘‘REISA’’). seek approval from the Commission for FINRA. All comments received will be 25. Rothwell Consulting LLC (March such contracts (or for a class of product posted without change; the Commission 1, 2011) (‘‘Rothwell Consulting’’). including such contracts) by a does not edit personal identifying 26. Saxony Securities, Inc. (March 14, subsequent filing with the Commission. information from submissions. You 2011) (‘‘Saxony’’). SES Contracts have similar terms to 27. Schulten, Ward & Turner should submit only information that the North American Corporate CDS (February 3, 2011) (‘‘Schulten Ward’’). you wish to make available publicly. All Contracts (‘‘Corporate Single Name CDS 28. Secore & Waller, L.L.P. (March 14, submissions should refer to File Contracts’’) currently cleared by ICC and 2011) (‘‘Secore & Waller’’). Number SR–FINRA–2011–057 and governed by Section 26B of the ICC 29. Securities Industry and Financial rules. Accordingly, proposed rules in should be submitted on or before Markets Association (March 14, 2011) November 14, 2011. Section 26D largely mirror the ICC rules (‘‘SIFMA’’). for Corporate Single Name CDS For the Commission, by the Division of 30. St. Charles Capital, LLC (March Contracts in Section 26B, with certain Trading and Markets, pursuant to delegated 14, 2011) (‘‘St. Charles’’). 41 modifications that reflect differences in authority. 31. Sullivan & Cromwell LLP (March terms and market conventions between Elizabeth M. Murphy, 14, 2011) (‘‘Sullivan & Cromwell’’). Secretary. 32. Sutherland Asbill & Brennan LLP SES Contracts and Corporate Single (March 14, 2011) (‘‘Sutherland’’). Name CDS Contracts. In the event that Exhibit A 33. Third Party Marketers Association 1 15 U.S.C. 78s(b)(1). Alphabetical List of Written Comments (March 10, 2011) (‘‘3PM’’). 2 34. Walton Securities, Inc. (March 14, 17 CFR 240.19b–4. 1. Achates Capital Advisors LLC 3 Securities Exchange Act Release No. 34–65259 (March 4, 2011) (‘‘Achates’’). 2011) (‘‘WSI’’). (September 2, 2011), 76 FR 55984 (September 9, 2. American Bar Association (March 35. Weinstein Smith LLP (March 9, 2011). In its filing with the Commission, ICC 2011) (‘‘Weinstein Smith’’). included statements concerning the purpose of and 14, 2011) (‘‘ABA’’). basis for the proposed rule change. The text of these [FR Doc. 2011–27328 Filed 10–21–11; 8:45 am] statements are incorporated into the discussion of 41 17 CFR 200.30–3(a)(12). BILLING CODE 8011–01–P the proposed rule change in Section II below.

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a clearing participant is domiciled in a as the corresponding provisions the same reference entity, tenor, country that is the reference entity for applicable to Corporate Single Name reference obligation, fixed rate, and an SES Contract, ICC will not permit the CDS Contracts in Section 26B of ICC relevant physical settlement matrix). clearing participant to clear such SES rules, other than with respect to certain The mechanics associated with the Contract. conforming changes. For the avoidance delivery and receipt of notices by Rule 26D–102 (Definitions) sets forth of doubt, ICC will not accept a trade for clearing participants under Matched the definitions used for SES Contracts. clearance and settlement if at the time Restructuring Pairs are set forth in Rule An ‘‘Eligible SES Reference Entity’’ is of submission or acceptance of the trade 26E–104 (Matched Restructuring Pairs; defined as ‘‘each particular Reference or at the time of novation the CDS Designations and Notices). This rule Entity included from time to time in the Participant submitting the trade is provides that once ICC has created the List of Eligible Reference Entities,’’ domiciled in the country of the Eligible Matched Restructuring Pairs, ICC will which is a list maintained, updated and SES Reference Entity for such SES be deemed to have designated the published from time to time by ICC Contract. matched CDS buyer and matched CDS containing certain specified information In addition to various non-substantive 4 seller as its designee to receive and with respect to each reference entity. conforming changes, the proposed rules deliver credit event notices in relation The Eligible SES Reference Entities will differ from the existing rules for to the Restructuring CDS Contract. The at present be limited to the four Latin Corporate Single Name CDS Contracts rule also contains a mechanism for American sovereigns listed above. in that the contract terms in Rule 26D– notifying ICC of disputes with respect to Certain substantive changes have also 315 incorporate the relevant published such notices. been made to the definition of ‘‘List of ISDA physical settlement matrix terms Eligible SES Reference Entities’’ (as for Standard Latin American Sovereign Finally, Rule 26E–105 (Separation of compared to the corresponding transactions, rather than Standard North Matched Restructuring Pairs) addresses definition in Section 26B), due to the American Corporate transactions, and, situations where an announcement of a fact that certain terms and elections for as noted in the preceding paragraph, to restructuring credit event is followed by Corporate Single Name CDS Contracts account for certain elections and a determination that such event did not are not applicable to SES Contracts. supplements used for Corporate Single in fact occur.5 The rule provides that if These include (i) The need for an Name CDS Contracts that are not ICC has not matched buyers with sellers election as to whether ‘‘Restructuring’’ applicable to SES Contracts. to form a Matched Restructuring Pair, is an eligible ‘‘Credit Event’’ (it is by New Section 26E (CDS Restructuring then ICC will not do so. If ICC has market convention applicable to all SES Rules) provides rules applicable to matched sellers with buyers to form a Contracts, whereas it is generally not cleared Contracts in the event of a Matched Restructuring Pair, but applicable to Corporate Single Name restructuring credit event. Corporate settlement (either auction settlement or CDS Contracts) and (ii) the applicability Single Name CDS Contracts currently fallback physical settlement) has not of certain International Swaps and cleared by ICC are generally not subject occurred, then ICC will reverse the Derivatives Association (‘‘ISDA’’) to these restructuring rules. Unlike other matching. If fallback physical settlement supplements that may apply to credit events, following a restructuring is applicable, ICC will not reverse any Corporate Single Name CDS Contracts credit event, parties to a cleared SES matching to the extent that the matched but do not apply to SES Contracts, Contract must determine whether or not CDS buyer or matched CDS seller has including the 2005 Monoline to trigger their credit protection. To given notice to ICC that the parties have Supplement, the ISDA Additional facilitate this election while permitting settled the relevant matched CDS Provisions for a Secured Deliverable ICC to maintain a matched book of contract within one Business Day Obligation Characteristic, and the ISDA cleared Contracts, Section 26E provides following delivery of the matching Additional Provisions for Reference that protection buyers and protection reversal notice. If a CDS contract is Entities with Delivery Restrictions. sellers under a Restructuring CDS reversed, ICC will recalculate the According to ICC, SES Contracts will Contract (defined as a CDS Contract margin accordingly. only be denominated in U.S. Dollars. where a restructuring credit event has ICC believes that clearance of SES The remaining definitions are occurred) will be matched into pairs, Contracts will facilitate the prompt and substantially the same as the definitions each referred to as a ‘‘Matched accurate settlement of security-based found in ICC Section 26B, other than Restructuring Pair,’’ by ICC for purposes swaps and contribute to the with respect to certain conforming of sending and receiving such triggering safeguarding of securities and funds changes. notices. Rule 26E–102 sets forth the associated with security-based swap Rules 26D–203 (Restriction on definitions used throughout Section 26E transactions.6 Activity), 26D–206 (Notices Required of in connection with a restructuring credit Participants with respect to SES event. 5 Determination of a credit event and a Contracts), 26D–303 (SES Contract The procedures for creation of subsequent determination that a credit event did Adjustments), 26D–309 (Acceptance of Matched Restructuring Pairs are set not occur are made by the ISDA relevant credit SES Contracts by ICE Trust), 26D–315 forth in Rule 26E–103 (Allocation of derivatives determinations committee (‘‘DC’’), or, in (Terms of the Cleared SES Contract), Matched Restructuring Pairs). Following the event a request has been submitted to the relevant DC and ISDA has publicly announced that 26D–316 (Relevant Physical Settlement the announcement that a restructuring the relevant DC has resolved not to determine the Matrix Updates), 26D–502 (Specified credit event has occurred with respect answer, by the appropriate ICE Clear Credit Actions), and 26D–616 (Contract to an SES Contract, ICC will match each Regional CDS Committee. Modification) reflect or incorporate the protection seller in that contract with 6 ICC has performed a variety of empirical analyses related to clearing of SES Contracts on basic contract specifications for SES one or more protection buyers in that sovereign reference entities, including back tests Contracts and are substantially the same contract, such that the notional amount and stress tests using actual clearing participant of the contract of each protection seller portfolios (with respect to the stress tests) combined 4 Similar to the index credit default swap (‘‘CDS’’) is fully allocated to one or more with hypothetical positions in sovereign CDS contracts and Corporate Single Name CDS Contracts protection buyers. In order to be contracts based on data retrieved from the that ICC currently clears, ICC will accept for Depository Trust Clearing Corporation’s Trade clearing sovereign CDS contracts denominated in matched, positions in an SES Contract Information Warehouse and through interaction U.S. Dollars only. must be of the same type (i.e., having with ICC’s Trade Advisory Committee.

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III. Discussion Act and in particular with the II. Self-Regulatory Organization’s Section 19(b)(2)(B) of the Act directs requirements of Section 17A of the Statement of the Purpose of, and 10 the Commission to approve a proposed Act and the rules and regulations Statutory Basis for, the Proposed Rule rule change of a self-regulatory thereunder. Change It is therefore ordered, pursuant to organization if it finds that such In its filing with the Commission, the Section 19(b)(2) of the Act,11 that the proposed rule change is consistent with Exchange included statements proposed rule change (File No. SR–ICC– the requirements of the Act and the concerning the purpose of and basis for 2011–01) be, and hereby is, approved.12 rules and regulations thereunder the proposed rule change and discussed applicable to such organization.7 For For the Commission, by the Division of any comments it received on the example, Section 17A(b)(3)(F) of the Trading and Markets, pursuant to delegated 13 proposed rule change. The text of these Act 8 requires, among other things, that authority. statements may be examined at the the rules of a clearing agency be Kevin M. O’Neill, places specified in Item IV below. The designed to remove impediments to and Deputy Secretary. Exchange has prepared summaries, set perfect the mechanism of a national [FR Doc. 2011–27380 Filed 10–21–11; 8:45 am] forth in sections A, B, and C below, of system for the prompt and accurate BILLING CODE 8011–01–P the most significant aspects of such clearance and settlement of securities statements. transactions and to assure the safeguarding of securities and funds in SECURITIES AND EXCHANGE A. Self-Regulatory Organization’s the custody or control of the clearing COMMISSION Statement of the Purpose of, and agency or for which it is responsible. Statutory Basis for, the Proposed Rule [Release No. 34–65587; File No. SR– Change If approved, the proposed rule change NASDAQ–2011–144] would for the first time permit a 1. Purpose Commission-registered clearing agency Self-Regulatory Organizations; The to clear sovereign CDS contracts, and NASDAQ Stock Market LLC; Notice of The purpose of the proposed rule ICC has informed the Commission that Filing and Immediate Effectiveness of change is to establish the NOTO market it intends to introduce clearing of SES Proposed Rule Change Relating to the data product. NOTO is a market data Contracts on four sovereign reference Establishment of a Direct Market Data product offered by the Exchange that is entities (the Federative Republic of Product, NASDAQ Options Trade designed to provide proprietary Brazil, the United Mexican States, the Outline (‘‘NOTO’’) electronic trade data to subscribers. Bolivian Republic of Venezuela, and the NOTO is available as either an ‘‘End-of- Argentine Republic) products promptly October 18, 2011. Day’’ data product or an ‘‘Intra-Day’’ after obtaining Commission approval. Pursuant to Section 19(b)(1) of the data product, as described more fully By bringing additional products into Securities Exchange Act of 1934 below. NOTO is available to any person clearing, the Commission believes the (‘‘Act’’) 1 and Rule 19b–4 thereunder,2 who wishes to subscribe to it, regardless proposed rule change is consistent with notice is hereby given that on October of whether or not they are a member of the requirements of the Act in that it 12, 2011, The NASDAQ Stock Market the Exchange. NOTO is available only would contribute to the national system LLC (‘‘NASDAQ’’ or ‘‘Exchange’’) filed for internal use and distribution by for the prompt and accurate clearance with the Securities and Exchange subscribers. Commission (‘‘Commission’’) the and settlement of securities Data Included in NOTO transactions. proposed rule change as described in Given the particular characteristics of Items I, II, and III below, which Items NOTO provides information about the the products proposed to be cleared, the have been prepared by the Exchange. activity of a particular option series Commission also carefully considered The Commission is publishing this during a particular trading session. ICC’s ability to clear SES Contracts in a notice to solicit comments on the NOTO subscribers will receive the safe and sound manner. After proposed rule change from interested following data: • considering the representations made by persons. Aggregate number of buy and sell ICC regarding its belief that the transactions in the affected series; I. Self-Regulatory Organization’s • clearance of SES Contracts will Aggregate volume traded Statement of the Terms of the Substance electronically on the Exchange in the contribute to the safeguarding of of the Proposed Rule Change securities and funds associated with affected series; • security-based swap transactions based The Exchange proposes to establish a Aggregate number of trades effected on its analysis,9 the Commission direct market data product, NASDAQ on the Exchange to open a position; 3 • believes that the proposed rule change Options Trade Outline (‘‘NOTO’’). Aggregate number of trades effected is consistent with Section 17A(b)(3)(F) The text of the proposed rule change on the Exchange to close a position; 4 of the Act, including ICC’s obligation to is available on the Exchange’s Web site ensure that its rules be designed to at http:// 3 NOTO will provide subscribers with the www.nasdaq.cchwallstreet.com, at the aggregate number of ‘‘opening purchase assure the safeguarding of securities and transactions’’ in the affected series. An opening funds in the custody or control of the principal office of the Exchange, and at purchase transaction is an Exchange options clearing agency or for which it is the Commission’s Public Reference transaction in which the purchaser’s intention is to responsible. Room. create or increase a long position in the series of options involved in such transaction. NOTO will also provide subscribers with the aggregate number IV. Conclusion 10 15 U.S.C. 78q–1. of ‘‘opening writing transactions.’’ An opening 11 On the basis of the foregoing, the 15 U.S.C. 78s(b)(2). writing transaction is an Exchange options Commission finds that the proposal is 12 In approving the proposed rule change, the transaction in which the seller’s (writer’s) intention Commission considered the proposal’s impact on consistent with the requirements of the is to create or increase a short position in the series efficiency, competition and capital formation. 15 of options involved in such transaction. U.S.C. 78c(f). 4 NOTO will provide subscribers with the 7 15 U.S.C. 78s(b)(2)(B). 13 17 CFR 200.30–3(a)(12). aggregate number of ‘‘closing purchase 8 15 U.S.C. 78q–1(b)(3)(F). 1 15 U.S.C. 78s(b)(1). transactions’’ in the affected series. A closing 9 Supra note 6. 2 17 CFR 240.19b–4. Continued

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• Origin of the orders involved in that subscribers can use to gain At any time within 60 days of the trades on the Exchange in the affected comprehensive insight into the trading filing of the proposed rule change, the series during a particular trading activity in a particular option series. Commission summarily may session, specifically aggregated in the NOTO is virtually identical to a temporarily suspend such rule change if following categories of participants: market data product currently available it appears to the Commission that such customers, broker-dealers, and market on NASDAQ OMX PHLX LLC (‘‘PHLX’’) action is necessary or appropriate in the makers. known as the PHLX Options Trade public interest, for the protection of Outline (‘‘PHOTO’’) market data End of Day Product investors, or otherwise in furtherance of product.5 the purposes of the Act. The End of Day product includes the aggregate data described above 2. Statutory Basis IV. Solicitation of Comments representing the entire trading session. NASDAQ believes that its proposal is Interested persons are invited to It is calculated during an overnight consistent with Section 6(b) of the Act 6 submit written data, views and process after each trading session and is in general, and furthers the objectives of arguments concerning the foregoing, available to subscribers for download Section 6(b)(5) of the Act 7 in particular, including whether the proposed rule the following morning at approximately in that it is designed to promote just and change is consistent with the Act. 7 a.m., E.T. equitable principles of trade, to remove Comments may be submitted by any of The Exchange will establish a impediments to and perfect the the following methods: monthly subscriber fee for the End of mechanism of a free and open market Day product by way of a separate and a national market system, and, in Electronic Comments proposed rule change, which the general to protect investors and the • Use the Commission’s Internet Exchange will submit after the NOTO public interest, by establishing a market comment form (http://www.sec.gov/ market data product is established. data product that enhances subscribers’ rules/sro.shtml); or • Send an e-mail to rule- Intra-Day Product ability to make decisions on trading strategy, and by providing option trade [email protected]. Please include File The Intra-Day product includes and volume data that should help bring Number SR–NASDAQ–2011–144 on the periodic, cumulative data for a about such decisions in a timely subject line. particular trading session. The Intra-Day manner. product is produced and updated every Paper Comments ten minutes during the trading day. Data B. Self-Regulatory Organization’s • Send paper comments in triplicate is captured in ‘‘snapshots’’ taken every Statement on Burden on Competition to Elizabeth M. Murphy, Secretary, 10 minutes throughout the trading day NASDAQ does not believe that the Securities and Exchange Commission, and is available to subscribers within 5 proposed rule change will result in any 100 F Street NE., Washington, DC minutes of the conclusion of each 10 burden on competition that is not 20549–1090. minute period. For example, subscribers necessary or appropriate in furtherance All submissions should refer to File to the Intra-Day product will receive the of the purposes of the Act, as amended. Number SR–NASDAQ–2011–144. This first calculation of intra-day data by 9:44 file number should be included on the C. Self-Regulatory Organization’s a.m. E.T., which represents data subject line if e-mail is used. To help the Statement on Comments on the captured from 9:30 a.m. to 9:39 a.m. Commission process and review your Proposed Rule Change Received From Subscribers will receive the next update comments more efficiently, please use Members, Participants or Others at 9:54 a.m., representing the data only one method. The Commission will previously provided together with data No written comments were either post all comments on the Commission’s captured from 9:40 a.m. through 9:49 solicited or received. Internet Web site (http://www.sec.gov/ a.m., and so forth. Each update will III. Date of Effectiveness of the rules/sro/shtml). Copies of the represent the aggregate data captured Proposed Rule Change and Timing for submission, all subsequent from the current ‘‘snapshot’’ and all Commission Action amendments, all written statements previous ‘‘snapshots.’’ with respect to the proposed rule The Exchange will establish a Because the foregoing proposed rule change that are filed with the monthly subscriber fee for the Intra-Day change does not: (i) Significantly affect Commission, and all written product by way of a separate proposed the protection of investors or the public communications relating to the rule change, which the Exchange will interest; (ii) impose any significant proposed rule change between the submit after the NOTO market data burden on competition; and (iii) become Commission and any person, other than product is established. operative for 30 days after the date of those that may be withheld from the NOTO provides subscribers data that the filing, or such shorter time as the public in accordance with the should enhance their ability to analyze Commission may designate, it has provisions of 5 U.S.C. 552, will be option trade and volume data, and to become effective pursuant to Section available for Web site viewing and 8 create and test trading models and 19(b)(3)(A) of the Act and Rule 19b– printing in the Commission’s Public 9 analytical strategies. The Exchange 4(f)(6) thereunder. Reference Room, 100 F Street, NE., believes that NOTO is a valuable tool Washington, DC 20549, on official 5 See Securities Exchange Act Release No. 62887 (September 10, 2010), 75 FR 57092 (September 17, business days between the hours of 10 purchase transaction is an Exchange options 2010) (SR–Phlx–2010–121). a.m. and 3 p.m. Copies of such filing transaction in which the purchaser’s intention is to 6 reduce or eliminate a short position in the series of 15 U.S.C. 78f(b). also will be available for inspection and options involved in such transaction. NOTO will 7 15 U.S.C. 78f(b)(5). copying at the principal office of the also provide subscribers with the aggregate number 8 15 U.S.C. 78s(b)(3)(A). Exchange. All comments received will of ‘‘closing sale transactions.’’ A closing sale 9 17 CFR 240.19b–4(f)(6). In addition, Rule 19b– be posted without change; the transaction is an Exchange options transaction an 4(f)(6) requires a self-regulatory organization to give Exchange options transaction in which the seller’s the Commission written notice of its intent to file Commission does not edit personal intention is to reduce or eliminate a long position the proposed rule change at least five business days in the series of options involved in such prior to the date of filing of the proposed rule Commission. The Exchange has satisfied this transaction. change, or such shorter time as designated by the requirement.

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identifying information from www.sec.gov, and at the Commission’s previously eliminated this subsidy from submissions. You should submit only Public Reference Room. the Fee Schedule.6 The remaining information that you wish to make reference to the MAP in Section I of the II. Self-Regulatory Organization’s available publicly. All submissions Fee Schedule, entitled ‘‘Rebates and Statement of the Purpose of, and should refer to File No. SR–NASDAQ– Fees for Adding and Removing Statutory Basis for, the Proposed Rule 2011–144 and should be submitted on Liquidity in Select Symbols’’ is Change or before November 14, 2011. outdated. The Exchange also proposes In its filing with the Commission, the For the Commission, by the Division of to replace the word ‘‘charges’’ in the Fee Trading and Markets, pursuant to delegated Exchange included statements Schedule with the word ‘‘fees’’, in order authority.10 concerning the purpose of and basis for to conform the verbiage in the Fee the proposed rule change and discussed Schedule to maintain clarity. any comments it received on the Elizabeth M. Murphy, 2. Statutory Basis Secretary. proposed rule change. The text of these statements may be examined at the The Exchange believes that its [FR Doc. 2011–27379 Filed 10–21–11; 8:45 am] places specified in Item IV below. The proposal to amend its Fee Schedule is BILLING CODE 8011–01–P Exchange has prepared summaries, set consistent with Section 6(b) of the Act 7 forth in sections A, B, and C below, of in general, and furthers the objectives of Section 6(b)(4) of the Act 8 in particular, SECURITIES AND EXCHANGE the most significant aspects of such in that it is an equitable allocation of COMMISSION statements. reasonable fees and other charges among A. Self-Regulatory Organization’s Exchange members and other persons [Release No. 34–65586; File No. SR–Phlx– Statement of the Purpose of, and 2011–135] using its facilities. Statutory Basis for, the Proposed Rule The Exchange believes that the Self-Regulatory Organizations; Change proposed elimination of the Tether NASDAQ OMX PHLX LLC; Notice of 1. Purpose Monthly Service Fee is reasonable, Filing and Immediate Effectiveness of equitable and not unfairly The purpose of the proposed rule Proposed Rule Change Relating to the discriminatory because members will change is to eliminate the Tether Tether Monthly Service Fee still have the ability to tether on the Monthly Service Fee. A tether is a options trading floor, but will not be October 18, 2011. hardwire connection to an existing assessed a fee. In 2001, the Exchange Pursuant to Section 19(b)(1) of the Exchange communication network installed tethers due to an increase in Securities Exchange Act of 1934 (local areas network) on the Exchange’s bandwidth demands and the use of (‘‘Act’’),1 and Rule 19b–4 thereunder,2 options trading floor. It allows users on applications by traders. All floor notice is hereby given that on October the options floor to connect their members will still have access to this 5, 2011, NASDAQ OMX PHLX LLC handheld devices to the existing service, however no member will be (‘‘Phlx’’ or ‘‘Exchange’’) filed with the Exchange communication network and assessed a fee for this service. Securities and Exchange Commission thereby interface with member firm The Exchange believes that other (‘‘SEC’’ or ‘‘Commission’’) the proposed communication networks via a wireless proposed modifications to the Fee rule change as described in Items I, II, network. Schedule to eliminate outdated and III, below, which Items have been The Exchange currently assesses references in the Fee Schedule and 3 prepared by the Exchange. The Registered Options Traders and floor amend certain verbiage are reasonable Commission is publishing this notice to brokers on the options trading floor a and equitable to clarify the Fee 4 solicit comments on the proposed rule Tether Monthly Service Fee of $150. Schedule. change from interested persons. The number of users of the tether service on the options trading floor has B. Self-Regulatory Organization’s I. Self-Regulatory Organization’s diminished significantly since the Statement on Burden on Competition Statement of the Terms of Substance of tethers were first put into place in The Exchange does not believe that the Proposed Rule Change 2001.5 While the Exchange will the proposed rule change will impose The Exchange proposes to eliminate continue to offer its members the ability any burden on competition not the Tether Monthly Service Fee from the to use the tethers, it will no longer necessary or appropriate in furtherance Fee Schedule. The Exchange also assess a fee as of November 1, 2011. of the purposes of the Act. proposes to make other minor The Exchange also proposes an amendment to eliminate an unnecessary C. Self-Regulatory Organization’s amendments to the Fee Schedule. Statement on Comments on the While changes to the Fee Schedule reference to the Market Access Provider Subsidy (‘‘MAP’’). The Exchange Proposed Rule Change Received From pursuant to this proposal are effective Members, Participants, or Others upon filing, the Exchange has designated the elimination of the Tether 3 A Registered Options Trader (‘‘ROT’’) includes No written comments were either a SQT, a RSQT and a Non-SQT ROT, which by solicited or received. Monthly Service Fee to be operative on definition is neither a SQT nor a RSQT. A ROT is November 1, 2011. defined in Exchange Rule 1014(b) as a regular III. Date of Effectiveness of the The text of the proposed rule change member or a foreign currency options participant of Proposed Rule Change and Timing for is available on the Exchange’s Web site the Exchange located on the trading floor who has received permission from the Exchange to trade in Commission Action at http://nasdaqtrader.com/ options for his own account. See Exchange Rule The foregoing rule change has become micro.aspx?id=PHLXfilings, at the 1014(b)(i) and (ii). effective pursuant to Section principal office of the Exchange, on the 4 Specialists are not assessed this fee. The fee was Commission’s Web site at http:// initially assessed in 2001 and based on actual and estimated expenses incurred in installing and 6 See Securities Exchange Act Release No. 64539 maintaining the tethered connections. (May 24, 2011), 76 FR 31384 (May 31, 2011) (SR– 10 17 CFR 200.30–3(a)(12). 5 See Securities Exchange Act Release No. 44963 Phlx–2011–68). 1 15 U.S.C. 78s(b)(1). (October 19, 2001), 66 FR 54317 (October 19, 2011) 7 15 U.S.C. 78f(b). 2 17 CFR 240.19b–4. (SR–Phlx–2001–84). 8 15 U.S.C. 78f(b)(4).

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19(b)(3)(A)(ii) of the Act.9 At any time copying at the principal office of the By the Commission. within 60 days of the filing of the Exchange. All comments received will Jill M. Peterson, proposed rule change, the Commission be posted without change; the Assistant Secretary. summarily may temporarily suspend Commission does not edit personal [FR Doc. 2011–27568 Filed 10–20–11; 4:15 pm] such rule change if it appears to the identifying information from BILLING CODE 8011–01–P Commission that such action is submissions. You should submit only necessary or appropriate in the public information that you wish to make interest, for the protection of investors, available publicly. All submissions SOCIAL SECURITY ADMINISTRATION or otherwise in furtherance of the should refer to File Number SR–Phlx– purposes of the Act. If the Commission 2011–135 and should be submitted on [Docket No. SSA–2011–0035] takes such action, the Commission shall or before November 14, 2011. Agency Self-Evaluation Under Section institute proceedings to determine For the Commission, by the Division of whether the proposed rule should be 504 of the Rehabilitation Act of 1973; Trading and Markets, pursuant to delegated Public Forums on Accessibility for approved or disapproved. 10 authority. Individuals With Disabilities; Extension IV. Solicitation of Comments Elizabeth M. Murphy, of Comment Period Secretary. Interested persons are invited to AGENCY: Social Security Administration. submit written data, views, and [FR Doc. 2011–27378 Filed 10–21–11; 8:45 am] ACTION: Notice of extension of comment arguments concerning the foregoing, BILLING CODE 8011–01–P period. including whether the proposed rule change is consistent with the Act. SUMMARY: On August 2, 2011, we SECURITIES AND EXCHANGE Comments may be submitted by any of announced in the Federal Register that the following methods: COMMISSION we were soliciting oral and written Electronic Comments comments at two Section 504 Self- [File No. 500–1] Evaluation Forums. We stated that the • Use the Commission’s Internet deadline for written comments was comment form (http://www.sec.gov/ ADS Media Group, Inc., American October 31, 2011. We are extending the rules/sro.shtml); or Enterprise Development Corp., and • written comment deadline by 15 days to Send an e-mail to rule- Arcland Energy Corp.; Order of match the date we publicly announced [email protected]. Please include File Suspension of Trading at the August forum. Number SR–Phlx–2011–135 on the October 20, 2011. Deadline for Comments: To ensure subject line. that your written comments are It appears to the Securities and Paper Comments considered, we must receive them no Exchange Commission that there is a • later than November 15, 2011. Send paper comments in triplicate lack of current and accurate information Written Comments: If you are not to Elizabeth M. Murphy, Secretary, concerning the securities of ADS Media available to participate real-time in the Securities and Exchange Commission, Group, Inc. because it has not filed any public forums, we encourage you to 100 F Street, NE., Washington, DC periodic reports since the period ended submit written comments by Internet, 20549–1090. March 31, 2008. fax, or mail. If you submitted oral All submissions should refer to File It appears to the Securities and comments at a public forum, you may Number SR–Phlx–2011–135. This file Exchange Commission that there is a also submit additional comments in number should be included on the lack of current and accurate information writing. In your submission, please state subject line if e-mail is used. To help the concerning the securities of American that your comments refer to Docket No. Commission process and review your Enterprise Development Corp. because SSA–2011–0035 so that we may comments more efficiently, please use it has not filed any periodic reports associate your comments with the only one method. The Commission will since the period ended September 30, correct document. post all comments on the Commission’s 2007. Caution: You should be careful to Internet Web site (http://www.sec.gov/ include in your comments only It appears to the Securities and rules/sro.shtml). Copies of the information that you wish to make Exchange Commission that there is a submission, all subsequent publicly available. We strongly urge you lack of current and accurate information amendments, all written statements not to include in your comments any concerning the securities of Arcland with respect to the proposed rule personal information, such as Social Energy Corp. because it has not filed change that are filed with the Security numbers or medical any periodic reports since the period Commission, and all written information. communications relating to the ended April 30, 2008. • Internet: We strongly recommend proposed rule change between the The Commission is of the opinion that that you submit your comments via the Commission and any person, other than the public interest and the protection of Internet. Please visit the Federal those that may be withheld from the investors require a suspension of trading eRulemaking portal at http:// public in accordance with the in the securities of the above-listed www.regulations.gov. Use the Search provisions of 5 U.S.C. 552, will be companies. Therefore, it is ordered, function to find docket number SSA– available for Web site viewing and pursuant to Section 12(k) of the 2011–0035. The system will issue a printing in the Commission’s Public Securities Exchange Act of 1934, that tracking number to confirm your Reference Room, 100 F Street, NE., trading in the securities of the above- submission. You will not be able to Washington, DC 20549, on official listed companies is suspended for the view your comment immediately business days between the hours of 10 period from 9:30 a.m. EDT on October because we must post each comment a.m. and 3 p.m. Copies of such filing 20, 2011, through 11:59 p.m. EDT on manually. It may take up to a week for also will be available for inspection and November 2, 2011. your comment to be viewable. • Fax: Fax comments to (410) 966– 9 15 U.S.C. 78s(b)(3)(A)(ii). 10 17 CFR 200.30–3(a)(12). 2830.

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• Mail: Address your comments to New Jersey Avenue, SE., Washington, A. Background the Office of Regulations, Social DC 20590, (202) 366–9721. Policy History Security Administration, 107 Altmeyer Dated: October 18, 2011. In 1994, the FAA established its Building, 6401 Security Boulevard, Susan L. Kurland, Baltimore, Maryland 21235–6401. policy on Benefit Cost Analysis (BCA) Assistant Secretary for Aviation and requirements for airport capacity Comments are available for public International Affairs. viewing on the Federal eRulemaking projects. Factors leading to these [FR Doc. 2011–27455 Filed 10–21–11; 8:45 am] portal at http://www.regulations.gov or requirements included: BILLING CODE P in person, during regular business 1. The need to improve the hours, by arranging with the contact effectiveness of federal airport infrastructure investments in light of a person identified below. DEPARTMENT OF TRANSPORTATION FOR FURTHER INFORMATION CONTACT: decline in federal AIP budgets; Mariangela Rosa, Social Security Federal Aviation Administration 2. Issuance of Executive Order No. Administration, 6401 Security 12893, ‘‘Principles for Federal Boulevard, Baltimore, MD 21235–6401, Airport Improvement Program: Infrastructure Investments,’’ 59 FR 4233, 1–877–794–7395 or e-mail Modifications to Benefit Cost Analysis Jan. 26, 1994; 3. Guidance from Congress citing the [email protected]. For information on (BCA) Threshold need for economic airport investment eligibility or filing for benefits, call our AGENCY: Federal Aviation criteria; and national toll-free number, 1–800–772– Administration (FAA); DOT. 4. Statutory language from 1994 1213 or TTY 1–800–325–0778, or visit ACTION: Notice of changes; comments included in Title 49 U.S.C. 47115 (d) our Internet site, Social Security Online, and responses. specifying that, in selecting projects for at http://www.socialsecurity.gov. discretionary grants to preserve and SUMMARY: Dated: October 17, 2011. This document announces the enhance capacity at airports, the publication of the final policy changes Michael J. Astrue, Secretary shall consider the benefits and to the Federal Aviation Administration’s Commissioner of Social Security costs of the projects. policy requiring a benefit cost analysis The FAA implemented BCA [FR Doc. 2011–27353 Filed 10–21–11; 8:45 am] (BCA) for capacity projects funded by BILLING CODE 4191–02–P requirements for capacity projects at all Airport Improvement Program (AIP) categories of airports in order to limit discretionary funds. On December 16, the FAA’s risks when investing large 2010, the FAA issued a Notice of amounts of discretionary funds. The DEPARTMENT OF TRANSPORTATION Availability of Draft Guidance and FAA uses the conclusions reached in Request for Comments with regard to the BCA review to make policy and Office of the Secretary the modification of its policy requiring funding decisions on possible future benefit cost analyses (BCA) for capacity Application of Friendship Airways, Inc. federal investments. projects, which was published in the d/b/a Yellow Air Taxi for Commuter In 1997, a new FAA policy transferred Federal Register. (78 FR 78798–02, Authority responsibility for preparing BCAs from December 16, 2010). The FAA now is (1) the FAA to the sponsor. In addition, the Issuing the final policy modifying the AGENCY: Department of Transportation. policy lowered the projected cost threshold at which BCAs are required ACTION: Notice of Order to Show Cause threshold from $10 million in AIP from $5 million to $10 million in (Order 2011–10–9), Docket DOT–OST– discretionary funds (established in Airport Improvement Program (AIP) 2005–21533. 1994) to $5 million. Discretionary funds, and (2) responding The $5 million threshold change was SUMMARY: The Department of to comments requested in the Notice on made policy in 1997 and formalized in Transportation is directing all interested December 16, 2010. a 1999 Federal Register notice, Federal persons to show cause why it should DATES: Effective date of the modified Aviation Administration Policy and revoke the Commuter Air Carrier policy October 24, 2011. Final Guidance Regarding Benefit Cost Authorization issued to Friendship ADDRESSES: Copies of the final guidance Analysis (BCA) on Airport Capacity Airways, Inc. d/b/a Yellow Air Taxi and to begin the implementation of the Projects for FAA Decisions on Airport deny its application to resume policy for conducting BCAs can be Improvement Program (AIP) commuter operations, pursuant to 49 obtained from the Federal Aviation Discretionary Grants and Letters of U.S.C. 40109(f) and 14 CFR part 298. Administration, Office of Airport Intent (LOI), 64 FR 70107 (Dec. 15, DATES: Persons wishing to file Planning and Programming, Airports 1999). objections should do so no later than Financial Assistance Division (APP– Since 1997, sponsors have been November 1, 2011. 500), 800 Independence Avenue, SW., required to conduct BCAs for capacity ADDRESSES: Objections and answers to Washington, DC 20591. An electronic projects for which more than $5 million objections should be filed in Docket copy of the guidance will be posted on in AIP discretionary funding will be DOT–OST–2005–21533 and addressed the FAA’s Airport’s Division Web site at requested. In developing the new draft to U.S. Department of Transportation, http://www.faa.gov/airports/aip/ guidance increasing the threshold, the _ Docket Operations, (M–30, Room W12– bc analysis within 7 days of publication FAA reviewed the reasons for lowering 140), 1200 New Jersey Avenue, SE., of this notice. the BCA threshold amount in 1997 and West Building Ground Floor, FOR FURTHER INFORMATION CONTACT: concluded that those reasons do not Washington, DC 20590, and should be Frank San Martin, Manager, Financial present sufficient basis to warrant served upon the parties listed in Assistance Division (APP–500), Office maintaining the $5 million level Attachment A to the order. of Airport Planning and Programming, threshold today. FOR FURTHER INFORMATION CONTACT: Federal Aviation Administration, 800 The FAA has gained valuable Catherine J. O’Toole, Air Carrier Fitness Independence Avenue, SW., experience assessing the Division (X–56, Room W86–489), U.S. Washington, DC 20591, (202) 267–3831. implementation of the policy and the Department of Transportation, 1200 SUPPLEMENTARY INFORMATION: need to further clarify the threshold

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requirements for BCA. The $5 million The FAA will be issuing a companion FAA Response: The FAA disagrees threshold has remained unchanged for Program Guidance Letter (PGL) 12–01 with the comment. The FAA does not over 13 years while costs of titled ‘‘Revised BCA Guidance’’ on the require BCAs for all AIP projects, construction have risen significantly. date of publication in the Federal though the benefits and costs of all Using a construction cost index that Register which incorporates the BCA projects are thoroughly considered. The approximates heavy civil infrastructure requirement threshold modification authorizing statute exempts certain costs and is maintained by the Bureau from $5 million to $10 million in projects from the BCA process where of Labor and Statistics, construction requested AIP Discretionary funds. This the underlying value of the type of costs of $5 million in 1997 are revised guidance is based on the report project has already been subject to equivalent to costs of $9.6 million in titled ‘‘Benefit Cost Analysis Threshold economic evaluations through July 2011. FAA’s use of BLS Evaluation’’ which assessed the regulation, advisory circulars, or an construction cost data is explained later technical feasibility for raising the amendment process. In addition, to be in Section C. b. ‘‘Setting of the New threshold to $10 million. A discussion eligible for federal funds AIP projects Threshold Level.’’ of the evaluation and results is included must comply with applicable federal Based on the increase in construction in the PGL to inform FAA staff, airport regulations, including 14 CFR part 139, costs, the FAA has concluded that $10 sponsors, consultants and the public 49 CFR part 1542, and related FAA million in AIP Discretionary funds is about the basis for this decision. standards and policies. While the FAA the appropriate threshold for Fiscal Year relies on the BCA results, among other C. Discussion of Comments and considerations, in making discretionary 2012 and beyond. Though the BCA Responses threshold is being increased, the FAA funding decisions for certain capacity retains the right to require a BCA for any On December 16, 2010, the FAA projects, the BCA requirement is not capacity project in order to evaluate the established a docket and invited airport imposed on all projects and BCA results are not the ultimate arbiter in reasonableness of project costs relative sponsors and other interested parties to determining grant decisions. Rather, the to project benefits. comment on the BCA requirement cost FAA pursues a balanced approach in threshold for AIP grants and LOIs. The Procedural History applying the BCA policy to evaluate docket was open for about six weeks more expensive projects in order to On December 16, 2010, the FAA and closed on January 31, 2011. As protect the federal investment. The published in the Federal Register a stated above, this summary and increase of the threshold amount from Notice of Availability of Draft Guidance discussion of comments reflects the $5 million to $10 million does not and Request for Comments regarding major issues raised. change any other provisions related to the modification of its policy requiring the Secretary of Transportation’s benefit cost analyses (BCA) for capacity Comments From ACI and Mr. Polk consideration of benefit and cost. projects (78 FR 78798–02, December 16, Both the Airports Council The FAA believes that the balancing 2010). This Notice requested comments International (ACI) and Mr. Joseph Polk of the benefits and costs of projects on AIP grant and LOI cost threshold, of the Memphis-Shelby County Airport evaluated for analysis under this above which BCAs must be performed; Authority expressed support for the approach does not compromise but a total of three commenters responded draft guidance. Mr. Polk cited economic rather assists the Secretary in exercising to this request. Two commenters, the inflation as resulting in grants below the this consideration. It is particularly Airports Council International (ACI) and $10 million mark being ‘‘relatively important to note that the revised Mr. Joseph M. Polk of the Memphis- small’’ for ‘‘most commercial airports.’’ guidance still allows the FAA to require Shelby County Airport Authority, Mr. Polk also stated that this change BCAs where the project costs fall below expressed support for the draft ‘‘reduces bureaucracy and returns the threshold when such review is guidance, stating that it will reduce the funding applications to a level that warranted by specific circumstances in need for potentially costly and time- worked in the mid-90s.’’ Similarly, ACI consideration of all relevant factors. consuming BCAs where limited AIP expressed support and stated that the b. Setting of the New Threshold Level discretionary funds are involved. A new policy will reduce the need for third commenter, the Air Transport ‘‘potentially costly and time-consuming ATA Comments: ATA stated, ‘‘[t]he Association (ATA), expressed a series of BCAs when limited AIP discretionary Notice first points out that a questions and concerns about the draft funds are involved.’’ The FAA agrees construction cost of $5 million in 1997 guidance. The FAA has reviewed and with these commenters as to the was equivalent to $9.8 million in July addressed these comments below, advantages of offsetting cost inflation 2008, and then asserts that ‘[t]he $5 consolidating and arranging them in a and the resource conservation million threshold has required both manner that enables us to best respond. advantages of this new policy for all FAA and sponsors of non-primary and B. Modifications to Policy involved in the grant making process. non-hub airports to devote substantial financial and staff resources in The previous AIP grant policy, issued Comments From ATA preparing and evaluating BCAs for June 24, 1997 and commencing in Fiscal a. Cost/Benefit Statutory Requirement relatively small projects with readily Year 1998, stated that airport sponsors apparent capacity benefits.’ However, seeking $5 million or more in AIP ATA Comments: ATA stated that the connection between the two discretionary funds for capacity projects ‘‘FAA fails to recognize or give effect to statements is not supported by either were required to provide a completed the statutory requirement that the the Notice or the draft [PGL] cited BCA with the grant application. The Secretary of Transportation must therein, and the conclusion that $10 Letters Of Intent (LOI) policy stated that consider the benefits and costs of million is the appropriate threshold for a BCA was required for any LOI request projects selected for discretionary determining whether a BCA is required to be issued in Fiscal Year 1997 or grants. FAA does not even attempt to is arbitrary.’’ thereafter. In 1999, federal policy demonstrate that raising the threshold FAA Response: The FAA disagrees exempted certain reconstruction will not compromise the Secretary’s with the comment. The FAA’s decision projects from the BCA requirement. ability to do so.’’ to raise the BCA threshold to $10

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million in 2011 is based mainly on data. (FAA notes in the PGL that ‘we fully doubled.1 The FAA would like to increases in construction costs from were unable to locate construction cost stress, however, that construction costs 1997 to present. When the original BCA data specific to airport construction,’ have risen significantly over the last 13 threshold of $10 million was established but does not explain why that data years and there has not been any in 1994, FAA policy exempted projects would not be readily available to the corresponding increase in the BCA undertaken solely or principally with grant-maker.). Instead FAA has chosen threshold. It is important that the FAA the objectives of safety, security, to rely on highway and street provides a well-justified threshold level conformance with FAA standards, or construction data, which indicates that that does not fluctuate at short intervals environmental mitigation. In addition, a $5 million project would cost about in order for airport sponsors to plan and the FAA considered the potential $8.6 million today, a decrease from the develop projects in an efficient manner. expenses and time needed to assess $9.8 million in 2008 cited in the Notice. Accordingly, as previously stated, individual capacity projects. At that As the table appended to the PGL although the escalation of costs has not time, the threshold was based on illustrates, construction costs, while yet reached the $10 million level, a applying the policy to cover a select exhibiting an overall upward trend, threshold increase to $10 million should number of more expensive and higher fluctuate both seasonally and from year negate the need to revisit the threshold risk projects, and this reasoning still to year. To suggest, as FAA does by issue again for a number of years. applies. In reevaluating this balance, the increasing the threshold for BCAs from FAA compared current construction $5 to $10 million, that project d. Capacity Benefits of Small Projects costs with costs from 1997, when the construction costs have doubled since ATA Comments: ATA stated ‘‘Even if threshold was lowered to $5 million. 1997 is simply not accurate.’’ the highway construction cost index is The FAA was most interested in the FAA Response: The FAA agrees with relevant, and even if one accepts FAA’s value of construction costs, especially the comment that it has access to FAA ‘rounding up’ of the numbers to support costs for material such as steel, concrete, grant funding data, but these data have a threshold of $10 million, it does not and asphalt, because those costs have limited application since they are follow that raising the threshold would risen faster than the general rate of focused on federal grant program merely exempt ‘relatively small projects inflation. Since we were unable to administration requirements. The grant with readily apparent capacity benefits’ locate construction cost data specific to data make up only a percentage of the at non-primary and non-hub primary airport construction, we relied upon project costs and the percentages vary airports, as the Notice implies. Again, highway and street construction data by airport size and project type. The FAA has access to data that could collected by the Bureau of Labor and data are not meant to provide detailed support—or refute—this point. How Statistics (BLS). These data were cost statistics for airport construction many of the BCAs prepared or reviewed collected through 2010 and have since projects and are not available in a way by FAA in the past five or ten years fall been replaced by the new BONS index, that allows tracking of the unit costs of into this category? How many of those which measures material and supply construction items over time. More projects would come under $10 million inputs for new nonresidential importantly, the funding amounts are when adjusted for inflation? Are there construction. For more information based on general project descriptions, any examples of projects in the $5–10 about the BONS Index, see U.S. which make it difficult to assess million range where the capacity Department of Labor Bureau of Labor changes in costs per work unit. The benefits were not ‘‘readily apparent’’? and Statistics, PPI Detailed Report Data FAA lacks the resources to compile and And even if some capacity benefits are for July 2010, Vol. 14 No. 7, 6–7 (2010). analyze bid tabulations from the several apparent, is it always the case that those These data provide a reasonable thousand projects funded annually benefits exceed the $5–10 million cost?’’ approximation of heavy civil through AIP. FAA response: The FAA disagrees infrastructure costs in general, and The FAA currently uses, and will with the comment. The FAA is not therefore best capture the dynamics of continue to use, the readily available proposing to exempt ‘‘’relatively small construction cost increases. construction cost data from the Bureau projects with readily apparent capacity Based on the latest BLS data from July of Labor and Statistics because these benefits’ at non-primary and non-hub 2011, construction costs of $5 million in cost indices are objective, accepted, and primary airports’’ from a thorough 1997 are equivalent to $9.6 million used industry wide. In addition, the planning process, including an today. As calculated, the costs of BLS data allows for a comparison assessment of project benefits, by construction have risen significantly between a set of construction unit costs increasing the threshold to $10 million. over the last 13 years, but there has not from 1997 to that same set of costs in Rather, in these instances the FAA will been a corresponding increase in the the current time period, data that the rely on the traditional master planning, BCA threshold. The FAA does note that FAA does not collect as part of the regional metropolitan planning, or construction costs that were previously Airport Improvement Program (AIP) statewide planning processes to at the $5 million level have not fully grant making process. The FAA collects sufficiently study and analyze the escalated to the $10 million level; data on total eligible AIP costs, but the capacity benefits of a project instead of nevertheless, a threshold increase to $10 level of detail is not sufficient to requiring a separate BCA for such million should negate the need to revisit provide a statistical comparison of projects. the threshold issue again for a number airport construction unit costs between In addressing this comment, the FAA of years. 1997 and 2010. Collection of such reviewed 117 BCAs for capacity projects information by the FAA would require c. Airport Project Construction Costs since the year 2000. Of those, only 12 significant resources, would take years projects had construction costs totaling ATA Comments: ATA stated ‘‘While to compile, and would create a new less than $10 million. If the threshold construction costs in general have index of construction costs that is had increased to keep up with indeed increased since 1997, FAA has duplicative of the data provided by the construction cost inflation, only one of not relied on actual costs of airport BLS. projects funded with AIP discretionary The FAA notes that the comment is 1 The most current data (through July 2011) grants during that time period, despite correct that the most recent data indicate a $5 million project would cost about $9.6 the potential benefit of reviewing that indicate that construction costs have not million today.

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the 12 projects with costs under $10 of small capacity projects requiring DEPARTMENT OF TRANSPORTATION million would have avoided the BCA formal BCA reviews. This would create requirement. Based on the data in FAA’s additional project costs, lengthen the Federal Aviation Administration National Plan of Integrated Airport time required to implement a project, [Summary Notice No. PE–2011–48] Systems, retaining the $5 million and create additional and duplicative threshold is likely to create an levels of review by the FAA, airport Petition for Exemption; Summary of unnecessary resource burden in coming staff, and airport users. Instead, the FAA Petition Received years. In the next five years alone there will rely on existing master planning, AGENCY: Federal Aviation are more than 150 projects with capacity metropolitan area planning, and codes and/or project descriptions that Administration (FAA), DOT. statewide system planning to adequately appear to be capacity-related. Of these, address the capacity benefits of such ACTION: Notice of petition for exemption 79 have total eligible project costs received. greater than $10 million which typically projects. Anticipated savings will accrue coincide with discretionary requests in to sponsors, airline tenants and the SUMMARY: This notice contains a excess of $5 million. This would likely FAA, though the FAA is not currently summary of a petition seeking relief result in project delays and able to directly quantify these savings. from specified requirements of 14 CFR. corresponding increases in capital costs. g. Full Justification of Projects The purpose of this notice is to improve By raising the threshold to $10 million, the public’s awareness of, and the number of projects that may require ATA Comments: ATA stated ‘‘ATA participation in, this aspect of FAA’s a BCA will increase at a significantly recognizes that FAA’s constrained regulatory activities. Neither publication slower rate. The FAA believes this resources may make the prospect of of this notice nor the inclusion or would preserve a prudent balance fewer BCAs to prepare or review omission of information in the summary between analysis and expenditure of appealing, but we must point out that in is intended to affect the legal status of AIP funds, particularly since the an era of limited funding it is all the the petition or its final disposition. planning process itself requires an more important that projects be fully DATES: Comments on this petition must assessment of the capacity benefits of justified in terms of benefits relative to identify the petition docket number such projects. costs. While BCAs may not be the only involved and must be received on or e. Staff and Sponsor Resource means to do this, FAA should ensure before November 14, 2011. Conservation that it will not lose sight of this ADDRESSES: You may send comments ATA Comments: ATA stated, ‘‘FAA principle before it raises the threshold.’’ identified by Docket Number FAA– cites staff and sponsor resources as a FAA Response: The FAA agrees with 2011–1029 using any of the following methods: motivating factor in raising the the comment that all projects must be • Government-wide rulemaking Web threshold, but once again offers no fully justified in terms of benefits to the evidence to support the conclusion that site: Go to http://www.regulations.gov traveling public, aviation system users, and follow the instructions for sending doing so will conserve these resources. and neighboring communities. It would be helpful to know how many your comments electronically. However, not all projects that compete • Mail: Send comments to the Docket projects FAA expects will be newly for limited AIP discretionary funds are exempt from the BCA requirement in Management Facility; U.S. Department subject to the BCA requirement. Instead, coming years, based on past experience of Transportation, 1200 New Jersey the BCA process is one of many tools with grant requests. Furthermore, when Avenue, SE., West Building Ground the threshold was lowered from $10 the FAA uses to determine the capacity Floor, Room W12–140, Washington, DC million to $5 million in 1997, it was benefits of potential projects. The FAA 20590. done in conjunction with a shift of the relies on existing master planning, • Fax: Fax comments to the Docket responsibility for preparing a BCA from metropolitan area planning, and Management Facility at 202–493–2251. the FAA to the project sponsor. How statewide system planning processes to • Hand Delivery: Bring comments to much of the anticipated savings in staff adequately analyze and address the the Docket Management Facility in resources will accrue to FAA, and how capacity benefits of such projects. As Room W12–140 of the West Building much to airport sponsors? ATA has a circumstances warrant, the FAA also Ground Floor at 1200 New Jersey direct interest in this, since costs requests BCAs or other economic Avenue, SE., Washington, DC, between attributable to preparing BCAs are evaluations be done for projects under 9 a.m. and 5 p.m., Monday through considered allowable airport planning the threshold. Friday, except Federal holidays. Privacy: We will post all comments costs, and, to the extent not covered by Accordingly, after review of the an AIP grant, may get passed back to we receive, without change, to http:// public comments, the FAA has airline tenants through inclusion in the www.regulations.gov, including any determined that the policy proposing to rate base.’’ personal information you provide. FAA Response: The FAA’s main increase the BCA threshold from $5 Using the search function of our docket justification in increasing the threshold million to $10 million in AIP Web site, anyone can find and read the from $5 million to $10 million is to keep Discretionary funds should be adopted comments received into any of our pace with the impact of inflation on now. dockets, including the name of the construction costs. Consistent with the Issued in Washington, DC, on October 17, individual sending the comment (or original BCA policy, in increasing this 2011. signing the comment for an association, threshold the FAA seeks to balance Benito DeLeon, business, labor union, etc.). You may oversight of expensive, high risk review DOT’s complete Privacy Act Director, Office of Airport Planning and projects with limited time and monetary Programming. Statement in the Federal Register resources. Based on the data presented published on April 11, 2000 (65 FR above there is strong evidence to suggest [FR Doc. 2011–27364 Filed 10–21–11; 8:45 am] 19477–78). that retaining the existing threshold BILLING CODE 4910–13–P Docket: To read background would significantly increase the number documents or comments received, go to

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http://www.regulations.gov at any time Transportation and the Administrator of The FAA will confirm eligibility and or to the Docket Management Facility in the Federal Aviation Administration respond by email with a bidder Room W12–140 of the West Building (FAA) granted with conditions a joint identification number for each slot Ground Floor at 1200 New Jersey waiver request by Delta Air Lines, Inc. bundle no later than November 10, Avenue, SE., Washington, DC, between (Delta) and US Airways, Inc. (US 2011. 9 a.m. and 5 p.m., Monday through Airways) from the prohibition on Slot Bundles Friday, except Federal holidays. purchasing operating authorizations FOR FURTHER INFORMATION CONTACT: (slots) at LaGuardia Airport (LGA). 76 The Waiver requires the divested slots Frances Shaver, ARM–207, (202) 267– FR 63702 (Oct. 13, 2011) (the Waiver). to be reallocated in bundles. For DCA 4059, FAA, Office of Rulemaking, 800 The Waiver permitted Delta and US slots, there is one bundle of 16 slots Independence Ave., SW., Washington, Airways 30 days to accept the terms of (DCA Bundle). For LGA slots, there are DC 20591 or Walter Binkley, (405) 954– the Waiver. They accepted by joint letter two bundles of 16 slots each (LGA 3284, FAA, Aircraft Registration Branch, on October 12, 2011. Bundle A and LGA Bundle B). The PO Box 25504, Oklahoma City, OK Among the conditions of the Waiver, contents of the slot bundles are 73125. the Secretary and the Administrator included in an appendix to this This notice is published pursuant to require Delta and US Airways document. 14 CFR 11.85. collectively to dispose of 16 slots at Bidding on Slot Bundles Issued in Washington, DC, on October 19, Ronald Reagan Washington National Airport (DCA) and 32 slots at LGA. The Waiver permits a bidding period 2011. of seven business days. Accordingly, the Dennis R. Pratte, Those divested slots will be reallocated in one slot bundle for DCA and two slot bidding period will open at 9 a.m., Acting Director, Office of Rulemaking. bundles (of 16 slots each) for LGA to Eastern time, on November 14, 2011, Petition for Exemption eligible new entrant and limited and it will close at 5 p.m., Eastern time, incumbent carriers. The following on November 22, 2011. Registered Docket No.: FAA–2011–1029. bidders may submit cash-only bids at Petitioner: Maryland State Police discussion describes the procedures and timelines for that reallocation. any time during that bidding period and Aviation Command. may submit multiple bids during the Section of 14 CFR Affected: § 47.15(b). Registration for the Slot Reallocation bidding period. The FAA will construe Description of Relief Sought: the latest received bid as that bidder’s Maryland State Police Aviation The Waiver establishes that new entrant and limited incumbent carriers final bid. Command requests relief from Registered bidders may submit bids § 47.15(b). If granted, an exemption with less than five percent of the total slot holdings at DCA or LGA, and which via email to [email protected]. would allow Maryland State Police Please include ‘‘DCA/LGA Slot Aviation Command to use registration do not code share to or from DCA or LGA with any carrier that has five Reallocation’’ in the e-mail subject line. numbers ‘‘N1MSP’’ through ‘‘N11MSP’’ The FAA requests the following format for its new AW139 medevac fleet. percent or more of the total slot holdings, may participate in the for required bid information in the body [FR Doc. 2011–27432 Filed 10–21–11; 8:45 am] reallocation at the respective airport. of the email: BILLING CODE 4910–13–P Eligible participating carriers also may Bidder Identification Number, Slot not be subsidiaries, either partially or Bundle, Preference Ranking, Bid Price DEPARTMENT OF TRANSPORTATION wholly owned, of a company whose The preference ranking applies only combined slot holdings are equal to or to the LGA slot bundles, and the FAA Federal Aviation Administration greater than five percent of the total slot will use it only if one bidder submits holdings at DCA or LGA respectively, the highest bid for both bundles. This [Docket No. FAA–2010–0109] with the exception of Frontier Airlines preference ranking should be either a Petition for Waiver of the Terms of the as noted in the Waiver. ‘‘1’’ (first priority) or a ‘‘2’’ (second Order Limiting Scheduled Operations Because the identities of slot bidders priority). at LaGuardia Airport; Procedures for are undisclosed during the bidding The FAA will reject any bid that does the Reallocation of Slots at Ronald period, the FAA is requiring registration not contain all required bid information. Reagan Washington National Airport by eligible carriers to participate in the The FAA also will reject any bid and LaGuardia Airport reallocation process. Eligible carriers received after 5 p.m., Eastern time, on may register by e-mail to 7-awa- November 22, 2011. The FAA will use AGENCY: Department of Transportation, [email protected] between October 19 its email system time stamp as the Federal Aviation Administration (FAA). and October 28, 2011. Please include submission time of the bid. Bids are ACTION: Notice of procedures for the ‘‘DCA/LGA Slot Reallocation’’ in the effective upon receipt, and the FAA will reallocation of slots at Ronald Reagan email subject line. An eligible carrier not permit the withdrawal of any bid. Washington National Airport and must register as an individual carrier The FAA will post a running tally of LaGuardia Airport. and may not submit a joint bid with bids for each slot bundle at http:// another carrier. The registering carrier www.faa.gov/about/office_org/ SUMMARY: Under this notice, the FAA must indicate whether it intends to bid headquarters_offices/agc/ReAllocation. announces the procedures for the on slot bundles at DCA or LGA or both That tally will include the required bid reallocation of slots at Ronald Reagan airports. The registering carrier must information and time stamp of the bid. Washington National Airport and state whether there is common The FAA will post bids at LaGuardia Airport, which are being ownership or control of, by, or with any approximately 9 a.m., 12 p.m., and 4 divested by Delta Air Lines, Inc. and US other carrier at the respective airport. p.m., Eastern time, on each business day Airways, Inc. resulting from a grant of Finally, the registering carrier must of the bidding period (for bids received waiver to them. certify that it will disclose no purchase by 8 a.m., 11 a.m., and 3 p.m., Eastern SUPPLEMENTARY INFORMATION: On offer information to any person other time, respectively). On November 22, October 7, 2011, the Secretary of than its agent. the FAA will post bids each hour from

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9 a.m. through 4 p.m., Eastern time, for December 1, 2011. That notification time, on November 14, 2011, and will bids received prior to the previous half must certify that only monetary close at 5 p.m., Eastern time, on hour (e.g., at 10 a.m. for all bids consideration will be or has been November 22, 2011. received by 9:30 a.m.). On the following exchanged for the slots. ADDRESSES: Requests for registration day, November 23, 2011, the FAA will Posting Bid Information and bids may be submitted by e-mail to post bids received during the last hour the Slot Administration Office at 7- of bidding. After the FAA receives notice of the [email protected]. Information binding agreement between the regarding the slot reallocation may be Completing the Slot Reallocation divesting carrier and the winning found at: http://www.faa.gov/about/ Transaction bidder, it will post the winning bid and office_org/headquarters_offices/agc/ identity of the winning bidder at ReAllocation. On November 23, 2011, the FAA will http://www.faa.gov/about/office_org/ FOR FURTHER INFORMATION CONTACT: notify the divesting carrier and the headquarters_offices/agc/ReAllocation. Robert Hawks, Office of the Chief winning bidder for each bundle of the The FAA also will post all other bid Counsel, Federal Aviation winning bid and contact information for information with the name of the Administration, 800 Independence completing the transaction. The Waiver respective bidders. requires the divesting carrier and each In the unlikely event that no bids are Avenue, SW., Washington, DC 20591; winning bidder to enter into a binding received for a particular slot bundle, telephone number: 202–267–7143; fax agreement with respect to the sale of the those slots would revert to the FAA. The number: 202–267–7971; e-mail: divested slots within five business days FAA would post notice if no bids were [email protected]. from the FAA’s notice of the winning received at http://www.faa.gov/about/ Issued in Washington, DC, on October 18, bid. Accordingly, the FAA expects the office_org/headquarters_offices/agc/ 2011. carriers will notify the FAA that they ReAllocation. Rebecca B. MacPherson, have entered into binding agreements DATES: Registration by eligible carriers Assistant Chief Counsel for Regulations. with respect to the sale of the divested must be completed by October 28, 2011. slots, via e-mail to 7-awa- The bidding period for registered Appendix [email protected], no later than bidders will open at 9 a.m., Eastern The DCA Bundle consists of:

Slot ID Time Frequency

1147 ...... 0700 X67 1132 ...... 0800 Daily 1150 ...... 0800 Daily 1056 ...... 0900 Daily 1030 ...... 1000 Daily 1083 ...... 1000 Daily 1223 ...... 1100 Daily 1027 ...... 1200 Daily 1142 ...... 1300 Daily 1109 ...... 1400 Daily 1389 ...... 1600 Daily 1238 ...... 1700 Daily 1401 ...... 1800 Daily 1515 ...... 1800 Daily 1308 ...... 2000 X6 1065 ...... 2100 X6

The LGA Bundle A consists of:

Slot ID Time Arr./Dep. Frequency

3197 ...... 0600 Departure ...... X67 3183 ...... 0630 Departure ...... X67 2138 ...... 0730 Arrival ...... X67 2202 ...... 0830 Departure ...... X67 3003 ...... 0830 Arrival ...... X67 3230 ...... 0930 Departure ...... X67 3636 ...... 1100 Arrival ...... X67 3430 ...... 1230 Departure ...... X6 3415 ...... 1300 Arrival ...... X6 2160 ...... 1400 Departure ...... X6 2188 ...... 1500 Arrival ...... X6 3089 ...... 1600 Departure ...... X6 3606 ...... 1700 Arrival ...... X6 3015 ...... 1830 Departure ...... X6 3848 ...... 2000 Arrival ...... X6 3110 ...... 2100 Arrival ...... X6

The LGA Bundle B consists of:

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Slot ID Time Arr./Dep. Frequency

3326 ...... 0630 Departure ...... X67 2201 ...... 0700 Departure ...... X67 2108 ...... 0800 Arrival ...... X67 3318 ...... 0930 Departure ...... X67 2072 ...... 1000 Arrival ...... X67 2182 ...... 1030 Departure ...... X67 3093 ...... 1230 Arrival ...... X6 3075 ...... 1330 Departure ...... X6 3098 ...... 1430 Arrival ...... X6 3569 ...... 1600 Departure ...... X6 2004 ...... 1630 Arrival ...... X6 2129 ...... 1730 Departure ...... X6 2007 ...... 1830 Arrival ...... X6 2038 ...... 1930 Departure ...... X6 3104 ...... 2030 Arrival ...... X6 3054 ...... 2130 Arrival ...... X6

[FR Doc. 2011–27434 Filed 10–21–11; 8:45 am] Component) was completed in A Project Coordination Plan will be BILLING CODE 4910–13–P November 2005. The report evaluated provided in accordance with Public Law the alternatives for transportation 109–59, Safe, Accountable, Flexible, improvements within the study corridor Efficient Transportation Equity Act: A DEPARTMENT OF TRANSPORTATION and recommended a locally preferred Legacy for Users (SAFETEA–LU), Title alternative to meet the corridor’s VI, Subsection 6002, Efficient Federal Highway Administration highway transportation needs, while Environmental Reviews for Project minimizing impacts to the surrounding Decision Making, August 10, 2005, to Environmental Impact Statement: environment. facilitate and document the lead Harris County, Texas Projected increases in population and agencies, structure interaction with the AGENCY: Federal Highway employment in the Houston public and other agencies, and to inform Administration (FHWA), DOT. metropolitan area will contribute to the public and other agencies of how the additional IH 45 congestion, which is coordination will be accomplished. The ACTION: Notice of Intent (NOI). already serious to severe. The proposed Project Coordination Plan will promote SUMMARY: Pursuant to 40 CFR 1508.22 project is needed to address the serious early and continuous involvement from and 43 TAC § 2.5(e)(2), the FHWA and to severe congestion and to stakeholders, agencies, and the public as the Texas Department of Transportation accommodate existing and anticipated well as describe the proposed project, (TxDOT) are issuing this notice to future traffic. Additionally the project is the roles of the agencies and the public, advise the public that an environmental needed to bring the roadway up to the project need and purpose, schedule, impact statement (EIS) will be prepared current design standards, which would level of detail for alternatives analysis, for the proposed North Houston improve safety and provide for more methods to be used in the Highway Improvement Project, in Harris efficient movement of people and goods. environmental analysis, and the County, Texas. The proposed project Additional efficiency is also needed to proposed process for coordination and and study limits begin at interchange of aid in evacuation events. The purpose of communication. United States Highway (US) 59 and the proposed project is to manage the The Project Coordination Plan is State Highway (SH) 288 and follow traffic congestion in the IH 45 corridor, designed to be part of a flexible and northward along IH 45 to the improve mobility, provide expanded adaptable process. The Project interchange of IH 45 and Beltway 8 transit and carpool opportunities, bring Coordination Plan will be available for North, a distance of approximately 16 the roadway facility up to current public review, input, and comment at miles. The proposed project area also design standards to improve safety and public meetings, including scoping meetings and hearings, held in includes portions of IH 10, IH 610, US operations, and expand capacity for emergency evacuations. accordance with the National 59, SH 288 near the downtown area, and The EIS will evaluate potential Environmental Policy Act (NEPA) the Hardy Toll Road located north of impacts from construction as well as through the evaluation process. downtown Houston. The proposed routine operations of the proposed Pursuant to 23 U.S.C. Chapter 1, project will be developed in compliance project, including, but not limited to the Subchapter 1, Section 139 of SAFETEA– with Section 6002 of the Safe, following: Impacts or potential LU, cooperating agencies, participating Accountable, Flexible, Efficient displacements to residents and agencies and the public will be given an Transportation Equity Act: A Legacy for businesses; impacts to air and noise; opportunity for input in the Users (SAFETEA–LU) and the National impacts to water quality; impacts to development of the project. The first of Environmental Policy Act (NEPA). waters of the United States; impacts to a series of public scoping meetings, FOR FURTHER INFORMATION CONTACT: historic and archeological resources; conducted in an open house format, is Gregory Punske, P.E., District Engineer, impacts to hazardous materials; impacts planned to be held in the fall of 2011. Federal Highway Administration— to floodplains; impacts to socio- As part of the NEPA process, this Texas Division, 300 East 8th Street, economic resources (including meeting will be the first in a series of Room 826, Austin, Texas 78701. environmental justice and limited meetings to solicit public comments Telephone: 512–536–5960. English proficiency populations); throughout the planning process. SUPPLEMENTARY INFORMATION: The indirect impacts; cumulative impacts; A scoping meeting is an opportunity North-Hardy Planning Studies: impacts to land use; impacts to for participating agencies, cooperating Alternative Analysis Report (Highway vegetation; and impacts to wildlife. agencies and the public to be involved

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in defining the need for and purpose of Memorial Drive to County M, The are described in the Final the proposed project, to assist in project will also reconstruct I–43 from Environmental Impact Statement (FEIS) determining the range of alternatives US 41 to Atkinson Drive and reconstruct for the project, approved on July 7, 2011 considered in the draft EIS, and to the Velp Avenue, I–43, and County M (FHWA–WI–EIS–11–01–F), in the comment on methods to evaluate interchanges. The I–43/US 41 Record of Decision (ROD) issued on alternatives. Public scoping meetings interchange will be reconstructed as a October 4, 2011, and in other and a public hearing will be held during System Interchange with directional documents in the FHWA/WisDOT appropriate phases of the project ramps and will include a realignment of administrative record for the project. development process. Public notices the US 41 mainline, raising of the The FEIS, ROD, and other project will be published in general circulation northbound gradeline, and elimination records are available by contacting newspapers in the project area at least of existing access between Velp Avenue FHWA or WisDOT at the addresses 30 days prior to the meeting, and again and I–43 via US 41. The project limits provided above. approximately 10 days prior to the on US 41 extend from Memorial Drive The FEIS can also be viewed on the meeting. The notices will be published to County M, a distance of project Web site: http:// in English and Spanish stating the date, approximately 3.5 miles and the project www.us41wisconsin.gov/overview/ time, and location of each. The Draft EIS limits on I–43 extend from US 41 to special-project-features/ will be available for public and agency Atkinson Drive, a distance of envdocsmemorialdrtocountym. review and comment prior to a public approximately 2 miles. The project also This notice applies to all Federal hearing. includes construction of roundabouts, agency decisions as of the issuance date To ensure that the full range of issues construction of new bridges and of this notice and all laws under which related to this proposed action are replacement of existing bridges. such actions were taken, including but addressed and all significant issues DATES: By this notice, the FHWA is not limited to: identified, comments and suggestions advising the public of final agency 1. General: National Environmental are invited from all interested parties. actions subject to 23 U.S.C. 139(l)(1). A Policy Act (NEPA) [42 U.S.C. 4321– Comments or questions concerning this claim seeking judicial review of the 4351]; Federal-Aid Highway Act proposed action and the EIS should be Federal agency actions on the highway (FAHA) [23 U.S.C. 109 and 23 U.S.C. directed to FHWA at the address project will be barred unless the claim 128]. provided. is filed within 180 days of publication 2. Air: Clean Air Act [42 U.S.C. 7401– of this Federal Register notice. If the 7671(q)]. (Catalog of Federal Domestic Assistance 3. Land: Section 4(f) of the Program Number 20.205, Highway Research, Federal law that authorizes judicial review of a claim provides a time period Department of Transportation Act of Planning, and Construction. The regulations 1966 [23 U.S.C. 138 and 49 U.S.C. 303], implementing Executive Order 12372, of less than 180 days for filing such regarding intergovernmental consultation on claim, then that shorter time period still Section 6(f) of the Land and Water Federal programs and activities, apply to this applies. Conservation Act as amended [16 U.S.C. program.) FOR FURTHER INFORMATION CONTACT: 4601], Farmland Protection Policy Act of 1980 [7 U.S.C. 4201–4209], and Issued on: October 13, 2011. Tracey Blankenship, Major Projects National Trails System Act [16 U.S.C. Gregory S. Punske, Program Manager, Federal Highway Administration, 525 Junction Road 1241–1249]. District Engineer, Austin, Texas. 4. Wildlife: Endangered Species Act of [FR Doc. 2011–27359 Filed 10–21–11; 8:45 am] Suite 8000, Madison, Wisconsin 53717; telephone: (608) 829–7510 or, e-mail: 1973 [16 U.S.C. 1531–1543 and Section BILLING CODE 4910–22–P [email protected]. The 1536]; Fish and Wildlife Coordination FHWA Wisconsin Division’s normal Act [16 U.S.C. 661–666(c)]; Migratory office hours are 7 a.m. to 4 p.m. central Bird Treaty Act [16 U.S.C. 760c–760g]. DEPARTMENT OF TRANSPORTATION 5. Historic and Cultural Resources: time. For the Wisconsin Department of Section 106 of the National Historic Transportation (WisDOT): Danielle Federal Highway Administration Preservation Act of 1966, as amended Block, PE, Wisconsin Department of [16 U.S.C. 470(f) et seq.]; Archeological Notice of Final Federal Agency Actions Transportation, US 41 Brown County Resources Protection Act of 1977 [16 on Proposed Highway Project in Project Office, 1940 West Mason Street, U.S.C. 470(aa)–470(ll)]; Archeological Wisconsin Green Bay, Wisconsin 54303; telephone: and Historic Preservation Act [16 U.S.C. (920) 492–2212; e-mail: AGENCY: Federal Highway 469–469(c)]; Native American Grave [email protected]. Administration (FHWA), DOT. Protection and Repatriation Act [25 ACTION: Notice of Limitation on Claims SUPPLEMENTARY INFORMATION: Notice is U.S.C. 3001 et seq.]. for Judicial Review of Actions by hereby given that FHWA has taken final 6. Social and Economic: Civil Rights FHWA, Army Corps of Engineers agency actions subject to 23 U.S.C. Act of 1964 [42 U.S.C. 2000(d) et. seq.]; (USACE), and Other Federal Agencies. 139(l)(1) by issuing approvals for the American Indian Religious Freedom Act following highway project: US 41 [42 U.S.C. 1996]; Americans with SUMMARY: This notice announces actions (Memorial Drive to County M), Brown Disabilities Act [42 U.S.C. 12101]; taken by the FHWA that are final within County, Wisconsin, Project I.D. 1133– Uniform Relocation Assistance and Real the meaning of 23 U.S.C. 139(l)(1). The 10–01. The project involves providing Property Acquisition Act of 1970 [42 actions relate to a proposed highway additional capacity on approximately U.S.C. 4601 et seq. as amended by the project, US 41 (Memorial Drive to 3.5 miles of US 41 from Memorial Drive Uniform Relocation Act Amendments of County M) in Brown County, to County M, reconstructing 1987 [Pub. L. 100–17]. Wisconsin. Those actions grant approximately 2 miles of I–43 from US 7. Wetlands and Water Resources: approvals for the project. The project 41 to Atkinson Drive, and Clean Water Act (Section 404, Section will widen the US 41 freeway mainline reconstructing the Velp Avenue, IH–43, 401, Section 319) [33 U.S.C. 1251– from 4 to 6 lanes and add auxiliary and County M interchanges on US 41. 1376]; Land and Water Conservation lanes at certain locations along US 41 The actions taken by FHWA, and laws Fund [16 U.S.C. 460l–4 to 460l–11]; Safe northbound and southbound from under which such actions were taken, Drinking Water Act [42 U.S.C. 300(f)–

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300(j)(6)]; TEA–21 Wetlands Mitigation and its expected burden. The Federal Title: Inspection Brake System Safety [23 U.S.C. 103(b)(6)(m), 133(b)(11)]; Register notice with a 60-day comment Standards for Freight and Other Non- Flood Disaster Protection Act, [42 U.S.C. period soliciting comments on the Passenger Trains and Equipment (Power 4001–4128]; Emergency Wetlands following collection of information was Brakes and Drawbars). Resources Act, [16 U.S.C. 3921, 3931]. published on August 12, 2011 (76 FR OMB Control Number: 2130–0008. 8. Hazardous Materials: 50320). Type of Request: Extension of a currently approved collection. Comprehensive Environmental DATES: Comments must be submitted on Affected Public: Businesses. Response, Compensation, and Liability or before November 23, 2011. Act of 1980 (CERCLA) as amended [42 Abstract: Section 7 of the Rail Safety FOR FURTHER INFORMATION CONTACT: Mr. U.S.C. 9601–9657]; Superfund Enforcement and Review Act of 1992, Robert Brogan, Office of Safety, Amendments and Reauthorization Act Public Law 102–365, amended Section Planning and Evaluation Division, RRS– of 1986 [Pub. L. 99–499]; Resource 202 of the Federal Railroad Safety Act 21, Federal Railroad Administration, Conservation and Recovery Act [42 of 1970 (45 U.S.C. 421, 431 et seq.), 1200 New Jersey Ave., SE., 3rd Floor, U.S.C. 6901 et. seq.]. empowered the Secretary of 9. Executive Orders: E.O. 11990 Mail Stop 25, Washington, DC 20590 Transportation to conduct a review of Protection of Wetlands; E.O. 11988 (telephone: (202) 493–6292), or Ms. the Department’s rules with respect to Floodplain Management as amended by Kimberly Toone, Office of Information railroad power brakes and, where Technology, RAD–20, Federal Railroad E.O. 12148; E.O. 12898, Federal Actions applicable, prescribe standards Administration, 1200 New Jersey Ave., to Address Environmental Justice in regarding dynamic brake equipment. In SE., 3rd Floor, Mail Stop 35, Minority Populations and Low Income keeping with the Secretary’s mandate Washington, DC 20590 (telephone: (202) Populations; E.O. 11593 Protection and and the authority delegated from him to 493–6132). (These telephone numbers Enhancement of Cultural Resources; the FRA Administrator, FRA issued are not toll-free.) E.O. 13007 Indian Sacred Sites; E.O. revisions to the regulations governing 13287 Preserve America; E.O. 13175 SUPPLEMENTARY INFORMATION: The freight power brakes and equipment in Consultation and Coordination with Paperwork Reduction Act of 1995 October 2008 by adding a new Subpart Indian Tribal Governments; E.O. 11514 (PRA), Public Law 104–13, Section 2, addressing electronically controlled Protection and Enhancement of 109 Stat. 163 (1995) (codified as revised pneumatic (ECP) brake systems. The Environmental Quality; E.O. 13112 at 44 U.S.C. 3501–3520), and its revisions are designed to provide for Invasive Species. implementing regulations, 5 CFR Part and encourage the safe implementation 1320, require Federal agencies to issue and use of ECT brake system (Catalog of Federal Domestic Assistance two notices seeking public comment on technologies. These revisions contain Program Number 20.205, Highway Planning information collection activities before and Construction. The regulations specific requirements relating to design, implementing Executive Order 12372 OMB may approve paperwork packages. interoperability, training, inspection, regarding intergovernmental consultation on 44 U.S.C. 3506, 3507; 5 CFR 1320.5, testing, handling defective equipment Federal programs and activities apply to this 1320.8(d)(1), 1320.12. On August 12, and periodic maintenance related to program.) 2011, FRA published a 60-day notice in ECP brake systems. The final rule also Authority: 23 U.S.C. 139(l)(1). the Federal Register soliciting comment identifies provisions of the existing on this ICR for which the agency was Issued on: October 13, 2011. regulations and statutes where FRA is seeking OMB approval. 76 FR 50320. proposing to provide flexibility to Tracey Blankenship, FRA received no comments in response facilitate the voluntary adoption of this Major Projects Program Manager, FHWA to this notice. advanced brake system technology. The Wisconsin Division, Madison, Wisconsin. Before OMB decides whether to collection of information is used by FRA [FR Doc. 2011–27358 Filed 10–21–11; 8:45 am] approve these proposed collections of to monitor and enforce current BILLING CODE 4910–RY–P information, it must provide 30 days for regulatory requirements related to public comment. 44 U.S.C. 3507(b); 5 power brakes on freight cars as well as CFR 1320.12(d). Federal law requires DEPARTMENT OF TRANSPORTATION the recently added requirements related OMB to approve or disapprove to ECP brake systems. The collection of Federal Railroad Administration paperwork packages between 30 and 60 information is also used by locomotive days after the 30 day notice is engineers and road crews to verify that [Docket No. FRA–2011–0001–N–15] published. 44 U.S.C. 3507 (b)–(c); 5 CFR the terminal air brake test has been 1320.12(d); see also 60 FR 44978, 44983, Proposed Agency Information performed in a satisfactory manner. Aug. 29, 1995. OMB believes that the 30 Form Number(s): N/A. Collection Activities; Comment day notice informs the regulated Annual Estimated Burden Hours: Request community to file relevant comments 990,660 hours. AGENCY: Federal Railroad and affords the agency adequate time to Addressee: Send comments regarding Administration, (FRA), Department of digest public comments before it this information collection to the Office Transportation (DOT). renders a decision. 60 FR 44983, Aug. of Information and Regulatory Affairs, ACTION: Notice and Request for 29, 1995. Therefore, respondents should Office of Management and Budget, 725 Comments. submit their respective comments to Seventeenth Street, NW., Washington, OMB within 30 days of publication to DC, 20503, Attention: FRA Desk Officer. SUMMARY: In compliance with the best ensure having their full effect. 5 Comments may also be sent via e-mail Paperwork Reduction Act of 1995 (44 CFR 1320.12(c); see also 60 FR 44983, to OMB at the following address: U.S.C. 3501 et seq.), this notice Aug. 29, 1995. [email protected]. announces that the Information The summary below describes the Comments are invited on the Collection Requirement (ICR) abstracted nature of the information collection following: Whether the proposed below is being forwarded to the Office requirement (ICR) and the expected collection of information is necessary of Management and Budget (OMB) for burden for the ICR being submitted for for the proper performance of the review and comment. The ICR describes clearance by OMB as required by the functions of the Department, including the nature of the information collection PRA. whether the information will have

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practical utility; the accuracy of the 1246, by fax at 202–366–4566, or by OMB Control Number: 2137–0049. Department’s estimate of the burden of mail at U.S. Department of Current Expiration Date: 1/31/2012. the proposed information collection; Transportation, PHMSA, 1200 New Abstract: Operators of gas pipelines ways to enhance the quality, utility, and Jersey Avenue, SE., PHP–30, are required per 49 CFR Part 192 to clarity of the information to be Washington, DC 20590–0001. maintain records, make reports, and collected; and ways to minimize the SUPPLEMENTARY INFORMATION: Section provide information to PHMSA and burden of the collection of information 1320.8(d), Title 5, Code of Federal state pipeline safety agencies on respondents, including the use of Regulations, requires PHMSA to provide concerning the operations of their automated collection techniques or interested members of the public and pipelines. The information aids Federal other forms of information technology. affected agencies an opportunity to and state pipeline safety inspectors in A comment to OMB is best assured of comment on information collection and conducting compliance inspections and having its full effect if OMB receives it recordkeeping requests. This notice investigating incidents. within 30 days of publication of this identifies several information collection Affected Public: Operators of natural notice in the Federal Register. requests that PHMSA will be submitting gas pipeline systems. Authority: 44 U.S.C. 3501–3520. to OMB for renewal and one collection Annual Reporting and Recordkeeping Issued in Washington, DC, on October 17, that PHMSA plans to discontinue. The Burden following information is provided for 2011. Total Annual Responses: 2,300. Kimberly Coronel, each information collection: (1) Title of the information collection; (2) OMB Total Annual Burden Hours: 940,454. Director, Office of Financial Management, Frequency of collection: On occasion. Federal Railroad Administration. control number; (3) Current expiration date; (4) Type of request; (5) Abstract of 3. Title: Customer-Owned Service [FR Doc. 2011–27340 Filed 10–21–11; 8:45 am] the information collection activity; (6) Lines. BILLING CODE 4910–06–P Description of affected public; (7) OMB Control Number: 2137–0594. Estimate of total annual reporting and Current Expiration Date: 1/31/2012. Abstract: Operators of gas service recordkeeping burden; and (8) DEPARTMENT OF TRANSPORTATION lines who do not maintain certain Frequency of collection. Unless buried piping on behalf of their otherwise specified, PHMSA will Pipeline and Hazardous Materials customers must provide notification request a three-year term of approval for Safety Administration about maintenance to those customers each information collection activity. (49 CFR 192.16). Upon request, an [Docket No. PHMSA–2011–0273] PHMSA plans to discontinue the operator must make documentation of following information collection: Pipeline Safety: Information Collection compliance available to PHMSA or the Activities Title: Pipeline Safety: Excess Flow Valves—Customer Notification. appropriate state regulatory agency. Affected Public: Natural gas pipeline AGENCY: Pipeline and Hazardous OMB Control Number: 2137–0593. Materials Safety Administration Current Expiration Date: 1/31/2012 operators. (PHMSA), DOT. (To be discontinued). Annual Reporting and Recordkeeping ACTION: Notice and request for Abstract: Pipeline operators are no Burden comments. longer required to provide notifications about excess flow valves to service line Total Annual Responses: 550,000. SUMMARY: On August 1, 2011, in customers as described in 49 CFR Total Annual Burden Hours: 9,167. accordance with the Paperwork 192.383. Frequency of collection: On occasion. Reduction Act of 1995, PHMSA Accordingly, PHMSA has decided to 4. Title: Pipeline Safety: Qualification published a notice with request for discontinue this collection. of Pipeline Safety, Training. comments in the Federal Register (76 PHMSA requests comments on the OMB Control Number: 2137–0600. FR 45904). The notice concerned several following information collections: Current Expiration Date: 2/29/2012. pipeline safety information collections 1. Title: Requirements for Liquefied Abstract: Pipeline operators are that PHMSA will be submitting to the Natural Gas (LNG) Facilities. required to have continuing programs Office of Management and Budget OMB Control Number: 2137–0048. for qualifying and training personnel (OMB) for renewal and one information Current Expiration Date: 1/31/2012. performing safety-sensitive functions on collection that PHMSA intends to Abstract: Operators of liquefied pipelines (49 CFR part 192, Subpart N discontinue. PHMSA received no natural gas facilities are required under and 49 CFR part 195, Subpart G). comments on the notice. PHMSA is now 49 CFR Part 193 to maintain records, Operators must maintain records, make forwarding the information collection make reports, and provide information reports, and provide information to request to OMB and providing an to PHMSA and state pipeline safety PHMSA and state pipeline safety additional 30 days for comments. agencies concerning the operations of agencies concerning these programs. their facilities. The information aids The information aids Federal and state DATES: Interested persons are invited to pipeline safety inspectors in conducting submit comments to OMB on or before Federal and state pipeline safety compliance inspections and November 23, 2011. inspectors in conducting compliance inspections and investigating incidents. investigating incidents. ADDRESS: Send comments regarding the Affected Public: Operators of liquefied Affected Public: Pipeline operators. burden estimate, including suggestions natural gas facilities. for reducing the burden, directly to Annual Reporting and Recordkeeping OMB, Office of Information and Annual Reporting and Recordkeeping Burden Regulatory Affairs, Attn: Desk Officer Burden Total Annual Responses: 22,300. for the U.S. Department of Total Annual Responses: 101. Total Annual Burden Hours: 466,667. Transportation (PHMSA), 725 17th Total Annual Burden Hours: 12,120. Frequency of collection: On occasion. Street, NW., Washington, DC 20503. Frequency of Collection: On occasion. 5. Title: Pipeline Safety: Report of FOR FURTHER INFORMATION CONTACT: 2. Title: Recordkeeping for Natural Abandoned Underwater Pipelines. Angela Dow by telephone at 202–366– Gas Pipeline Operators. OMB Control Number: 2137–0601.

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Current Expiration Date: 2/29/2012. relative to the Integrity Management for, and the processing of, special Abstract: Pipeline operators are Program provisions of 49 CFR 195.452. permits from the Department of required to report certain information Affected Public: All pipeline Transportation’s Hazardous Material about abandoned underwater pipelines operators of hazardous liquid pipelines Regulations (49 CFR part 107, subpart to PHMSA (49 CFR 195.59 and 192.727). located in high consequence areas. B), notice is hereby given that the Office The information aids Federal and state Annual Reporting and Recordkeeping of Hazardous Materials Safety has pipeline safety inspectors in conducting Burden received the applications described compliance inspections and herein. This notice is abbreviated to investigating incidents. Annual Responses: 203. expedite docketing and public notice. Affected Public: Operators of Annual Burden Hours: 325,470. Because the sections affected, modes of Frequency of collection: On occasion. underwater pipelines. Comments are invited on: transportation, and the nature of application have been shown in earlier Annual Reporting and Recordkeeping (a) The need for the proposed Federal Register publications, they are Burden collection of information for the proper performance of the functions of the not repeated here. Requests for Annual Responses: 10. agency, including whether the modification of special permits (e.g. to Annual Burden Hours: 60. information will have practical utility; provide for additional hazardous Frequency of collection: On occasion. (b) The accuracy of the agency’s materials, packaging design changes, 6. Title: Pipeline Safety: Integrity estimate of the burden of the proposed additional mode of transportation, etc.) Management in High Consequence collection of information, including the are described in footnotes to the Areas for Operators with more than 500 validity of the methodology and application number. Application Miles of Hazardous Liquid Pipelines. assumptions used; numbers with the suffix ‘‘M’’ denote a OMB Control Number: 2137–0604. (c) Ways to enhance the quality, modification request. These Current Expiration Date: 1/31/2012. utility, and clarity of the information to applications have been separated from Abstract: Hazardous liquid operators be collected; and the new application for special permits with pipelines in high consequence (d) Ways to minimize the burden of to facilitate processing. areas (i.e., commercially navigable the collection of information on those DATES: Comments must be received on waterways, high population areas, other who are to respond, including the use or before November 8, 2011. populated areas, and unusually of appropriate automated, electronic, sensitive areas as defined in 49 CFR mechanical, or other technological Address Comments to: Record Center, 195.450) are subject to certain collection techniques. Pipeline and Hazardous Materials Safety information collection requirements Administration, U.S. Department of Issued in Washington, DC, on October 17, Transportation, Washington, DC 20590. relative to the Integrity Management 2011. Program provisions of 49 CFR 195.452. Linda Daugherty, Comments should refer to the This collection, which applies to Deputy Associate Administrator for Policy application number and be submitted in operators of more than 500 miles of and Programs. triplicate. If confirmation of receipt of hazardous liquid pipelines, is being [FR Doc. 2011–27369 Filed 10–21–11; 8:45 am] comments is desired, include a self- merged with the information collection addressed stamped postcard showing BILLING CODE 4910–60–P under OMB Control Number 2137–0605 the special permit number. which will now cover all hazardous FOR FURTHER INFORMATION CONTACT: liquid operators with pipelines in high DEPARTMENT OF TRANSPORTATION Copies of the applications are available consequence areas. for inspection in the Records Center, 7. Title: Pipeline Safety: Integrity Pipeline and Hazardous Materials East Building, PHH–30, 1200 New Management in High Consequence Safety Administration Jersey Avenue Southeast, Washington, Areas for Operators of Hazardous Liquid DC or at http://regulations.gov. Pipelines. (New Title). Office of Hazardous Materials Safety; OMB Control Number: 2137–0605. Notice of Applications for Modification This notice of receipt of applications Current Expiration Date: 1/31/2012. of Special Permit for modification of special permit is Abstract: Hazardous liquid operators published in accordance with Part 107 AGENCY: Pipeline and Hazardous of the Federal hazardous materials with pipelines in high consequence Materials Safety Administration areas (i.e., commercially navigable transportation law (49 U.S.C. 5117(b); (PHMSA), DOT. 49 CFR 1.53(b)). waterways, high population areas, other ACTION: List of Applications for populated areas, and unusually Modification of Special Permits. Issued in Washington, DC, on October 6, sensitive areas as defined in 49 CFR 2011. 195.450) are subject to certain SUMMARY: In accordance with the Donald Burger, information collection requirements procedures governing the application Chief, General Approvals and Permits.

MODIFICATION SPECIAL PERMITS

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

8495–M ...... Kidde Aerospace and 49 CFR To modify the special permit to clarify the pressure at which the Defense Wilson, 173.304(a)(1); wall thickness of the pressure vessel is defined and tested. NC. 178.47; 175.3. 12930–M ...... Roeder Cartage 49 CFR 180.407(c), To modify the special permit to add an additional trailer. Company, Inc. (e) and (f). Lima, OH.

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MODIFICATION SPECIAL PERMITS—Continued

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

14940–M ...... Crown Aerosol Pack- 49 CFR 173.306 ...... To modify the special permit to authorize rail freight and cargo aging Philadelphia, vessel as additional modes of transportation. PA.

[FR Doc. 2011–27110 Filed 10–21–11; 8:45 am] telephone numbers, for public webcast. The Council presented the BILLING CODE 4909–60–M inspection and photocopying in the proposed themes and principles for the Department’s library, Room 1428, Main Council’s consideration. For more Department Building, 1500 information about the proposed themes DEPARTMENT OF THE TREASURY Pennsylvania Avenue, NW., and principles, click here. The Council Washington, DC, 20220, on official also recommended that the United Open Meeting of the President’s business days between the hours of 10 States join other Organization for Advisory Council on Financial a.m. and 5 p.m. You can make an Economic Cooperation and Capability appointment to inspect statements by Development countries in administering calling (202) 622–0990. All statements the 2012 Programme for International AGENCY: Department of the Treasury. received, including attachments and Student Assessment financial literacy ACTION: Notice of meeting. other supporting materials, are part of assessment, and identify funding to the public record and subject to public support this implementation. SUMMARY: The President’s Advisory disclosure. You should only submit In accordance with section 10(a) of Council on Financial Capability information that you wish to make the Federal Advisory Committee Act, 5 (‘‘Council’’) will convene for a public publicly available. U.S.C. App. 2 and the regulations meeting on November 8, 2011 at the thereunder, Dubis Correal, Designated Department of Treasury, 1500 FOR FURTHER INFORMATION CONTACT: Dubis Correal, Director, Office of Federal Officer of the Council, has Pennsylvania Avenue, NW., ordered publication of this notice that Washington, DC, beginning at 10:30 a.m. Financial Education, Department of the Treasury, 1500 Pennsylvania Avenue, the Council will convene its fourth Eastern Time. The meeting will be open meeting on November 8, 2011 at the to the public. The Council will: (1) NW., Washington, DC 20220, at (202) 622–5770 or [email protected]. Department of Treasury, 1500 Receive a report from the Council’s Pennsylvania Avenue, NW., subcommittees (Financial Access, SUPPLEMENTARY INFORMATION: On Washington, DC, beginning at 10:30 a.m. Research and Evaluation, Partnerships, January 29, 2010, the President signed Eastern Time. The meeting will be open and Youth) on their progress; (2) review Executive Order 13530, creating the to the public. Members of the public membership and composition of the Council to assist the American people in who plan to attend the meeting must subcommittees, (3) review the understanding financial matters and RSVP with their name, organization comments the Council received on its making informed financial decisions, represented (if any), phone number, and proposed themes and principles that thereby contributing to financial email address. To register, please go to were posted for public comment on stability. The Council is composed of http://www.treasury.gov, click on September 1, 2011, and (4) hear from two ex officio Federal officials and 12 Resource Center, then Office of outside experts about youth financial non-governmental members appointed Financial Education and Financial capability and the use of technology in by the President with relevant Access, and then on the President’s improving financial capability. backgrounds, such as financial services, Advisory Council on Financial DATES: The meeting will be held on consumer protection, financial access, Capability or call (202) 622–5770 by 5 November 8, 2011, at 10:30 a.m. Eastern and education. The role of the Council p.m. Eastern Time on November 1, Time. is to advise the President and the 2011. For entry into the building on the Submission of Written Statements: Secretary of the Treasury on means to date of the meeting, attendees must The public is invited to submit written promote and enhance individuals’ and present a government-issued ID, such as statements to the Council. Written families’ financial capability. The a driver’s license or passport, which statements should be sent by any one of Council held its first meeting on includes a photo. The purpose of the the following methods: November 30, 2010. At that meeting, the meeting is to receive an update from the Chair recommended the establishment Electronic Statements Council’s subcommittees on their of five subcommittees to focus on the progress. The Council will review the E-mail [email protected]. following strategic areas: National membership and the composition of its Strategy, Financial Access, Research Paper Statements subcommittees, and the comments and Evaluation, Partnerships, and received on the Council’s proposed Send paper statements to the Youth. The Council met again on April themes and principles. The Council will Department of the Treasury, Office of 21, 2011, and approved two also hear from outside experts on youth Financial Education and Financial recommendations: that the Department financial capability and how technology Access, Main Treasury Building, 1500 of the Treasury hold a challenge to the can improve the financial capability of Pennsylvania Avenue, NW., private sector to create applications for youths. Washington, DC 20220. mobile devices that promote financial In general, the Department will make capability and financial access, and that Alastair Fitzpayne, all statements available in their original the Department of the Treasury support Executive Secretary, U.S. Department of the format, including any business or the Workplace Leaders in Financial Treasury. personal information provided such as Education Award. On July 12, 2011, the [FR Doc. 2011–27423 Filed 10–21–11; 8:45 am] names, addresses, e-mail addresses, or Council held a public meeting via BILLING CODE 4810–25–P

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DEPARTMENT OF THE TREASURY discussion of relevant employee plans, DEPARTMENT OF VETERANS exempt organizations, tax-exempt AFFAIRS Internal Revenue Service bonds, and federal, state, local, and Indian tribal government issues between Clinical Science Research and Request for Applications for the IRS officials of the IRS and representatives Development Service Cooperative Advisory Committee on Tax Exempt of the above communities. The ACT also Studies Scientific Evaluation and Government Entities enables the IRS to receive regular input Committee, Notice of Meeting AGENCY: Internal Revenue Service (IRS); with respect to the development and The Department of Veterans Affairs Tax Exempt and Government Entities implementation of IRS policy (VA) gives notice under Public Law 92– Division, Treasury. concerning these communities. ACT 463 (Federal Advisory Committee Act) ACTION: Notice and request for members present the interested public’s that a meeting of the Clinical Science applicants or nominations. observations about current or proposed Research and Development Service IRS policies, programs, and procedures, Cooperative Studies Scientific SUMMARY: The Internal Revenue Service as well as suggest improvements. Evaluation Committee will be held on (IRS) is requesting applications for ACT members shall be appointed by November 9–10, 2011, at The Residence membership to serve on the Advisory Inn Arlington Pentagon City, 550 Army Committee on Tax Exempt and the Secretary of the Treasury and shall serve for two-year terms. Terms can be Navy Drive, Arlington, VA. The meeting Government Entities (ACT). is scheduled to begin at 8 a.m. each day extended for an additional year. ACT Applications will be accepted for the and end at 5 p.m. on November 9 and members will not be paid for their time following vacancies, which will occur at 3 p.m. on November 10. in June 2012: Two (2) employee plans; or services. ACT members will be The Committee advises the Chief two (2) exempt organizations; one (1) reimbursed for their travel-related Research and Development Officer Indian tribal government; and two (2) expenses to attend working sessions and through the Director of the Clinical tax exempt bonds. To ensure public meetings, in accordance with 5 Science Research and Development appropriate balance of membership, U.S.C 5703. Service on the relevance and feasibility final selection from qualified candidates The Secretary of the Treasury invites of proposed projects and the scientific will be determined based on experience, those individuals, organizations, and validity and propriety of technical qualifications, and other expertise. groups affiliated with employee plans, details, including protection of human Members of the ACT may not be exempt organizations, tax exempt subjects. federally registered lobbyists. bonds, and Indian tribal governments, to The session will be open to the public DATES: Written applications or nominate individuals for membership for approximately 30 minutes at the nominations must be received on or on the ACT. Nominations should start of the meeting for the discussion of before Dec. 1, 2011. describe and document the proposed administrative matters and the general ADDRESSES: Send all applications and member’s qualifications for ACT status of the program. The remaining portion of the meeting will be closed to nominations to: Bobby Zarin; Director membership, including the nominee’s the public for the Committee’s review, TE/GE Communications and Liaison; past or current affiliations and dealings discussion and evaluation of research 1111 Constitution Ave., NW.—SE.: T: with the particular community or and development applications. CL, Penn Bldg; Washington, DC, 20224; segment of the community that he or Fax: (202) 283–9956 (not a toll-free During the closed portion of the she wishes to represent (such as, number); e-mail: meeting, discussions and employees plans). Nominations should [email protected] recommendations will deal with also specify the vacancy for which they Application: Applicants may use the qualifications of personnel conducting ACT Application Form on the IRS Web wish to be considered. The Department the projects, staff and consultant site (IRS.gov) or may send an of the Treasury seeks a diverse group of critiques of research proposals and application by letter with the following members representing a broad spectrum similar documents and the medical information: Name; Other Name(s) Used of persons experienced in employee records of patients who are study and Date(s) (required for FBI check); plans, exempt organizations, tax-exempt subjects, the disclosure of which would Date of Birth (required for FBI check); bonds, and federal, state, local and constitute a clearly unwarranted City and State of Birth (required for FBI Indian tribal governments. Nominees invasion of personal privacy. As Check); Current Address; Telephone must go through a clearance process provided by section 10(d) of Public Law and Fax Numbers; and e-mail address, before selection by the Department of 92–463, as amended, closing portions of if any. Applications should also the Treasury. In accordance with the this meeting is in accordance with 5 describe and document the proposed Department of the Treasury Directive U.S.C. 552b(c)(6) and (c)(9)(B). member’s qualifications for membership 21–03, the clearance process includes, Those who plan to attend should on the ACT. Applications should also among other things, pre-appointment contact Dr. Grant Huang, Deputy specify the vacancy for which they wish and annual tax checks, and an FBI Director, Cooperative Studies Program to be considered. criminal and subversive name check, (10P9CS), Department of Veterans FOR FURTHER INFORMATION CONTACT: fingerprint check, and security Affairs, 810 Vermont Avenue, NW., Bobby Zarin (202) 283–8868 (not a toll- clearance. Washington, DC 20420, or e-mail at [email protected] or phone at (202) free number) or by e-mail at Dated: October 17, 2011. [email protected] 443–5600. Roberta B. Zarin, Dated: October 18, 2011. SUPPLEMENTARY INFORMATION: The Designated Federal Official, Tax Exempt and By Direction of the Secretary. Advisory Committee on Tax Exempt Government Entities, Division, Internal Vivian Drake. and Government Entities (ACT), Revenue Service. Committee Management Officer. governed by the Federal Advisory [FR Doc. 2011–27350 Filed 10–21–11; 8:45 am] Committee Act, Public Law 92–463, is [FR Doc. 2011–27356 Filed 10–21–11; 8:45 am] BILLING CODE 4830–01–P an organized public forum for BILLING CODE P

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Part II

Securities and Exchange Commission

17 CFR Parts 240 and 249 Registration of Security-Based Swap Dealers and Major Security-Based Swap Participants; Proposed Rule

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SECURITIES AND EXCHANGE also be available for Web site viewing 2. Form SBSE–A COMMISSION and printing in the Commission’s Public 3. Form SBSE–BD Reference Room, 100 F Street, NE., 4. Form SBSE–C 17 CFR Parts 240 and 249 5. Form SBSE–W Washington, DC 20549, on official 6. Tagged Data Formats [Release No. 34–65543; File No. S7–40–11] business days between the hours of 10 H. Alternative Approaches Considered a.m. and 3 p.m. All comments received III. Request for Comment RIN 3235–AL05 will be posted without change; the IV. Paperwork Reduction Act Commission does not edit personal A. Summary of Collection of Information Registration of Security-Based Swap identifying information from B. Proposed Use of Information Dealers and Major Security-Based submissions. You should submit only C. Respondents Swap Participants information that you wish to make D. Total Initial and Annual Reporting and Recordkeeping Burdens AGENCY: Securities and Exchange available publicly. 1. Burden Associated With Filing Commission. FOR FURTHER INFORMATION CONTACT: Application Forms ACTION: Proposed rule. David W. Blass, Chief Counsel; Joseph 2. Burden Associated With Amending Furey, Assistant Chief Counsel; or Application Forms SUMMARY: Section 764(a) of Title VII of Bonnie Gauch, Special Counsel, 3. Burden Associated With Certification the Dodd-Frank Wall Street Reform and Division of Trading and Markets, 4. Burdens Relating to Associated Persons Consumer Protection Act (‘‘Dodd-Frank 5. Burdens on Nonresident SBS Entities Securities and Exchange Commission, 6. Burden Related to Retention of Manually Act’’) requires the Securities and 100 F Street, NE., Washington, DC Signed Signature Pages Exchange Commission (‘‘Commission’’) 20549–7010. 7. Burden Associated With Filing to issue rules to provide for the SUPPLEMENTARY INFORMATION: Withdrawal Form registration of security-based swap 8. Burden Associated With Proposed dealers (‘‘SBS Dealers’’) and major Table of Contents: Temporary Rule 15Fb2–2T security-based swap participants I. Introduction 9. Request for Comment on Burden (collectively, ‘‘SBS Entities’’). Pursuant A. Background Estimates to this requirement, the Commission is B. General Approach to the SBS Entity E. Retention Period of Recordkeeping proposing new Rules 15Fb1–1 through Registration Process Requirements 1. Conditional Registration F. Collection of Information Is Mandatory 15Fb6–1 under the Securities Exchange G. Confidentiality Act of 1934, as amended (the ‘‘Exchange i. Implementation Plan and the Last Compliance Date H. Request for Comment Act’’), to provide for the registration of ii. Major Security-Based Swap Participant V. Economic Analysis SBS Entities. The Commission is also Applicants Registering After the Last A. Benefits proposing forms to facilitate registration Compliance Date B. Costs (and withdrawal from registration) of 2. Ongoing Registration 1. Costs Attributable to Filing the Forms these entities. 3. Solicitation of Comments on the General 2. Costs of Certification Approach to the SBS Entity Registration 3. Costs Relating to Associated Persons DATES: Comments should be received on 4. Costs to Nonresident SBS Entities or before December 19, 2011. Process II. Proposed Exchange Act Rules and Forms 5. Cost of Retaining Manually Signed ADDRESSES: Comments may be A. Registration Application and Signature Pages submitted by any of the following Amendment 6. Costs Associated With Proposed Temporary Rule 15Fb2–2T methods: 1. Proposed Rule 15Fb2–1 C. Request for Comment i. Form of Application VI. Consideration of Impact on the Economy Electronic Comments ii. Senior Officer Certification VII. Regulatory Flexibility Act Certification • iii. Electronic Filing Use the Commission’s Internet VIII. Statutory Basis and Text of Proposed iv. Standards for Granting or Denying comment form (http://www.sec.gov/ Rules rules/proposed.shtml); or Applications • Send an e-mail to rule- v. Request for Comment on Additional I. Introduction Registration Considerations [email protected]. Please include File 2. Amendments to Application Forms: A. Background Number S7–40–11 on the subject line; Proposed Rule 15Fb2–3 On July 21, 2010, the President signed or B. Associated Persons 1 • Use the Federal eRulemaking Portal the Dodd-Frank Act into law. The 1. Certification Dodd-Frank Act was designed to (http://www.regulations.gov). Follow the 2. Alternative Process instructions for submitting comments. C. Termination of Registration promote, among other things, the 1. Expiration: Proposed Rule 15Fb3–1 financial stability of the United States Paper Comments 2. Withdrawal: Proposed Rule 15Fb3–2 by improving accountability and • Send paper comments in triplicate 3. Cancellation and Revocation: Proposed transparency in the financial system.2 to Elizabeth M. Murphy, Secretary, Rule 15Fb3–3 Among other measures, the Dodd-Frank Securities and Exchange Commission, D. Special Requirements for Nonresident Act provides the Commission and the SBS Entities Commodity Futures Trading 100 F Street, NE., Washington, DC 1. United States Agent for Service of 20549–1090. Commission (‘‘CFTC’’) with authority to Process regulate certain aspects of the over-the- All submissions should refer to File 2. Access to Books and Records of Number S7–40–11. This file number Nonresident SBS Entity counter (‘‘OTC’’) derivatives market, should be included on the subject line E. Special Situations where the recent financial crisis if e-mail is used. To help the 1. Succession: Proposed Rule 15Fb2–5 demonstrated a need for enhanced Commission process and review your 2. Insolvency: Proposed Rule 15Fb2–6 regulation. The Dodd-Frank Act is F. Technical Rules intended to provide the Commission comments more efficiently, please use 1. Electronic Signatures only one method. The Commission will 2. Temporary Rule To Facilitate Paper 1 The Dodd-Frank Wall Street Reform and post all comments on the Commission’s Filing of Forms Consumer Protection Act, Public Law 111–203, 124 Internet Web site (http://www.sec.gov/ G. Forms Stat. 1376 (2010). rules/proposed.shtml). Comments will 1. Form SBSE 2 See id., at Preamble.

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and the CFTC with effective new with the Commission, and requires that In proposing these rules and forms, regulatory tools to oversee that market, the Commission issue rules to provide the Commission is mindful that there which has grown exponentially in for registration of these SBS Entities.8 are similarities and differences among recent years and is capable of affecting The Commission is proposing Rules SBS Entities that hold substantial significant sectors of the U.S. economy. 15Fb1–1 to 15Fb6–1 under the positions in security-based swaps and Title VII of the Dodd-Frank Act Exchange Act to establish procedures dealers and participants that hold broadly categorizes covered products as for an SBS Entity to register with the substantial positions in other financial ‘‘swaps,’’ 3 regulated primarily by the Commission and additional provisions products. The Commission also 4 CFTC, ‘‘security-based swaps,’’ related to such registration, including: understands that there are similarities regulated primarily by the Commission, (1) A requirement to amend an and differences between the security- or ‘‘mixed swaps,’’ jointly regulated by inaccurate application for registration; based swap market and the markets for 5 the Commission and the CFTC. Among (2) procedures for succession to, or other financial products. The other things, the Dodd-Frank Act withdrawal from, registration; and (3) Commission believes that, both over prohibits any person from acting as a procedures for the Commission to time and as a result of Commission 6 ‘‘security-based swap dealer’’ or cancel or revoke registration.9 The proposals to implement the Dodd-Frank ‘‘major security-based swap proposed rules would also establish a Act, further information concerning the 7 participant’’ without being registered requirement for an SBS Entity to certify application of existing registration and that none of its associated persons that regulatory regimes to SBS Entities and 3 Defined in Section 1a of the Commodity effect, or are involved in effecting, the development of the security-based Exchange Act (‘‘CEA’’). swap market may alter certain 4 Defined in Section 3(a)(68) of the Exchange Act. security-based swaps on the SBS All references to the Exchange Act contained in this Entity’s behalf is subject to statutory considerations relating to the release refer to the Securities Exchange Act of 1934, disqualification. The Commission is registration of SBS Entities. During the as modified by the Dodd-Frank Act. proposing forms to facilitate SBS process of implementing the Dodd- 5 In addition, Section 712(d)(1) of the Dodd-Frank Frank Act and beyond, the Commission Act directs the Commission and the CFTC, in Entities’ registration and withdrawal consultation with the Board of Governors of the from registration. intends to closely monitor Federal Reserve System, to propose rules and The proposed rules and forms would developments relating to SBS Entities interpretative guidance to further define, among address additional registration and the security-based swap markets. In other things, the terms ‘‘security-based swap,’’ particular, the Commission intends to ‘‘swap dealer,’’ ‘‘security-based swap dealer,’’ requirements applicable to nonresident ‘‘major swap participant,’’ and ‘‘major security- SBS Entities, including requirements to evaluate further information concerning based swap participant.’’ The Commission and appoint a U.S. agent for service of the range of market participants that CFTC jointly proposed further rules and guidance may register as SBS Entities, the with respect to the dealer and participant process, and to provide an opinion of definitions on December 7, 2010. Further Definition counsel regarding the entity’s ability to activities of and services provided by of ‘‘Swap Dealer,’’ ‘‘Security-Based Swap Dealer,’’ (1) Provide the Commission with such market participants, whether these ‘‘Major Swap Participant,’’ ‘‘Major Security-Based prompt access to books and records, and activities and services are identical or Swap Participant’’ and ‘‘Eligible Contract similar to activities and services already Participant,’’ Exchange Act Release No. 63452 (Dec. (2) be subject to onsite examinations 7, 2010), 75 FR 80174 (Dec. 10, 2010) (the and inspections by the Commission. regulated by the federal securities laws ‘‘Intermediary Definitions Release’’). The or other laws, and how applicable Commission and CFTC jointly proposed further existing registration and regulatory or (III) that is a financial entity that (aa) is highly rules and guidance with respect to the definitions regimes interact with one another and of ‘‘swap’’, ‘‘security-based swap’’, and other terms leveraged relative to the amount of capital such on April 29, 2011. Further Definition of ‘‘Swap, ’’ entity holds and that is not subject to capital apply to SBS Entities. requirements established by an appropriate Federal ‘‘Security-Based Swap, ’’ and ‘‘Security-Based Swap B. General Approach to the SBS Entity Agreement’’; Mixed Swaps; Security-Based Swap banking regulator; and (bb) maintains a substantial Agreement Recordkeeping, Exchange Act Release position in outstanding security-based swaps in any Registration Process major security-based swap category, as such No. 64372 (Apr. 29, 2011), 76 FR 29818 (May 23, The Commission’s proposed 2011)). categories are determined by the Commission.’’ See 6 Subject to certain exceptions, Exchange Act also supra note 5. registration requirements for SBS Section 3(a)(71)(A) defines ‘‘security-based swap 8 The Commission has concluded that SBS Entities largely are modeled after the dealer’’ to mean any person who: (i) Holds themself Entities that were not registered with the registration regime applicable to broker- out as a dealer in security-based swaps; (ii) makes Commission as of the July 16, 2011, effective date dealers,10 while also taking into account a market in security-based swaps; (iii) regularly of Section 15F of the Exchange Act are permitted enters into security-based swaps with to lawfully continue their business absent the CFTC’s registration requirements for counterparties as an ordinary course of business for Commission action with respect to the SBS Entity intermediaries.11 We preliminarily its own account; or (iv) engages in any activity registration regime. See Temporary Exemptions and believe that because the proposed causing it to be commonly known in the trade as Other Temporary Relief, Together With Information requirements would closely align with a dealer or market maker in security-based swaps. on Compliance Dates for New Provisions of the See also supra note 5. Securities Exchange Act of 1934 Applicable to current requirements for our other 7 Exchange Act Section 3(a)(67)(A) defines ‘‘major Security-Based Swaps, Exchange Act Release No. registrants, and would be similar to the security-based swap participant’’ to mean ‘‘any 64678 (Jun. 15, 2011), 76 FR 36287, 36299–300 (Jun. registration regime for CFTC registrants, person: (i) who is not a security-based swap dealer; 22, 2011) (the ‘‘Effective Date Release’’). this approach would provide the and (ii)(I) who maintains a substantial position in 9 The Exchange Act gives the Commission broad security-based swaps for any of the major security- authority to craft a registration regime for SBS Commission and the staff with key based swap categories, as such categories are Entities that helps the Commission accomplish its information about registrants while determined by the Commission, excluding both missions of protecting investors, maintaining fair, leveraging Commission staff experience positions held for hedging or mitigating commercial orderly, and efficient markets, and facilitating and standing procedures to facilitate a risk and positions maintained by any employee capital formation. For example, Section 15F(b)(2) of benefit plan (or any contract held by such a plan) the Exchange Act states that an application for as defined in paragraphs (3) and (32) of Section 3 registration ‘‘shall be made in such form and 10 This includes rules promulgated under of the Employee Retirement Income Security Act of manner as prescribed by the Commission, and shall Sections 15(b) and 17(a) of the Exchange Act. 1974 (29 U.S.C. 1002) for the primary purpose of contain such information as the Commission 11 17 CFR 3.1 et seq. Futures commission hedging or mitigating any risk directly associated considers necessary concerning the business in merchants (‘‘FCMs’’) and introducing brokers with the operation of the plan; (II) whose which the applicant is or will be engaged.’’ In presently register with the CFTC by filing Form 7– outstanding security-based swaps create substantial addition, Section 15F(d)(1) of the Exchange Act R with the National Futures Association. The CFTC counterparty exposure that could have serious directs the Commission to ‘‘adopt rules for persons has proposed to register swap dealers and major adverse effects on the financial stability of the that are registered as [SBS Entities] under [Section swap participants through this same process. See 75 United States banking system or financial markets; 15F].’’ FR 71379, at 71382 (Nov. 23, 2010).

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substantive review of applications for would be required to cease its security- activities that could pose the greatest registration and inspections of based swap business if it had not risk to investors and the integrity of the registrants. In addition, the broker- satisfied the applicable conditions to markets. Consistent with that general dealer registration regime should be convert its registration to an ongoing approach, OCIE and the Division of familiar to, and understood by, many registration. The Commission could, Trading and Markets intend jointly to SBS Entities. In particular, SBS Dealers however, extend any conditional perform a substantive review of may already be registered and regulated registration for good cause. applications and Senior Officer as broker-dealers or may be affiliated Although the Commission may be Certifications received for registration of with a broker-dealer. Moreover, if an familiar with SBS Entities that are SBS Entities to determine whether SBS Dealer enters into security-based already registered with the Commission additional Commission action is swap transactions with persons that are (e.g., broker-dealers or investment appropriate and to evaluate potential not eligible contract participants, it advisers), the Commission is mindful registrants’ risk for purposes of must register as a broker-dealer unless that SBS Entities will nonetheless prioritizing examinations. an exemption or exception applies.12 constitute a new class of registrants that 1. Conditional Registration The proposed approach would seek to may present business models and ensure that a market participant practices with which the Commission Under the proposed rules, an SBS registered as both an SBS Entity and a will need to gain experience. Entity seeking Commission registration broker-dealer is subject to a similar and Accordingly, the Commission expects generally would be required to apply for complementary registration regime. It that its careful review of each conditional registration by submitting a could therefore both ease the regulatory application for registration and each complete application to the burden on such entities and help to certification on Form SBSE–C (the Commission. The Commission would establish a consistent regime for ‘‘Senior Officer Certification’’ described then grant conditional registration if it regulating SBS Dealers and dealers of further below) will not only facilitate finds that the SBS Entity’s application is other securities. the Commission’s decision to grant or complete, except that the Commission As explained below, our proposed deny registration to an SBS Entity, but may institute proceedings to determine approach to the application process also help to develop this experience and whether the Commission should deny would build on our existing broker- aid in the identification of areas for conditional registration if the applicant dealer registration forms—most notably, further inquiry, including, as may be is subject to a statutory disqualification Form BD—but also is designed to avoid appropriate, examinations of particular or the Commission is aware of unnecessary duplication by permitting firms or business units by the inaccurate statements in the SBS Entities that are otherwise Commission’s Office of Compliance application.14 The Commission would registered or registering as Inspections and Examinations (‘‘OCIE’’), notify the entity electronically when intermediaries with either the in order to establish an effective ongoing conditional registration is granted, and Commission or the CFTC to complete examination program for such entities.13 would make information regarding simplified application forms. Under this OCIE currently uses risk-based registration status publicly available. process, SBS Entities registered or methodologies to focus Commission For an SBS Entity to convert its registering with the Commission as examination resources on firms and conditional registration to ongoing broker-dealers or with the CFTC as swap registration, it would be required to dealers or major swap participants 13 In addition to SBS Entities, the Dodd-Frank Act submit a Senior Officer Certification would submit a shorter SBS Entity requires the Commission to register for the first time signed by one of its knowledgeable registration form along with a copy of security-based swap execution facilities, security- senior officers. The contents of the based swap data repositories, municipal advisors, Senior Officer Certification and the time their existing registration form. and certain private fund advisers. In light of these An SBS Entity would be permitted to new categories of registrants, the Commission is frame within which it must be file an application for registration as presently reviewing the various standards and submitted to the Commission are soon as final registration rules and processes it uses to facilitate registration of the described more fully below and many types of entities required to register with it— specified in the rule. Generally, forms are adopted. Further, each SBS including broker-dealers, investment advisers, Entity would need to be registered (at nationally recognized statistical rating however, the Senior Officer Certification least conditionally) by the compliance organizations, transfer agents, clearing agencies, would state that, after due inquiry, the date set forth in the final registration exchanges, national securities associations, and senior officer has reasonably determined rules. In certain circumstances, SBS others. In this regard, the Commission plans to that the SBS Entity has the operational, issue a concept release designed to collect Entities would be required to apply for information and evaluate different aspects of these financial, and compliance capabilities to conditional registration, which they registration standards and processes. In particular, act as an SBS Dealer or a major security- could convert to ongoing registration by the Commission intends to consider the policy based swap participant, as applicable, fulfilling the applicable requirements objectives of registration, how best to achieve those and has documented the process by policy objectives through registration and other set forth in the proposed rules. As means, and the relative benefits and costs of the which he or she reached such discussed in more detail below, those various means available. Through such a concept determination. We preliminarily believe requirements would differ depending on release, the Commission would hope to gain insight that this certification requirement whether: (1) The application was filed into how evolving market practices, technology, would help to protect both investors and other considerations could affect or be affected with the Commission before or after the by the Commission’s approach to the registration and markets from potential problems compliance dates for certain new rules processes for various types of entities. Recognizing arising from SBS Entities that may lack to be adopted pursuant to Section 15F that the Commission has finite resources to allocate the capabilities necessary to operate of the Exchange Act; and (2) the to registration, examination, and enforcement their businesses in compliance with functions, the Commission intends to use the applicant is an SBS Dealer or instead is concept release to seek comment as to how it can their regulatory obligations. a major security-based swap participant. most effectively and efficiently utilize these Conditional registration would expire registration and other functions to help ensure that 14 Such proceedings would include notice of the after a specified time, and a entities registered by the Commission to perform grounds for denial under consideration and important financial intermediary and other opportunity for hearing, and that at the conclusion conditionally registered SBS Entity functions in the securities markets have the of such proceedings, the Commission would grant capability to carry out those functions and to fully or deny such registration. See proposed Rule 12 See 15 U.S.C. 78c(a)(5) and 78o(a). comply with all applicable regulatory requirements. 15Fb2–1(d)(1).

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i. Implementation Plan and the Last substantive requirements. Conditional notice of an impending status change Compliance Date registration would be effective once the due to ongoing monitoring of portfolios After proposing all of the key rules Commission grants such conditional in the ordinary course of business, an under Title VII, the Commission intends registration and would expire on the entity that would likely fall within the to seek public comment on a detailed Last Compliance Date (unless definition of a ‘‘major security-based implementation plan that will permit a conditional registration was extended swap participant’’ because of activities roll-out of the new securities-based pursuant to paragraphs (b) or (c) of in a given fiscal quarter may not have swap requirements in a logical, proposed Rule 15Fb3–1). Ongoing adequate compliance systems in place progressive, and efficient manner, while registration of these conditionally within two months after the end of the minimizing unnecessary disruption and registered SBS Entities would be triggering quarter to allow the entity to costs to the markets. Among other conditioned on, among other things, the provide the Commission with a Senior things, the implementation plan would registrant providing the Senior Officer Officer Certification. Therefore, the inform the timing of the requirement for Certification to the Commission on or Commission proposes to conditionally SBS Entities to register with the before the Last Compliance Date. As register such new participants based on Commission, including whether such described above, fulfillment of this their filing of a complete application registration requirement would exist requirement by an SBS Entity would before the expiration of the two-month prior to the latest date, designated by provide the Commission with some grace period, subject to a requirement the Commission, by which SBS Dealers assurance that the SBS Entity that they provide a Senior Officer and major security-based swap understands and has the ability to Certification to the Commission within participants must begin complying with undertake its business in compliance four months of the submission of their all of the initial rules promulgated with the applicable requirements. Once complete application (i.e., within six under Section 15F of the Exchange Act a registrant submits its Senior Officer months after the end of the triggering (‘‘Last Compliance Date’’).15 Certification, the Commission would quarter). This proposal is intended to The Commission believes it is consider converting its conditional balance the additional time a new major possible that SBS Entities may be registration to an ongoing registration.17 security-based swap participant may required to register before the Last However, whether or not a conditional require to build out its compliance Compliance Date.16 For these registrant provides the Senior Officer structure with the Commission’s strong ‘‘transitional’’ applicants, whether SBS Certification on or before the Last interest in having new registrants Dealer or major security-based swap Compliance Date, the Commission promptly comply with applicable participant, there would be a period of would retain the flexibility to extend federal securities laws. Such conditional time before the Last Compliance Date conditional registration for good cause. registration would be effective once the when the Senior Officer Certification Once the Last Compliance Date has Commission grants conditional would be either unduly burdensome for occurred, the conditional registration registration and would expire four registrants (e.g., a rule has been process for SBS Dealers would months after receipt of that application promulgated by the Commission under effectively collapse into the ongoing unless the firm files a Senior Officer Section 15F of the Exchange Act, but registration process and any SBS Dealer Certification with the Commission compliance with that rule is not yet would need to submit its Senior Officer within that time frame. required) or inappropriate for meeting Certification with its application (i.e., As with conditional registrations the goals of the certification (e.g., the after the Last Compliance Date, SBS granted prior to the Last Compliance Commission has not yet adopted a Dealers could only apply for ongoing Date, once a major security-based swap significant rule under Section 15F of the registration). Major securities-based participant that applies for registration Exchange Act, so the certification would swap participants could still after the Last Compliance Date submits not cover compliance in an important conditionally register (as described its Senior Officer Certification, the regulatory area). below) because of challenges separate Commission could consider converting To address this potential transition and apart from implementation of its conditional registration to an ongoing issue, we preliminarily believe it is Section 15F of the Exchange Act. registration, as described below. In appropriate to propose a conditional addition, whether or not a conditionally ii. Major Security-Based Swap registration process that would permit registered major security-based swap Participant Applicants Registering After registration without a Senior Officer participant provides the Senior Officer the Last Compliance Date Certification prior to the Last Certification within four months after Compliance Date. This process would As noted in the proposed definition of submitting its application, the be available to all applicants (whether major security-based swap participant,18 Commission retains the flexibility to SBS Dealer or major security-based an entity whose security-based swap extend the conditional registration for swap participant) and would, among portfolio crosses established thresholds good cause. other things, facilitate the identification in a fiscal quarter would have a two- The Commission notes that the of existing SBS Entities in advance of month grace period following the end of conditional registration mechanism for the compliance date of certain that quarter to submit a complete major security-based swap participants application for registration as a major would remain in place even after the 15 The term ‘‘Last Compliance Date’’ is defined in security-based swap participant. The Last Compliance Date (i.e., major proposed Rule 15Fb2–1(e). The Commission Commission preliminarily believes that, security-based swap participants could anticipates that the Last Compliance Date would be always avail themselves of a conditional clearly stated in the relevant adopting release and while there is likely to be some advance prominently announced on the Commission’s Web registration period). 17 site. Submission of a Senior Officer Certification 2. Ongoing Registration 16 The Commission notes that, regardless of the also would toll expiration of the SBS Entity’s timing of the Last Compliance Date, a registered conditional registration for thirty days, if necessary The proposed rules would provide for SBS Entity would be required to comply with to facilitate the Commission’s review, or such the ongoing registration of all certain self-operative provisions in Exchange Act longer period as the Commission finds for good Section 15F upon registration (conditional or cause (see proposed Rule 15Fb3–1). conditionally registered SBS Entities otherwise), absent further Commission action. See 18 See Intermediary Definitions Release, supra following their fulfillment of the Effective Date Release, supra note 8. note 5, at 103. applicable requirements, as well as SBS

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Dealers registering with the Commission which model should be followed and Q–10. Should SBS Entities be after the Last Compliance Date (and, why. afforded more time (beyond the Last therefore would not be required to Q–2. Does the conditional process for Compliance Date) to prepare and conditionally register). As described SBS Entity registration outlined above provide their Senior Officer above, an SBS Entity would need to provide a practicable solution to the Certification? Why or why not? If so, submit both a completed application potential timing issues raised by the how much additional time would be and a Senior Officer Certification to implementation of Section 15F of the appropriate? obtain ongoing registration. An SBS Exchange Act? Are there additional or Q–11. Should major security-based Entity that was conditionally registered alternative conditions or mechanisms swap participants that file applications would not be required to submit a new that would be appropriate for after the Last Compliance Date be application. At the time it applies for addressing those issues? afforded more or less than four months ongoing registration, however, the SBS Q–3. Does the conditional process for to prepare and provide their Senior Entity would be required to amend its major security-based swap participant Officer Certification? Why or why not? application to correct any information registration outlined above provide a Q–12. What would be the advantages that has become inaccurate for any practicable solution to the potential and disadvantages and costs and reason. timing issues raised by the look-back benefits of the Commission adopting an The Commission would grant ongoing features in the proposed definition of approach to SBS Entity registration that registration if it finds that the ‘‘major security-based swap participant’’ encompasses a more substantive inquiry requirements of Section 15F(b) of the definition? Are there additional or concerning the business of an applicant? Exchange Act are satisfied, but the alternative conditions or mechanisms What would be the impact on market Commission would institute that would be appropriate for participants, including investors? Q–13. Are there additional or proceedings to determine whether the addressing those issues? alternative mechanisms that the Commission should deny ongoing Q–4. Should the Commission delay registration if the Commission does not Commission could employ to better all registrations until the Last protect markets and market participants make such a finding, if it finds that the Compliance Date instead of adopting a applicant is subject to a statutory and minimize the burden on registrants conditional registration process? Why or while meeting the regulatory objectives disqualification, or if it is aware of why not? inaccurate statements in the application of a registration scheme for SBS Q–5. Should the Commission or certification.19 The Commission Entities? consider granting conditional would notify the entity electronically Commenters are encouraged to identify registration automatically based on the when ongoing registration is granted, other possible solutions that would receipt of a completed application or and would make information regarding allow the Commission to promptly some other or additional documents? If registration status publicly available. review and consider SBS Entity Pursuant to proposed Rule 15Fb3–1(a), so, why? registration applications so they would ongoing registration would be effective Q–6. Should the Commission notify not experience undue interruptions in until any cancellation, revocation or the SBS Entity that it has granted business while also providing the withdrawal of the registration or on any conditional or ongoing registration prior Commission reasonable assurance that other event the Commission determines to making the SBS Entity’s registration they have the ability to carry out their should trigger expiration. status publicly available? If so, why and business and are able to comply with what should be the timing difference? applicable federal securities laws. 3. Solicitation of Comments on the Q–7. Should the Commission provide General Approach to the SBS Entity additional guidance regarding the II. Proposed Exchange Act Rules and Registration Process process for institution of proceedings? Forms We request comment on this approach For instance, should the Commission A. Registration Application and to the SBS Entity registration process. include timeframes within which Amendment Q–1. Should the Commission model proceedings would be instituted and/or the registration regime applicable to a decision to grant or deny registration 1. Proposed Rule 15Fb2–1 SBS Entities more closely after one or based on those proceedings should be Proposed Rule 15Fb2–1 would set more other registration regimes provided (e.g., Exchange Act Section forth the method through which SBS regulated by the Commission (e.g., 15(b)(1))? If so, what timeframes or other Entities could apply for registration securities exchanges or associations,20 guidance would be appropriate and with the Commission. Essentially, the clearing agencies,21 or investment why? forms and process for filing applications advisers 22), self regulatory Q–8. Is it appropriate to seek to and other documents electronically with organizations (‘‘SROs’’),23 or other minimize duplication by permitting the Commission would be identical for regulators? 24 If so, please describe registered intermediaries to follow a SBS Dealers and major security-based registration process that uses simplified swap participants. This proposed rule 19 Such proceedings would include notice of the forms? Why or why not? also would describe the timing of such grounds for denial under consideration and opportunity for hearing, and that at the conclusion Q–9. Should these intermediaries be filings and the standard of review of such proceedings, the Commission would grant required to file their existing registration applied by the Commission in or deny such registration. See proposed Rule forms with the Commission as part of determining whether to grant or deny 15Fb2–1(d)(2). this process, or should they be required registration, which may differ slightly 20 15 U.S.C. 78f(b)(1) and 15 U.S.C. 78o–3(b)(1)– (2). to authorize the Commission to obtain for SBS Dealers and major security- 21 15 U.S.C. 78q–1(b)(3)(A). access to those forms at the relevant based swap participants, depending on 22 15 U.S.C. 80b–3(c). repository (e.g., the Financial Industry the type of registration the firm is 23 See, e.g., National Association of Securities Regulatory Authority (‘‘FINRA’’) or the seeking. While it may be appropriate for Dealers Rules 1013 and 1014; Chicago Board National Futures Association (‘‘NFA’’))? certain rules applicable to SBS Dealers Options Exchange Rules 3.5(c)(ii), 8.83(b), and 44.12(b); and NYSE Arca Rule 7.22(a). to differ from those applicable to major 24 See, e.g., National Futures Association www.nfa.futures.org/nfamanual/NFAManualTOC. security-based swap participants, the Registration Rules (which can be found at http:// aspx?Section=8). Commission preliminarily believes that

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the registration rules and forms need not applicant should qualify for registration an SBS Entity. In addition, the proposal differ significantly because the under Exchange Act Section 15F(b). would require that the senior officer information the Commission would Accordingly, the certification would certify that he or she has documented need to determine whether registration assist the Commission in determining the process by which he or she reached is appropriate is similar for both types whether to grant the SBS Entity ongoing that determination. While the of entities. registration. Such an informed Commission has required regulated determination, based in part on the entities to provide a certification in i. Form of Application certification, will help the Commission other contexts,29 a requirement that an Paragraph (a) of proposed Rule maintain orderly and efficient markets applicant or regulated entity certify as to 15Fb2–1 would provide that an SBS and protect investors by helping to its ability to engage in the business it Entity would apply for registration ensure that the Commission only grants would be registered to do is relatively electronically on Form SBSE, Form registration to SBS Entities that can new.30 SBSE–A, or Form SBSE–BD, as attest that they possess the operational, The Commission preliminarily appropriate, in accordance with the financial, and compliance capabilities to believes that receipt of a Senior Officer instructions to the form. In general: conduct business as an SBS Entity. Certification would provide assurances • SBS Entities registered or Specifically, under the proposal, each to the Commission that each SBS Entity registering with the Commission as SBS Entity must have a senior officer has the requisite capabilities to operate broker-dealers would apply for certify that, after due inquiry, he or she in the capacity for which it seeks registration using Form SBSE–BD; has reasonably determined that the SBS registration. The Senior Officer • SBS Entities registered or Entity has the operational,26 financial,27 Certification is designed to require a registering with the CFTC as swap and compliance 28 capabilities to act as deliberate and thoughtful self- dealers or major swap participants (and assessment by each SBS Entity of its not also registered or registering with 26 The concept of ‘‘operational capability’’ can be capabilities and thus should provide the Commission as broker-dealers) an important regulatory consideration because an assurances to potential investors, would apply for registration using Form SBS Entity with insufficient infrastructure, customers of, and counterparties to an technology, and human resources presents SBSE–A; and SBS Entity that the SBS Entity has the • operational risks that may adversely impact its SBS Entities that do not fit either of counterparties and the broader market—e.g., if requisite capabilities to act in that the above categories would apply for transactions are inaccurately documented, not capacity. Further, this Senior Officer registration using Form SBSE. documented at all, or if insufficient margin is Certification requirement could help collected. See Trade Acknowledgment and Specifics regarding each of these forms Verification of Security-Based Swap Transactions, prevent disorderly and unstable markets and their differences and uses are Exchange Act Release No. 63727 (Jan. 14, 2011), 76 that could result from the failure of a discussed in more detail below. These FR 3859, at 3860 (Jan. 21, 2011) (proposing release) registered SBS Entity that lacks the forms would be used to register with the (discussing the recognition by various parties of the requisite capabilities to operate its importance of operational infrastructure in the over- Commission regardless of whether an the-counter derivatives market) (the ‘‘Trade business in a registered capacity. The SBS Entity was applying for conditional Acknowledgement Proposing Release’’). The Senior Officer Certification also may or ongoing registration. Commission expects that a key foundation for the enhance market participants’ ability to The Commission solicits comment on Senior Officer Certification would be the capability of an SBS Entity to comply with the obligations that assess the counterparty credit risk the use of forms to register with the would be imposed by the Trade Acknowledgment associated with a particular SBS Entity Commission. Proposing Release, if adopted, other legal counterparty. In this way, the Senior Q–14. Would an alternative obligations applicable to the operations of an SBS Officer Certification should help to mechanism be more appropriate for Entity, and the capability of the SBS Entity to conduct its business as represented in the SBS protect investors and other market registering SBS Entities? If so, which Entity’s application for ongoing registration. participants from SBS Entities that are one and why? 27 The concept of ‘‘financial capability’’ can be an not competent to engage in that Q–15. Should the registration forms important regulatory consideration because of, business, lack the financial resources to differ based on whether the entity is among other things, the role adequate financing do so, or are unable or unwilling to registering as an SBS Dealer or major plays in protecting an SBS Entity’s counterparties and the broader market by ensuring that the SBS comply with applicable law. The security-based swap participant? If so, Entity has sufficient working capital and liquidity Commission thus preliminarily believes how? for its security-based swap business consistent with that the Senior Officer Certification regulatory requirements and as needed to respond could help the efficient functioning of ii. Senior Officer Certification to market conditions. The Commission will the market and enhance the confidence Paragraph (b) of proposed Rule separately propose capital rules for SBS Entities, as required by the Dodd Frank Act. 15 U.S.C. 78o– of investors and other market 15Fb2–1 would require that each SBS 10(e). The Commission expects that the capability participants. Entity provide the Commission with a of an SBS Entity to comply with these obligations, The Senior Officer Certification certification on Form SBSE–C to if adopted, would form a key foundation for the requirement, in other words, is meant to facilitate the Commission’s review of Senior Officer Certification. 28 The concept of ‘‘compliance capability’’ can be address many of the same each firm’s application for ongoing an important regulatory consideration because of, considerations that arise during the in- registration. A knowledgeable senior among other things, the wholesale creation of a new depth review by the Commission and its officer of the SBS Entity would be regulatory regime for security-based swaps under staff, or, in some cases, SROs, prior to required to sign the certification,25 the Dodd-Frank Act. For example, in proposing business conduct rules for SBS Entities, the which is designed to provide the Commission proposed to require that each SBS Release No. 64766, 76 FR 46668 (Aug. 3, 2011) Commission with the applicant’s Entity ‘‘[establish, maintain, and enforce] written (proposing release). The Commission expects that assurance that the applicant has the policies and procedures addressing the supervision development and implementation of such a capabilities necessary to operate as an of the types of security-based swap business in compliance regime, if adopted, would serve as a key which the [SBS Entity] is engaged that are foundation for the Senior Officer Certification. SBS Entity and, therefore, that the reasonably designed to achieve compliance with 29 See, e.g., 17 CFR 240.15c3–5, 17 CFR 240.13a– applicable securities laws and the rules and 14, and 17 CFR 270.30a–2. 25 In accordance with Proposed Rule 15Fb1–1(b), regulations thereunder.’’ Business Conduct 30 See, e.g., Registration of Municipal Advisors, the SBS Entity will need to maintain a manually Standards for Security-Based Swap Dealers and Exchange Act Release No. 63576 (Dec. 20, 2010), 76 signed copy of this certification as part of its books Major Security-Based Swap Participants, Exchange FR 824, (Jan. 6, 2011) (proposing release) (the and records until at least three years after the Act Release No. 64766 (Jun. 29, 2011), 76 FR 42396, ‘‘Registration of Municipal Advisors Proposing certification was filed with the Commission. (Jul. 18, 2011), as corrected by Exchange Act Release’’).

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granting registration to certain Sections 6(b) and 19(a) of the Exchange broker-dealer’s operational, financial, applicants.31 For example, under Act, an exchange may not be registered and compliance capabilities.35 unless the Commission finds that the At this time, although we provide 31 See, e.g., 15 U.S.C. 78f(b)(1) (regarding exchange ‘‘is so organized and has the guidance above regarding the factors a registration of national securities exchanges), and capacity to be able to carry out the 15 U.S.C. 78q–1(b)(3)(A) (regarding registration of senior officer would use to serve as a clearing agencies). See also 15 U.S.C. 78o–3(b)(1) purposes of the Exchange Act and to foundation for the Senior Officer and (2) (regarding registration of national securities comply, and [* * *] to enforce Certification,36 we are not proposing a associations). In addition, the Commission recently compliance by its members and persons specific definition of the term proposed rules governing the registration of associated with its members, with the security-based swap data repositories (‘‘SDRs’’), ‘‘operational, financial and compliance security-based swap execution facilities (‘‘SB provisions of [the Exchange Act], the capabilities.’’ Instead, we request SEFs’’), security-based swap clearing agencies rules and regulations thereunder, and comment regarding whether and how 32 (‘‘SBS CAs’’), and municipal advisors that relate to the rules of the exchange.’’ Similarly, that phrase should be further defined or potential registrants’ operational, financial, and under Section 17A of the Exchange Act, compliance capabilities. For example, the proposed interpreted. The Commission recognizes registration rules for security-based swap data a clearing agency may not be registered that whether an SBS Entity has the repositories are intended to, among other things, unless the Commission finds that the operational, financial and compliance assure the Commission that ‘‘an SDR is so agency ‘‘has the capacity to be able to capabilities to act as an SBS Entity organized, and has the capacity, to be able to assure facilitate the prompt and accurate the prompt, accurate, and reliable performance of likely will depend on its particular facts its functions as an SDR, comply with any applicable clearance and settlement of securities and circumstances, including, among provision of the Federal securities laws and the transactions and derivative agreements, other things: the scope and nature of its rules and regulations thereunder, and carry out its contracts and transactions for which it security-based swap business; its other functions in a manner consistent with the purposes is responsible, to safeguard securities of Exchange Act.’’ These proposed rules may also related financial and business activities; require an SDR to file with the Commission, as a and funds in its custody or control or for the extent to which it is subject to other condition of registration or continued registration, which it is responsible, to comply with registration and regulatory requirements a review relating to the SDR’s operational capacity the provisions of [the Exchange Act] and and ability to meet its regulatory obligations. Such or other supervisory oversight with the rules and regulations thereunder, respect to its activities; its relationships review could be in the form of a report conducted [and] to enforce [* * *] compliance by by the SDR, an independent third party, or both. with, and reliance on, affiliates, service Security-Based Swap Data Repository Registration, its participants with the rules of the providers, and other parties; and the Duties, and Core Principles, Exchange Act Release clearing agency, and to carry out the extent and nature of its historical No. 63347 (Nov. 19, 2010), 75 FR 77306 (Dec. 10, purposes of this section.’’ 33 To this end, 2010) (proposing release). Similarly, the proposed involvement in security-based swap registration rules for security-based swap execution the Commission has published a series transactions. Moreover, it may be facilities are designed to assure the Commission of standards ‘‘that the [staff] will use in that a registrant ‘‘has adequate financial, appropriate to consider the capabilities reviewing the organizations, capacities required for this certification by operational, and managerial resources to discharge and rules of clearing agencies that each responsibility of the SB SEF, as determined by reference to regulatory standards. For the Commission.’’ Registration and Regulation of currently are registered temporarily example, attesting to capabilities might Security-Based Swap Execution Facilities, Exchange with the Commission and of clearing Act Release No. 63825 (Feb. 2, 2011), 76 FR 10948 include a self-assessment of whether the agencies that may apply for registration SBS Entity is capable of communicating (Feb. 28, 2011) (proposing release). Among other * * *.’’ 34 Broker-dealers that register things, these rules state in part that ‘‘the financial in a manner that is based on principles with the Commission under Section resources of a SB SEF shall be considered to be of fair dealing and good faith; 37 whether adequate if the value of the financial resources 15(b) also must become a member of an the SBS Entity has established all exceeds the total amount that would enable the SB SRO, and SRO rules generally contractual or other arrangements and SEF to cover its operating costs for a one year incorporate membership application period.’’ The Commission also proposed business relationships necessary to procedures that include, among other registration rules for security-based swap clearing conduct its security-based swap agencies that require, among other things, things, assessments by the SRO of the 38 registrants to establish, maintain, and enforce business; whether the SBS Entity has written policies and procedures reasonably or has adequate plans to obtain facilities designed to ensure that their systems provide Operation and Governance, Exchange Act Release adequate levels of capacity, resiliency, and security. No. 64017 (Mar. 3, 2011), 76 FR 14472 (Mar. 16, 35 Such policies and procedures shall, at a minimum: 2011) (proposing release) (the ‘‘Clearing Agency See, e.g., NASD Rules 1013 and 1014 (i) Establish reasonable current and future capacity Standards Proposing Release’’). Finally, the (membership application review requires a new estimates; (ii) conduct periodic capacity stress tests proposed registration rules for municipal advisors broker-dealer to, among other things, file a detailed of critical systems to determine such systems’ would require municipal advisors to certify that business plan, explain its sources of funding, ability to process transactions in an accurate, they have: ‘‘1) sufficient qualifications, training, describe the educational background and timely, and efficient manner; (iii) develop and experience, and competence to effectively carry out experience of its personnel, and undergo a implement reasonable procedures to review and their designated functions; 2) met, or within any membership interview). Existing FINRA members keep current its system development and testing applicable timeframe will meet, such standards of that wish to enter into a materially new business, methodology; (iv) review the vulnerability of its training experience, and competence, and such such as dealing in security-based swaps, must also systems and data center computer operations to other qualifications, including testing, for a file an application to do so, and those applications internal and external threats, physical hazards, and municipal advisor, required by the Commission, the are similarly reviewed to determine whether the natural disasters; and (v) establish adequate MSRB or any other relevant self-regulatory broker-dealer has the requisite capabilities to contingency and disaster recovery plans. These organization; and 3) the necessary understanding of, conduct the new business. NASD Rule 1017. rules further require that clearing agencies that and ability to comply with, all applicable regulatory Exchange Act Rule 15b2–2 requires that a new provide central counterparty (‘‘CCP’’) services need obligations.’’ Registration of Municipal Advisors broker-dealer be examined within six months to to have a qualified person conduct a review of Proposing Release, supra note 30. evaluate whether the broker-dealer is operating in models that are used to set margin levels, along 32 15 U.S.C. 78f(b)(1). conformity with applicable financial responsibility with related parameters and assumptions, in order 33 15 U.S.C. 78q–1(b)(3)(A). rules and again within twelve months to evaluate to assure that the models perform in a manner that 34 The Commission has established a series of whether it is also operating in conformity with all facilitates prompt and accurate clearance and standards ‘‘that the [staff] will use in reviewing the other applicable provisions of the Exchange Act and settlement of transactions. In determining whether organizations, capacities and rules of clearing rules thereunder. 17 CFR 240.15b2–2(b) & (c). a person is qualified to conduct the model agencies that currently are registered temporarily 36 See supra notes 26–28. validation, clearing agencies providing CCP services with the Commission and of clearing agencies that 37 See Section 15F(h)(3)(C) (providing that could consider several factors, including the may apply for registration * * *.’’ Regulation of business conduct requirements adopted by the person’s experience in validating margin models, Clearing Agencies, Exchange Act Release No. 16900 Commission shall establish a duty to communicate expertise in risk management generally, and (Jun. 17. 1980), 45 FR 41920 (June 23, 1980) in a manner ‘‘based on principles of fair dealing and understanding of the clearing agency’s operations (emphasis added). See also the Clearing Agency good faith’’). and procedures. Clearing Agency Standards for Standards Proposing Release, supra note 30. 38 See NASD Rule 1014(a)(4).

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that are sufficient for its operations; 39 Officer Certification with its the certification to be made by and whether the SBS Entity is capable application. municipal advisors? 43 Why or why not? of maintaining a level of capital that is The Commission requests comment What would be the comparative adequate to support the SBS Entity’s on all aspects of the proposed advantages, disadvantages, costs and/or intended business operations on a requirement for SBS Entities to provide benefits of using the same certification continuing basis.40 the Commission with a Senior Officer language the Commission has proposed The proposed rules would require Certification on Form SBSE–C as for use by municipal advisors as that a senior officer of an SBS Entity specified in proposed Rule 15Fb2–1(b), opposed to the language proposed? certify that he or she has reasonably and on the registration process Q–21. The concept of developing and determined that, after ‘‘due inquiry,’’ generally. With respect to this implementing written policies and the security-based swap dealer or major certification, the Commission is procedures has often been used by the security-based swap participant has the interested in commenters responses to Commission to further its regulatory operational, financial, and compliance the following questions, and also to objectives. Should the Senior Officer capabilities to act as an SBS Entity.41 questions Q–54. through Q–61. relating Certification instead require that a We believe it is important to make to Additional Registration senior officer certify that ‘‘to the best of explicit that the senior officer is Considerations. his or her knowledge, after due inquiry, obligated under the rule to conduct Q–16. Would the Senior Officer the security-based swap dealer or major some inquiry to form his or her Certification requirement provide security-based swap participant has reasonable determination. However, the sufficient assurance that each SBS developed and implemented written Commission does not propose to Entity has the necessary capabilities to policies and procedures reasonably prescribe any single method a senior act as a registered SBS Entity? Why or designed to prevent violation of federal officer must use to gain an appropriate why not? Would it provide sufficient securities laws, the rules thereunder, level of comfort and information before assurance that SBS Entities have and applicable self-regulatory signing the Senior Officer Certification. established controls to ensure organization rules?’’ 44 Why or why not? In other words, different SBS Entities compliance with all applicable What would be the impact of the Senior may utilize different processes to securities law requirements? Why or Officer Certification if it did not provide a basis for a senior officer’s why not? specifically address operational Q–17. Would the Senior Officer reasonable determination that the SBS capability? What would be the 42 Certification provide sufficient Entity has the requisite capabilities. comparative advantages, disadvantages, assurance to customers of and As described in Part I above, the costs and/or benefits of using this counterparties to SBS Entities, proposed registration process would language as opposed to the language investors, eligible contract participants include conditional and ongoing proposed? registration. Pursuant to subparagraph and other market participants that new Q–22. Should the Commission more (b)(1)(i) and (ii), respectively, of SBS Entities have the requisite specifically define the term proposed Rule 15Fb2–1, SBS Entities capabilities to act as SBS Entities? Why ‘‘operational, financial, and compliance that register conditionally during the or why not? capabilities’’? If so, how should this transitional period would need to Q–18. Should the Commission only term be defined to, among other things, submit the Senior Officer Certification require SBS Dealers, and not major provide greater certainty to market on or before the Last Compliance Date security-based swap participants, to participants about the basis for and major security-based swap provide a Senior Officer Certification? providing the Senior Officer participants that file an application after Why or why not? What would be the Certification? the Last Compliance Date would need to comparative advantages, disadvantages, submit the certification within four costs and/or benefits of such an Q–23. Should the Commission months after filing an application. The approach? specifically define the term Commission preliminarily believes that Q–19. Alternatively, should the form ‘‘capability?’’ Should the Commission, these timeframes would provide senior of Senior Officer Certification an SBS for example, define the term officers of conditionally registered SBS Entity must file be driven by whether ‘‘capability,’’ as it relates to the Entities sufficient time to determine that the entity is an SBS Dealer or major financial, operational, and compliance they are able to provide the relevant security-based swap participant? For functions of an SBS Entity, as ‘‘having certification. Pursuant to subparagraph instance, should an SBS Dealer be the necessary ability or qualities’’? Why (b)(2), an SBS Dealer that files an required to certify to its capabilities and or why not? Should the Commission application after the Last Compliance a major security-based swap participant define the term capability in some other Date would need to submit the Senior be required to certify to its policies and way? If so, how and why? procedures? If so, what form of Senior Q–24. Alternatively, should the 39 See NASD Rule 1014(a)(5). Officer Certification should SBS Dealers Commission simply adopt the Webster’s 40 See NASD Rule 1014(a)(7). be required to file and which form of New World Dictionary definition which 41 This certification must be accurate as of the Senior Officer Certification should 43 date the certification is filed with the Commission. major security-based swap participants See supra note 31, regarding the certification An SBS Entity would not be required to have a the Commission proposed for use by municipal senior officer update the certification after the SBS be required to file? What would be the advisors in the Registration of Municipal Advisors Entity has been approved for ongoing registration. comparative advantages, disadvantages, Proposing Release. 42 For example, in satisfying other certification costs and/or benefits of requiring 44 See, e.g., Section 15(g) of the Exchange Act requirements some SBS Entities may use a sub- dealers and participants to certify using (requiring that broker-dealers establish, maintain certification process whereby the senior officer will and enforce written policies and procedures not certify a firm-wide statement unless and until different certification language? reasonably designed to prevent the misuse of other persons responsible for certain activities in Q–20. What alternative forms of material, non-public information). 15 U.S.C. 78o(g). turn certify to the senior officer that the standard Senior Officer Certification should be See also Rule 206(4)–7 of the Investment Advisers has been met, while other SBS Entities may use an considered, if any? For example, should Act of 1940 (the ‘‘Advisers Act’’) (requiring that internal or external audit-type process whereby a investment advisers must adopt and implement senior officer may choose to employ a third party the proposed Senior Officer written policies and procedures reasonably to review an area subject to a firm-wide certification Certification use the language that the designed to prevent violations of the Advisers Act before submitting the certification. Commission proposed with respect to and the rules thereunder). 17 CFR 275.206(4)–7.

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defines the term ‘‘capability’’ to mean rules)? What would be the comparative a Senior Officer Certification? Why or ‘‘the quality of being capable; practical advantages, disadvantages, costs and/or why not? What would be the ability,’’ and defines the term ‘‘capable’’ benefits of adding or eliminating such comparative advantages, disadvantages, to mean, among other things, ‘‘having capabilities? costs and/or benefits of this approach? ability; able; skilled; competent Q–29. In addition to, or in lieu of the Q–33. If an SBS Entity were also —capable of; having the ability or Senior Officer Certification requirement, registered with the Commission as a qualities necessary for; able or ready should the Commission utilize an broker-dealer and an SRO were to to?’’ 45 Why or why not? Should the approach to demonstration of conduct a ‘‘material change in business Commission instead adopt some other capabilities similar to the one we use to review’’ of the SBS Entity’s security- dictionary definition? If so, what other register national securities exchanges based swap business, should the SBS dictionary definition should be used under Exchange Act Section 6(b)(1) 46 Entity be permitted to rely on the SRO’s and why? Alternatively, should the (which requires that an exchange have review and approval of that new Commission define the term capability the ‘‘capacity to be able to carry out the business as a basis for its Senior Officer in some other way? If so, how and why? purposes of [the Exchange Act * * *], Certification? Would the form of Senior Q–25. Should the Commission the rules and regulations thereunder’’)? Officer Certification affect the SBS determine that a firm may rely on the Would such a standard provide Entity’s ability to rely on such a review establishment, maintenance and additional clarity as to the capabilities and approval? If so, how and why? enforcement of written policies and to be required of registrants? What Given that SBS Entities that are also procedures by an SBS Entity that are would be the advantages and registered as broker-dealers would be reasonably designed to prevent violation disadvantages and the costs and benefits required by existing SRO rules to of federal securities laws, the rules of such an alternative process? undergo a material change in business thereunder, and applicable self- Q–30. Should the Commission instead review, are there any advantages and regulatory organization rules as a basis utilize an approach to demonstration of disadvantages or costs and benefits for a senior officer to certify that an SBS capabilities similar to the one we use to associated with reliance on an SRO Entity has the appropriate ‘‘compliance register clearing agencies under ‘‘material change in business review’’ capability?’’ Why or why not? Exchange Act Section 17A(b)(3)(A) 47 and approval as a basis for its Senior Q–26. Should the Commission (which requires that an exchange have Officer Certification? determine that a firm may rely on the the ‘‘capacity to be able to facilitate the Q–34. Similarly, if an SBS Entity were establishment, maintenance and prompt and accurate clearance and also involved in swap activity, could enforcement of written policies and settlement of securities transactions and that entity use any CFTC, NFA or procedures by an SBS Entity that are derivative agreements, contracts and prudential regulatory agency’s review of reasonably designed to assure that the transactions for which it is responsible, its swap business to inform its Senior SBS Entity complies with applicable to safeguard securities and funds in its Officer Certification to the Commission? capital and margin requirements as a custody or control or for which it is Would the form of Senior Officer basis for a senior officer to certify that responsible, to comply with the Certification affect the SBS Entity’s an SBS Entity has the appropriate provisions of [the Exchange Act] and the ability to rely on such a review and ‘‘financial capability?’’ Why or why not? rules and regulations thereunder, [and] approval? If so, how and why? Are there Q–27. If the Commission does not to enforce [* * *] compliance by its any advantages and disadvantages or specifically define what would participants with the rules of the costs and benefits associated with constitute operational, financial, and clearing agency, and to carry out the reliance on a CFTC, NFA or prudential compliance capabilities, will there still purposes of this section’’)? Would such regulatory agency’s review of its swap be a sufficient basis for SBS Entities a standard provide additional clarity as business as a basis for its Senior Officer and/or their senior officers to provide to the capabilities to be required of Certification? the Commission with a Senior Officer registrants? What would be the Q–35. Would the Senior Officer Certification? Why or why not? Would advantages and disadvantages and the Certification requirement effectively any potential uncertainty arising from costs and benefits of such an alternative require an SBS Entity to employ a third the decision not to define at this time process? party’s services to examine or confirm the terms ‘‘operational, financial, and Q–31. Should the form of Senior conclusions required for the compliance capabilities’’ and Officer Certification an SBS Entity must certification? Why or why not? If third ‘‘capabilities’’ cause difficulties for SBS file be driven by whether the entity is, party services were effectively required, Entities seeking to register on an or is not, already registered with the what would be the advantages and ongoing basis? If so, please describe. Commission as a broker-dealer or with disadvantages and costs and benefits of Q–28. Should SBS Entities be the CFTC as a swap dealer or major such third party services? required to provide a Senior Officer swap participant? Why or why not? If Q–36. Should we include the due Certification as to any capabilities in so, what forms of certification would be inquiry requirement in the rule? Should addition to the three specified? If so, appropriate for use by SBS Entities that we instead specify particular steps a what other capabilities and why? are already registered with one of the senior officer must take to determine Alternatively, should any of the Commission or the CFTC? What would whether the SBS Entity has the requisite capabilities be eliminated from the be the comparative advantages, capabilities? Senior Officer Certification? If so, which disadvantages, costs and/or benefits of Q–37. Should the senior officer of an one(s) and why? For example, should this approach? SBS Entity be required to disclose on the certification relating to an SBS Q–32. Should SBS Entities already Form SBSE–C or elsewhere, the nature Entity’s capabilities be confined to registered with the Commission as a of the ‘‘due inquiry’’ he or she operational capability given the broker-dealer or with the CFTC as a performed before signing Form SBSE–C regulatory imperative to comply with swap dealer or major swap participant and his or her resulting findings and applicable regulations (including capital be excepted from the requirement to file conclusions? Why or why not? Q–38. Should the Commission define 45 Websters New World Dictionary 110 (2nd 46 See supra note 32. its expectations with respect to the ‘‘due concise ed. 1975). 47 See supra note 33. inquiry’’ a senior officer should perform

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before signing Form SBSE–C? If so, what documents are filed with the obtain ongoing registration to continue should be included as part of a senior Commission or its designee. doing a security-based swap business officer’s ‘‘due inquiry?’’ Should ‘‘due Subparagraph (c)(2)(ii) would provide once their conditional registration inquiry’’ differ depending on whether that an SBS Entity’s certification expires.49 the SBS Entity is an SBS Dealer or a submitted pursuant to paragraph (b) When considering an application for major security-based swap participant? would be considered filed when a conditional registration, proposed Please explain. complete Form SBSE–C is filed paragraph 15Fb2–1(d)(1) provides that Q–39. Is the timeframe within which electronically with the Commission or the Commission would grant such the proposed Senior Officer its designee. registration if it finds that the firm’s Certification would need to be filed If a technological means to facilitate application is complete, except that the appropriate? If not, should the receipt and retention of applications is Commission may institute proceedings timeframe be shorter or longer and why? not functional by the time final rules are to determine whether to deny Q–40. Should the Commission adopted, proposed temporary Rule conditional registration if it finds that eliminate the requirement that a senior 15Fb2–2T, described more fully below, the applicant is subject to a statutory officer certify that he or she has would require SBS Entities to file disqualification or the Commission is documented the process by which he or applications and additional documents aware of inaccurate statements in the she reached his or her determination in paper form. application. Such proceedings would regarding the SBS Entity’s capacity? The Commission requests comment include notice of the grounds for denial Why or why not? Should the on the proposed method for receiving under consideration and opportunity for Commission instead simply require that applications. hearing. At the conclusion of such a senior officer document this process Q–41. Should the Commission not proceedings, the Commission would and require that the SBS Entity maintain require electronic submission of grant or deny such registration. those documents as part of its books and applications? If not, why? Paragraph (d)(2) would allow the records? Would a senior officer believe Q–41. Instead of expanding the Commission to grant ongoing that he or she may be second-guessed if, EDGAR system to receive SBS Entity registration to an SBS Entity. It is among other circumstances, the senior applications for registration, should the contemplated that ongoing registration officer certifies as to an SBS Entity’s Commission utilize some other system? would be sought by firms that have been capabilities but does not retain Please explain. What would be the conditionally registered with the documentation demonstrating how he comparative advantages and Commission, as well as by new firms or she reached this determination? disadvantages and costs and benefits of entering the marketplace that have not utilizing a system other than EDGAR? been conditionally registered (e.g., an iii. Electronic Filing Q–43. What would be the advantages SBS Dealer seeking registration after the Paragraph (c) of proposed Rule and disadvantages and costs and Last Compliance Date). Paragraph (d)(2) 15Fb2–1 would address the manner in benefits to prospective applicants of would specify that the Commission which the application, certification, and expansion of the EDGAR system to would grant ongoing registration based any additional registration documents receive SBS Entity applications for on a firm’s application and certification. would be filed with the Commission. registration, especially with respect to Proposed paragraph (d)(2) would Proposed paragraph (c)(1) would require the varying levels of familiarity that provide that if the Commission granted applications, certifications, and any they may have with this system? conditional registration to an SBS additional documents to be filed Q–44. Should the Commission Entity, the Commission could grant or electronically. The Commission designate another entity to facilitate the deny ongoing registration based on the anticipates that the EDGAR system will electronic receipt of applications? Why original application submitted by the be expanded to facilitate registration of or why not? If so, what types of entities SBS Entity, as amended,50 and the SBS Entities because it likely would should we consider? certification submitted to the provide the most cost-effective Q–45. What other issues, if any, Commission by the SBS Entity pursuant solution.48 should the Commission consider in to paragraph (b). When considering any Proposed paragraph (c)(2) of proposed connection with electronic filing? Rule 15Fb2–1 would specify the 49 Proposed Rule 15Fb3–1(b)(1) would provide iv. Standards for Granting or Denying that conditional registrations granted pursuant to effective date of filing of applications Applications paragraph (d)(1) of Proposed Rule 15Fb2–1 would and certifications submitted pursuant to Paragraph (d) of proposed Rule expire on the Last Compliance Date for SBS Entities the paragraphs (a) and (b). Subparagraph that filed a complete application before the Last 15Fb2–1 would provide that the (c)(2)(i) would provide that an SBS Compliance Date, unless the SBS Entity files with Commission may grant or deny an the Commission a certification on Form SBSE–C or Entity’s application submitted pursuant application for registration, and would the Commission extends conditional registration for to paragraph (a) would be considered good cause. Proposed Rule 15Fb3–1(b)(2) would set forth the standards the Commission filed only when a complete Form SBSE, provide that conditional registrations granted would use to make that determination. Form SBSE–A, or Form SBSE–BD, as pursuant to paragraph (d)(1) of Proposed Rule The grant or denial of a conditional 15Fb2–1 would expire four months after a major appropriate, and all required additional registration would depend principally security-based swap participant files a complete application, if it filed such application after the Last 48 To the extent the Commission utilizes the on the completeness of an application, Compliance Date, unless the major security-based EDGAR system to facilitate registration of SBS whether the applicant is subject to a swap participant files with the Commission a Entities, applicants would need to utilize the statutory disqualification, and whether certification on Form SBSE–C. In both cases, if the EDGAR Filer Manual (as defined in 17 CFR 232.11) the Commission is aware of inaccurate Senior Officer Certification is filed within the given to facilitate their filing of applications timeframe, conditional registration is extended by electronically. The EDGAR Filer Manual contains statements in the application. The grant 30 days to allow the Commission time to determine all the technical specifications for filers to submit or denial of an ongoing registration whether to grant or deny ongoing registration. filings using the EDGAR system. Generally, entities would also require that the Commission 50 The SBS Entity may have amended its filing documents in electronic format through the find that the requirements of Exchange application to address changes that may have EDGAR system must comply with the applicable occurred in the intervening period between the date provisions of the EDGAR Filer Manual in order to Act Section 15F(b) are satisfied. As the application was originally filed and the date the assure the timely acceptance and processing of noted in Part I above, conditionally Commission evaluates whether ongoing registration those filings. registered SBS Entities would need to should be granted.

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application for ongoing registration, Q–51. Should the Commission staff Commission identify which documents Rule 15Fb2–1(d)(2) would provide that base its decision only on a review of a or categories of documents should be the Commission would grant firm’s application (including any submitted in order to facilitate its registration if it finds that the additional documents) and certification review and/or decision? If so, what requirements of Exchange Act Section or should an on-site examination or types of documents (e.g., business plan, 15F(b) are satisfied, except that the some other type of review be written procedures, or annual audit Commission may institute proceedings considered? If so, what would be the statements) should the Commission to determine whether ongoing appropriate scope and timing of such a identify to facilitate this review and registration should be denied if it does review? what would be the costs of obtaining or not make such finding or if it finds that Q–52. Is there a need to lengthen or providing such documents? the applicant is subject to a statutory shorten the proposed timeframes Q–56. Should the Commission not disqualification or the Commission is provided for the effectiveness of adopt a Senior Officer Certification aware of inaccurate statements in the conditional registration in paragraph requirement, and instead require that an application or certification. Such (d)(1)? If so, how long should they be? SBS Entity obtain and submit to the proceedings would include notice of the Q–53. Should the Commission Commission an independent third-party grounds for denial under consideration provide additional guidance regarding review of its operational, financial, and and opportunity for hearing, and that at the process for institution of compliance capabilities or its written the conclusion of such proceedings, the proceedings? For instance, should the policies and procedures before granting Commission would grant or deny such Commission include timeframes within ongoing registration? What practical registration. which proceedings would be instituted considerations—e.g., identifying an As discussed above, the Commission and/or a decision to grant or deny appropriate independent third party, would notify the entity electronically registration based on those proceedings measuring the time, cost, and reliability when conditional or ongoing should be provided (e.g., Exchange Act of any such review, addressing the types registration is granted, and would make Section 15(b)(1))? If so, what timeframes of information to be shared with a third information regarding registration status or other guidance and why? party and the factors to be considered in publicly available. v. Request for Comment on Additional its review—would inform whether such The Commission requests comment Registration Considerations a review would be appropriate? What on these proposed standards of review would be the advantages and for granting or denying registration in The Commission requests comment disadvantages and costs and benefits of proposed Rule 15Fb2–1(d). on what, if any, alternative approaches requiring a third-party review instead of Q–46. Should the Commission should be considered to meet the the Senior Officer Certification? consider using different standards of Commission’s regulatory objectives in Q–57. Should the Commission adopt review to grant conditional registration the registration process for SBS Entities a Senior Officer Certification to SBS Entities who apply before the and how any such alternative requirement, and also require that an Last Compliance Date than it uses for approaches would compare to the SBS Entity employ a third party to major security-based swap participants current proposal.51 Any such independently review its capabilities to that apply for conditional registration comparison should describe the relative provide a basis for that Senior Officer after the Last Compliance Date? advantages and disadvantages of each Certification? What would be the Q–47. Would the standard requiring alternative, as well as their relative costs advantages and disadvantages and costs denial of an application if the applicant and benefits. and benefits of having an SBS Entity’s is subject to statutory disqualification Q–54. Should the Commission not capabilities independently reviewed? If cause undue hardship for any possible adopt a Senior Officer Certification such a review were required, who could applicants? If so, how many applicants requirement, and instead seek to satisfy perform such a review, what would are likely to be affected? Should this itself during the registration process, such review entail, and should the standard be refined or eliminated? If based on documents the SBS Entity may review be submitted to the Commission applicants subject to statutory be able to provide to the Commission, along with the certification? What disqualification should be allowed to that the SBS Entity has the operational, would be the comparative advantages, register, should they be subject to any financial, and/or compliance disadvantages, costs and/or benefits of additional requirements? Please explain. capabilities to act as an SBS Dealer or requiring dealers and participants to Q–48. Should the Commission major security-based swap participant, have their capabilities independently consider broader or more limited as applicable? What would be the reviewed? standards for granting or denying advantages and disadvantages and the Q–58. If the Commission required that conditional registration? If so, please costs and benefits of such an alternative SBS Entities obtain and submit an describe the standard that should be process? independent third-party review, what used and the reasons why it would be Q–55. If the Commission determines types of entities could perform such a more appropriate than the standard to satisfy itself during the registration review (e.g., accountants, law firms, proposed. process, based on documents the SBS consulting firms) and what Q–49. Should the Commission Entity may be able to provide to the independence standards should apply consider using a different standard of Commission, that the SBS Entity has the for purposes of conducting the review? review to grant ongoing registration? operational, financial, and/or Could a review or examination by Q–50. Should the Commission compliance capabilities to act as an SBS another governmental agency (e.g., the consider broader or more limited Dealer or major security-based swap Federal Reserve Board, the CFTC, the standards for granting or denying participant, as applicable, should the Office of the Comptroller of the ongoing registration? If so, please Currency) or an SRO constitute an describe the standard that should be 51 As described in footnote 12 above, the independent third party review for these used for granting or denying ongoing Commission is presently reviewing the various purposes? If not, why? Are there any standards and processes it uses to facilitate registration and the reasons why it registration, and we would expect that any practical or legal impediments to would be more appropriate than the alternative processes suggested by commenters here obtaining or providing to the standard proposed. would inform that review. Commission a review from a third party

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or a governmental agency or an SRO? If Q–64. Should an applicant for limited SBSE, SBSE–A, and SBSE–BD when so, could these be addressed by contract registration be required to provide the they become materially inaccurate, or otherwise? Commission with a different senior should it also require that all Q–59. Are there any other forms of officer or other certification? If so, how information on the forms be updated oversight that could or should reinforce should the certification differ? periodically? or replace the proposed Senior Officer Q–65. Should the Commission apply Q–70. Would it be appropriate for the Certification? What would be the a different standard of review when Commission to require that certain comparative advantages, disadvantages, considering whether to grant or deny information be updated more frequently costs and/or benefits of such an limited registration to an applicant? If than other information? If so, please approach? so, which one and why? describe what information should be Q–60. Are there other approaches to Q–66. If the Commission were to grant subject to more frequent updates and registration the Commission should an SBS Entity’s application for limited why, and the frequency with which consider that, in a cost-effective manner, registration and the SBS Entity later each such item should be updated. would both fulfill the statutory mandate determined that it would prefer to be B. Associated Persons to protect investors, maintain fair, fully registered, how should this orderly, and efficient markets, facilitate transition be effected? 1. Certification capital formation, and ensure that the Please provide as much detail as Paragraph (b)(6) of Exchange Act security-based swap market smoothly possible in commenting on which of the Section 15F generally prohibits SBS transitions from a generally unregulated above referenced courses of action Entities from permitting any of their marketplace to one that is regulated and should be pursued. Please also provide associated persons 55 who are subject to subject to appropriate oversight? If so, information regarding possible costs or a ‘‘statutory disqualification’’ (as please explain which ones and why. benefits of each of these alternatives. Q–61. If the Commission were to defined in Exchange Act Section consider an approach to registration that 3(a)(39)) to effect or be involved in 2. Amendments to Application Forms: effecting 56 security-based swaps on required something other than a Senior Proposed Rule 15Fb2–3 Officer Certification, would SBS Entities behalf of the SBS Entity if the SBS Proposed Rule 15Fb2–3 would require need more time to gather, obtain, or Entity knew, or in the exercise of an SBS Entity to promptly 53 amend its submit any documents, third party reasonable care should have known, of Form SBSE, Form SBSE–A, Form SBSE– review, or other items than we have the statutory disqualification. To BD, as applicable, to correct any proposed for submission of the Senior provide SBS Entities with a mechanism information it determines is, or has Officer Certification (i.e., on or before to assess their compliance with this become, inaccurate for any reason.54 the Last Compliance Date or, for provision, paragraph (a) of proposed The Commission preliminarily believes participants that apply after the Last Rule 15Fb6–1 would require that an this proposed Rule is necessary in order Compliance Date, within four months SBS Entity certify, on Schedule G of for it to have access to accurate after it files its completed application)? Form SBSE, Form SBSE–A, or Form information as part of its ongoing If so why or why not? SBSE–BD, as appropriate, that no In the Intermediary Definitions oversight of SBS Entities. person associated with it who effects or Release,52 the Commission The Commission requests comment is involved in effecting security-based acknowledged that the statutory on all aspects of proposed Rule 15Fb2– swaps on its behalf is subject to definitions include a provision stating 3. statutory disqualification, as defined in 57 that a person may be designated as a Q–67. Should the Commission only Section 3(a)(39) of the Exchange Act. dealer for one or more types, classes or require SBS Entities to promptly update If an associated person later becomes categories of security-based swaps, or their Forms SBSE, SBSE–A, and SBSE– BD when they become ‘‘materially’’ 55 15 U.S.C. 78c(a)(70) generally defines the term activities. Further, that release indicated ‘‘person associated with’’ an SBS Entity to include: that one commenter stated that the inaccurate? Q–68. Should SBS Entities instead be (i) Any partner, officer, director, or branch manager Commissions should allow a person to of an SBS Entity (or any person occupying a similar required to periodically update these register as a swap dealer or SBS Dealer status or performing similar functions); (ii) any forms and, if so, what would be an person directly or indirectly controlling, controlled for only a limited set of types, classes appropriate timeframe for updating (e.g., by, or under common control with an SBS Entity; or categories of swaps or security-based monthly, quarterly, annually)? What or (iii) any employee of an SBS Entity. However, it swaps. generally excludes persons whose functions are Q–62. Should the registration process may be the comparative costs and solely clerical or ministerial. be expanded in any way to allow firms benefits of periodic updating vs. 56 The Commission believes that associated to choose whether they register in a ‘‘prompt’’ updating? persons ‘‘involved in effecting’’ security-based Q–69. If the Commission requires SBS swaps would include, but not be limited to, persons ‘‘full’’ or ‘‘limited’’ capacity? If so, how? involved in drafting and negotiating master Q–63. What additional information Entities to promptly update their Forms agreements and confirmations, persons should be elicited by the proposed recommending security-based swap transactions to forms to provide the Commission with 53 For purposes of Rule 15b3–1, the Commission counterparties, persons on a trading desk actively has interpreted the term ‘‘promptly’’ to mean within involved in effecting security-based swap sufficient information to determine 30 days. (In the Matter of First Guarantor Securities, transactions, persons pricing security-based swap whether limited (as opposed to full) Inc., Exchange Act Release No. 32725, 51 S.E.C. 612 positions and managing collateral for the SBS registration is appropriate? Should there (Aug. 6, 1993), which states, ‘‘Absent extraordinary Entity, and persons assuring that the SBS Entity’s be separate forms for firms to apply for circumstances, an amendment to Form BD filed security-based swap business operates in beyond thirty days from the change in information compliance with applicable regulations. In short, limited, as opposed to full, registration? cannot be considered ‘promptly’ filed in accordance the term would encompass persons engaged in Should there instead be a separate with Rule 15b3–1.’’) We preliminarily believe this functions necessary to facilitate the SBS Entity’s schedule to the forms as proposed? standard is also appropriate with respect to the use security-based swap business. Should the timing differ and, if so, how of this term in proposed Rule 15Fb2–3. 57 Proposed Rule 15Fb1–1(b), described below, 54 This proposed rule is based on Exchange Act would require each SBS Entity to maintain a and why? Rule 15b3–1, which is applicable to registered manually signed copy of this certification as part of brokers and dealers and has worked well to assure its books and records until at least three years after 52 Intermediary Definitions Release, supra note 5, that broker-dealers promptly amend their the certification has been replaced or is no longer at 80182. applications. effective.

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statutorily disqualified, the SBS Entity swaps), banking, insurance or real estate of the SBS Entity’s employees who would need to ensure that the (including, but not limited to, acting or effect or are involved in effecting associated person does not continue to being associated with a broker-dealer, security-based swaps on the SBS effect or be involved in effecting investment company, investment Entity’s behalf is subject to statutory security-based swaps on the SBS adviser, futures sponsor, bank, or disqualification. Moreover, to the extent Entity’s behalf and/or promptly amend savings and loan association), fraud, the SBS Entity’s CCO, or his or her its Schedule G in accordance with false statements or omissions, wrongful designee, must sign the certification, proposed Rule 15Fb2–3. taking of property or bribery, forgery, this requirement helps ensure that the To support this certification counterfeiting or extortion, and the CCO is aware of this statutory requirement, paragraph (b) of proposed disposition of the foregoing; and (8) a prohibition and is familiar with the SBS Rule 15Fb6–1 would require SBS record of any other name or names by Entity’s procedures to comply with it. Entities to obtain a questionnaire or which the associated person has been Finally, paragraph (c) of proposed application for employment executed by known or which the associated person paragraph 15Fb6–1 would require that each of its associated persons that effect has used. each SBS Entity maintain the or are involved in effecting security- The Commission believes that it is questionnaires and applications for based swaps on its behalf; such standard in the financial services employment obtained pursuant to questionnaire or application would industry for firms to request this paragraph (b) as part of its books and serve as a basis for a background check information on employment records for at least three years after the of the associated person to determine questionnaires. This information is associated person has terminated his or whether the associated person is similar to the information identified in her association with the SBS Entity. It statutorily disqualified. The Exchange Act Rule 17a–3(a)(12)(i) and is likely that SBS Entities would retain questionnaires or applications would be required to be collected by broker- these records for business purposes; required to contain, at a minimum, the dealers with respect to their associated however, this requirement will assure following information: (1) The persons. Additionally, Form U–4 that the questionnaires and applications associated person’s name, address, contains all the information needed are available to the Commission during social security number, Central pursuant to Exchange Act Rule 17a– inspections and examinations. Registration Depository (‘‘CRD’’) 3(a)(12)(i) and would fulfill the The Commission requests comment number (if any), Investment Adviser requirement to obtain a questionnaire or on proposed Rule 15Fb6–1. Registration Depository (‘‘IARD’’) application specified in Rule 15Fb6– Q–71. Would the information number (if any), and the starting date of 1(b). Rule 17a–3(a)(12)(i) and Form U– regarding associated persons in the associated person’s employment or 4 provide broker-dealers with paragraph (b) of the proposed rule be other association with the SBS Entity; information through which they can sufficient for a CCO to make the (2) the associated person’s date of birth; perform background checks on required certification? Why or why not? (3) a complete, consecutive statement of associated persons necessary to assure Q–72. Should the information all the associated person’s business that those associated persons are not requirements in paragraph (b) be connections for at least the preceding subject to statutory disqualification. modified in any way? ten years, including whether the Moreover, the NFA collects similar data Q–73. Should applicants be required employment was part-time or full-time; on associated persons of its members to obtain any additional information not (4) a record of any denial of membership through the Form 8–R. Consequently, specified in proposed paragraph (b)? or registration, and of any disciplinary we preliminarily believe it would be Q–74. Should the Commission require action taken, or sanction imposed, upon appropriate for SBS Entities to collect that SBS Entities perform background the associated person by any federal or this information on associated persons checks on their employees (e.g., to state agency, by any national securities to allow them to conduct background confirm that their associated persons do exchange or national securities checks so that they can comply with the not have a criminal history) in addition association, or by a foreign financial prohibition in Section 15F(b)(6) of the to obtaining questionnaires or regulatory authority including any Exchange Act from allowing statutorily applications? Why or why not? finding that the associated person was a disqualified individuals to effect or be Q–75. If not, what other process could cause of any disciplinary action or had involved in effecting SBS transactions the Commission use to help ensure that violated any law; (5) a record of any on their behalf. an applicant is not violating Exchange denial, suspension, expulsion or In addition, paragraph (b) of proposed Act Section 15F(b)(6)? revocation of membership or Rule 15Fb6–1 would require that the Q–76. Should the Commission require registration of any broker, dealer, SBS SBS Entity’s chief compliance officer applicants to require credit checks on Dealer, or major security-based swap (‘‘CCO’’) (appointed in accordance with associated persons? Why or why not? participant with which the associated Exchange Act Section 15F(k)), or his or Q–77. What, if any, practical or legal person was associated in any capacity her designee, review and sign each limitations or barriers exist that would 58 when such action was taken; (6) a questionnaire or application. This hinder an applicant from obtaining record of any permanent or temporary provision is designed to help ensure background or credit checks? injunction entered against the that due regard is being paid to this Q–78. Should the Commission require associated person or any broker, dealer, requirement to collect information on applicants to obtain and process SBS Dealer, or major security-based employees and to help ensure that none fingerprints of their associated persons swap participant with which the that will be effecting or involved in 58 Applicants may already have this information effecting security-based swaps on the associated person was associated in any on their employees, but may not have a CCO, as capacity at the time such injunction was required pursuant to new Section 15F(k) of the Act, applicant’s behalf? Why or why not? entered; (7) a record of any arrest or until the effective date of rules the Commission may Q–79. What, if any, practical or legal indictment for any felony, or any promulgate under Section 15F(k). Security-based limitations or barriers exist that would swap dealers and major security-based swap misdemeanor pertaining to securities participants could be conditionally registered even hinder an applicant from obtaining or (including security-based swaps), if a CCO has not signed each associated person’s running fingerprints of associated futures or commodities (including questionnaire or application. persons?

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Q–80. Should the Commission instead to the Dodd-Frank Act amendments. person or an entity? If so, what type of treat the provisions of Section 15F(b)(6) This existing Exchange Act authority differentiation and why? as essentially self-executing and permit permits SROs, subject to Commission C. Termination of Registration SBS Entities to determine how best to review, to allow, among other things, a screen associated persons to ensure they person subject to a statutory 1. Expiration: Proposed Rule 15Fb3–1 are not subject to a statutory disqualification to associate with a Exchange Act Section 15F(b)(3) 60 disqualification (provided that they broker-dealer. provides that ‘‘each registration under exercise reasonable care in so doing) Similarly, Commission Rule 193 this section shall expire at such time as and require that an SBS Entity create (Applications by Barred Individuals for the Commission may prescribe by rule and maintain reasonable policies and Consent to Associate) provides a process or regulation.’’ Although there is no procedures for determining whether an by which persons that are not regulated Exchange Act parallel, this provision is associated person is subject to a by a SRO (e.g., employees of an similar to Commodity Exchange Act statutory disqualification? Why or why investment adviser, an investment Section 6f(a)(1), which provides that not? company, or a transfer agent) can seek ‘‘each registration shall expire on Q–81. What would be the benefits and to reenter the traditional securities December 31 of the year for which risks of this approach? industry despite previously being barred issued or at such other time, not less Q–82. Would this approach be more 61 by the Commission. than one year from the date of issuance, or less burdensome for SBS Entities to The Commission requests comment as the Commission may by rule, administer? on whether it should develop an regulation, or order prescribe. * * *’’ Q–83. Would SBS Entities alternative process to allow associated CFTC Rule 3.10(b) provides, among nevertheless implement an approach persons of SBS Entities who are subject other things, that persons registered similar to that required under the to a statutory disqualification to effect or with the CFTC pursuant to CFTC Rule proposed rule? be involved in effecting security-based 3.10 ‘‘will continue to be so registered Q–84. How might an SBS Entity swaps on their behalf. comply with Section 15F(b)(6) in ways Q–89. How many SBS Entities and until the effective date of any revocation that differ from what is set forth in the associated persons thereof are likely to or withdrawal of such registration.’’ proposed rule? be affected if the Commission does not Paragraph (a) of proposed Rule 15Fb3– Q–85. Would this alternative policies provide an exemptive process? 1 would establish the same continuous and procedures approach provide SBS Q–90. Is it possible that an associated registration as is set forth in CFTC Rule Entities sufficient legal certainty about person that is an entity (i.e., not a 3.10(b), and would provide that whether they have properly complied natural person) that effects or is registered SBS Entities would ‘‘continue with Section 15F(b)(6)? involved in effecting security-based to be so registered until the effective Q–86. Should the Commission require swaps on behalf of an SBS Entity would date of any cancellation, revocation or that associated persons of SBS Entities be subject to a statutory withdrawal of such registration or any that effect or are involved in effecting disqualification? If so, should the other event the Commission determines security-based swaps on behalf of the Commission consider excepting any should trigger expiration.’’ SBS Entity register directly with it? such persons from the prohibition in Q–94. Does CFTC Rule 3.10(b) What would be the costs or benefits Section 15F(b)(6)? Under what provide an appropriate model to involved with registration of such SBS circumstances and why? implement Exchange Act Section Entity associated persons? What, if any, Q–91. Should the Commission except 15F(b)(3)? Why or why not? practical or legal limitations or barriers such persons globally (e.g., by a blanket Q–95. Should the Commission instead exist to this approach? rule) or on an individual basis (e.g., via allow initial SBS Entity registrations to Q–87. Are there other approaches to a Rule 193-type process)? What would expire and require SBS Entities to re- implementing Section 15F(b)(6) that the be the possible costs or benefits of each? register to become an ongoing registrant Commission should consider? Please Q–92. Are there certain statutorily (while providing a grace period for this explain. disqualified persons who should not be re-registration to occur)? If so, what Q–88. Should the Commission take a permitted to remain associated with an would be an appropriate amount of time different view regarding which SBS Dealer or major security-based before expiration (e.g., one year, two associated persons should be considered swap participant based upon the nature years, five years, or some other time to be ‘‘involved in effecting’’ security- of the disqualification? period)? based swaps on behalf of the SBS Entity Q–93. Should there be any Q–96. Alternatively, should the (see footnote 34)? If so, should differentiation in relief based upon the Commission allow SBS Entity additional categories of associated nature of the person, e.g. a natural registrations to expire periodically and persons be included or should certain require SBS Entities to re-register identified categories of associated 60 When such a person seeks admission to or periodically (i.e., requiring registrants to persons be excluded? For what continuance in membership or association, the ‘‘re-up’’ indefinitely on a regular basis)? reason(s)? Commission and the SRO have the opportunity to If so, what would be an appropriate give special review to such person and to restrict amount of time before expiration (e.g., 2. Alternative Process or prevent entry into, or continuance in, the business where appropriate in the public interest annually, every two years, every five Section 15F(b)(6) expressly authorizes and for the protection of investors. See Senate years, or some other time period)? What the Commission to establish exceptions Comm. on Banking, Housing, and Urban Affairs, would be the advantages, disadvantages, to this prohibition by rule, regulation, or The Securities Act Amendments of 1989, S. Rep. costs and benefits of such an approach? No. 101–105, at 39 (1989); Provision for Notices by 59 order. This authority is similar to Self-Regulatory Organizations of Stays of Such Q–97. Via what mechanism should authority provided to the Commission Actions; Appeals; and Admissions to Membership any such re-registration be facilitated? with respect to the ‘‘traditional’’ or Association of Disqualified Persons, 42 FR 36409 For instance, should an SBS Entity be securities industry, i.e., the industry (Jul. 14, 1977) (adopting rule 19h–1 under the required to re-apply by filing a new Exchange Act, 17 CFR 240.19h–1, and providing regulated under the Exchange Act prior rules for process of filing notices, content of notices, application? Alternatively, should an and Commission determination). SBS Entity be required to re-certify by 59 15 U.S.C. 78o–10(b)(6). 61 17 CFR 201.193. filing a new Senior Officer Certification?

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Would some other mechanism be more swap participant files its completed advisable to provide flexibility in appropriate? How should any such application with the Commission unless scheduling the termination of business mechanism take into account the initial the major security-based swap operations to registered entities seeking application and registration of an SBS participant files a Senior Officer to withdraw from registration. Further, Entity? How should any such Certification with the Commission or its the Commission may determine that it mechanism take into account the SBS designee within that four month period; would be appropriate for a registered Entity’s compliance with applicable in which case its conditional entity that is under investigation by the rules during the period prior to the re- registration would be extended for an Commission to maintain its registered registration? Would any type of non- additional thirty days. Pursuant to status in order to allow the Commission compliance during such period justify paragraph (c) of proposed Rule 15Fb3– to conclude a pending investigation denial of re-registration, or should the 1, the Commission could extend without prematurely instituting a nature of the non-compliance and any conditional registration for good cause. proceeding to impose conditions on the remedial actions be taken into account? Q–102. Would these timeframes be registered entity’s withdrawal. In such Q–98. If re-registration is facilitated sufficient to allow conditional instances, it may better serve the by re-certification, would the proposed registrants to complete—and the interests of all parties to have the form of Senior Officer Certification on Commission to grant or deny—ongoing registered entity consent to an extension Form SBSE–C be the appropriate or registration? Why or why not? of the effective date of the registered would some other form or language be Q–103. What circumstances should entity’s withdrawal from registration more appropriate? For instance, should the Commission consider in beyond the general 60-day period any re-certification for SBS Entities be determining whether good cause exists provided for in the proposed rule. It also drafted to more closely follow the to extend an SBS Entity’s conditional may be appropriate to permit the certification requirement proposed for registration? Why? Should these Commission to extend the effective date municipal advisors (wherein each circumstances include situations in for a period if it determines, by order, municipal advisor certifies annually which the Commission may need that it is necessary or appropriate in the that it has met its regulatory obligations additional time to review an SBS public interest or for the protection of over the prior period)? Entity’s application and certification? investors. Q–99. If periodic re-registration were Why or why not? Thus, paragraph (b) of proposed Rule required, should re-registration be based Q–104. Should the Commission 15Fb3–2 would identify specific on an SBS Entity’s original registration require that an SBS Entity follow a situations in which notices of date or should it be triggered by a particular process to request an withdrawal from registration will not calendar date (e.g., on December 31)? extension of the SBS Entity’s become effective on the 60th day. These Q–100. Should the same standard of conditional registration? For instance, would include situations where (1) The review that applies to ongoing should an SBS Entity be required to Commission determines that a shorter registration apply in the context of re- submit a letter requesting an extension period is appropriate, (2) the SBS Entity registration (see proposed rule 15Fb2– and setting forth the reasons why an consents to a longer period, (3) the 1(d)(2))? If not, what alternative extension is necessary? If so, what Commission, by order, determines that standard of review would be more process would be appropriate and why? a longer period is necessary or appropriate and why? appropriate in the public interest or for Q–101. Would any such expiration 2. Withdrawal: Proposed Rule 15Fb3–2 the protection of investors, and (4) the and re-registration requirement provide Proposed Rule 15Fb3–2 would Form SBSE–W is filed subsequent to the the Commission with a greater ability to provide a process by which an SBS date of the issuance of a Commission enforce compliance with applicable Entity could withdraw from registration order instituting proceedings to censure, regulations? Why or why not? with the Commission.62 The proposed place limitations on the activities, As discussed in Part I above, under rule would require an SBS Entity to file functions or operations of, or suspend or paragraph (b)(1) of proposed Rule a notice of withdrawal from registration revoke the registration of the SBS Entity. 15Fb3–1, conditional registrations electronically on Form SBSE–W Finally, paragraph (b) of proposed Rule granted by the Commission to an SBS (described in more detail below) in 15Fb3–2 would provide that if the Entity that applies for registration accordance with the instructions to the Commission institutes proceedings prior during the transitional period in Form. It also would require that an SBS to the effective date of Form SBSE–W accordance with Rule 15Fb2–1(b) would Entity amend its Form SBSE, Form (1) To censure, place limitations on the expire on the Last Compliance Date, SBSE–A, or Form SBSE–BD, as activities, functions or operations of, or unless the SBS Entity files a Senior appropriate, in accordance with suspend or revoke the registration of the Officer Certification with the proposed Rule 15Fb2–3 to update any SBS Entity, or (2) to impose terms or Commission or its designee on or before inaccurate information prior to filing its conditions upon the SBS Entity’s the Last Compliance Date; in which case notice of withdrawal from registration. withdrawal, the notice of withdrawal its conditional registration would be Paragraph (b) of proposed Rule shall not become effective except at extended for an additional thirty days 15Fb3–2 would provide that a notice of such time and upon such terms and (which should allow the Commission withdrawal from registration filed by an conditions as the Commission deems staff sufficient time to review the SBS SBS Entity would generally become necessary or appropriate in the public Entity’s application and certification effective on the 60th day after the SBS interest or for the protection of and determine whether to grant or deny Entity files Form SBSE–W. However, investors. ongoing registration). Paragraph (b)(2) of based on its experience with registered The Commission requests comment proposed Rule 15Fb3–1 would provide broker-dealers, the Commission on all aspects of proposed Rule 15Fb3– that conditional registrations granted by recognizes that there may be 2. the Commission to major security-based Q–105. Would the proposed circumstances in which it would be swap participants that file applications withdrawal process be workable for SBS for registration after the Last 62 This provision is similar to Exchange Act Rule Entities? Are the proposed timeframes Compliance Date would expire four 15b6–1, which has historically worked well to reasonable for these entities? Why or months after the major security-based facilitate broker-dealer withdrawals. why not?

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Q–106. Under what other procedures could be added to provide security-based swap participant,’’ for circumstances, if any, should the additional safeguards? purposes of Rule 15Fb2–4. Under this Commission shorten or lengthen the definition, an SBS Entity that is D. Special Requirements for timeframe for withdrawal? incorporated any place that is not in the Nonresident SBS Entities United States would be considered to be 3. Cancellation and Revocation: Proposed Rule 15Fb2–4 would a nonresident. In addition, an SBS Proposed Rule 15Fb3–3 require, among other things, that Entity that has its principal place of Proposed Rule 15Fb3–3 would nonresident SBS Entities that are business in any place not in the United provide the Commission with the ability required to register with the States would be considered to be a to either cancel or revoke a registered Commission 65 (1) Appoint an agent for nonresident. SBS Entity’s registration. More service of process in the United States Q–111. Should the terms specifically, paragraph (a) of proposed (other than the Commission or a ‘‘nonresident security-based swap Rule 15Fb3–3 would allow the Commission member, official or dealer’’ and ‘‘nonresident major Commission to cancel an SBS Entity’s employee) upon whom may be served security-based swap participant’’ be registration if the Commission finds that any process, pleadings, or other papers defined differently and, if so, how it is no longer in existence or has ceased in any action brought against the should the definitions be amended and to do business as an SBS Entity.63 The nonresident SBS Entity, (2) furnish the why? cancellation process outlined in Commission with the identity and 1. United States Agent for Service of paragraph (a) is intended to be address of its agent for services of Process ministerial in nature, and not a means process, (3) certify that the firm can, as to revoke without due process the a matter of law, provide the Commission Paragraphs (b)(1) and (2) of proposed registration of an SBS Entity that may with prompt access to its books and Rule 15Fb2–4 would require that each have violated federal securities laws. records and can, as a matter of law, nonresident SBS Entity registered or This provision is designed to help the submit to onsite inspection and registering with the Commission obtain Commission allocate its examination examination by the Commission, and (4) a written irrevocable consent and power and other resources to entities that are provide the Commission with an of attorney appointing an agent for actively engaged in business regulated opinion of counsel concurring that the service of process in the United States by the Commission. firm can, as a matter of law, provide the (other than the Commission or a Commission with prompt access to its Paragraph (b) of proposed Rule Commission member, official or books and records and can, as a matter 15Fb3–3 cross-references the Exchange employee) upon whom may be served of law, submit to onsite inspection and Act to clarify that the Commission shall any process, pleadings, or other papers examination by the Commission. in any action brought against the censure, place limitations on the Paragraph (a) of proposed Rule nonresident SBS Entity and furnish the activities, functions, or operations of, or 15Fb2–4 would define the term Commission with the identity and revoke (on a permanent or temporary ‘‘nonresident security-based swap address of its agent for services of basis) the registration of any SBS Dealer dealer’’ and ‘‘nonresident major or major security-based swap process on Schedule F 66 to Form SBSE,

participant that has registered with the 65 Form SBSE–A, or Form SBSE–BD, as The Commission has received questions as to 67 Commission if it makes a finding as how the registration requirements for SBS Entities applicable. These requirements are specified in Section 15F(l)(2) of the would apply to non-U.S. persons. The Commission important to facilitate the Commission Exchange Act.64 is continuing to consider the application of Title VII and others (for example, the U.S. of the Dodd-Frank Act to non-U.S. persons and Department of Justice and any other Q–107. Is the proposed provision for intends to address these issues in a separate release, cancellation of registration appropriate and notes that the proposals described herein with agency with the power to enforce the in the context of SBS Entities? Why or respect to nonresident SBS Entities will be Exchange Act) to serve process on a informed by the considerations and comments nonresident SBS Entity to enforce the why not? raised in connection with that release. See, e.g., Q–108. Would there be occasion for Letter from Barclays Bank PLC, BNP Paribas S.A., Exchange Act. Paragraph (b)(4) of the SBS Entities to have an extended pause Deutsche Bank AG, Royal Bank of Canada, The proposed rule also would require that in their businesses such that they might Royal Bank of Scotland Group PLC, Socie´te´ registered nonresident SBS Entities Ge´ne´rale, and UBS AG to David A. Stawick, must promptly appoint a successor appear to have ceased to do business? If Secretary, CFTC, Elizabeth M. Murphy, Secretary, so, should the Commission provide that SEC, and Jennifer J. Johnson, Secretary, Board of agent if it discharges its identified agent such entities could notify the Governors of the Federal Reserve System (Jan. 11, for service of process or if its agent for Commission of their intent to stay in 2011); Letter from Sarah A. Miller, Chief Executive service of process is unwilling or unable Officer, Institute of International Bankers, to to accept service on its behalf.68 Further, business, notwithstanding their lack of Elizabeth M. Murphy, Secretary, SEC, and David A. current activities? Should such entities Stawick, Secretary, CFTC (Jan. 10, 2011); Letter proposed paragraph (b)(3) would require later inform the Commission when they from Barclays Bank PLC, BNP Paribas S.A., Credit that registered SBS Entities promptly Suisse AG, Deutsche Bank AG, HSBC, Nomura become active? inform the Commission, through an Securities International, Inc., Rabobank Nederland, amendment of the Schedule F of Form Q–109. Should there be a time limit Royal Bank of Canada, The Royal Bank of Scotland on how long such an SBS Entity could Group PLC, Socie´te´ Ge´ne´rale, The Toronto- SBSE, Form SBSE–A, or Form SBSE– Dominion Bank, and UBS AG to David A. Stawick, BD, as appropriate, of any change to retain its registration with the Secretary, CFTC, Elizabeth M. Murphy, Secretary, Commission while it is in a ‘‘dormant’’ either its agent for service of process or SEC, and Jennifer J. Johnson, Secretary, Board of the name or address of its existing agent state? Governors of the Federal Reserve System (Feb. 17, for service of process. Finally, paragraph Q–110. Does the proposed provision 2011); and Letter from Laura J. Schisgall, Managing Director and Senior Counsel, Socie´te´ Ge´ne´rale, to (b)(5) of proposed Rule 15Fb2–4 would for revocation in paragraph (b) provide Elizabeth M. Murphy, Secretary, SEC, and David A. require that the registered nonresident sufficient procedural safeguards for Stawick, Secretary, CFTC (Feb. 18, 2011). The registered SBS Entities? If not, what Commission is also considering the approach outlined in the letter from Katsunori Mikuniya, 66 The Schedule F is discussed more fully below Commissioner & Chief Executive, Financial as part of the discussion of the Forms. 63 This provision is similar to Exchange Act Services Agency, Government of Japan, to Gary 67 Paragraphs (b)(1) and (b)(2) of proposed Rule Section 15(b)(5). Gensler, Chairman, U.S. Commodity Futures 15Fb2–4, respectively. 64 15 U.S.C. 78o–10(l). Trading Commission (Apr. 1, 2011). 68 Paragraph (b)(3) of proposed Rule 15Fb2–4.

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SBS Entity maintain, as part of its books responsibilities with respect to Q–117. Should the Commission and records, the agreement identified in nonresident SBS Entities registered with specify that the opinion of counsel paragraph (b)(1) for at least three years it, the Commission must have access to contain any additional information? For after the agreement is terminated. those entities’ records and the ability to instance, should the requirement clarify The Commission requests comment examine them; however, certain foreign that the opinion of counsel reference the on all aspects of the requirement for jurisdictions may have laws that applicable local law or, in the case of an nonresident SBS Entities to appoint an complicate the ability of financial amendment, the manner in which the agent in the United States to receive institutions such as nonresident SBS local law was amended? service of process, pleadings or papers Entities located in their jurisdictions Q–118. As described above, certain in any action brought against the from sharing and/or transferring certain foreign jurisdictions may have laws that nonresident SBS Entity. information including personal complicate the ability of financial Q–112. Should only certain types of financial data of individuals that the institutions such as nonresident SBS entities (such as law firms) be allowed financial institutions come to possess Entities located in their jurisdictions to act as U.S. agent for service of from third persons (e.g., personal data from sharing and/or transferring certain process? relating to the identity of market information. What impact may the Q–113. Should these requirements be participants or their customers). The requirement that a nonresident SBS expanded to require nonresident SBS required certification and opinion of Entity obtain and submit the described Entities to appoint a U.S. agent for counsel regarding the nonresident SBS opinion of counsel have on a purposes of all potential legal Entity’s ability to provide prompt access nonresident SBS Entity’s ability to proceedings, including those from non- to books and records and to be subject register in the United States in such governmental entities, or is this already to inspection and examination will circumstances or otherwise? Are there adequately addressed by contract? allow the Commission to better evaluate circumstances where it would be Q–114. Should the Commission a nonresident SBS Entity’s ability to impossible or impractical for the require nonresident SBS Entities to meet the requirements of registration nonresident SBS Entity to obtain the provide the Commission with additional and ongoing supervision. Failure to opinion of counsel? Would a information not required of U.S. SBS make this certification or provide an nonresident SBS Entity need to cease Entities, such as verification of any non- opinion of counsel may be a basis for doing business in the United States or U.S. registrations? the Commission to deny an application with U.S. persons solely because of this Q–115. Is the three year time frame for for registration. requirement? Why or why not? which an SBS Entity would be required Paragraph (c)(2) of proposed Rule Q–119. If the described opinion of to maintain, as part of its books and 15Fb2–4 would require that registered counsel were not required, what records, the agreement appointing its nonresident SBS Entities re-certify, on alternatives would the Commission agent for service of process appropriate? Schedule F to Form SBSE, Form SBSE– have to assure that it is able to access Would a longer or shorter time period A, or Form SBSE–BD, as applicable, a registered nonresident SBS Entity’s be more appropriate? within 90 days after any changes in the books and records and examine the 2. Access to Books and Records of legal or regulatory framework that registered nonresident SBS Entity in would impact the nonresident SBS Nonresident SBS Entity order to effectively fulfill its oversight Entity’s ability to provide, or the responsibilities? What are the relative Proposed Rule 15Fb2–4(c)(1), manner in which it provides, the advantages or disadvantages of any such regarding access to books and records, Commission prompt access to its books alternatives? would require that each nonresident and records or impacts the Q–120. Should the requirement that SBS Entity registering with the Commission’s ability to inspect and 69 an SBS Entity obtain an amended Commission provide an opinion of examine the nonresident SBS Entity. opinion of counsel and re-certify its counsel and certify on Schedule F of The re-certification would be required ability to provide the Commission with Form SBSE, Form SBSE–A, or Form to include a revised opinion of counsel access to records be limited in any way? SBSE–BD, as appropriate, that it can, as describing how, as a matter of law, the Q–121. The Commission has received a matter of law, provide the Commission entity will continue to meet its three comment letters containing with prompt access to its books and obligations to provide the Commission alternative suggestions as to how the records and can, as a matter of law, with prompt access to its books and Commission should accommodate a submit to onsite inspection and records and to be subject to Commission foreign bank with a U.S. affiliate that 70 examination by the Commission. The inspection and examination under the organizes its business so that it could Commission preliminarily believes that new regulatory regime. If a registered engage in security-based swap the nonresident SBS Entity certification nonresident SBS Entity becomes unable transactions with U.S. investors while and supporting opinion of counsel is to comply with this certification being subject to a more limited important to confirm that each because of such changes, or otherwise, regulatory regime under the Exchange nonresident SBS Entity located overseas then this may be a basis for the Act in recognition that it is subject to has taken the necessary steps to be in Commission to revoke the nonresident regulation in its home country.71 The the position to provide the Commission SBS Entity’s registration. with prompt access to its books and The Commission requests comment 71 See letter to Mr. David A. Stawick, Secretary, records and to be subject to inspection on all aspects of the certification and CFTC, Ms. Elizabeth M. Murphy, Secretary, and examination by the Commission. To opinion of counsel requirements Commission, and Ms. Jennifer J. Johnson, Secretary, effectively fulfill its regulatory oversight contained in paragraph (c) of proposed Board of Governors of the Federal Reserve System from Davis Polk & Wardwell LLP, on behalf of Rule 15Fb2–4. Barclays Bank PLC, BNP Paribas S.A., Deutsche 69 See supra note 65. Q–116. Will this certification Bank AG, Royal Bank of Canada, The Royal Bank 70 In accordance with Proposed Rule 15Fb1–1(b), requirement provide the Commission of Scotland Group plc, Socie´te´ Ge´ne´rale and UBS the SBS Entity will need to maintain a manually with adequate assurance that AG, dated January 11, 2011 (http://www.sec.gov/ signed copy of this certification as part of its books comments/s7-39-10/s73910-9.pdf); letter to and records until at least three years after the nonresident SBS Entities will be able to Elizabeth M. Murphy, Secretary, Commission, and certification has been replaced or is no longer provide the Commission with access to David A. Stawick, Secretary, CFTC, dated January effective. records? 10, 2011 (http://www.sec.gov/comments/s7-39-10/

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Commission requests comment Q–123. Should the concept of (including signatories within the forms regarding whether the requirement that succession be the same as used in the and certifications required by an applicant provide an opinion of context of broker-dealer registration? §§ 240.15Fb2–1, 240.15Fb2–4 and counsel should be amended to recognize Commenters should explain why any 240.15Fb6–1, discussed below). In or facilitate such arrangements. If so, differences would be appropriate. addition, paragraph (b) of proposed Rule why and in what way should the Q–124. Are the timeframes provided, 15Fb1–1 would require that each requirement be modified? If not, why? which seem to work well in the broker- signatory to such an electronic filing Would an amended requirement dealer context, appropriate with respect manually sign a signature page or other provide the Commission with adequate to SBS Entity succession? document authenticating, assurance that nonresident SBS Entities acknowledging or otherwise adopting 2. Insolvency: Proposed Rule 15Fb2–6 will be able to provide the Commission his or her signature that appears in with sufficient access to records? Proposed Rule 15Fb2–6 would typed form within the electronic filing provide a process through which an either before or at the time the E. Special Situations executor, administrator, guardian, electronic filing is made. Paragraph (b) 1. Succession: Proposed Rule 15Fb2–5 conservator, assignee for the benefit of would also require that the SBS Entity creditors, receiver, trustee in insolvency create the manually signed document Proposed Rule 15Fb2–5 would or bankruptcy or other fiduciary when the electronic form is submitted, provide a process through which an SBS appointed or qualified by order, and furnish a copy of such document to Entity could succeed to the business of judgment or decree of a court of the Commission upon request. another SBS Entity.72 Consistent with competent jurisdiction could continue Paragraph (c) of proposed Rule 15Fb1– the use of the term in connection with the business of an SBS Entity.74 This is 1 would prohibit a person required to broker-dealer registration, we propose to important to allow a fiduciary time to provide a signature on an electronic consider a ‘‘succession’’ to mean that a close-out positions and/or wind down submission from having another person successor firm acquires or assumes an SBS Entity’s business. Under the sign the form or certification on his or substantially all of the assets and proposed rule, the fiduciary would be her behalf pursuant to a power of liabilities of the predecessor firm.73 required to file with the Commission, attorney or other form of confirming Proposed Rule 15Fb2–5 would within 30 days after entering upon the authority. Finally, paragraph (d) would provide that, if an SBS Entity succeeds performance of his or her duties, an require that the SBS Entity retain the to and continues the business of another amended Form SBSE, Form SBSE–A, or manually signed document associated SBS Entity, the registration of the Form SBSE–BD, as appropriate, with Schedules F and G of Forms SBSE, predecessor SBS Entity will remain indicating the fiduciary’s position with SBSE–A, or SBSE–BD, as appropriate, effective as the registration of the respect to management of the SBS until at least three years after the form successor if the successor files an Entity, along with a copy of the order, or certification has been replaced or is application for registration in judgment, decree, or other document no longer effective, and the manually accordance with Rule 15Fb2–1 within appointing the fiduciary. signed document associated with Form 30 days after such succession, and the Q–125. Is proposed Rule 15Fb2–6 SBSE–C until at least three years after predecessor files a notice of withdrawal appropriate for SBS Entities? If another the Form was submitted to the from registration on Form SBSE–W. process would be more appropriate, Commission. Paragraph (b) of Proposed Rule please describe it. This proposed rule is based on 15Fb2–5 would allow a successor firm Q–126. Should fiduciaries be able to Section 302 of Regulation S–T,75 and is that succeeds to the business of another continue the business of an SBS Entity designed to require standard formatting for minor reasons, where the ownership to facilitate an orderly liquidation? If of electronic signatures and provide the or control of the SBS Entity does not not, why? Commission with the ability to obtain change (e.g., solely because it is Q–127. Is the proposed 30-day additional documents to verify those changing its date or state of timeframe, which is consistent with the signatures. In addition, paragraph (c) of incorporation, form of organization, or Rule 15b1–4 requirement for broker- proposed Rule 15Fb1–1 is based on the composition of a partnership), to dealer fiduciaries, sufficient for an SBS paragraph (d) of Exchange Act Rule simply amend the registration of the Entity fiduciary to make the required 15d–14. The Commission believes that predecessor SBS Entity on Form SBSE, filing with the Commission? this paragraph is necessary to assure Form SBSE–A, or Form SBSE–BD, as Q–128. Do the close-out provisions in that persons signing certifications can appropriate, within 30 days after the the agreements between the parties be held responsible for their statements. change. provide sufficient ability for The Commission requests comment Q–122. Are these proposed successor counterparties to close-out open on all aspects of Rule 15b1–1. rules appropriate for SBS Entities? positions in the event of an SBS Entity Q–129. Is it adequate to require an default so that a fiduciary would not be SBS Entity to maintain a signed copy of s73910-8.pdf); and letter to Ananda Radhakrishnan, needed? Please explain. each certification as part of its books Director, Division of Clearing and Intermediary and records so that it is available for Oversight, CFTC, John M. Ramsay, Deputy Director, F. Technical Rules Division of Trading and Markets, Commission, and examiners to review? Mark E. Van Der Weide, Senior Associate Director, 1. Electronic Signatures Q–130. Should the Commission Division of Supervision and Regulation, Board of Proposed Rule 15Fb1–1 would specify require SBS Entities to file the original Governors of the Federal Reserve System, dated certifications with the Commission? November 23, 2010 (http://www.sec.gov/comments/ the format required for signatures to, or s7-34-10/s73410-3.pdf). within, electronic submissions Q–131. Are the timeframes for 72 This proposed rule is based on Exchange Act retention of manually signed documents Rule 15b1–3, which is applicable to registered 74 The proposed rule is based on Exchange Act appropriate? Why or why not? If not, brokers and dealers and has worked well to Rule 15b1–4, which applies to broker-dealer what timeframe or timeframes may be facilitate succession of registrants. registrations. We believe this rule has worked well more appropriate and why? 73 Registration of Successors to Broker-Dealers to allow fiduciaries to wind-up broker-dealer and Investment Advisers, Exchange Act Release No. businesses without the need to separately register 31661 (Dec. 28, 1992) (58 FR 7 (Jan. 4, 1993)). as a broker-dealer. 75 17 CFR 232.302.

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2. Temporary Rule To Facilitate Paper G. Forms • Item 1–J of Form SBSE would elicit Filing of Forms the name and contact information for 1. Form SBSE the Chief Compliance Officer designated If a technological means to facilitate Proposed Form SBSE is generally by the applicant in accordance with receipt and retention of applications based on Form BD—the consolidated Exchange Act Section 15F(k) (broker- required to be filed in accordance with Form used by broker-dealers to register dealers are not now required to provide Rule 15Fb2–1 is not functional by the with the Commission, states and SROs. this information on Form BD); time final rules are adopted, proposed Form BD has been used to gather and • Item 2b of Form SBSE would elicit temporary Rule 15Fb2–2T would organize certain information concerning information, if a firm is registering as a require an SBS Entity to file its applicants’ business operations to major security-based swap participant, application on Form SBSE, Form SBSE– facilitate Commission, state and SRO regarding whether the firm is registering A, or Form SBSE–BD, as applicable, and initial registration decisions, as well as because it maintains a substantial all additional documents in paper form ongoing examination and monitoring of position, has substantial counterparty by sending it to the Securities and registrations. Because SBS Entities will exposure, or is highly leveraged relative Exchange Commission, 100 F Street, be subject to many requirements similar to its capital position, which will assist NE., Washington, DC 20549–1090, to those that affect broker-dealers (e.g., the staff in evaluating its application; notwithstanding paragraph (c)(1) of Rule minimum capital, leverage, and • Item 3 of Form SBSE would elicit 15Fb2–1. In addition, if proposed business conduct rules and statutory whether the SBS Entity intends to use disqualification prohibitions), the temporary Rule 15Fb2–2T is adopted, mathematical models to calculate any Commission believes using Form BD as paragraph (b) would require that each applicable capital or margin or to price a template for the registration of SBS applicant must resubmit its Form SBSE, customer or proprietary positions Entities is logical and efficient. Key (whether or not for regulatory purposes), Form SBSE–A, and Form SBSE–BD, as differences from Form BD are outlined applicable and all additional documents which will assist the staff in considering below: what types of examinations may be to the Commission electronically within • The phrase ‘‘broker or dealer’’ was three months of the date such required; changed to ‘‘security-based swap dealer • technological means to facilitate receipt or major security-based swap Item 4 of Form SBSE would elicit and retention of applications becomes whether the applicant is subject to participant’’ because Form SBSE will be 78 functional. Depending on the timing, used by firms to register as SBS Entities regulation by a prudential regulator SBS Entities may also need to file their and not as broker-dealers; because the extent of the Commission’s Forms SBSE–C in paper format and later • References to SROs and regulatory responsibilities for entities resubmit those Forms electronically. jurisdictions were removed except subject to regulation by a prudential where they arose in the context of a regulator differ; Proposed temporary Rule 15Fb2–2T • would provide a process for the contractual relationship or disciplinary In addition to eliciting information Commission to receive applications in proceeding because SBS Entities will regarding recordkeeping arrangements, Item 8 would also query whether the paper format if a technological means to generally not be required to register applicant has any arrangement under facilitate receipt and retention of with SROs or states; • which any other person, firm or applications cannot be completed before References to branch offices were organization executes, trades, custodies, final SBS Entity registration rules are removed because the SBS business is generally conducted on a more clears or settles on behalf of the adopted. Further, Proposed temporary applicant (including any SRO or swap Rule 15Fb2–2T would facilitate the centralized basis and is not effected through branch offices; execution facility in which the transition of data to an electronic format • applicant is a member). This once such a system becomes functional. The General Instructions eliminate the instructions for filing the form in information is designed to provide the The benefits of an electronic system Commission with an understanding of outweigh additional costs relating to the paper format because we intend to require that the forms be filed the SBS Entity’s business relationships. need for SBS Entities to file their electronically; 76 • References to the Securities Investor applications in both paper and • The Explanation of Terms section is Protection Corporation in the electronic form. In addition, requiring substantially the same; 77 however the ‘‘Execution’’ section have been that each SBS Entity file its application term ‘‘jurisdiction’’ was replaced with eliminated because SBS Entities are not electronically would assure that each the term ‘‘state’’ to eliminate potential required to become members of SIPC 79 firm can confirm that the data entered confusion regarding questions in Item and references to surety bonding and into the electronic system is accurate 11 that relate to actions brought in service of process in each state has also and complete. either domestic or foreign jurisdictions been eliminated because Form SBSE The Commission requests comment and the term ‘‘foreign financial does not facilitate registration with on proposed temporary rule 15Fb2–2T. regulatory authority’’ was removed states (as the Form BD does); • Q–132. Is this paper process because it is now defined in Exchange Form SBSE would require practicable? Act Section 3(a)(52); disclosure of whether the applicant is registering as an SBS dealer or major Q–133. Should the Commission 76 If a technological means to facilitate the receipt security-based swap participant, the instead allow applicants to submit their and retention of applications is not finalized by the applicant’s legal status, whether the applications in PDF form via e-mail? time final rules are adopted and the Commission applicant is succeeding to the business must adopt proposed Rule 15Fb2–2T, instructions Q–134. Instead of the process regarding paper filing would be re-inserted. contemplated by paragraph (b) of 77 The Explanation of Terms section includes 78 The term ‘‘prudential regulator’’ is now defined proposed Rule 15Fb2–2T, should the definitions of the terms applicant, control, state, at 15 U.S.C. 78c(a)(74). Commission reduce the paper filings to person, self-regulatory organization, successor, 79 Only SBS Entities that are also registered as a charged, control affiliate, enjoined, felony, found, broker-dealer would be SIPC members. SBS Entities electronic form instead of the investment or investment-related, involved, minor that are also registered as a broker-dealer will be applicants? rule violation, misdemeanor, order, and proceeding. required to file Form SBSE–BD and not Form SBSE.

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of another SBS Entity, and the Entities may conduct security-based Q–135. Should the registration form applicant’s control relationships; 80 and swap business from multiple locations; for SBS Entities be based on Form BD, • Form SBSE would elicit a however, those that would register with CFTC Form 7–R, or some other form? description of the applicant’s business the Commission using Form SBSE likely Please describe the reasons for choosing in a text box rather than through the use would not refer to those locations as a particular form over another. of a list of possible types of business. ‘‘branches.’’ Consequently, Schedule E Q–136. How many firms may apply Proposed Form SBSE, like Form BD, of Form SBSE 81 would solicit for registration as SBS Entities? would elicit information regarding information regarding locations rather Q–137. Should any of the instructions criminal disclosures, regulatory action than branches. or questions on Form SBSE be amended disclosures, civil judicial disclosures, The proposed form would also to recognize particular characteristics of and financial disclosures. As with Form include two additional schedules to be the business of SBS Entities? BD, ‘‘yes’’ answers to these questions used by SBS Entities—Schedules F and Q–138. Are any of the proposed would require that the applicant file G. Schedule F must be submitted by questions on Form SBSE inapplicable to additional information on disclosure nonresident SBS Entities pursuant to the SBS business? reporting pages (or ‘‘DRPs’’) as a proposed Rule 15Fb2–4 to provide the Q–139. Should any questions be supplement to the Form. As with Form Commission with information regarding added to Form SBSE to elicit BD, Form SBSE would also elicit its appointed U.S. agent for service of information that is unique to the SBS information on whether the applicant is process and to certify that it is able to business or to the SBS Entities that registered with the Commission as an provide the Commission with prompt engage in that business? investment adviser, registered with the access to its books and records.82 Q–140. Is proposed new Schedule F CFTC as an FCM, or whether it is Schedule G would be required to be the best method to collect information engaged in any other investment- regarding a nonresident SBS Entity’s related, non-securities business. submitted by all SBS Entities pursuant agent for service of process? If not, what Schedules A and B, which elicit to proposed Rule 15Fb6–1(a). Schedule other method could the Commission information regarding direct and G would provide each SBS Entity with indirect owners and executive officers, a method to certify that none of its utilize? would be largely unchanged (with the associated persons that are effecting or Q–141. Is the requirement that an SBS exception of the header, the elimination involved in effecting security-based Entity certify on new Schedule F that it of a request for social security numbers swaps on its behalf is subject to can, as a matter of law, provide the in the tables): however, the table in statutory disqualification. This Commission with access to its books Schedule A has been expanded to elicit Schedule is designed to provide the and records and allow the Commission information regarding prior investment- Commission with assurance that the to conduct onsite inspections the best related experience of individual owners SBS Entity is compliant with Section method to assure the Commission is who are not otherwise registered 15F(b)(6) of the Exchange Act. The Form able to have such access? If not, what through CRD or IARD to provide the would require that the firm’s Chief other method could the Commission Commission an understanding of each Compliance Officer sign Schedule G. utilize? owner’s background and qualifications The Commission intends to use the Q–142. Is it appropriate to require a in light of the fact that they will not be information disclosed by applicants in nonresident SBS Entities to also submit individually registered as is the case Form SBSE (including the Schedules an opinion of counsel opining on this with owners of broker-dealers. Schedule and DRPs) to determine whether the issue? C would be eliminated because applicant meets the standards for Q–143. Is proposed new Schedule G electronic filing of the forms would registration, and to fulfill its oversight the best method to assure that an SBS make it unnecessary. Schedule D would responsibilities. Entity is complying with Section be amended slightly to address The Commission requests comment 15F(b)(6) of the Exchange Act? If not, differences between the security-based on all aspects of Form SBSE. what other method could the swap business and the broker-dealer Commission utilize? business (e.g., there are no ‘‘introducing 81 Schedule E of Form BD has been replaced by Q–144. Would the Form SBSE and clearing arrangements’’). In Form BR, which is designed to enable broker- disclosure requirements present any addition, Section IV in Item D has been dealers to register their branch office locations unique issues for financial institutions electronically with SROs and states. See, Self- not previously subject to similar expanded to elicit additional Regulatory Organizations; New York Stock information regarding the nature of the Exchange, Inc.; Order Approving Proposed Rule disclosure requirements? If so, please execution, trading, custody, clearing or Change Relating to the Proposed Uniform Branch describe. settlement arrangement, as well as Office Registration Form (‘‘Form BR’’), Exchange Q–145. Should Form SBSE include Act Release No. 52543 (Sep. 30, 2005), 70 FR 58771 additional Schedules in which the information regarding any prior (Oct. 7, 2005); and Self-Regulatory Organizations; investment-related experience of National Association of Securities Dealers, Inc.; applicant could provide more detailed individual control persons who are not Order Approving Proposed Rule Change and information regarding its business (e.g., otherwise registered through CRD or Amendment No. 1 Thereto and Notice of Filing and a business plan, descriptions of the Order Granting Accelerated Approval to types of products the applicant will IARD. This information is designed to Amendment No. 2 to the Proposed Rule Change provide the Commission with an Relating to the Proposed Uniform Branch Office offer, the types of counterparties it will understanding of the SBS Entity’s Registration Form (‘‘Form BR’’) and Amendments to have, information regarding the business relationships and each control the Uniform Application for Securities Industry applicant’s operational, supervisory and Registration or Transfer (‘‘Form U4’’) and the compliance infrastructure, its major person’s respective background and Uniform Termination Notice for Securities Industry qualifications in light of the fact that Registration (‘‘Form U5’’), Exchange Act Release vendors, its clearing arrangements), they will not be individually registered No. 52544 (Sep. 30, 2005), 70 FR 58764 (Oct. 7, similar to what the Commission as is the case with owners of broker- 2005). typically requires of other types of 82 dealers. The staff understands that SBS Nonresident broker-dealers must presently file applicants (e.g., clearing agencies and one of four similar forms (Form 7–M, Form 8–M, national securities exchanges)? If so, Form 9–M or Form 10–M, depending on the broker- 80 These questions are similar to questions that dealer’s form or organization) to appoint an agent what specific types of information appear on pages 2 and 3 of the Form BD. for service of process. should be required?

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Q–146. If there are changes in this information necessary for it and the Items fourteen and fifteen on Form type of information over time, how SROs to determine whether to grant SBSE–A would elicit information frequently should the registrant be broker-dealer registration to an regarding ‘‘principals.’’ The definition required to update the relevant applicant. Key differences from Form of ‘‘principal’’ in CFTC Form 7–R is schedules? SBSE are outlined below: similar to the definition of control • The General Instructions have been affiliate in Form BD. Form BD requires 2. Form SBSE–A modified to identify the Form and that an applicant file substantial CEA Section 4s(c) and Exchange Act Schedules to be used to register as an information on its control affiliates. We Section 15F(c) require that persons that SBS Entity and to eliminate the understand that the CFTC presently engage in both swap business and instructions for filing in paper format requires that individual principals of security-based swap business must because we intend to require that the entities registered with the CFTC file separately register with each agency. forms be filed electronically; 84 and separate registrations with the CFTC. However, the staff is proposing that • To reduce potential confusion Consequently, the CFTC would have applicants that are not registered with regarding the use of two forms,85 the information on those individuals the Commission as broker-dealers, but initial instruction in the Explanation of regarding any situations that would that are registered or registering with the Terms section states that terms used in cause those individuals to be statutorily CFTC as either a swap dealer or major Form SBSE–A that are defined in CFTC disqualified without requiring that the swap participant, file their application Form 7–R shall have the same meaning applicant include that information in its for registration on an alternative to Form as set forth in that form, and terms not application. In recognition of this SBSE, or Form SBSE–A. Form SBSE–A otherwise defined in CFTC Form 7–R method and to decrease duplication, is a shorter form and is intended to have the same meaning as in Form item thirteen would require that an make it easier for dual applicants to file SBSE. applicant identify how many individual with both agencies. As part of its Item 1.C. on Form SBSE–A would principals it has. Further, the applicant application, a firm filing with the elicit the firm’s NFA number. Items 2 would need to list those principals on Commission on Form SBSE–A would through 13 of proposed Form SBSE–A proposed new Schedule A to Form need to provide the Commission with a would require that the applicant SBSE–A and provide information copy of the form it files with the CFTC identify the capacity in which it is regarding those individual principals to register as a swap dealer or major seeking to register with the Commission, similar to the information provided on swap participant. Form SBSE–A is the capacity in which it is registered Schedule A of Form SBSE. Item fifteen designed to provide the Commission with or seeking to register with the asks whether any principals of the with data, not included on the form the CFTC, certain control and business applicant that are entities effect or are applicant must file with the CFTC, that relationships, succession and other involved in effecting security-based the Commission believes it will need to basic information regarding the firm’s swaps on behalf of the applicant. If the adequately review an application for business. These questions are similar to question is answered in the affirmative, 83 registration. While some information information elicited via Form SBSE, the applicant would need to provide elicited via Form SBSE–A also may be which elicit information not otherwise additional information on Schedule B elicited by the CFTC’s form, it will be elicited through Form 7–R but which with respect to those entities. This helpful for the Commission to receive the Commission believes is useful to information is designed help the this information directly to allow the facilitate its oversight of regulated Commission better understand the Commission to match the Form SBSE– entities. relationship between the applicant and A with the CFTC Form and to Item 2b of Form SBSE–A would elicit its principals in order to assure coordinate the information elicited information, if a firm is requesting compliance with Section 15F(b)(6) of through Form SBSE–A with other registration as a major security-based the Exchange Act and to police for information the Commission may have swap participant, regarding whether the manipulation and fraud. on the applicant. The Commission firm is registering because it maintains As discussed above, Schedule A of believes that requiring that these a substantial position, has substantial Form SBSE–A would require that an applicants use Form SBSE–A would counterparty exposure, or is highly applicant list all principals that are reduce the costs and burdens associated leveraged relative to its capital position, individuals and provide some basic with filing distinctly different forms to which will assist the staff in evaluating information regarding each (e.g., the register with both the Commission and its application. Item 3 of Form SBSE–A person’s title, NFA number, and prior CFTC. would elicit whether the SBS Entity investment-related experience). Much of Proposed Form SBSE–A is loosely intended to use mathematical models to this information is provided to the based on Form SBSE, which, as calculate capital or margin or to price Commission via Form BD for broker- described above is based on Form BD customer or proprietary positions dealers, and the CFTC would already have this information on control (the Form used by broker-dealers to because this would highlight for staff persons but, without new Schedule A to register with the Commission). As the need for a more extensive review. Form SBSE–A, the Commission would discussed more fully above, the Item 5 of Form SBSE would elicit not otherwise have this information. Commission has used Form BD to gather whether the applicant is subject to This information is designed to help the regulation by a prudential regulator 83 The CFTC has proposed that swap dealers and Commission better understand the because the extent of the Commission’s major swap participants file their applications on relationship between the applicant and regulatory responsibilities for entities Form 7–R and accompanying Form 8–R. Also, see its principals and a basic background of supra note 10. Consequently, the Commission’s subject to regulation by a prudential those principals in order to assure assessment of what information applicants should regulator differ.86 be required to provide on Form SBSE–A was based compliance with Section 15F(b)(6) of on Form 7–R. If the CFTC’s application form for 84 the Exchange Act and to police for swap dealers or major swap participants deviates See paragraph (c) of proposed Rule 15Fb2–1. manipulation and fraud. substantially from Form 7–R, the Commission will 85 One to register with the CFTC as a swap dealer need to re-assess the information it would need to or major swap participant and one to register with Schedule B would elicit information collect through Form SBSE–A. Form 8–R is the the Commission as an SBS Entity. regarding other business in which the Form used for registration of individuals. 86 See, e.g., 15 U.S.C. 78o–10(e). applicant is engaged, business

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arrangements, successions, and Q–154. Should any of the instructions BD to determine whether applicants principals that are not identified in or questions on Form SBSE–A be meet the standards for registration, and Schedule A, and is based loosely on amended to recognize particular to fulfill its oversight responsibilities. Schedule D to Form BD. Schedule C characteristics of the business of SBS Q–157. What will the comparative would elicit information regarding Entities? costs or benefits be with respect to filing principals that are identified in Q–155. Are any of the proposed Form SBSE versus filing Form SBSE–BD Schedule B that would cause those questions inapplicable to the SBS for registered broker-dealers filing as persons to be statutorily disqualified, business? SBS Entities with the Commission? and is based on Item 11 in Form BD.87 Q–156. Should any questions be Q–158. How many firms expect to The applicant would need to file a DRP added to elicit information that is apply for registration as SBS Entities for every ‘‘yes’’ answer in Schedule C. unique to the SBS business or to the and whether those entities are already The Schedules F and G to Form SBSE– SBS Entities that engage in that registered with the Commission as A are the same Schedules as described business? broker-dealers? above in the section regarding Form 3. Form SBSE–BD Q–159. Should any of the instructions SBSE. or questions be amended to recognize The Commission intends to use the Similar to the Form SBSE–A, the staff particular characteristics of the business information disclosed in Form SBSE–A is proposing that applicants that are also of SBS Entities? to determine whether applicants meet registered or registering with the Q–160. Are any of the proposed the standards for registration and to Commission as broker-dealers file their questions inapplicable to the SBS fulfill its oversight responsibilities. application for registration on an business? Q–147. Is Form SBSE–A properly alternative to Form SBSE, or Form Q–161. Should any questions be tailored to decrease costs for dual SBSE–BD.88 In addition, any entity that added to elicit information that is registration while still providing the is registered or registering with the unique to the SBS business or to the Commission with information necessary Commission as a broker-dealer and that SBS Entities that engage in that on which to base its decision to grant or is also registered or registering with the business? deny registration? CFTC as a swap dealer or major swap Q–148. What are the comparative participant would be required to use the 4. Form SBSE–C costs or benefits with respect to filing Form SBSE–BD. Form SBSE–BD is Proposed Form SBSE–C is designed to Form SBSE versus filing Form SBSE–A based on Form BD, but is designed to provide SBS Entities with a standard for entities filing as both swap entities provide the Commission with data not format and process through which to with the CFTC and SBS Entities with included on the Form BD (to which the file the Senior Officer Certification the Commission? Commission has access). The required pursuant to proposed Rule Q–149. How many firms expect to Commission believes that requiring that 15Fb2–1(b). Form SBSE–C would need apply for registration as SBS Entities these applicants use Form SBSE–BD to be filed by all SBS Entities. As and what is the likelihood that those would reduce the costs and burdens on described above, SBS Entities that entities will also register with the CFTC applicants that are already registered or submitted their applications during the as swap dealers or major swap registering with the Commission as transitional period would need to file participants? broker-dealers. this certification either before the Last Q–150. Will the benefit of being able The proposed Form SBSE–BD would Compliance Date or their conditional to file the same form with the consist of a single page that would elicit registration would expire. Major Commission as filed with the CFTC be information not included on Form BD, securities-based swap participants that outweighed by the requirement to file such as the capacity in which the submitted their applications after the those forms, as well as additional applicant is registering, whether the Last Compliance Date would need to file schedules and documents, with more entity also is registering with the CFTC this certification within four months than one agency or entity or through and, if so, in what capacity the firm is after filing a completed application or more than one electronic system? registering with the CFTC, if a firm is their conditional registration would Q–151. Should FCMs registered with requesting registration as a major expire. SBS Dealers that file the CFTC that are not registered or security-based swap participant— applications after the Last Compliance registering with the CFTC as either a whether the firm is registering because Date would need to file both an swap dealer or a major swap participant it maintains a substantial position, has application and a certification be allowed to register with the substantial counterparty exposure, or is simultaneously to be considered for Commission using Form SBSE–A? highly leveraged relative to its capital ongoing registration. Q–152. Are any such FCMs likely to position, whether the SBS Entity Form SBSE–C includes instructions register with the Commission as an SBS intends to use mathematical models to both requiring electronic submission Entity? calculate capital or margin or to price and explaining how the form should be Q–153. Would it be more cost customer or proprietary positions, filed electronically. effective for the Commission to obtain whether the firm is subject to oversight Form SBSE–C would elicit the the data applicants file with the CFTC by a prudential regulator and applicant’s name, date, and SEC electronically from the CFTC or its information regarding the applicant’s number, along with the signature, name designee rather than having the chief compliance officer. Form SBSE– and title of the senior officer signing the applicant file a copy of that form with BD would also require that applicants certification. The Commission intends the Commission? submit Schedules F and G, described to use the certification provided by more fully above. 87 Any differences between Schedule B to Form Form SBSE–C in determining whether The Commission intends to use the applicants meet the standards for SBSE–A and Schedule D to Form SBSE and information disclosed in Form SBSE– between Schedule C of Form SBSE–A and Item 11 ongoing registration. in Form SBSE recognize the fact that Form SBSE– The Commission requests comment A has been tailored to collect information not 88 Over-the-counter derivatives dealers, a limited otherwise elicited via Form 7–R which the form of broker-dealer established by the on the Form SBSE–C. Commission has found to be helpful to facilitate its Commission in 1998, could also file on Form SBSE– Q–162. Should Form SBSE–C require oversight of the entities it regulates. BD. that SBS Entities provide any additional

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information? If so, how should the form readable when it is labeled, or ‘‘tagged,’’ swap participants to register using the be amended? using a computer markup language that Commission’s forms, or for the Q–163. Should the instructions to can be processed by software programs Commission to require SBS Entities to Form SBSE–C be amended? for analysis. Such computer markup register using the CFTC’s forms. While 5. Form SBSE–W languages (such as eXtensible Markup this approach might streamline the Language (XML) and eXtensible registration process for regulated Proposed Form SBSE–W is loosely Business Reporting Language (XBRL)) entities, particularly those that intend to based on Form BDW (the Form used by use standard sets of definitions, or engage in both swaps and SBS business, broker-dealers to withdraw from ‘‘taxonomies,’’ that translate text-based it would be more difficult for the registration with the Commission). The information in Commission filings into agencies to implement given the Commission has found Form BDW to be structured data that can be retrieved, Commissions’ finite resources. Further, an effective vehicle for gathering searched, and analyzed through differences between the Commodity information necessary for it and the automated means. Exchange Act and the Exchange Act and SROs to determine whether it is In addition to using the data provided the means to facilitate registration may appropriate to allow a registered broker- via proposed Forms SBSE, SBSE–A, and justify differences in the forms. dealer to withdraw from registration. SBSE–BD to determine whether to grant III. Request for Comment Because SBS Entities will be subject to or deny registration, the Commission many requirements similar to those that will make this data public. The fact that In addition to the questions described affect broker-dealers (e.g., minimum counterparties of SBS Entities would above, we are requesting comments on capital, leverage, and business conduct have access to additional, standardized all aspects of proposed rules 15Fb1–1 rules and statutory disqualification information could improve competition through 15Fb6–1 and Forms SBSE, prohibitions), the Commission believes amongst SBS Entities and would enable SBSE–A, SBSE–BD, SBSE–C and SBSE– using Form BDW as a template for the counterparties and the marketplace to W, including with respect to the request for withdrawal from registration expend less time and money to following questions: of SBS Entities is logical and efficient. independently obtain and compile Q–167. Should the Commissions Key differences from Form BDW are information on SBS Entities to use in continue to consider whether to develop outlined below: making such choices. Thus, the a joint registration form? • The distinction regarding full and Commission intends to tag the In addition, Title VII of the Dodd- partial withdrawal was eliminated from information in a machine readable Frank Act requires that the SEC consult the Form SBSE–W as it is not relevant format using a data standard that is and coordinate to the extent possible to the SBS business; and with the CFTC for the purposes of • Item 4 was added to elicit freely available, and that is consistent and compatible with the tagged data assuring regulatory consistency and information regarding the entity’s comparability, to the extent possible, reason for withdrawal from registration formats already in use for SEC filings, to enable users of that data to retrieve, and states that in adopting rules, the because we believe this information CFTC and SEC shall treat functionally would be useful when considering a search, and analyze the data through automated means. or economically similar products or registered SBS Entity’s request to entities in a similar manner. withdraw from registration. Q–166. What tagged data language (e.g., XML, XBRL) would be most The CFTC is adopting rules related to The purpose of proposed Form SBSE– registration of swap dealers and major W is to allow the Commission to appropriate to be used for the required data to be provided via proposed Forms swap participants as required under determine whether it is in the public Section 731 of the Dodd-Frank Act. interest to permit a registered SBS SBSE, SBSE–A, SBSE–BD, SBSE–C, and SBSE–W? Understanding that the Commission and Entity to withdraw from registration. the CFTC regulate different products The Commission requests comment H. Alternative Approaches Considered and markets, and as such, appropriately on the Form SBSE–W. may be proposing alternative regulatory Q–164. Given that the Commission The Commission considered requirements, we request comments on has proposed to use different forms for alternative approaches to registration of the impact of any differences between registration of certain types of SBS Entities. One possibility would be the Commission’s approach to the applicants, should different types of to adopt joint registration forms with the registration process for SBS Entities and forms also be provided for withdrawals CFTC, so that SBS Entities could CFTC’s approach to the registration of from registration? If so, how should the register with both agencies using the swap dealers and major swap form or forms be amended? same forms. While there could be Q–165. Should the instructions to benefits to this approach, we believe participants. Specifically: Q–168. Do the regulatory approaches Form SBSE–W be amended? If so, how? that the Commission’s streamlined approach will achieve many of the same under the Commission’s proposed 6. Tagged Data Formats benefits. rulemaking pursuant to Section 764 of As part of the Commission’s Another possibility would be for the the Dodd-Frank Act and the CFTC’s longstanding efforts to (1) Improve the CFTC to require swap dealers and major proposed rulemaking pursuant to accuracy of financial and other filed Section 731 of the Dodd-Frank Act information, (2) increase the Act Release No. 8891 (Feb. 6, 2008) (73 FR 10592 result in duplicative or inconsistent transparency and usefulness of (Feb. 27, 2008)); Interactive Data To Improve efforts on the part of market participants information, and (3) facilitate analysis of Financial Reporting, Securities Act Release No. subject to both regulatory regimes or 9002 (Jan. 30, 2009) (74 FR 6776 (Feb 10, 2009)); result in gaps between those regimes? information provided to the and Interactive Data for Mutual Fund Risk/Return Commission via reports, we have begun Summary, Securities Act Release No. 9006 (Feb. 11, Q–169. If so, in what ways do requiring that entities data-tag 2009) (74 FR 7748 (Feb 19, 2009)); Amendments to commenters believe that such information contained in electronic Rules for Nationally Recognized Statistical Rating duplication, inconsistencies, or gaps Organizations, Exchange Act Release No. 61050 filings.89 Data becomes machine should be minimized? (Nov. 23, 2009) (74 FR 63832 (Dec. 4, 2009)); and Q–170. Do commenters believe the Money Market Fund Reform, Investment Company 89 See Regulation S–T, 17 CFR 232. See also Release No. 29132 (Feb. 23, 2010 (75 FR 10060 approaches proposed by the Electronic Filing and Revision of Form D, Securities (Mar. 4, 2010)). Commission and the CFTC to register

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SBS Entities and swap dealers and (‘‘OMB’’) for review in accordance with quickly so that they are not required to major swap participants are 44 U.S.C. 3507 and 5 CFR 1320.11. An suspend their security-based swap comparable? If not, why? agency may not conduct or sponsor, and business, while providing the Q–171. Do commenters believe there a person is not required to respond to, Commission with a basis to take final are approaches that would make the a collection of information unless it action on SBS Entity registration. registration of SBS Entities and swap displays a currently valid control Proposed Rule 15Fb6–1 would require dealers and major swap participants number. The title of this collection is that SBS Entities obtain a questionnaire more comparable? If so, what? ‘‘Registration Rules for Security-Based or application for employment executed Q–172. Do commenters believe that it Swap Entities.’’ We are applying for a by each of its associated persons who is would be appropriate for the new OMB Control Number for this involved in effecting security-based Commission to adopt an approach collection in accordance with 44 U.S.C. swaps on behalf of the SBS Entity that proposed by the CFTC that differs from 3507(j) and 5 CFR 1320.13. contains certain, specified our proposal? Is so, which one and information.90 The proposed rule why? A. Summary of Collection of further would provide that the We request commenters to provide Information questionnaire or application shall serve data, to the extent possible, supporting As required by Exchange Act Section as a basis for a background check of the any such suggested approaches. 15F, the Commission is proposing Rules associated person and be signed by the The Commission is cognizant that the 15Fb1–1 through 15Fb6–1 and Forms SBS Dealer’s or major security-based proposed rules discussed herein, as well SBSE, SBSE–A, SBSE–BD, SBSE–C and swap participant’s Chief Compliance as other proposals that the Commission SBSE–W to facilitate registration of, Officer (or his or her designee). may consider in the coming months to certification by, and withdrawal of SBS Proposed Rule 15Fb6–1 would require implement the Dodd-Frank Act, if Entities. that each SBS Entity retain these adopted, could significantly affect—and Pursuant to paragraph (a) of proposed employment questionnaires or be significantly affected by—the nature Rule 15Fb2–1, each SBS Entity would applications until at least three years and scope of the security-based swaps be required to file an application to after the associated person has market in a number of ways. For register with the Commission. The terminated his or her association with example, the Commission recognizes Commission has sought to reduce the SBS Entity. Finally, the CCO would that if the measures proposed in this burdens and costs associated with the need to certify (on Schedule G to Form release are adopted and are too onerous application process by providing SBSE, Form SBSE–A, or Form SBSE– for new entrants, they could hinder the alternate registration forms for SBS BD, as applicable) that no associated further development of a market for Entities that are registered or registering person that effects or is involved in security-based swaps by unduly either with the CFTC as swap dealers or effecting security-based swaps on behalf discouraging competition and the major swap participants or with the of the SBS Entity is subject to a statutory formation of new SBS Dealers and major Commission as broker-dealers. The disqualification. SBS Entities would security-based swap participants. On alternative forms (Form SBSE–A, and only need to fulfill these obligations for the other hand, if the Commission Form SBSE–BD) are both shorter and associated persons that effect or are adopts rules that are too permissive, the should require that an SBS Entity involved in effecting security-based Commission may grant registration to expend less effort to research, complete, swaps on behalf of the SBS Entity. firms that may have insufficient and file. It is anticipated that each SBS Proposed Rule 15Fb2–4 would require capacity, policies, procedures, or risk Entity would only need to research, that each nonresident SBS Entity must management systems. The Commission complete, and file one of the proposed have in place at all times an agreement is also mindful that the further Forms. with a United States person appointing development of the security-based Proposed Rule 15Fb2–3 would require that person as the firm’s U.S. agent for swaps market may alter the calculus for that SBS Entities promptly amend their service of process. In addition, Proposed future regulation of SBS Dealers and applications if they find that the Rule 15Fb2–4 would require that each major security-based swap participants. information contained therein has nonresident SBS Entity obtain an As commenters review this release, they become inaccurate. While SBS Entities opinion of counsel stating that it can, as are urged to consider generally the role may need to update their Forms a matter of law, provide the Commission that regulation may play in fostering or periodically, each firm will only need to with access to records and the ability to limiting the development of the market amend that aspect of the Form that has conduct onsite examinations. These for security-based swaps (or, vice versa, become inaccurate. entities also must file an additional the role that market developments may Paragraph (b) of proposed Rule schedule (Schedule F) with their Form play in changing the nature and 15Fb2–1 would require that each SBS SBSE, Form SBSE–A, or Form SBSE– implications of regulation) and Entity have a knowledgeable senior BD, as appropriate, to identify the firm’s specifically to focus on this issue with officer, after due inquiry, make an U.S. agent for service of process and to respect to the proposals to register SBS attestation on Form SBSE–C. As certify that the firm can, as a matter of Dealers and major security-based swap discussed more fully above, the law, provide the Commission with participants. Commission is proposing to require that access to its books and records. In a senior officer certify that, after due addition, each nonresident SBS Entity IV. Paperwork Reduction Act inquiry, he or she has reasonably would be required to maintain its Certain provisions of proposed Rules determined that the SBS Entity has the written agreement appointing a U.S. 15Fb1–1 through 15Fb6–1 and Forms operational, financial, and compliance agent for service of process until at least SBSE, SBSE–A, SBSE–BD, SBSE–C and capabilities to act as an SBS Dealer or three years after the agreement is SBSE–W contain ‘‘collection of major security-based swap participant, terminated. information requirements’’ within the as applicable, and has documented the Pursuant to proposed Rule 15Fb1–1, meaning of the Paperwork Reduction process by which he or she reached each signatory to an electronic filing Act of 1995 (‘‘PRA’’). The Commission such determination. This certification would be required to, when the has submitted the information to the process is designed to allow SBS Office of Management and Budget Entities to register with the Commission 90 See supra notes 55 and 56.

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electronic filing is made, manually sign which SBS Entities would register with the Commission staff estimates that only a signature page or other document the Commission. four firms not otherwise registered with adopting his or her signature that The Commission preliminarily the CFTC or the Commission will seek appears in typed form within the believes, based on data obtained from to become an SBS Entity. electronic filing. The SBS Entity would DTCC and conversations with market The Commission seeks comment on need to retain the manually-signed page participants, that approximately fifty the reasonableness and accuracy of its until at least three years after the form entities may fit within the definition of estimates as to the number of or certification has been replaced or is SBS Dealer and up to five entities may participants in the security-based swap no longer effective. fit within the definition of major market that will be required to register 92 Proposed Rule 15Fb3–2 would require security-based swap participant. with the Commission pursuant to that an SBS Entity seeking to withdraw Further, the staff estimates, based on its proposed Rules 15Fb1–1 through from Commission registration must file experience and understanding of the 15Fb6–1 and Forms SBSE, SBSE–A, and Form SBSE–W. Given that the cost and unregulated swaps and security-based SBSE–BD, as applicable. swaps markets, that the majority of effort to register as an SBS Entity likely D. Total Initial and Annual Reporting firms that may register as SBS Entities will be significant, the Commission and Recordkeeping Burdens (thirty-five) also will be engaged in the believes that entities will not enter and swaps business and will register with 1. Burden Associated With Filing exit this business regularly. Further, the the CFTC as swap dealers or major swap Application Forms Commission believes it is unlikely that participants.93 In addition, persons any SBS Entity will seek to withdraw Proposed Rule 15Fb2–1 would require holding securities positions may find it from registration within the first year. that each SBS Entity register with the beneficial to hedge those positions with Commission by filing an application. Proposed temporary Rule 15Fb2–2T security-based swaps, so it may be would only be adopted if a The Commission has attempted to beneficial for a broker-dealer to become reduce the burden associated with the technological means to facilitate receipt an SBS Entity so that it can provide this and retention of applications is not application process by providing option to its customers. Thus, multiple forms for SBS Entities to use to functional by the time final rules are Commission staff estimates that adopted. Pursuant to proposed register (Form SBSE, Form SBSE–A, or approximately sixteen broker-dealers Form SBSE–BD). It is anticipated that temporary Rule 15Fb2–2T, each SBS 94 will seek to register as SBS Entities. each SBS Entity will only need to Entity would need to file its application Finally, given the costs of being a and certification in paper form. research, complete, and file one form. registered entity it may be less likely for While it is likely that the time Proposed temporary Rule 15Fb2–2T also an entity that is not otherwise registered necessary to complete these forms would require that each SBS Entity with the CFTC or the Commission to would vary depending on the nature resubmit its application and register as an SBS Entity. Consequently, and complexity of the entity’s business, certification in electronic form once a the Commission staff estimates (based technological means to receive such 92 In the Intermediary Definitions Release, the on its experience relative to Form BD) documents becomes functional. Commission and the CFTC proposed rules to define a number of terms used in Title VII, including, that the average time necessary for an B. Proposed Use of Information among others, ‘‘security-based swap dealer’’ and SBS Entity to research the questions, ‘‘major security-based swap participant.’’ See supra and complete and file a Form SBSE note 5. As part of that proposal, the Commission Information collected pursuant to (including the Schedules 95 and DRPs) proposed Rules 15Fb1–1 through preliminarily estimated that approximately 50 entities may be required to register as security- would be approximately one work week 15Fb6–1 and through Forms SBSE, based swap dealers under the proposed rules. See or forty hours.96 As discussed above, the SBSE–A, SBSE–BD, and SBSE–C would Intermediary Definitions Release, n. 188 (75 FR Commission estimates that allow the Commission to determine 80174, at 80209 (Dec. 10, 2010)). We further estimated that no more than ten entities would have approximately four firms would need to whether applicants meet the standards security-based swap positions large enough that register using Form SBSE. for registration, and to fulfill its they would have to monitor whether they meet the Consequently, the total burden oversight responsibilities. Further, Rule thresholds defining a major security-based swap participant. See Intermediary Definitions Release, associated with filing Forms SBSE 15Fb3–2 and Form SBSE–W would 97 (75 FR 80174, at 80207–8 (Dec. 10, 2010)). For would be approximately 160 hours. allow the Commission to determine purposes of these proposed rules, we conservatively The Commission staff believes that, as whether it is appropriate to allow an estimate that, of the ten entities that would need to Form SBSE–A is shorter than the Form SBS Entity to withdraw from monitor their positions to determine whether they SBSE, it should take an SBS Entity registration and to facilitate that cross any of the definitional thresholds, five may actually meet the definition of ‘‘major security- approximately 80% of the time that it withdrawal. based swap participant.’’ Depending on capital and would take to research, complete, and In addition, information collected other requirements for SBS Dealers and how file a Form SBSE (including the pursuant to proposed Forms SBSE, businesses choose to respond to such requirements, Schedules 98 and DRPs), or thirty two the actual number of SBS Dealers may be SBSE–A, SBSE–BD, and SBSE–C would significantly fewer. See also Trade be made publicly available. Acknowledgment and Verification of Security- 95 Except Schedules F and G, which are dealt Based Swap Transactions, Exchange Act Release with separately below. C. Respondents No. 63727 (Jan. 14, 2011), 76 FR 3859, at 3868 (Jan. 96 The staff has previously estimated that the 21, 2011); and Business Conduct Standards for average time necessary for a broker-dealer to Proposed Rule 15Fb1–1 through Security-Based Swap Dealers and Major Security- complete and file Form BD, the Form upon which 15Fb6–1 would set forth rules to Based Swap Participants, Exchange Act Release No. Form SBSE was based, would be approximately facilitate registration with the 64766 (Jun. 29, 2011), 76 FR 42396, (Jul. 18, 2011), three hours (and that estimate has been subject to as corrected by Exchange Act Release No. 64766, 76 notice and comment. Broker-Dealer Registration Commission of entities that fit the FR 46668 (Aug. 3, 2011). and Reporting, Exchange Act Release No. 41594 definition of SBS Dealer or major 93 See Business Conduct Standards for Security- (July 2, 1999), 64 FR 37586.) However, some SBS security-based swap participant.91 Based Swap Dealers and Major Security-Based Entities may not previously have been subject to Forms SBSE, SBSE–A, and SBSE–BD, as Swap Participants, Exchange Act Release No. 64766 regulation and thus may need more time to research (Jun. 29, 2011), 76 FR 42396, (Jul. 18, 2011), as the answers to complete Form SBSE and its applicable, are applications through corrected by Exchange Act Release No. 64766, 76 schedules and DRPs. FR 46668 (Aug. 3, 2011). 97 (40 hours × 4 SBS Entities) = 160 hours total. 91 See supra notes 5–7. 94 Id. 98 See supra note 95.

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hours. As discussed above, the likely would take an SBS Entity, on Commission’s control 103 may determine Commission estimates that average, approximately one hour to whether an SBS Entity might choose to approximately thirty-five firms would amend its application each time it files utilize an internal process, as opposed also be registered with the CFTC and an amendment. Consequently, the total to an external process, to serve as a basis therefore would need to register using burden associated with amending Forms for the Senior Officer Certification. For Form SBSE–A. Consequently, the total SBSE, SBSE–A, and SBSE–BD, as purposes of this PRA, we will estimate burden associated with filing Forms applicable, would be approximately 165 that approximately half, or twenty-eight SBSE would be approximately 1,120 hours.102 of the SBS Entities, may use an internal hours. process and the other half, or twenty- The Commission staff believes that, as 3. Burden Associated With Certification seven of the SBS Entities, will use an Form SBSE–BD is shorter than either Form SBSE or Form SBSE–A and Paragraph (b) of proposed Rule external process. broker-dealers who would be filing 15Fb2–1 would require that each SBS The Commission believes that, Form SBSE–BD are familiar with Entity have a knowledgeable senior regardless of whether an SBS Entity may Commission terminology and forms, officer certify that, after due inquiry, he choose to utilize an internal process, as researching, completing, and filing a or she has reasonably determined that opposed to an external process, to serve Form SBSE–BD should take an SBS the SBS Entity has the operational, as a basis for the Senior Officer Entity approximately 25% of the time financial, and compliance capabilities to Certification, the burden associated with that it would take to research, complete, act as an SBS Dealer or major security- having a senior officer sign a based swap participant, as applicable, and file a Form SBSE (including the certification likely would be 99 and has documented the process by Schedules ), or ten hours. As approximately five hours.104 The which he or she has reached such discussed above, the Commission Commission has previously estimated determination. Each SBS Entity would estimates that approximately sixteen that it would take a senior officer SBS Entities would need to register need to provide this certification on approximately twenty hours to review, using Form SBSE–BD. Consequently, Form SBSE–C only once. The Commission believes that the majority document, and update compliance the total burden associated with filing 105 Forms SBSE–BD would be of the cost associated with this procedures, which the staff believes approximately 160 hours.100 certification would arise from the would be analogous to reviewing review the senior officer conducts, or documents provided either by 2. Burden Associated With Amending has others conduct, prior to certifying subordinates or a third party to gain Application Forms that the SBS Entity has the requisite comfort necessary to sign the Senior Proposed Rule 15Fb2–3 would require operational, financial, and compliance Officer Certification. that SBS Entities amend their capabilities. The senior officer would Commission staff estimates, based on applications if they find that the also need to certify that he or she has its experience relative to the securities information contained therein has documented this process. and over-the-counter derivatives become inaccurate. While SBS Entities industries, that if a senior officer opted may need to update their Forms The Commission understands (based to conduct an internal review of the SBS periodically, each firm will only need to on the staff’s experience with broker- amend that aspect of the Form that has dealers and other regulated entities) Entity’s operational, financial, and become inaccurate. Further, it likely that, in satisfying other certification compliance capabilities, it would take will not cost a significant amount to requirements, SBS Entities may use approximately one hundred and seventy make such changes because each firm different processes, depending on the five additional hours for other SBS will have already completed Form facts and circumstances of their Entity employees to assess the SBS SBSE, Form SBSE–A, or Form SBSE– business. Some SBS Entities may Entity’s operational, financial, and BD, as applicable, and will only need to develop more or less robust process compliance capabilities and provide the amend that aspect of the Form that has than others and, as a result, may incur senior officer with sub-certifications or become inaccurate. Based on the higher or lower than average costs. other documents he or she may request number of amendments the Commission Some SBS Entities may use a sub- to obtain the necessary comfort before receives annually on Form BD,101 the certification process whereby the senior signing the Senior Officer Certification. Commission estimates that each SBS officer will not certify a firm-wide Consequently, the Commission Entity will file approximately three statement unless and until other persons estimates that the one-time burden for amendments annually. While it is likely responsible for certain activities in turn the twenty-eight SBS Entities that that the time necessary to file an certify to the senior officer that the utilize an internal review process would amendment to Form SBSE, Form SBSE– standard has been met, while other be approximately 5,600 hours for other A, or Form SBSE–BD, as applicable, firms may use an internal or external SBS Entity employees to assess the SBS may vary depending on the nature and audit-type process whereby a senior Entity’s operational, financial, and complexity of the information to be officer may choose to employ a third compliance capabilities and provide the amended, the staff estimates, based on party to review an area subject to a firm- senior officer with documents, and for experience relative to Form BD, that it wide certification before submitting the the senior officer to review those certification. There may be other 99 Id. processes an SBS Entity could use to 103 100 (10 hours × 16 SBS Entities) = 160 hours total. provide a basis for a senior officer’s For instance, such factors could include: costs; 101 On March 1, 2010 there were 5,163 broker- how comfortable the senior officer may be with his dealers registered with the Commission (based on reasonable determination that the SBS or her subordinates within the SBS Entity’s control Form BD data). The Commission received 20,666, Entity has the requisite capabilities that structure; and how knowledgeable a senior officer 17,839, 16,702, 16,365, and 17,247 amended Forms we have not specifically identified here. may be regarding the SBS Entity’s capabilities. 104 BD during the fiscal years ending 9/30/2005, 9/30/ Many factors outside of the See, e.g., Risk Management Controls for 2006, 9/30/2007, 9/30/2008 and 9/30/2009, Brokers or Dealers With Market Access, Exchange respectively. ((20,666 + 17,839 + 16,702 + 16,365 Act Release No. 63241 (Nov. 3, 2010), 75 FR 69792, + 17,247)/5 years)/5,163 broker-dealers = 3.44 102 1 hour × three per year × 55 SBS Entities = at 69816 (Nov. 15, 2010). amendments per broker-dealer per year. 165 hours. 105 Id.

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documents and sign the Senior Officer involved in effecting security-based 15Fb6–1 would require that they collect. Certification.106 swaps on behalf of the SBS Entity that Consequently, the Commission The Commission has previously contains certain, specified information. estimates that the burden to require an estimated that the burden associated The proposed rule further would SBS Entity’s existing associated persons with obtaining an internal control report provide that the questionnaire or that effect or are involved in effecting from a third party would cost, on application must be reviewed and security-based swaps on behalf of the average, approximately $250,000.107 signed by the SBS Dealer’s or major SBS Entity to provide those few The staff believes that an internal security-based swap participant’s Chief categories of information that they did control report would be roughly Compliance Officer. Finally, the CCO not originally provide on their analogous to a third party review of would need to certify (on Schedule G of employment questionnaires or each SBS Entity capability included in its Form SBSE, Form SBSE–A, or Form applications would be approximately the Senior Officer Certification; SBSE–BD, as applicable) that no one hour each.111 As SBS Entities that however, the staff believes the cost of a associated person that effects or is are already registered with the third party review of an SBS Entity’s involved in effecting security-based Commission and the CFTC already capabilities likely would be less than swaps on behalf of the SBS Entity is collect this information from employees, the cost of three separate internal subject to a statutory disqualification. the Commission estimates that the control reviews because the third party SBS Entities would only need to fulfill burden to all SBS Entities to obtain review of capabilities would not require these obligations for associated persons additional information from relevant an accountant’s opinion and because that effect or are involved in effecting associated persons, would be some economies of scale likely could be security-based swaps on behalf of the approximately 100 hours.112 achieved when a third party reviews SBS Entity.109 The Commission The Commission staff estimates, three capabilities for a single SBS estimates (based on the staff’s based on the staff’s experience relative Entity. Consequently, the staff estimates experience relative to the securities and to the securities industry, that it would that the cost for an SBS Entity to obtain OTC derivatives industries) that SBS take a CCO approximately one hour to a third party review to provide its senior Entities each have, on average, twenty- review and sign a relevant employee’s officer with the necessary comfort to five associated persons that effect or are employment record. Consequently, the sign the Senior Officer Certification involved in effecting security-based Commission estimates that the total would be approximately $600,000. swaps on behalf of the SBS Entity. The burden to all SBS Entities to have their Thus, the Commission estimates that the Commission believes that the CCOs review and sign each associated one-time burden for the twenty-seven information SBS Entities would need to person’s employment record would be 113 SBS Entities that utilize an external obtain through these questionnaires is approximately 1,375 hours. review process would be approximately standard in the financial services On an ongoing basis, if employee turnover at an SBS Entity averages 675 hours 108 for the senior officer to industry, and is already collected by 12%,114 each SBS Entity would need to review documents provided by the third firms registered with the CFTC and the perform background checks and have party to gain the necessary comfort and SEC. In addition, SBS Entities that are their CCO review and approve in to sign the Senior Officer Certification, registered with the Commission or the writing three new associated persons’ and $16,200,000 to have a third party CFTC must already perform background employment records per year. As stated review the SBS Entity’s operational, checks on their employees because of financial, and compliance capabilities the prohibitions from employment of statutorily disqualified persons in the 111 Commission staff believes that, as most firms and provide the SBS Entity with already collect all or most of the information evidence sufficient to make the senior CEA and the Exchange Act. already, it likely would not take employees more officer sufficiently comfortable to sign The Commission staff estimates, than an hour each, on average, to provide any the Senior Officer Certification. based on its experience relative to the additional information. The staff believes the pay securities industry, that the average time scales for broker-dealers and SBS Entities would Thus, the total burden for all SBS likely be similar. As the categories of employees Entities associated with the Senior necessary for an SBS Entity to review its that could be required to provide additional Officer Certification would be employment questionnaire or information is diverse (see supra notes 55 and 56) approximately 6,275 hours and application to verify that it contains all the weighted-average cost of 46 of the positions of the required information and to included in Securities Industry and Financial $16,200,000. Markets Association’s (‘‘SIFMA’’) publication titled update the questionnaire would be Management & Professional Earnings in the 4. Burdens Relating to Associated approximately three hours. As SBS Securities Industry 2009, as modified by Persons Entities that are already registered with Commission staff to account for an 1,800-hour the Commission or the CFTC already work-year and multiplied by 5.35 to account for Proposed Rule 15Fb6–1 would require bonuses, firm size, employee benefits and overhead, an SBS Entity to obtain a questionnaire collect this information, the the hourly cost of an Attorney is approximately or application for employment executed Commission estimates that the cost to $260/hour. 1 hour × 25 associated persons × $260 by each of its associated persons who is all SBS Entities to review employment = $6,500. questionnaires or applications, verify 112 One hour × 4 SBS Entities that are not registered with the Commission or CFTC × 25 106 (5 hours + 20 hours + 175 hours) × 28 SBS that they contain all of the required associated persons effecting or involved in effecting Entities = 5,600 hours. information and update the security-based swaps on behalf of the SBS Entity = 107 See, e.g., Custody of Funds or Securities of questionnaires or applications, as 100 hours. Clients by Investment Advisers, Advisers Act necessary, would be approximately 12 113 One hour × 25 associated persons × 55 SBS Release No. 2968 (Dec. 30, 2009), 75 FR 1456, at hours.110 Entities = 1,375 hours. 1473 (Jan. 11, 2010). Depending on the facts and 114 The staff notes that the Bureau of Labor circumstances relating to an SBS Entity’s business, As discussed above, the Commission Statistics Labor Turnover Survey indicates that third party service providers may use different staff believes that most financial turnover is presently in the range of 3.2%, however methods to assess each of an SBS Entity’s services firms already collect all or most the staff believes that the present economic capabilities and report their findings to the SBS of the information proposed Rule situation has likely driven turnover to a historically Entity, which may affect the cost of the review and low level and that this broad statistic likely does the amount a third party charges an SBS Entity for not adequately represent actual turnover in the this review. 109 See supra notes 55 and 56. financial services sector. Consequently, the staff 108 (5 hours + 20 hours) × 27 SBS Entities = 675 110 3 hours × 4 SBS Entities that are not registered believes, based on its experience, that a higher hours. with the Commission or CFTC = 12 hours. number may be more appropriate.

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above, the Commission estimates that counsel. In previous releases, the believes the burden associated with the burden to have an SBS Entity’s CCO Commission estimated that firms with a retaining them would not be significant. review and sign each associated similar requirement would incur, on Thus, the Commission estimates that it person’s employment record would be average, approximately $900 in outside would take each SBS Entity approximately one hour. Thus, the legal costs to obtain an opinion of approximately 10 minutes annually to ongoing annual burden to each SBS counsel.119 This estimate originally assure that these pages are retained, or Entity would be approximately three related to the cost a foreign bank issuer a total of approximately 9 hours hours 115 and the total cost to all SBS would incur to obtain a legal opinion to annually for all SBS Entities.122 Entities to comply with Rule 15Fb6–1 provide to the Commission when on an ongoing basis would be seeking an exemption from the 7. Burden Associated With Filing approximately 165 hours annually.116 requirement to make certain additional Withdrawal Form The Commission believes that as the disclosures.120 Although the legal Given that the cost and effort to CCO would already have reviewed and opinion for foreign bank issuers also register as an SBS Entity will be signed each employee’s employment would address privacy laws in the significant, the Commission believes record, signing the required certification issuer’s home jurisdiction that may that entities will not enter and exit this will not take a significant amount of preclude certain disclosures, upon business regularly. As the Form SBSE– time. Thus, Commission staff estimates, further reflection, we believe that the W is only one page and consists of based on its experience relative to the legal opinion required for nonresident information readily available to SBS securities industry, that it would take a SBS Entities pursuant to the proposed Entities, the staff estimates (based on CCO approximately one hour to certify rule would likely require additional experience relative to Form BD–W) that on Schedule G that no associated person research and analysis to prepare. Based it likely would take an SBS Entity, on that effects or is involved in effecting on staff experience, the Commission average, approximately one hour to security-based swaps on behalf of the estimates that each nonresident SBS complete and file a Form SBSE–W. SBS Entity is subject to a statutory Entity would incur, on average, While the Commission believes it is disqualification. Consequently, the approximately $25,000 in outside legal unlikely that any SBS Entity will Commission staff estimates that the total costs to obtain the necessary opinion of withdraw from registration often or burden to all SBS Entities to complete counsel, and that the total cost for all within the first year, solely for purposes this certification on Schedule G would nonresident SBS Entities to obtain this of this PRA the Commission estimates be approximately 55 hours.117 opinion of counsel would be that one SBS Entity may file Form 121 5. Burdens on Nonresident SBS Entities approximately $550,000. SBSE–W to withdraw from registration annually and the total burden associated The Commission estimates, based on 6. Burden Related to Retention of Manually Signed Signature Pages with completing and filing Form SBSE– conversations with industry W would be approximately one hour participants, that approximately 40 Pursuant to proposed Rule 15Fb1–1, each year. percent or 22 SBS Entities will be each signatory to an electronic filing nonresident SBS Entities. Proposed Rule must, when the electronic filing is 8. Burden Associated With Proposed 15Fb2–4 would require that each made, manually sign a signature page or Temporary Rule 15Fb2–2T nonresident SBS Entity file an other document adopting his or her Proposed temporary Rule 15Fb2–2T additional schedule (Schedule F) with signature that appears in typed form would only be adopted if a their Form SBSE, Form SBSE–A, or within the electronic filing. This technological means to facilitate receipt Form SBSE–BD, as appropriate, to manually signed page must be retained and retention of applications is not identify its U.S. agent for service of by the SBS Entity until at least three functional by the time final rules are process and to certify that the firm can, years after the form or certification has adopted. Pursuant to proposed as a matter of law, provide the been replaced or is no longer effective. temporary Rule 15Fb2–2T, each SBS Commission with access to its books It is likely that each SBS Entity would Entity would need to file its application and records and can, as a matter of law, need to maintain at least three pages and certification in paper form, and submit to onsite inspection and with manually signed signatures (the then resubmit its application and examination by the Commission. execution page of Form SBSE, SBSE–A, certification in electronic form once a Commission staff conservatively or SBSE–BD, as applicable, Schedule G, technological means to receive such estimates, based on its experience and the Form SBSE–C certification). In documents becomes functional. relative to the securities industry and addition, nonresident SBS Entities also The burden associated with Form BD, that the average time would need to retain a manually signed completing and filing the forms once are necessary for a nonresident SBS Entity copy of Schedule F. As so few pages discussed above. Thus, the additional to complete and file Schedule F would would need to be retained, the staff burden associated with proposed be approximately one hour. Thus, the temporary Rule 15Fb2–2T relate to Commission estimates that the total 119 Registration and Regulation of Security-Based electronic resubmission of the form. burden for all nonresident SBS Entities Swap Execution Facilities, Exchange Act Release The staff estimates that the costs approximately to complete and file No. 63825 (Feb. 2, 2011), 76 FR 10948 (Feb. 28, 2011); Security-Based Swap Data Repository associated with resubmitting each of the Schedule F would be approximately 22 Registration, Duties, and Core Principles, Exchange forms would be minimal, but would be 118 hours. Act Release No. 63347 (Nov. 19, 2010), 75 FR 77306 contingent on the length of the form. In addition, nonresident SBS Entities (Dec. 10, 2010); Foreign Bank Exemption from the Insider Lending Prohibition of Exchange Act Further, the additional time to file the would incur outside legal costs certification (which consists of a single associated with obtaining an opinion of Section 13(k), Exchange Act Release No. 49616 (Apr. 26, 2004), 69 FR 24016 (Apr. 30, 2004). The page) would not vary relative to the $900 figure is based on an estimate of $400 an hour form required to be filed, and would not 115 One hour × three associated persons = three for legal services. add significantly to the times required hours. 120 Foreign Bank Exemption from the Insider 116 Three hours × 55 SBS Entities = 165 hours. Lending Prohibition of Exchange Act Section 13(k), to file the registration forms. The 117 One hour × 55 SBS Entities = 55 hours. Exchange Act Release No. 49616 (Apr. 26, 2004); 69 118 1 hour × 22 nonresident SBS Entities = 22 FR 24016 (Apr. 30, 2004). 122 (10 minutes × 55 SBS Entities)/60 minutes = hours. 121 $25,000 × 22 SBS Entities = $550,000. 9.17 hours.

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Commission staff preliminarily Certification appropriate? Are there 2. Evaluate the accuracy of our estimates, based on the staff’s other processes a senior officer may estimate of the burden of the proposed experience relative to the securities utilize to gain the necessary comfort to collection of information; industry and Form BD, that the average sign the Senior Officer Certification? If 3. Determine whether there are ways time necessary for an SBS Entity to so, what other processes might be used to enhance the quality, utility, and resubmit a Form SBSE would be and what are the advantages, burdens clarity of the information to be approximately four hours. As Forms and/or costs of those other processes? collected; and SBSE–A and SBSE–BD are shorter than Also, is the Commission’s estimate 4. Evaluate whether there are ways to Form SBSE, the Commission staff accurate regarding how many SBS minimize the burden of collection of preliminarily estimates that Entities may utilize an external, as information on those who are to resubmitting Form SBSE–A would take opposed to an internal, review process? respond, including through the use of approximately two hours, and that Q–177. Would nonresident SBS automated collection techniques or resubmitting Form SBSE–BD would take Entities incur greater or lesser costs for other forms of information technology. approximately one hour. Thus, the the opinion of counsel? Would the cost Persons submitting comments on the Commission estimates that the total more likely be closer to $900, as collection of information requirements burden to all SBS Entities to resubmit previously estimated? Are the costs should direct them to the Office of their Forms SBSE, SBSE–A, or SBSE– likely to exceed $25,000? Management and Budget, Attention: BD, as applicable, would be Desk Officer for the Securities and approximately 102 hours.123 E. Retention Period of Recordkeeping Exchange Commission, Office of Requirements Information and Regulatory Affairs, 9. Request for Comment on Burden Proposed Rules 15Fb1–1 through Washington, DC 20503, and should also Estimates 15Fb6–1 and Forms SBSE, SBSE–A, send a copy of their comments to The Commission seeks comment on SBSE–BD, SBSE–C and SBSE–W would Elizabeth M. Murphy, Secretary, the recordkeeping and reporting require that each respondent retain Securities and Exchange Commission, collection of information burdens certain records and information for 100 F Street, NE., Washington, DC associated with proposed Rule 15Fb1–1 three years. 20549–1090, with reference to File No. through 15Fb6–1 and Forms SBSE, S7–40–11. Requests for materials SBSE–A, and SBSE–BD, as applicable. F. Collection of Information Is submitted to OMB by the Commission Q–173. What burdens, if any, would Mandatory with regard to this collection of respondents incur with respect to Any collections of information information should be in writing, with system design, programming, expanding required pursuant to proposed Rules reference to File No. S7–40–11, and be systems capacity, and establishing 15Fb1–1 through 15Fb6–1 and Forms submitted to the Securities and compliance programs to comply with SBSE, SBSE–A, SBSE–BD, SBSE–C Exchange Commission, Records proposed Rules 15Fb1–1 through would be mandatory to permit the Management, Office of Filings and 15Fb6–1 and Forms SBSE, SBSE–A, Commission to determine whether Information Services, 100 F Street, NE., SBSE–BD, SBSE–C and SBSE–W, as applicants meet the standards for Washington, DC 20549–1090. As OMB applicable? registration, and to fulfill its oversight is required to make a decision Q–174. Is it likely that SBS Entities responsibilities. concerning the collections of will complete Forms SBSE, SBSE–A, The collections of information information between 30 and 60 days SBSE–BD, SBSE–C and SBSE–W, as required pursuant to proposed Rule after publication, a comment to OMB is applicable, themselves or is it more 15Fb3–2 and Form SBSE–W would be best assured of having its full effect if likely that they would obtain assistance mandatory to allow the Commission to OMB receives it within 30 days of in completing these forms from some determine whether it is in the public publication. outside entity (e.g., outside counsel)? If interest to allow an SBS Entity to V. Economic Analysis an SBS Entity obtains assistance in withdraw from registration. completing the forms from an outside The collections of information In response to the recent financial entity, what type of entity may be required pursuant to proposed Rule crisis, Congress passed the Dodd-Frank utilized and what may the relative costs 15Fb2–2T would be mandatory to Act in July of 2010. Among other things, to employ such an entity for this provide a process for the Commission to the Dodd-Frank Act is designed to purpose be? facilitate registration of SBS Entities if strengthen oversight, improve consumer Q–175. Would there be different or an electronic system to facilitate protections, and reduce systemic risks additional burdens associated with the registration is not functional by the time throughout the financial system. Title collection of information under Rules final registration rules are adopted. VII of the Dodd-Frank Act specifically 15Fb1–1 through 15Fb6–1 and Forms addresses the OTC derivatives markets, SBSE, SBSE–A, SBSE–BD, SBSE–C and G. Confidentiality including the market for security-based SBSE–W, as applicable, that a The Commission intends to make the swaps, and requires the Commission to respondent does not currently information collected pursuant to undertake a number of rulemakings to undertake in the ordinary course of proposed Rule 15Fb1–1 through 15Fb6– establish a regulatory framework for business that the Commission has failed 1 and Forms SBSE, SBSE–A, SBSE–BD, SBS Entities. to identify? If so, please both describe SBSE–C and SBSE–W public. In promulgating the provisions of and quantify any additional burden(s). Section 764 of the Dodd-Frank Act, Q–176. Are the burden and cost H. Request for Comment Congress established a mandatory estimates regarding the review Pursuant to 44 U.S.C. 3505(c)(2)(B), registration regime for SBS Entities but necessary to support the Senior Officer the Commission solicits comment to: left the form and manner of such 1. Evaluate whether the proposed registration within the discretion of the 123 (2 hours × 35 SBS Entities already registered collection of information is necessary Commission. In determining the form with the CFTC) + (1 hour × 16 SBS Entities already registered with the Commission) + (4 hours × 4 SBS for the proper performance of our and manner of such registration, the Entities not otherwise registered with either the functions, including whether the Commission may require ‘‘such Commission or the CFTC) = 102 hours. information shall have practical utility; information, as the Commission

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considers necessary concerning the to assure that the proposed rules, the allow them to make more informed business in which the applicant is or forms, and the process generally are as choices with respect to counterparties will be engaged.’’ 124 The Dodd-Frank clear as possible so as to minimize and collateral. The Commission also Act also requires that SBS Entities confusion. The Commission has sought believes that this may promote ‘‘continue to submit to the Commission to minimize, to the extent possible, competition by leveling the playing reports that contain such information duplication and costs that the rules may field for market participants who may pertaining to the business of the person impose on firms. Finally, burdens and have disparate access to information as the Commission may require.’’ 125 costs that have been estimated for PRA regarding each SBS Entity. In addition, Section 764 also provides that purposes are included in the broader making such standardized information registrations ‘‘shall expire at such time costs and benefits discussion that on SBS Entities public would enable as the Commission may prescribe by follows because we believe, as the counterparties and the marketplace to rule,’’ 126 and prohibits SBS Entities registration process would largely be expend less time and money to from allowing persons associated with it forms-based, it is appropriate to include independently obtain and compile that are ‘‘subject to a statutory them. The Commission is sensitive to information on SBS Entities to use in disqualification to effect or be involved the costs and benefits imposed by its making such choices. in effecting security-based swaps on rules. Requiring the reporting of behalf of the [SBS Entity if the entity] standardized information through these A. Benefits knew, or in the exercise of reasonable forms also will allow the Commission to care should have known, of the The proposed rules and forms identify the risk characteristics of each statutory disqualification.’’ 127 Finally, described in this section would be SBS Entity, which should help the the Dodd-Frank Act provides the issued pursuant to a specific grant of Commission focus examinations and Commission with additional broad rulemaking authority in the Dodd-Frank other oversight resources more authority to effect registration and Act. As indicated above, the forms were efficiently and effectively. regulation of SBS Entities.128 based on Forms BD and BDW, which Once SBS Entities are registered, they Today, the Commission is proposing broker-dealers are familiar with and will be subject to standardized new rules and forms that provide a which are similar to the Form 7–R that requirements that set a baseline level of, process for registration of SBS Entities. futures and commodities firms use to among other things, internal controls, This process would require that SBS register with the CFTC. Significantly, capital and margin levels for all SBS Entities apply for registration by the Commission is proposing the use of Entities. The registration and regulation submitting a Form SBSE, Form SBSE–A, multiple registration forms to limit the of SBS Entities also may promote capital or Form SBSE–BD, as applicable. amount of duplication and costs formation by providing market Further, this process would allow SBS imposed on firms already registered participants with certain, uniform Entities to register conditionally or on with the Commission as a broker-dealer information regarding registered SBS an ongoing basis, as necessary. In or with the CFTC as a swap dealer or Entities (as described above) and addition, each SBS Entity seeking major swap participant. The assuring market participants that ongoing registration would need to Commission considered using only one registered SBS Entities meet established submit to the Commission a certification form to facilitate registration, but we standards. By facilitating oversight of on Form SBSE–C, signed by a believe using multiple forms would SBS Entities, registration and regulation knowledgeable senior officer. provide a benefit to firms because it of these entities also could increase In drafting these rules the would reduce the costs to register. counterparty trust, and may encourage Commission sought to design a In addition the proposed use of more counterparties and eligible registration process that is similar to multiple forms is designed to allow contract participants to enter the SBS other registration processes firms already registered with the SEC as marketplace. It also may be beneficial if administered by the Commission. To the broker-dealers or registered or SBS entities that are not capable of extent market participants are familiar registering with the CFTC as swap meeting, or are unwilling to meet, their with these existing registration dealers or swap participants to submit regulatory obligations exit the market. or utilize forms they have already processes, we believe that using similar B. Costs processes to register SBS Entities would completed to facilitate registration with create efficiencies for market the Commission. This use of existing Although the Commission believes participants. Many of the proposed rules forms would allow the Commission to that registration and regulation of SBS were drafted based on rules applicable obtain the information it needs to Entities would result in significant to broker-dealers. Similarly, the draft determine whether to grant registration benefits to customers of and forms were based on Forms BD and without requiring the applicant to counterparties to SBS Entities, BDW. However, the Commission also duplicate substantially the same investors, eligible contract participants has sought to assure that the staff has information that they have already and the market for SBS, the Commission information sufficient to make a provided to regulators for another recognizes that the proposed registration determination as to whether registration purpose. rules and forms would also entail costs. The proposed rules and forms would The Commission preliminarily should be granted or denied. Thus, the require that SBS Entities provide certain estimates that SBS Entities would incur Form SBSE differs from Form BD in that standardized data (including costs associated with: (i) Researching, it requests information specific to the disciplinary information) to the completing, and filing the forms, (ii) SBS business and does not request Commission. The Commission would reviewing, completing and submitting information specific to the broker-dealer then make this information public. This the required certification, and business. The Commission also sought would provide SBS counterparties and documenting the review process, (iii) obtaining or compiling the required 124 15 U.S.C. 78o–10(b)(2)(A). the marketplace with additional, 125 15 U.S.C. 78o–10(b)(2)(B). comparable information on all SBS questionnaires or employment 126 15 U.S.C. 78o–10(b)(3). Entities (for instance, by highlighting applications, having the CCO review the 127 15 U.S.C. 78o–10(b)(6). previously unrecognized comparative questionnaires and certify that no 128 15 U.S.C. 78o–10(b)(4) and (d). strengths and weaknesses) which would relevant associated person is subject to

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statutory disqualification, (iv) the previously, the Commission has the security-based swap market and requirements that nonresident SBS attempted to reduce costs associated conversations with industry Entities obtain an agreement for U.S. with the application process by participants, that approximately fifty service of process and an opinion of providing multiple forms for SBS firms will fit the definition of SBS counsel stating that they can provide the Entities to use to register. The dealer and approximately five firms will Commission with access to records, (v) alternative forms (Form SBSE–A, and fit the definition of major security-based the requirement to retain manually Form SBSE–BD) are both shorter and swap participant. Further, based on its signed signature pages, and (vi) the should require that an SBS Entity understanding of the securities-based requirements associated with filing expend less effort to research, complete, swap market, the Commission believes forms in paper format and resubmitting and file. Consequently, the Commission that the majority of firms that may those forms electronically if the preliminarily believes that it would cost register as SBS Entities also will be Commission does not have a each firm approximately $9,440 to engaged in the swaps business and will 131 technological means to receive complete Form SBSE–A (including register with the CFTC as swap dealers 132 applications electronically by the time the Schedules and DRPs) and or major swap participants. In addition, final registration rules are adopted. approximately $2,950 to complete Form persons holding securities positions The Commission preliminarily 133 SBSE–BD (including the Schedules). may find it beneficial to hedge those believes that the proposed amendments It is anticipated that each SBS Entity positions with security-based swaps, so may impose a burden on competition will only need to research, complete, it may be beneficial for a broker-dealer for smaller SBS Entities to the extent and file one Form, and that it will to become an SBS Entity so that it can that they impose relatively fixed costs, update that Form, as necessary, as provide this option to its customers. which could represent a higher described below. However, given the costs of being a percentage of net income for smaller The Commission preliminarily registered entity, it may be less likely for SBS Entities. Registration costs may also believes, based on its understanding of an entity that is not otherwise registered impact those SBS Entities that are not already registered under another area of necessary to complete Form SBSE would vary to register as an SBS Entity. their business model to a greater degree depending on the nature and complexity of the Consequently, the Commission believes entity’s business, Commission staff estimates that than they would impact SBS Entities that thirty-five SBS Entities will register the average time necessary for an SBS Entity to with the Commission using Form SBSE– that have previously registered under research the questions, and complete and file a another regulatory regime. The SBS Form SBSE would be approximately one work week A, twelve SBS Entities will register with Entity registration requirement may or forty hours. The staff believes that an SBS Entity the Commission using Form SBSE–BD, would have a Compliance Manager complete and and eight SBS Entities will register with cause some market participants that are file the form’s application on Form SBSE, and that not capable of meeting their operational, the pay scales for broker-dealers and SBS Entities the Commission using Form SBSE. financial and/or regulatory obligations would likely be similar. According to the SIFMA Thus, the total estimated cost to all publication titled Management & Professional entities to research, complete, and file to exit the market. However, the Earnings in the Securities Industry 2009, as Commission believes that any reduction modified by Commission staff to account for an Forms to register as SBS Entities would 134 in competition resulting from an exit 1,800-hour work-year and multiplied by 5.35 to be approximately $424,800. account for bonuses, firm size, employee benefits from the market by SBS Entities that are and overhead, the hourly cost of a Compliance Proposed Rule 15Fb2–3 would require not capable of meeting, or that are Manager is approximately $295/hour. 40 hours × that SBS Entities amend their unwilling to meet, their regulatory $295 = $11,800. applications if they find that the obligations is a necessary and 131 The Commission staff believes that, as Form information contained therein has SBSE–A is shorter than the Form SBSE, it should appropriate burden on competition. take an SBS Entity less time to research the become inaccurate. While SBS Entities 1. Costs Attributable to Filing the Forms questions, and complete and file a Form SBSE–A. may need to update their Forms Thus, while it is likely that the time necessary to periodically, it likely would not cost a Proposed Rule 15Fb2–1 would require complete Form SBSE–A would vary depending on significant amount to make such that each SBS Entity register with the the nature and complexity of the entity’s business, the staff estimates that researching, completing, and changes because each firm will have Commission by filing Form SBSE, Form filing Form SBSE–A would take approximately 80% already completed Form SBSE, Form SBSE–A, or Form SBSE–BD, as of the time that it would take to research, complete, SBSE–A, or Form SBSE–BD, as applicable. Firms must file these forms and file a Form SBSE, or thirty two hours. The staff applicable, and would only need to electronically, which also should reduce believes that an SBS Entity would have a Compliance Manager complete and file the form’s amend that aspect of the Form that has the associated costs because SBS application on Form SBSE–A, and that the pay become inaccurate. Based on the Entities will not incur costs associated scales for broker-dealers and SBS Entities would number of amendments the Commission likely be similar. See supra note 130. 32 hours × with copying or postage. The receives annually on Form BD,135 the Commission preliminarily believes that $295 = $9,440. 132 See supra note 95. Commission estimates that each SBS it would cost each SBS Entity 133 See supra note 95. The Commission staff Entity would file approximately three approximately $11,800 to complete and believes that, as Form SBSE–BD is shorter than amendments annually. Consequently, file the Form SBSE (including the either Form SBSE or Form SBSE–A, it should take the Commission estimates that the cost Schedules 129 and DRPs).130 As stated an SBS Entity less time to research the questions, and complete and file a Form SBSE–BD. In for each SBS Entity to complete and file addition, broker-dealers who would be filing Form amendments to its forms is 129 See supra note 95. SBSE–BD are familiar with Commission 130 The staff has previously estimated that the terminology and Forms. Thus, while it is likely that 134 × × average time necessary for a broker-dealer to the time necessary to complete Form SBSE–BD $424,800 = (35 $9,440) + (16 $2,950) + (4 × complete and file Form BD, the Form upon which would vary depending on the nature and $11,800). Form SBSE was based, would be approximately complexity of the entity’s business, the staff 135 On March 1, 2010 there were 5,163 broker- three hours (and that estimate was been subject to estimates that researching, completing, and filing dealers registered with the Commission (based on notice and comment. Broker-Dealer Registration Form SBSE–BD would take approximately 25% of Form BD data). The Commission received 20,666, and Reporting, Exchange Act Release No. 41594 the time that it would take to research, complete, 17,839, 16,702, 16,365, and 17,247 amended Forms (July 2, 1999), 64 FR 37586.) However, SBS Entities and file a Form SBSE, or ten hours. The staff BD during the fiscal years ending 9/30/2005, 9/30/ have not previously been subject to regulation and believes that an SBS Entity would have a 2006, 9/30/2007, 9/30/2008 and 9/30/2009, may need significantly more time to research the Compliance Manager complete and file the form’s respectively. ((20,666 + 17,839 + 16,702 + 16,365 answers to complete Form SBSE and its schedules application on Form SBSE–BD. See supra note 130. + 17,247)/5 years)/5,163 broker-dealers = 3.44 and DRPs. Thus, while it is likely that the time 10 hours × $295 = $2,950. amendments per broker-dealer per year.

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approximately $885.136 Thus, the from Commission registration must file party to review an area subject to a firm- Commission estimates that it would cost some type of notice with the wide certification before submitting the all SBS Entities approximately $48,675 Commission, which may be a certification. There may be other annually to complete and file these standardized form (see, e.g., Form TA– processes an SBS Entity could use to amendments.137 W, Form ADVW, and Form BDW). Thus, provide a basis for a senior officer’s Proposed Rule 15Fb3–1 would require it is likely that Congress contemplated reasonable determination that the SBS an SBS Entity seeking to withdraw from or intended that the Commission Entity has the requisite capabilities that Commission registration to file Form establish this type of registration regime. we have not specifically identified here. SBSE–W. Given that the cost and effort The Commission believes the use of Many factors outside of the to register as an SBS Entity will be conditional registration and the Commission’s control 140 may determine significant, the Commission believes certification process using Form SBSE– whether an SBS Entity might choose to that entities will not enter and exit this C is a reasonable and relatively low cost utilize an internal process, as opposed business regularly. Further, the method to assure that firms have to an external process, to serve as a basis Commission believes it is unlikely that operational, financial and compliance for the Senior Officer Certification. For any SBS Entity will withdraw from capabilities to act as SBS Entities and purposes of this economic analysis, we registration within the first year. implement adequate procedures to will estimate that approximately half, or However, there will be a cost associated comply with federal securities laws and twenty-eight of the SBS Entities, may with withdrawing from registration as provide the Commission with a basis to use an internal process and the other an SBS Entity must file a Form SBSE– take final action on SBS Entity half, or twenty-seven of the SBS W to do so. As the Form SBSE–W is registration. Entities, will use an external process. only one page and consists of The Commission believes that, information readily available to SBS 2. Costs of Certification regardless of whether an SBS Entity may Entities, the Commission estimates that Paragraph (b) of proposed Rule choose to utilize an internal process, as the cost for an SBS Entity to complete 15Fb2–1 would require that each SBS opposed to an external process, to serve and file a Form SBSE–W would be Entity have a knowledgeable senior as a basis for the Senior Officer approximately $295.138 officer certify that, after due inquiry, he Certification, it will cost approximately The Dodd-Frank Act clearly requires or she has reasonably determined that $10,450 on average for a senior officer registration of SBS Entities. All other the SBS Entity has the operational, to review documents provided either by entities that register with the financial, and compliance capabilities to subordinates or by a third party to gain Commission do so by filing some type act as an SBS Dealer or major security- the comfort necessary to sign and to sign of application, which may be a based swap participant, as applicable, the Senior Officer Certification.141 The standardized form (e.g., Form TA–1, and has documented the process by Commission estimates that, if an SBS Form ADV and Form BD). The which he or she has reached such Entity opted to conduct an internal Commission generally requires that determination. Each SBS Entity would review of the SBS Entity’s operational, registered entities amend these forms to need to provide this certification on financial and compliance capabilities, it correct inaccurate information either as Form SBSE–C only once. The will cost each SBS Entity approximately necessary or periodically. Further, all Commission believes that the majority an additional $73,150 142 for other SBS other entities that with to withdraw of the cost associated with this certification would arise from the 140 See supra note 103. 136 While it is likely that the time necessary to file review the senior officer conducts, or 141 The Commission has previously estimated that an amendment to Form SBSE, Form SBSE–A, or has others conduct, prior to certifying the burden associated with having a senior officer Form SBSE–BD, as applicable may vary depending sign a certification likely would be approximately on the nature and complexity of the information to that the SBS Entity has the requisite five hours. See supra note 104. The Commission be amended, the staff estimates, based on operational, financial, and compliance has also estimated that it would take a senior officer experience, that it likely would take an SBS Entity, capabilities.139 The senior officer would approximately twenty hours to review, document, on average, approximately one hour to amend its also need to certify that he or she has and update compliance procedures, (Id.) which the application each time it files an amendment. The staff believes would be analogous to reviewing staff believes that an SBS Entity would have a documented this process. documents provided either by subordinates or a Compliance Manager complete and file The Commission understands (based third party to gain comfort necessary to sign the amendments to the SBS Entity’s forms, and that the on the staff’s experience with broker- Senior Officer Certification, and to document this pay scales for broker-dealers and SBS Entities dealers and other regulated entities) review. The staff believes the pay scales for broker- would likely be similar. According to the SIFMA that, in satisfying other certification dealers and SBS Entities would likely be similar, publication titled Management & Professional and that the pay of a Chief Compliance Officer Earnings in the Securities Industry 2009, as requirements, SBS Entities may use likely would be similar to the amount paid to other modified by Commission staff to account for an different processes, depending on the senior officers. According to the SIFMA’s 1,800-hour work-year and multiplied by 5.35 to facts and circumstances of their publication titled Management & Professional account for bonuses, firm size, employee benefits business. Some SBS Entities may Earnings in the Securities Industry 2009, as and overhead, the hourly cost of a Compliance modified by Commission staff to account for an Manager is approximately $295/hour. 1 hours × develop more or less robust process 1,800-hour work-year and multiplied by 5.35 to $295 × three per year = $885. than others and, as a result, may incur account for bonuses, firm size, employee benefits 137 $885 × 55 SBS Entities = $48,675. higher or lower than average costs. and overhead, the hourly cost of a Chief 138 The staff estimates, based on experience, that Some SBS Entities may use a sub- Compliance Officer is approximately $418/hour. 25 it likely would take an SBS Entity, on average, hours × $418 = $10,450. approximately one hour to complete and file a Form certification process whereby the senior 142 Commission staff estimates, based on its SBSE–W. The staff believes that an SBS Entity officer will not certify a firm-wide experience relative to the securities and OTC would have a Compliance Manager complete and statement unless and until other persons derivatives industries, that if a senior officer opted file Form SBSE–W, and that the pay scales for responsible for certain activities in turn to conduct an internal review of the SBS Entity’s broker-dealers and SBS Entities would likely be operational, financial, and compliance capabilities, similar. According to the SIFMA publication titled certify to the senior officer that the it would take approximately one hundred and Management & Professional Earnings in the standard has been met, while other seventy five additional hours for other SBS Entity Securities Industry 2009, as modified by firms may use an internal or external employees to assess the SBS Entity’s operational, Commission staff to account for an 1,800-hour audit-type process whereby a senior financial, and compliance capabilities and provide work-year and multiplied by 5.35 to account for the senior officer with whatever sub-certifications bonuses, firm size, employee benefits and overhead, officer may choose to employ a third or other documents he or she may request to obtain the hourly cost of a Compliance Manager is the necessary comfort before signing the Senior approximately $295/hour. 1 hour × $295 = $295. 139 See supra note 42. Continued

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Entity employees to assess the SBS was inaccurate or false. However, a effecting security-based swaps on behalf Entity’s operational, financial, and potential benefit would be to focus of the SBS Entity is subject to a statutory compliance capabilities and provide the senior officers’ attention to assuring that disqualification. SBS Entities would senior officer with whatever sub- an SBS Entity conducts its business in only need to fulfill these obligations for certifications or other documents he or accordance with the certification associated persons that effect or are she may request to obtain the necessary language. In addition, the more robust involved in effecting security based comfort before signing the Senior the process and meaningful the review swaps on behalf of the SBS Entity.145 Officer Certification. Alternatively, if an of an SBS Entity’s capabilities, the more The Commission estimates, based on the SBS Entity opted to conduct an external likely that review will fulfill the staff’s experience in dealing with review of the SBS Entity’s operational, Commission’s goals in proposing the entities that likely will need to register financial and compliance capabilities, Senior Officer Certification requirement, as SBS Entities, that SBS Entities each the Commission estimates that it will and the more likely the process will have, on average, 25 associated persons cost each SBS Entity approximately an help the SBS Entity to strengthen its that effect or are involved in effecting additional $600,000.143 Thus, the capabilities, processes and controls security-based swaps on behalf of the Commission estimates that this which could serve to decrease SBS Entity. The Commission believes certification requirement will cost all operational, financial, and compliance that the information SBS Entities would SBS Entities a total of approximately risks. need to obtain through these $18,822,950.144 In addition, the Senior Officer questionnaires is fairly standard in the In addition to these costs, there may Certification is designed to help assure financial services industry, and is be additional costs and benefits relating the Commission, potential investors in, already collected by firms registered to certification that are more difficult to customers of, and counterparties to an with the CFTC and the SEC. In addition, quantify. For instance, the requirement SBS Entity that the SBS Entity has the SBS Entities that are registered with the to certify as to capabilities may impose requisite capabilities to act in that Commission or the CFTC must already costs on SBS Entities relating to the capacity. By providing this assurance perform background checks on their legal uncertainty and potential liability after a senior officer has performed due employees because of the prohibitions that arises from the possibility that a inquiry, the Senior Officer Certification from employment of statutorily regulator may find that the certification requirement also could prevent entities disqualified persons in the CEA and the who may be more likely to fail because Exchange Act. Officer Certification. The staff believes the pay they do not have the requisite The Commission estimates that the scales for broker-dealers and SBS Entities would capabilities from registering with the likely be similar, and that the pay of a Chief cost for each SBS Entity to review its Compliance Officer likely would be similar to the Commission, which could help prevent employment questionnaire or amount paid to other senior officers. According to disorderly and unstable markets. application to verify that it contains all the SIFMA’s publication titled Management & Further, the Senior Officer Certification of the required information and to Professional Earnings in the Securities Industry may enhance market participants’ 2009, as modified by Commission staff to account update the questionnaire, as necessary, for an 1,800-hour work-year and multiplied by 5.35 ability to assess the counterparty credit to obtain any information not presently to account for bonuses, firm size, employee benefits risk associated with a particular SBS included on that questionnaire would and overhead, the hourly cost of a Chief Entity counterparty. In this way, the be approximately $950.146 As SBS Compliance Officer is approximately $418/hour. Senior Officer Certification should help For purposes of this estimate, we will assume that Entities that are already registered with those a senior officer may consult with are paid at to protect market participants from SBS the Commission and the CFTC already × approximately the same level. 175 hours $418 = Entities that are not competent to engage collect this information, the $73,150. in that business, lack the financial Commission estimates that the cost to 143 The Commission has previously estimated that resources to do so, or are unable or the burden associated with obtaining an internal all SBS Entities to review employment control report from a third party would cost unwilling to comply with applicable questionnaire or application forms, approximately $250,000. See supra note 107. The law. verify that they contain all of the staff believes that an internal control report would be roughly analogous to a third party review of each 3. Costs Relating to Associated Persons required information and update the SBS Entity capability included in the Senior Officer The Dodd-Frank Act makes it questionnaire or application forms, as Certification; however, the staff believes the cost of unlawful for SBS Entities to permit any necessary, would be approximately a third party review of an SBS Entity’s capabilities $3,800.147 likely would be less than the cost of three separate associated person subject to a statutory internal control reviews because the third party disqualification to effect or be involved The Commission estimates that the review of capabilities would not require an in effecting security-based swaps on its cost to require an SBS Entity’s existing accountant’s opinion and because some economies associated persons that effect or are of scale likely could be achieved when a third party behalf if it knew or, in the exercise of reviews three capabilities for a single SBS Entity. reasonable care should have known, of 145 Depending on the facts and circumstances of an the statutory disqualification. Proposed See supra notes 55 and 56. 146 Commission staff estimates, based on its SBS Entity’s business, third party service providers Rule 15Fb6–1 would require that SBS may use different methods to assess each of an SBS experience, that the average time necessary for an Entity’s capabilities and report their findings to the Entities obtain a questionnaire or SBS Entity to review its employment questionnaire SBS Entity, which may affect the cost of the review application for employment executed by or application to verify that it contains all of the and the amount a third party charges an SBS Entity each of its associated persons who is required information and to update the questionnaire would be approximately three hours. for this review. Consequently, the staff estimates involved in effecting security based that the cost for an SBS Entity to obtain a third The staff believes that an SBS Entity would have party review to provide its senior officer with the swaps on behalf of the SBS Entity that an Attorney perform this review and update, and necessary comfort to sign the Senior Officer contains certain, specified information. that the pay scales for broker-dealers and SBS Certification would be approximately $600,000 to The proposed rule further would Entities would likely be similar. According to the have a third party review the SBS Entity’s SIFMA’s publication titled Management & operational, financial, and compliance capabilities provide that the questionnaire or Professional Earnings in the Securities Industry and provide the SBS Entity with evidence sufficient application must be reviewed and 2009, as modified by Commission staff to account to make the senior officer sufficiently comfortable signed by the SBS Dealer’s or major for an 1,800-hour work-year and multiplied by 5.35 to sign the Senior Officer Certification. security-based swap participant’s Chief to account for bonuses, firm size, employee benefits 144 × × and overhead, the hourly cost of an Attorney is ($10,450 55 SBS Entities) + ($73,150 28 Compliance Officer. Finally, the CCO SBS Entities) + ($600,000 × 27 SBS Entities) = approximately $316/hour. 3 hours × $316 = $948. $574,750 + $2,048,200 + $16,200,000 = would need to certify that no associated 147 $950 × 4 SBS Entities that are not registered $18,822,950. person that effects or is involved in with the Commission or CFTC = $3,800.

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involved in effecting security-based ongoing annual cost to each SBS Entity Proposed Rule 15Fb2–4 would require swaps on behalf of the SBS Entity to would be approximately $1,254 152 and that each nonresident SBS Entity obtain provide those few categories of the total cost to all SBS Entities to an opinion of counsel stating that it can information that they did not originally comply with Rule 15Fb6–1 on an provide the Commission with access to provide on their employment ongoing basis would be approximately records. These entities also must file an questionnaires or applications would be $68,970.153 additional schedule (Schedule F) with approximately $6,500.148 As SBS The Commission believes that as the their Form SBSE, Form SBSE–A, or Entities that are already registered with CCO would already have reviewed and Form SBSE–BD, as appropriate, to the Commission and the CFTC already signed each employee’s employment identify the firm’s U.S. agent for service collect this information from employees, record, signing the certification on of process and to certify that the firm the Commission estimates that the cost Schedule G will not take a significant can, as a matter of law, provide the to all SBS Entities to obtain additional amount of time. Thus, the Commission Commission with access to its books information from relevant associated estimates that the cost for each SBS and records. persons, would be approximately Entity to have its CCO certify on The Commission estimates, based on $52,000.149 Schedule G that no associated person internet research,156 that it would cost The Commission estimates that the that effects or is involved in effecting each nonresident SBS Entity cost to have an SBS Entity’s CCO review security-based swaps on behalf of the approximately $125 annually to appoint and sign each associated person’s SBS Entity is subject to a statutory and maintain a relationship with a U.S. employment record would be disqualification would be agent for service of process. approximately $418.150 The approximately $418.154 Consequently, Consequently, the total cost for all Commission estimates that the cost to the total cost for all SBS Entities to have nonresident SBS Entities to appoint and all SBS Entities to have their CCOs their CCO sign this certification on maintain relationships with U.S. agents review and sign each associated Schedule G would be approximately for service of process is approximately person’s employment record would be $22,990.155 $2,750 per year.157 approximately $574,750.151 The Commission believes that, in In addition, nonresident SBS Entities On an ongoing basis, if employee order to comply with the prohibition in would incur outside legal costs turnover at an SBS Entity averages 12%, the Dodd-Frank Act from having associated with obtaining an opinion of each SBS Entity would need to perform statutorily disqualified associated counsel. In previous releases, the background checks and have its CCO persons that effect or are involved in Commission estimated that firms with a review and sign three new associated effecting security-based swaps, SBS similar requirement would incur, on persons’ employment records per year. Entities would need to at least obtain average, approximately $900 in outside As stated above, the Commission the information required by proposed legal costs to obtain an opinion of estimates that the cost to have an SBS Rule 15Fb6–1 and perform a counsel.158 This estimate originally Entity’s CCO review and sign each background check. Having the CCO related to the cost a foreign bank issuer associated person’s employment record approve the employment applications would incur to obtain a legal opinion to would be approximately $418. Thus, the and provide the Commission with a provide to the Commission when cost of each new associated person certification would provide the seeking an exemption from the would be approximately $418, the Commission with a degree of comfort requirement to make certain additional that the SBS Entity is complying with disclosures.159 Although the legal 148 Commission staff believes that, as most firms the prohibition in the Act and aid it in opinion for foreign bank issuers also already collect all or most of the information its oversight of SBS Entities. already, it likely would not take employees more would address privacy laws in the than an hour each, on average, to provide any 4. Costs to Nonresident SBS Entities issuer’s home jurisdiction that may additional information. The staff believes the pay preclude certain disclosures, upon scales for broker-dealers and SBS Entities would The Commission estimates, based on further reflection, we believe that the likely be similar. As the categories of employees conversations with industry legal opinion required for nonresident that could be required to provide additional participants, that approximately 40 information is diverse (see supra notes 55 and 56) SBS Entities pursuant to the proposed the weighted-average cost of 46 of the positions percent or twenty-two SBS Entities will rule would likely require additional included in SIFMA’s publication titled be nonresident SBS Entities. Proposed Management & Professional Earnings in the research and analysis to prepare. Based Rule 15Fb2–4 would require that each on staff experience, the Commission Securities Industry 2009, as modified by nonresident SBS Entity must obtain an Commission staff to account for an 1,800-hour estimates that each nonresident SBS work-year and multiplied by 5.35 to account for agreement with a United States person Entity would incur, on average, bonuses, firm size, employee benefits and overhead, appointing that person as the firm’s U.S. the hourly cost of an Attorney is approximately agent for service of process. In addition, 156 _ $260/hour. 1 hour × 25 associated persons × $260 See, e.g., http://www.incnow.com/registered = $6,500. agent.shtml, and http://www.ailcorp.com/ 152 × 149 $6,500 × 4 SBS Entities that are not registered $418 3 associated persons = $1,254. registeredagent.htm. The staff sought Web sites that with the Commission or CFTC = $26,000. 153 $1,254 × 55 SBS Entities = $68,970. provided pricing information and a comprehensive 150 Commission staff estimates, based on staff 154 Commission staff conservatively estimates that description of their registered agent services. 157 × experience, that it would take a CCO approximately it would take a CCO approximately one hour to $125 per nonresident SBS Entity 22 one hour to review and approve a relevant certify that no associated person that effects or is nonresident SBS Entities = $2,750. employee’s employment record. The staff believes involved in effecting security-based swaps on 158 Security-Based Swap Data Repository the pay scales for broker-dealers and SBS Entities behalf of the SBS Entity is subject to a statutory Registration, Duties, and Core Principles, Exchange would likely be similar. According to the SIFMA’s disqualification. The staff believes the pay scales for Act Release No. 63347 (Nov. 19, 2010); 75 FR 77306 publication titled Management & Professional broker-dealers and SBS Entities would likely be (Dec. 10, 2010); Foreign Bank Exemption from the Earnings in the Securities Industry 2009, as similar. According to the SIFMA’s publication titled Insider Lending Prohibition of Exchange Act modified by Commission staff to account for an Management & Professional Earnings in the Section 13(k), Exchange Act Release No. 49616 1,800-hour work-year and multiplied by 5.35 to Securities Industry 2009, as modified by (Apr. 26, 2004); 69 FR 24016 (Apr. 30, 2004). The account for bonuses, firm size, employee benefits Commission staff to account for an 1,800-hour $900 figure is based on an estimate of $400 an hour and overhead, the hourly cost of a Chief work-year and multiplied by 5.35 to account for for legal services. Compliance Officer is approximately $418/hour. 1 bonuses, firm size, employee benefits and overhead, 159 Foreign Bank Exemption from the Insider hour × $418 = $418. the hourly cost of a Chief Compliance Officer is Lending Prohibition of Exchange Act Section 13(k), 151 $418 × 25 associated persons × 55 SBS Entities approximately $418/hour. 1 hour × $418 = $418. Exchange Act Release No. 49616 (Apr. 26, 2004); 69 = $574,750. 155 $418 × 55 SBS Entities = $22,990. FR 24016 (Apr. 30, 2004).

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approximately $25,000 in outside legal associated with retaining them would be Entity may also need to file an costs to obtain the necessary opinion of significant. Thus, the Commission amendment before that occurs. As any counsel, and that the total cost for all estimates that it would cost each SBS amendment would likely include few nonresident SBS Entities to obtain this Entity approximately $49.17 annually pages because the SBS Entity only opinion of counsel would be assure that it is complying with the would need to provide updates to those approximately $550,000.160 requirement to retain these manually items which become inaccurate, the The Commission estimates that it signed signature pages,163 or a total of staff estimates that it would cost each would cost each nonresident SBS Entity approximately $2,704 annually for all SBS Entity approximately $.50 to send approximately $295 to complete SBS Entities.164 an amendment to the Commission. 161 Consequently, the total postage cost to Schedule F. Thus, the Commission 6. Costs Associated With Proposed each SBS Entity associated with estimates that the total cost for all Temporary Rule 15Fb2–2T nonresident SBS Entities approximately proposed temporary Rule 15Fb2–2T $6,490.162 Proposed temporary Rule 15Fb2–2T would be approximately $6, and the While the Dodd-Frank Act does not would only be adopted if a total postage costs associated with distinguish between resident and technological means to facilitate receipt proposed temporary Rule 15Fb2–2T nonresident SBS Entities, it clearly and retention of applications is not would be approximately $330. contemplates Commission oversight of functional by the time final rules are The staff estimates that the costs registered SBS Entities. The adopted. Pursuant to proposed associated with filing each of the forms Commission’s experience with other temporary Rule 15Fb2–2T, each SBS would be minimal, but would be nonresident registrants has led the staff Entity would need to file its application contingent on the length of the form. to believe that these requirements are and certification in paper form. The Commission preliminarily believes necessary and appropriate to allow the Proposed temporary Rule 15Fb2–2T also that it would cost each SBS Entity Commission to adequately oversee would require that each SBS Entity approximately $1,180 to resubmit the 165 nonresident SBS Entities. resubmit its application and Form SBSE. As Forms SBSE–A and certification in electronic form once a SBSE–BD are shorter than Form SBSE, 5. Costs of Retaining Manually Signed technological means to receive such the Commission preliminarily believes Signature Pages documents becomes functional. that it would cost each SBS Entity Pursuant to proposed Rule 15Fb1–1, The costs associated with completing approximately $590 to resubmit the each signatory to an electronic filing the forms are discussed above. Thus, the Form SBSE–A,166 and $295 to resubmit would be required to, when the additional costs associated with the Form SBSE–BD.167 Thus, the electronic filing is made, manually sign proposed temporary Rule 15Fb2–2T Commission estimates that the total cost a signature page or other document would include the postage cost to send to all SBS Entities to resubmit their a paper form and the personnel costs adopting his or her signature that Form SBSE, SBSE–A, or SBSE–BD, as associated with later resubmitting the appears in typed form within the applicable, would be approximately form electronically. $33,630.168 electronic filing. Each SBS Entity must The postage costs likely would be retain these manually signed pages until driven by the number of pages each SBS C. Request for Comment at least three years after the form or Entity would need to send, which could The Commission requests data to certification has been replaced or is no vary significantly depending on the quantify and estimates of the costs and longer effective. It is likely that each number of DRPs each firm must include the value of the benefits of the proposed SBS Entity would need to maintain at with its Form. The staff conservatively rules described above. The Commission least three pages with manually signed estimates that each SBS Entity may specifically requests the following data signatures (the execution page of Form incur, on average, approximately $5 to or estimates with respect to the number SBSE, SBSE–A, or SBSE–BD, as send its form to the Commission. As the applicable, Schedule G, and the Form certification consists of a one page Form 165 Commission staff estimates, based on staff SBSE–C certification). In addition, SBSE–C, the staff estimates that it likely experience, that the average time necessary for an nonresident SBS Entities also will need would cost an SBS Entity approximately SBS Entity to file a Form SBSE would be to retain a manually signed copy of approximately four hours. The staff believes that an $.50 to send its certification to the SBS Entity would have a Compliance Manager file Schedule F. As so few pages would Commission. The Commission hopes the firm’s application on Form SBSE, and that the need to be maintained pursuant to that it will have a technological means pay scales for broker-dealers and SBS Entities proposed Rule 15Fb1–1, Commission to receive these forms functional would likely be similar. According to the SIFMA staff does not believe the costs publication titled Management & Professional relatively quickly; however each SBS Earnings in the Securities Industry 2009, as modified by Commission staff to account for a 160 × $25,000 22 SBS Entities = $550,000. 163 Commission staff conservatively estimates, 1,800-hour work-year and multiplied by 5.35 to 161 Commission staff conservatively estimates, based on staff experience, that the average time account for bonuses, firm size, employee benefits based on staff experience, that the average time necessary for an SBS Entity to assure that it is and overhead, the hourly cost of a Compliance × necessary for an SBS Entity to complete and file complying with the requirement to retain these Manager is approximately $295/hour. 4 hours Schedule F would be approximately one hour. The pages would be approximately ten minutes. The $295 = $1,180. staff believes that an SBS Entity would have a staff believes that an SBS Entity would have a 166 Commission staff estimates that filing Form Compliance Manager complete and file Schedule F Compliance Manager to assure that it is complying SBSE–A would take approximately two hours. The with its Form SBSE, Form SBSE–A, or form SBSE– with the requirement to retain these pages, and that staff believes that an SBS Entity would have a BD, as appropriate, and that the pay scales for the pay scales for broker-dealers and SBS Entities Compliance Manager file the form’s application on broker-dealers and SBS Entities would likely be would likely be similar. According to the SIFMA Form SBSE–A, and that the pay scales for broker- similar. According to the SIFMA publication titled publication titled Management & Professional dealers and SBS Entities would likely be similar. Management & Professional Earnings in the Earnings in the Securities Industry 2009, as 2 hours × $295 = $590. Securities Industry 2009, as modified by modified by Commission staff to account for an 167 Commission staff estimates that filing Form Commission staff to account for an 1,800-hour 1,800-hour work-year and multiplied by 5.35 to SBSE–BD would take approximately one hour. The work-year and multiplied by 5.35 to account for account for bonuses, firm size, employee benefits staff believes that an SBS Entity would have a bonuses, firm size, employee benefits and overhead, and overhead, the hourly cost of a Compliance Compliance Manager complete and file the form’s the hourly cost of a Compliance Manager is Manager is approximately $295/hour. 10 minutes × application on Form SBSE–BD. 1 hour × $295 = approximately $295/hour. 1 hour × $295 = $295. $295 = $49.17. $295. 162 $295 per nonresident SBS Entity × 22 164 $49.17 per SBS Entity × 55 SBS Entities = 168 ($590 × 35) + ($295 × 16) + ($1,180 × 4) = nonresident SBS Entities = $6,490. $2,704.17. $30,090.

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of persons that act as SBS Dealers and Q–188. What may be the effect of the Section 605(b) of the RFA states that major security-based swap participants. proposal on efficiency, competition, and this requirement shall not apply to any The Commission specifically requests capital formation? proposed rule or proposed rule comment on the following: VI. Consideration of Impact on the amendment, which if adopted, would Q–178. Are the estimates of the Economy not have a significant economic impact number of registrants that would be on a substantial number of small required to submit each form and the For purposes of the Small Business entities.174 estimates of the costs associated with Regulatory Enforcement Fairness Act of 169 For purposes of Commission completing the forms and amendments 1996 (‘‘SBREFA’’) the Commission are reasonable? If not, why not? must advise the Office of Management rulemaking in connection with the RFA, Q–179. Should the Commission and Budget as to whether the proposed a small entity includes: (i) When used require different and/or additional regulation constitutes a ‘‘major’’ rule. with reference to an ‘‘issuer’’ or a information to be provided on the Under SBREFA, a rule is considered ‘‘person,’’ other than an investment proposed forms? ‘‘major’’ where, if adopted, it results or company, an ‘‘issuer’’ or ‘‘person’’ that, Q–180. Would additional benefits is likely to result in: on the last day of its most recent fiscal accrue if the Commission required • An annual effect on the economy of year, had total assets of $5 million or different or additional information and, $100 million or more (either in the form less; 175 or (ii) a broker-dealer with total if so, what would these requirements of an increase or a decrease); capital (net worth plus subordinated • entail? A major increase in costs or prices liabilities) of less than $500,000 on the Q–181. What other processes might an for consumers or individual industries; date in the prior fiscal year as of which SBS Entity use to provide a basis for a or its audited financial statements were • senior officer’s reasonable Significant adverse effect on prepared pursuant to Rule 17a–5(d) determination that the SBS Entity has competition, investment or innovation. under the Exchange Act,176 or, if not the requisite capabilities that we may If a rule is ‘‘major,’’ its effectiveness will required to file such statements, a not have considered, and what would be generally be delayed for 60 days broker-dealer with total capital (net the advantages, disadvantages, costs and pending Congressional review. worth plus subordinated liabilities) of benefits of those other processes? Q–189. What may be the potential less than $500,000 on the last day of the Q–182. Are there additional costs or impact of these proposed registration preceding fiscal year (or in the time that benefits related to registration rules and forms for SBS Entities? Please it has been in business, if shorter); and information that the Commission should include empirical data on (a) The is not affiliated with any person (other potential annual effect of the proposed consider? than a natural person) that is not a small registration rules and forms on the The Commission solicits comments business or small organization.177 Under on the costs and benefits related to the economy; (b) any increase in costs or prices for consumers or individual the standards adopted by the Small limited recordkeeping requirements of Business Administration, small entities these proposed registration rules. The industries associated with the proposed in the finance and insurance industry Commission specifically requests registration rules and forms; and (c) any include the following: (i) for entities in comment on the following: potential effect the proposed registration rules and forms may have on credit intermediation and related Q–183. Should the Commission 178 require different and/or additional competition, investment or innovation. activities, entities with $175 million or less in assets or, (ii) for non- information to be maintained by SBS VII. Regulatory Flexibility Act Entities? depository credit intermediation and Certification 179 Q–184. Would additional benefits certain other activities, $7 million or accrue if the Commission imposed The Regulatory Flexibility Act less in annual receipts; (iii) for entities 170 different or additional recordkeeping (‘‘RFA’’) requires Federal agencies, in in financial investments and related requirements and, if so, what would promulgating rules, to consider the activities,180 entities with $7 million or these requirements entail? impact of those rules on small entities. less in annual receipts; (iv) for 171 Q–185. Are there additional costs or Section 603(a) of the Administrative insurance carriers and entities in related 172 benefits related to recordkeeping that Procedure Act, as amended by the the Commission should consider? RFA, generally requires the Commission 174 See 5 U.S.C. 605(b). We request comment on all aspects of to undertake a regulatory flexibility 175 See 17 CFR 240.0–10(a). the costs and benefits of the proposed analysis of all proposed rules, or 176 See 17 CFR 240.17a–5(d). rules and forms, particularly any effect proposed rule amendments, to 177 See 17 CFR 240.0–10(c). 178 our proposed rules may have on determine the impact of such Including commercial banks, savings rulemaking on ‘‘small entities.’’ 173 institutions, credit unions, firms involved in other efficiency, competition, and capital depository credit intermediation, credit card formation. Commentators should issuing, sales financing, consumer lending, real 169 provide analysis and empirical data to Public Law 104–121, Tit. II, 110 Stat. 857 estate credit, and international trade financing. (1996). support their views on the costs and Subsector 522. 170 5 U.S.C. 601 et seq. 179 Including firms involved in secondary market benefits associated with the proposed 171 5 U.S.C. 603(a). financing, all other non-depository credit rule. 172 5 U.S.C. 551 et seq. intermediation, mortgage and nonmortgage loan Q–186. What would be the 173 Although Section 601(b) of the RFA defines brokers, financial transactions processing, reserve, competitive or anticompetitive effects of the term ‘‘small entity,’’ the statute permits agencies and clearinghouse activities, and other activities the proposed rules and forms on any to formulate their own definitions. The Commission related to credit intermediation. Subsector 522. has adopted definitions for the term small entity for 180 Including firms involved in investment market participants if the proposals are the purposes of Commission rulemaking in banking and securities dealing, securities brokerage, adopted as proposed? accordance with the RFA. Those definitions, as commodity contracts dealing, commodity contracts Q–187. Would proposed Rules relevant to this proposed rulemaking, are set forth brokerage, securities and commodity exchanges, in Rule 0–10, 17 CFR 240.0–10. See Statement of miscellaneous intermediation, portfolio 15Fb1–1 through 15Fb6–1 and the Management on Internal Control, Exchange Act management, providing investment advice, trust, proposed forms place a burden on Release No. 18451 (January 28, 1982), 47 FR 5215 fiduciary and custody activities, and miscellaneous competition? (February 4, 1982). financial investment activities. Subsector 523.

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activities,181 entities with $7 million or the amount of capital such entity holds 78g, 78i, 78j, 78j–1, 78k, 78k–1, 78l, 78m, less in annual receipts; and (v) for and that is not subject to capital 78n, 78n–1, 78o, 78o–4, 78o–10, 78p, 78q, funds, trusts, and other financial requirements established by an 78s, 78u–5, 78w, 78x, 78dd, 78ll, 78mm, 80a– vehicles,182 entities with $7 million or appropriate Federal banking regulator; 20, 80a–23, 80a–29, 80a–37, 80b–3, 80b–4, 183 80b–11, and 7201 et seq.; 18 U.S.C. 1350; and less in annual receipts. and (bb) maintains a substantial Pub. L. 111–203, § 939A, 124 Stat. 1376 Based on the Commission’s existing position in outstanding security-based (2010), unless otherwise noted. information about the security-based swaps in any major security-based swap * * * * * swap market, the Commission category, as such categories are 2. Add an undesignated center preliminarily believes that the market, determined by the Commission.185 heading and §§ 240.15Fb1–1 through while broad in scope, is largely Based on feedback from industry 240.15Fb6–1 to read as follows: dominated by entities such as those that participants about the security-based would be covered by the ‘‘security- swap markets, the Commission Registration of Security-Based Swap based swap dealer’’ and ‘‘major security- preliminarily believes that entities that Dealers and Major Security-Based based swap market participant’’ will qualify as SBS Dealers and major Swap Participants definitions. Subject to certain security-based swap market Sec. exceptions, Exchange Act Section participants, whether registered broker- 240.15Fb1–1 Signatures. 3(a)(71)(A) defines ‘‘security-based swap dealers or not, exceed the thresholds 240.15Fb2–1 Registration of security-based dealer’’ to mean any person who: (i) defining ‘‘small entities’’ set out above. swap dealers and major security-based Holds itself out as a dealer in security- Thus, the Commission believes it is swap participants. based swaps; (ii) makes a market in unlikely that the proposed SBS Entity 240.15Fb2–2T Temporary filing security-based swaps; (iii) regularly registration rules and forms would have requirement. enters into security-based swaps with a significant economic impact any small 240.15Fb2–3 Amendments to application counterparties as an ordinary course of entity. for registration. For the foregoing reasons, the 240.15Fb2–4 Nonresident security-based business for its own account; or (iv) swap dealers and major security-based engages in any activity causing it to be Commission certifies that the proposed swap participants. commonly known in the trade as a SBS Entity registration rules and forms 240.15Fb2–5 Registration of successor to dealer or market maker in security- would not have a significant economic registered security-based swap dealer or based swaps.184 Exchange Act Section impact on any small entity for purposes major security-based swap participant. 3(a)(67)(A) defines ‘‘major security- of the RFA. 240.15Fb2–6 Registration of fiduciaries. based swap participant’’ to be as any The Commission encourages written 240.15Fb3–1 Duration of registration. person: (i) Who is not an SBS Dealer; comments regarding this certification. 240.15Fb3–2 Withdrawal from registration. and (ii)(I) who maintains a substantial The Commission requests that 240.15Fb3–3 Cancellation and revocation of commenters describe the nature of any registration. position in security-based swaps for any 240.15Fb6–1 Reports regarding associated of the major security-based swap impact on small entities and provide persons. categories, as such categories are empirical data to illustrate the extent of * * * * * determined by the Commission, the impact. excluding both positions held for VIII. Statutory Basis and Text of § 240.15Fb1–1 Signatures. hedging or mitigating commercial risk Proposed Rules (a) Required signatures to, or within, and positions maintained by any any electronic submission (including, The Commission is proposing Rule employee benefit plan (or any contract without limitation, signatories within 15Fb1–1 through 15Fb6–1 pursuant to held by such a plan) as defined in the forms and certifications required by Sections 15F(a) through (d), 17(a), 23(a) paragraphs (3) and (32) of Section 3 of §§ 240.15Fb2–1, 240.15Fb2–4 and and 30 of the Securities Exchange Act the Employee Retirement Income 240.15Fb6–1) must be in typed form of 1934, as amended. Security Act of 1974 (29 U.S.C. 1002) for rather than manual format. Signatures in the primary purpose of hedging or List of Subjects in 17 CFR Parts 240 and an HTML, XML or XBRL document that mitigating any risk directly associated 249 are not required may, but are not with the operation of the plan; (II) Registration, Reporting and required to, be presented in a graphic or whose outstanding security-based swaps image file within the electronic filing. create substantial counterparty exposure recordkeeping requirements, Securities, Security-based swaps, Security-based When used in connection with an that could have serious adverse effects electronic filing, the term ‘‘signature’’ on the financial stability of the United swap dealers, Security-based swap participants, Forms. means an electronic entry in the form of States banking system or financial a magnetic impulse or other form of In accordance with the foregoing, the markets; or (III) that is a financial entity computer data compilation of any letters Securities and Exchange Commission is that (aa) is highly leveraged relative to or series of letters of characters proposing to amend Title 17, Chapter II comprising a name, executed, adopted 181 of the Code of Federal Regulations as Including direct life insurance carriers, direct or authorized as a signature. health and medical insurance carriers, direct follows: property and casualty insurance carriers, direct title (b) Each signatory to an electronic insurance carriers, other direct insurance (except PART 240—GENERAL RULES AND filing (including, without limitation, life, health and medical) carriers, reinsurance REGULATIONS, SECURITIES each signatory to the forms and carriers, insurance agencies and brokerages, claims certifications required by §§ 240.15Fb2– adjusting, third party administration of insurance EXCHANGE ACT OF 1934 and pension funds, and all other insurance related 1, 240.15Fb2–4 and 240.15Fb6–1) shall activities. Subsector 524. 1. The general authority citation for manually sign a signature page or other 182 Including pension funds, health and welfare Part 240 is revised to read as follows: document authenticating, funds, other insurance funds, open-end investment acknowledging or otherwise adopting funds, trusts, estates, and agency accounts, real Authority: 12 U.S.C. 5221(e)(3); 15 U.S.C. estate investment trusts and other financial 77c, 77d, 77g, 77j, 77s, 77z–2, 77z–3, 77eee, his or her signature that appears in vehicles. Subsector 525. 77ggg, 77nnn, 77sss, 77ttt, 78c, 78d, 78e, 78f, typed form within the electronic filing. 183 See 13 CFR 121.201 (Jan. 1, 2010). Such document shall be executed before 184 See supra note 6. 185 See supra note 7. or at the time the electronic filing is

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made. Upon request, the security-based accordance with paragraph (a) of this a statutory disqualification (as defined swap dealer or major security-based section before the last compliance date in 15 U.S.C. 78c(a)(39)) or if the swap participant shall furnish to the (as defined in paragraph (e) of this Commission is aware of inaccurate Commission or its staff a copy of any or section) must file the certification statements in the application. Such all documents retained pursuant to this described in paragraph (b)(1) of this proceedings shall include notice of the paragraph (b). section on or before such last grounds for denial under consideration (c) A person required to provide a compliance date. and opportunity for hearing. At the signature on an electronic submission (B) Major security-based swap conclusion of such proceedings, the (including, without limitation, each participants. Each major security-based Commission shall grant or deny such signatory to the forms and certifications swap participant that files a completed registration. required by §§ 240.15Fb2–1, 240.15Fb2– application in accordance with (2) Ongoing registration. The 4 and 240.15Fb6–1) may not have the paragraph (a) of this section after the Commission may grant or deny ongoing form or certification signed on his or her last compliance date must file the registration based on a security-based behalf pursuant to a power of attorney certification described in paragraph swap dealer’s or major security-based or other form of confirming authority. (b)(1) of this section within four months swap participant’s application (filed (d) Each manually signed signature after it files its completed application. pursuant to paragraph (a) of this section) page or other document authenticating, (ii) Ongoing registration. Each and certification (filed pursuant to acknowledging or otherwise adopting security-based swap dealer that files a paragraph (b) of this section). A his or her signature that appears in completed application in accordance conditionally registered security-based typed form within the electronic filing— with paragraph (a) of this section after swap dealer or major security-based (1) On Schedules F and G to Form the last compliance date must file the swap participant need not submit a new SBSE (§ 249.1600 of this chapter), certification described in paragraph application to apply for ongoing SBSE–A (§ 249.1600a. of this chapter), (b)(1) of this section at the time it files registration, but must amend its or SBSE–BD (§ 249.1600b of this its application. application, as required pursuant to chapter), as appropriate, shall be (c) Filing. § 240.15Fb2–3. The Commission will retained by the filer until at least three (1) Electronic filing. Every application grant ongoing registration if it finds that years after the form or certification has for registration and certification of a the requirements of Section 15F(b) of been replaced or is no longer effective; security-based swap dealer or major the Securities Exchange Act of 1934 (15 (2) On Form SBSE–C (§ 249.1600c of security-based swap participant and any U.S.C. 78o–10(b)) are satisfied; Except this chapter) shall be retained by the additional registration documents shall that, the Commission may institute filer until at least three years after the be filed electronically with the proceedings to determine whether Form was filed with the Commission. Commission or its designee. ongoing registration should be denied if (2) Effective date of filing. it does not make such finding or if the § 240.15Fb2–1 Registration of security- (i) Application. An application of a applicant is subject to a statutory based swap dealers and major security- security-based swap dealer or a major disqualification (as defined in 15 U.S.C. based swap participants. security-based swap participant 78c(a)(39)) or the Commission is aware (a) Application. An application for submitted pursuant to paragraph (a) of of inaccurate statements in the registration of a security-based swap this section shall be considered filed application or certification. Such dealer or a major security-based swap when a complete Form SBSE proceedings shall include notice of the participant that is filed pursuant to (§ 249.1600 of this chapter), Form grounds for denial under consideration Section 15F(b) of the Securities SBSE–A (§ 249.1600a of this chapter), or and opportunity for hearing. At the Exchange Act of 1934 (15 U.S.C. 78o– Form SBSE–BD (§ 249.1600b of this conclusion of such proceedings, the 10(b)) shall be filed on Form SBSE chapter), as appropriate, and all Commission shall grant or deny such (§ 249.1600 of this chapter) or Form required additional documents are registration. SBSE–A (§ 249.1600a of this chapter) or submitted electronically with the (e) Definition. For purposes of this Form SBSE–BD (§ 249.1600b of this Commission or its designee; section, the term last compliance date chapter), as appropriate, in accordance (ii) Certification. A certification of a shall mean the latest date, designated by with this section and the instructions to security-based swap dealer or a major the Commission, by which security- the forms. security-based swap participant based swap dealers and major security- (b) Certification. submitted pursuant to paragraph (b) of based swap participant must comply (1) Form of certification. A this section shall be considered filed with any of the initial rules promulgated knowledgeable senior officer shall when a complete Form SBSE–C under Section 15F of the Securities certify on Form SBSE–C (§ 249.1600c of (§ 249.1600c of this chapter) is Exchange Act of 1934 (15 U.S.C. 78o– this chapter) that, after due inquiry, he submitted electronically with the 10). or she has reasonably determined that Commission or its designee. the security-based swap dealer or major (d) Commission decision. § 240.15Fb2–2T Temporary filing security-based swap participant has the (1) Conditional registration. The requirement. operational, financial, and compliance Commission may deny or grant (a) Paper filing. If a technological capabilities to act as a security-based registration to a security-based swap means to facilitate receipt and retention swap dealer or major security-based dealer or major security-based swap of applications required to be filed in swap participant, as applicable, and has participant on a conditional basis. The accordance with § 240.15Fb2–1 is not documented the process by which he or Commission will grant conditional functional on or before [date to be she reached such determination. registration if it finds that the security- determined], each applicant for (2) Timing of filing of certification. based swap dealer’s or major security- registration as a security-based swap (i) Conditional registration. based swap participant’s application is dealer or major security-based swap (A) Prior to the last compliance date. complete; Except that, the Commission participant must, notwithstanding Each security-based swap dealer or may institute proceedings to determine § 240.15Fb2–1(c)(1), file its application major security-based swap participant whether conditional registration should on Form SBSE (§ 249.1600 of this that files a completed application in be denied if the applicant is subject to chapter), Form SBSE–A (§ 249.1600a of

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this chapter), or Form SBSE–BD Securities Exchange Act of 1934 (15 records, the agreement identified in (§ 249.1600b of this chapter), as U.S.C. 78o–10(b)) shall obtain a written paragraph (b)(1) of this section for at applicable, any additional documents, irrevocable consent and power of least three years after the agreement is and Form SBSE–C (§ 249.1600c of this attorney appointing an agent in the terminated. chapter) in paper form by sending it to United States, other than the (c) Access to books and records. the Securities and Exchange Commission or a Commission member, (1) Certification and opinion of Commission, 100 F Street, NE., official or employee, upon whom may counsel. Any nonresident security- Washington, DC 20549–1090. be served any process, pleadings, or based swap dealer and nonresident (b) Transitional resubmission other papers in any action brought major security-based swap participant requirement. Each applicant must against the nonresident security-based applying for registration pursuant to resubmit its Form SBSE (§ 249.1600 of swap dealer or nonresident major Section 15F(b) of the Securities this chapter), Form SBSE–A security-based swap participant to Exchange Act of 1934 (15 U.S.C. 78o– (§ 249.1600a of this chapter), and Form enforce the Securities Exchange Act of 10(b) shall certify on Schedule F of SBSE–BD (§ 249.1600b of this chapter), 1934 (15 U.S.C. 78a et seq.). This Form SBSE (§ 249.1600 of this chapter), as applicable, any additional consent and power of attorney must be Form SBSE–A (§ 249.1600a of this documents, and Form SBSE–C signed by the nonresident security- chapter), or Form SBSE–BD (§ 249.1600c of this chapter) to the based swap dealer or nonresident major (§ 249.1600b of this chapter), as Commission electronically within three security-based swap participant and the appropriate, and provide an opinion of months of the date such technological named agent(s) for service of process. counsel that the nonresident security- means to facilitate receipt and retention (2) Each nonresident security-based based swap dealer and nonresident of applications becomes functional. swap dealer and nonresident major major security-based swap participant security-based swap participant can, as a matter of law, provide the § 240.15Fb2–3 Amendments to application registered or applying for registration Commission with prompt access to the for registration. pursuant to section 15F(b) of the books and records of such nonresident If a security-based swap dealer or a Securities Exchange Act of 1934 (15 security-based swap dealer and major security-based swap participant U.S.C. 78o–10(b)) shall, at the time of nonresident major security-based swap finds that the information contained in filing its application on Form SBSE participant, and can, as a matter of law, its application for registration (as (§ 249.1600 of this chapter), Form submit to onsite inspection and described in § 240.15Fb2–1(a)), or in SBSE–A (§ 249.1600a of this chapter), or examination by the Commission. any amendment thereto, is or has Form SBSE–BD (§ 249.1600b of this (2) Amendments. The nonresident become inaccurate for any reason, the chapter), as appropriate, furnish to the security-based swap dealer and security-based swap dealer or a major Commission the name and address of its nonresident major security-based swap security-based swap participant shall United States agent for service of participant shall re-certify, on Schedule promptly file an amendment process on Schedule F to the F to Form SBSE (§ 249.1600 of this electronically with the Commission/its appropriate form. chapter), Form SBSE–A (§ 249.1600a of designee on Form SBSE (§ 249.1600 of (3) Any change of a nonresident this chapter), or Form SBSE–BD this chapter), Form SBSE–A security-based swap dealer’s and (§ 249.1600b of this chapter), as (§ 249.1600a of this chapter), or Form nonresident major security-based swap applicable, within 90 days after any SBSE–BD (§ 249.1600b of this chapter), participant’s agent for service of process changes in the legal or regulatory as appropriate, to correct such and any change of name or address of framework that would impact the information. a nonresident security-based swap nonresident security-based swap dealer’s and nonresident major security- dealer’s or nonresident major security- § 240.15Fb2–4 Nonresident security-based based swap participant’s existing agent based swap participant’s ability to, or swap dealers and major security-based for service of process shall be swap participants. the manner in which it provides the communicated promptly to the Commission with prompt access to its (a) Definition. For purposes of this Commission through amendment of the books and records, or impacts the section, the terms nonresident security- Schedule F of Form SBSE (§ 249.1600 of Commission’s ability to inspect and based swap dealer and nonresident this chapter), Form SBSE–A examine the nonresident security-based major security-based swap participant (§ 249.1600a of this chapter), or Form swap dealer or nonresident major shall mean: SBSE–BD (§ 249.1600b of this chapter), security-based swap participant. The re- (1) In the case of an individual, one as appropriate. certification shall be accompanied by a who resides, or has his or her principal (4) Each nonresident security-based revised opinion of counsel describing place of business, in any place not in swap dealer and nonresident major how, as a matter of law, the nonresident the United States; security-based swap participant must security-based swap dealer or (2) In the case of a corporation, one promptly appoint a successor agent for nonresident major security-based swap incorporated in or having its principal service of process if the nonresident participant will continue to meet its place of business in any place not in the security-based swap dealer and obligations to provide the Commission United States; or nonresident major security-based swap with prompt access to its books and (3) In the case of a partnership or participant discharges its identified records and to be subject to Commission other unincorporated organization or agent for service of process or if its agent inspection and examination under the association, one having its principal for service of process is unwilling or new regulatory regime. place of business outside the United unable to accept service on behalf of the States. nonresident security-based swap dealer § 240.15Fb2–5 Registration of successor (b) Power of attorney. or nonresident major security-based to registered security-based swap dealer or (1) Each nonresident security-based swap participant. a major security-based swap participant. swap dealer and nonresident major (5) Each nonresident security-based (a) In the event that a security-based security-based swap participant swap dealer and nonresident major swap dealer or major security-based registered or applying for registration security-based swap participant must swap participant succeeds to and pursuant to Section 15F(b) of the maintain, as part of its books and continues the business of a security-

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based swap dealer or major security- § 240.15Fb3–1 Duration of registration. with § 240.15Fb2–3(a) to update any based swap participant registered (a) General. A person registered as a inaccurate information. pursuant to Section 15F(b) of the security-based swap dealer or major (b) A notice of withdrawal from Securities Exchange Act of 1934 (15 security-based swap participant in registration filed by a security-based U.S.C. 78o–10(b)), the registration of the accordance with § 240.15Fb2–1 will swap dealer or major security-based continue to be so registered until the predecessor shall be deemed to remain swap participant pursuant to Section effective date of any cancellation, effective as the registration of the 15F(b) of the Securities Exchange Act of revocation or withdrawal of such successor if the successor, within 30 1934 (15 U.S.C. 78o–10(b)) shall become days after such succession, files an registration or any other event the Commission determines should trigger effective for all matters (except as application for registration in provided in this paragraph (b)) on the accordance with § 240.15Fb2–1, and the expiration. (b) Conditional registration. 60th day after the filing thereof with the predecessor files a notice of withdrawal Commission or its designee, within such from registration on Form SBSE–W Notwithstanding paragraph (a) of this longer period of time as to which such (§ 249.1601 of this chapter). section, conditional registration granted by the Commission in accordance with security-based swap dealer or major (b) Notwithstanding paragraph (a) of § 240.15Fb2–1(d)(1) shall expire: security-based swap participant this section, if a security-based swap (1) During the transitional period—on consents or which the Commission by dealer or major security-based swap the last compliance date (as that term is order may determine as necessary or participant succeeds to and continues defined in § 240.15Fb2–1(e)) for appropriate in the public interest or for the business of a registered predecessor security-based swap dealers and major the protection of investors, or within security-based swap dealer or major security-based swap participants that such shorter period of time as the security-based swap participant, and the filed a completed application before the Commission may determine. If a notice succession is based solely on a change last compliance date, unless the of withdrawal from registration is filed in the predecessor’s date or state of security-based swap dealer or major with the Commission at any time incorporation, form of organization, or security-based swap participant files subsequent to the date of the issuance composition of a partnership, the with the Commission a certification in of a Commission order instituting successor may, within 30 days after the accordance with § 240.15Fb2–1(b)(1)(i), proceedings to censure, place succession, amend the registration of in which case conditional registration limitations on the activities, functions the predecessor security-based swap shall extend an additional thirty days; or operations of, or suspend or revoke dealer or major security-based swap (2) Major security-based swap the registration of, such security-based participant on Form SBSE (§ 249.1600 of participants—four months after the swap dealer or major security-based this chapter), Form SBSE–A major security-based swap participant swap participant, or if prior to the (§ 249.1600a of this chapter), or Form files its completed application, unless effective date of the notice of SBSE–BD (§ 249.1600b of this chapter), the major security-based swap withdrawal pursuant to this paragraph as appropriate, to reflect these changes. participant files with the Commission a (b), the Commission institutes such a This amendment shall be deemed an certification in accordance with proceeding or a proceeding to impose application for registration filed by the § 240.15Fb2–1(b)(1)(ii); in which case terms or conditions upon such predecessor and adopted by the the conditional registration shall extend withdrawal, the notice of withdrawal successor. an additional thirty days. (c) Extensions. The Commission may shall not become effective pursuant to § 240.15Fb2–6 Registration of fiduciaries. extend conditional registration for good this paragraph (b) except at such time cause. and upon such terms and conditions as The registration of a security-based the Commission deems necessary or swap dealer or a major security-based § 240.15Fb3–2 Withdrawal from appropriate in the public interest or for swap participant shall be deemed to be registration. the protection of investors. the registration of any executor, (a) Notice of withdrawal from administrator, guardian, conservator, registration as a security-based swap § 240.15Fb3–3 Cancellation and revocation assignee for the benefit of creditors, dealer or major security-based swap of registration. receiver, trustee in insolvency or participant pursuant to Section 15F(b) (a) Cancellation. If the Commission bankruptcy, or other fiduciary, of the Securities Exchange Act of 1934 finds that any person registered appointed or qualified by order, (15 U.S.C. 78o–10(b)) shall be filed on pursuant to § 240.15Fb2–1 is no longer judgment, or decree of a court of Form SBSE–W (§ 249.1601 of this in existence or has ceased to do competent jurisdiction to continue the chapter) in accordance with the business as a security-based swap dealer business of such registered security- instructions contained therein. Every based swap dealer or a major security- or major security-based swap notice of withdrawal from registration participant, the Commission shall by based swap participant; Provided, that as a security-based swap dealer or major order cancel the registration of such such fiduciary files with the security-based swap participant shall be person. Commission, within 30 days after filed electronically with the entering upon the performance of his or Commission or its designee in (b) Revocation. The Commission, by her duties, an amended Form SBSE accordance with applicable filing order, shall censure, place limitations (§ 249.1600 of this chapter), Form requirements. Prior to filing a notice of on the activities, functions, or SBSE–A (§ 249.1600a of this chapter), or withdrawal from registration on Form operations of, or revoke the registration Form SBSE–BD (§ 249.1600b of this SBSE–W, a security-based swap dealer of any security-based swap dealer or chapter), as appropriate, indicating the or major security-based swap major security-based swap participant fiduciary’s position with respect to participant shall amend its Form SBSE that has registered with the Commission management of the firm and, as an (§ 249.1600 of this chapter), Form if it makes a finding as specified in additional document, a copy of the SBSE–A (§ 249.1600a of this chapter) or Section 15F(l)(2) of the Securities order, judgment, decree, or other Form SBSE–BD (§ 249.1600b of this Exchange Act of 1934 (15 U.S.C. 78o– document appointing the fiduciary. chapter), as appropriate, in accordance 10(l)(2)).

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§ 240.15Fb6–1 Reports regarding either aided or abetted or was a cause participant or to amend such an associated persons. of any disciplinary action or had application for registration. (a) Certification. No registered violated any law; 249.1600a Form SBSE–A, for application security-based swap dealer or major (5) A record of any denial, for registration as a security-based swap security-based swap participant shall suspension, expulsion or revocation of dealer or major security-based swap participant or to amend such an act as a security-based swap dealer or membership or registration of any application for registration by firms major security-based swap participant broker, dealer, security-based swap registered or registering with the unless it has certified electronically on dealer, or major security-based swap Commodity Futures Trading Schedule G of Form SBSE (§ 249.1600 of participant with which the associated Commission as a swap dealer or major this chapter), Form SBSE–A person was associated in any capacity swap participant that are not also (§ 249.1600a of this chapter), or Form when such action was taken; registered or registering with the SBSE–BD (§ 249.1600b of this chapter), (6) A record of any permanent or Commission as a broker or dealer. as appropriate, that no person temporary injunction entered against 249.1600b Form SBSE–BD, for application associated with such security-based for registration as a security-based swap the associated person or any broker, dealer or major security-based swap swap dealer or major security-based dealer, security-based swap dealer, or participant or to amend such an swap participant who is effecting or major security-based swap participant application for registration by firms involved in effecting security-based with which the associated person was registered or registering with the swaps on behalf of the security-based associated in any capacity at the time Commission as a broker or dealer. swap dealer or major security-based such injunction was entered; 249.1600c Form SBSE–C, for certification swap participant is subject to statutory (7) A record of any arrest or by security-based swap dealers and disqualification, as defined in Section indictment for any felony, or any major security-based swap participants. 3(a)(39) of the Securities Exchange Act misdemeanor pertaining to securities 249.1601 Form SBSE–W, for withdrawal of 1934 (15 U.S.C. 78c(a)(39)). (including security-based swaps), from registration as a security-based swap dealer or major security-based (b) To support the certification futures or commodities (including required by paragraph (a) of this section, swap participant or to amend such an swaps), banking, insurance or real estate application for registration. each registered security-based swap (including, but not limited to, acting or dealer and registered major security- being associated with a broker-dealer, § 249.1600 Form SBSE, for application for based swap participant shall obtain a investment company, investment registration as a security-based swap questionnaire or application for adviser, futures sponsor, bank, or dealer or major security-based swap employment executed by each of its savings and loan association), fraud, participant or to amend such an application for registration. associated persons who effects or is false statements or omissions, wrongful involved in effecting security based taking of property or bribery, forgery, This form shall be used for swaps on behalf of the security-based counterfeiting or extortion, and the application for registration as a security- swap dealer or major security-based disposition of the foregoing; and based swap dealer or major security- swap participant which questionnaire or (8) A record of any other name or based swap participant by firms that are application shall serve as a basis for a names by which the associated person not registered with the Commission as background check of the associated has been known or which the associated a broker or dealer and that are not person and be reviewed and signed by person has used. registered or registering with the the security-based swap dealer’s or (c) Each registered security-based Commodity Futures Trading major security-based swap participant’s swap dealer and registered major Commission as a swap dealer or major Chief Compliance Officer (designated as security-based swap participant shall swap participant, pursuant to Section required by Section 15F(k) of the maintain all questionnaires and 15F(b) of the Securities Exchange Act of Securities Exchange Act of 1934 (15 applications for employment obtained 1934 (15 U.S.C. 78o–10(b)) and to U.S.C. 78o–10(k)) or his or her designee pursuant to paragraph (b) of this section amend such an application for and shall contain at least the following as part of its books and records for at registration. information with respect to the least three years after the associated § 249.1600a Form SBSE–A, for application associated person: person has terminated his or her for registration as a security-based swap (1) The associated person’s name, association with the registered security- dealer or major security-based swap address, social security number, and the based swap dealer or registered major participant or to amend such an application starting date of the associated person’s security-based swap participant. for registration by firms registered or employment or other association with registering with the Commodity Futures the security-based swap dealer and PART 249—FORMS, SECURITIES Trading Commission as a swap dealer or major security-based swap participant; EXCHANGE ACT OF 1934 major swap participant that are not also (2) The associated person’s date of registered or registering with the 3. The authority citation for Part 249 birth; Commission as a broker or dealer. (3) A complete, consecutive statement continues to read, in part, as follows: This form shall be used instead of of all the associated person’s business Authority: 15 U.S.C. 78a et seq. and 7201 Form SBSE (§ 249.1600) to apply for connections for at least the preceding et seq.; and 18 U.S.C. 1350, unless otherwise registration as a security-based swap ten years, including whether the noted. dealer or major security-based swap employment was part-time or full-time; * * * * * participant by firms that are not (4) A record of any denial of 4. Add subpart Q to read as follows: registered or registering with the membership or registration, and of any Commission as a broker or dealer but disciplinary action taken, or sanction Subpart Q—Registration of Security- that are registered or registering with the imposed, upon the associated person by Based Swap Dealers and Major Commodity Futures Trading any federal or state agency, by any Security-Based Swap Participants Commission as a swap dealer or major national securities exchange or national Sec. swap participant, pursuant to Section securities association, or by any foreign 249.1600 Form SBSE, for application for 15F(b) of the Securities Exchange Act of financial regulatory authority including registration as a security-based swap 1934 (15 U.S.C. 78o–10(b)) and to any finding that the associated person dealer or major security-based swap amend such an application for

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registration. An entity that is registered by firms registered or registering with § 249.1601 Form SBSE–W, for withdrawal or registering with the Commission as a the Commission as a broker or dealer, from registration as a security-based swap broker or dealer and is also registered or pursuant to Section 15F(b) of the dealer or major security-based swap registering with the Commodity Futures Securities Exchange Act of 1934 (15 participant or to amend such an application Trading Commission as a swap dealer or U.S.C. 78o–10(b)) and to amend such an for registration. major swap participant shall apply for application for registration. An entity This form shall be used to withdraw registration as a security-based swap that is registered or registering with the from registration as a security-based dealer or major security-based swap Commission as a broker or dealer and is swap dealer or major security-based participant on Form SBSE–BD also registered or registering with the swap participant, pursuant to Section (§ 249.1600b) and not on this Form Commodity Futures Trading 15F(b) of the Securities Exchange Act of Commission as a swap dealer or major SBSE–A. 1934 (15 U.S.C. 78o–10(b)). swap participant, the entity shall apply § 249.1600b Form SBSE–BD, for for registration as a security-based swap By the Commission. application for registration as a security- dealer or major security-based swap Dated: October 12, 2011. based swap dealer or major security-based swap participant or to amend such an participant on this Form SBSE–BD and Elizabeth M. Murphy, not on Form SBSE–A. application for registration by firms Secretary. registered or registering with the § 249.1600c Form SBSE–C, for Note: The following Forms will not appear Commission as a broker or dealer. certification by security-based swap dealers This form shall be used instead of and major security-based swap in the Code of Federal Regulations. either Form SBSE (§ 249.1600) or SBSE– participants. BILLING CODE 8011–01–P A (§ 249.1600a) to apply for registration This form shall be used to file the as a security-based swap dealer or major certification required pursuant to security-based swap participant solely § 240.15Fb2–1(b) of this chapter.

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[FR Doc. 2011–26889 Filed 10–21–11; 8:45 am] BILLING CODE 8011–01–C

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Part III

Department of Health and Human Services

Centers for Medicare & Medicaid Service 42 CFR Chapter IV Medicare and Medicaid Programs; Changes to the Ambulatory Surgical Centers Patient Rights Conditions for Coverage; Reform of Hospital and Critical Access Hospital Conditions of Participation; Regulatory Provisions To Promote Program Efficiency, Transparency, and Burden Reduction; Final Rule and Proposed Rules

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DEPARTMENT OF HEALTH AND Health and Human Services (HHS) (the rights,’’ we proposed to include an HUMAN SERVICES Secretary) in regulation if it has an exception that would allow an ASC, in agreement in effect with the Secretary to the case of an emergency procedure, Centers for Medicare & Medicaid accept payment by Medicare as payment when it was not feasible to inform the Service in full for Medicare-covered services. patient or the patient’s representative of Substantive requirements are set forth the patient’s rights in advance of the 42 CFR Part 416 in 42 CFR part 416 subparts B and C of date of the procedure, to provide this our regulations. The regulations at 42 [CMS–3217–F] information to the patient or the CFR part 416 subpart B describe the patient’s representative on the day of RlN 0938–AP93 general conditions and requirements for treatment, immediately before the ASCs. The regulations at 42 CFR part procedure, but only if (1) the signed Medicare Program; Changes to the 416 subpart C describe the specific CfCs physician referral was in writing, was Ambulatory Surgical Centers Patient for ASCs, which include the health and dated the day the patient presents at the Rights Conditions for Coverage safety provisions. ASC, and was placed in the patient’s AGENCY: Centers for Medicare & II. Provisions of the Proposed medical record prior to the procedure; Medicaid Services (CMS), HHS. Regulation and (2) a physician in the ASC or the referring physician communicated in ACTION: Final rule. On April 23, 2010, we published a writing and the ASC documented in the SUMMARY: This final rule revises the proposed rule (75 FR 21207) in the medical record that the procedure had ambulatory surgical centers (ASCs) Federal Register entitled, ‘‘Medicare to be performed as soon as possible to conditions for coverage (CfC) to allow Programs; Ambulatory Surgical Centers, safeguard the health of the patient. patient rights information to be Conditions for Coverage,’’ (hereinafter In addition to proposing to add provided to the patient, the patient’s referred to as ‘‘ASC patient rights § 416.50(h) to provide for an exception proposed rule’’) in which we proposed representative, or the patient’s surrogate for same day procedures, we proposed to revise one of the existing CfCs that prior to the start of the surgical other minor revisions to § 416.50. ASCs must meet in order to participate procedure. In addition, we made minor Because both § 416.50(a)(1) and (a)(2) in the Medicare program. The ASC changes to the CfC for patient rights include the requirement that disclosure patient rights proposed rule was based requirements, as specified in the of information be made in advance of on feedback received after the proposed rule. This final rule reflects the date of the procedure, we proposed publication of the November 18, 2008 the Centers for Medicare and Medicaid to eliminate this specific requirement Hospital Outpatient PPS Update for CY Services’ (CMS’) commitment to the from these sections and to include it 2009 final rule (73 FR 68502), which general principles of the President’s instead in the stem statement, which contained a CfC requiring an ASC to Executive Order 13563 released January would apply to all of the requirements provide notice of patient rights in in § 416.50. 18, 2011, entitled ‘‘Improving advance of the date of a procedure. We Regulation and Regulatory Review.’’ Further, we proposed to reorganize were subsequently informed that the § 416.50(a), (b), and (c) by creating DATES: Effective Date: These regulations CfC notice of patient rights requirement separate standards for provisions that are effective December 23, 2011. in the November 18, 2008 rule are currently required in these FOR FURTHER INFORMATION CONTACT: presented problems for ASCs that paragraphs. Specifically, we proposed to Jacqueline Morgan, (410) 786–4282. provided same-day procedures on an retitle and reorganize the requirement of Maria Hammel, (410) 786–1775. emergency basis. In order to address § 416.50, ‘‘Conditions for coverage— Jeannie Miller, (410) 786–3164. those problems, we proposed in the Patient rights.’’ ASC patient rights proposed rule, to I. Background establish an exception to that CfC that III. Analysis of and Responses to Public This final rule reflects the Centers for would permit notice of patient rights to Comments Medicare and Medicaid Services’ be provided on the date of the We received 10 comments on the ASC (CMS’) commitment to the general procedure, if an ASC provided services patient rights proposed rule that principles of the President’s Executive to a patient on the same day he or she addressed various issues regarding Order 13563 released January 18, 2011, received a physician referral for the ASC patient rights in ASCs. Approximately 7 entitled ‘‘Improving Regulation and service(s), and if a delay in providing comments were from ASCs and 3 Regulatory Review.’’ As the single the service(s) would adversely affect the comments were received from groups largest payer for health care services in patient’s health. Since publishing the representing ASCs. A summary of the the United States, CMS has a critical ASC patient rights proposed rule on major issues and our responses follow: role in promoting high quality care for April 23, 2010, we have learned that a Comment: Several commenters Medicare beneficiaries. CMS is number of ASCs routinely perform applauded CMS’ recognition of the need responsible for ensuring that the surgeries on the same day they receive to address the importance of conditions for coverage (CfCs) for physician referrals from their patients. communicating patients’ rights Ambulatory Surgical Centers (ASCs) are ASCs that routinely serve same-day information when an ASC is providing adequate to protect and promote the patients would like to continue doing services to a patient on the same day the health and safety of the individuals so, whether the service is being patient is referred to the ASC. treated in ASCs. Any regulatory changes performed on an emergency or non- Response: We appreciate the that we contemplate consider patient emergency basis. Because we believe recognition of our intent to ensure that health and safety along with the scheduling decisions should be between important quality of care issues are administrative burden placed on the patient and the ASC, rather than addressed in our regulations. Medicare-participating facilities. dictated by CMS, we are finalizing a Comment: Several commenters stated Section 1832(a)(2)(F)(i) of the Social different policy than we proposed. the exception is too intrusive in Security Act (the Act) specifies that an In our ASC patient rights proposed requiring that surgeries performed on ASC must meet health, safety, and other rule at § 416.50(h) ‘‘Standard: Exception the same day as the physician’s referral standards specified by the Secretary of to the timing of the notice of patient must be for emergency procedures only.

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These commenters also stated that the exception for same day surgeries will referral is made when medical necessity restriction could create patient unreasonably disadvantage ASCs in the is documented. scheduling inconveniences and patient services they can provide to patients Response: We regard the interpretive travel issues. They believe the CfC compared to the services that can be guidelines as a tool to assist ASCs in should be expanded so that urgent provided at hospital outpatient determining when ‘‘same day’’ surgeries (nonemergency) procedures can be departments. The commenters also are appropriate. The policy currently set performed on the same day as the believe that these restrictions could out in our regulation is still binding physician referral of the patient. have the consequence of increasing until the effective date of this rule. Response: We agree with these health care costs to the Medicare Comment: Several commenters stated commenters. The restrictive patient program and limiting the choices of that the ASC may be hesitant to rights exception could create patient those patients who prefer to receive care document in the medical record that a scheduling inconveniences and patient in the ASC. procedure was an emergency which travel issues. After considering the Response: We agree that placing needed to be performed as soon as public comments and the potential limitations on the types of surgeries an possible to safeguard the health of the negative impact of the proposed ASC can perform on the same day patient, because a plaintiff’s attorney exception on ASC patients, their patients present at the ASC with could use the documentation in the families and ASC operations, we have physician referrals is unduly restrictive medical record against the ASCs or revised the patient rights CfC. In this and that ASCs could be unreasonably physician in an attempt to demonstrate final rule, we have eliminated proposed disadvantaged compared to hospital negligence. § 416.50(h) and, at 416.50(a), we have outpatient departments. We agree with Response: Standard medical practice amended the patient rights CfC to these commenters that these restrictions requires the ASC surgeon to specify that patient rights information could limit patient access to non- systematically document the patient’s can be provided to the patient prior to emergent procedures at ASCs and limit medical record with information the start of the surgical procedure. With patient choices, create patient concerning the illness, injury or this new requirement, ASCs will have scheduling inconveniences, and create condition that brought the patient to the ample time to give the patient and/or patient travel issues. Therefore, in this ASC, as well as the care and services the patient’s representative patient final rule, we are revising the ASC received by the patient while at the rights information. This revision will patient rights proposed rule at ASC. Since medical records are legal provide the patient, the patient’s § 416.50(a) to allow ASCs to continue documents and are subject to State and provider of transportation, and the ASC providing services based on the criteria Federal laws, the documentation thereof with the flexibility of having the determined by applicable ASC patient must be complete, comprehensive, and surgical procedure completed on the scheduling standards and policies that accurate to ensure adequate patient care. same day the notice of patient rights is were in effect prior to implementing the ASCs continue to be responsible for provided, when appropriate. This policy patient rights final rule published on determining if a surgical procedure can promotes ASC health and safety November 18, 2008. We are confident be performed safely at the ASC. standards by allowing the use of optimal that our latest revisions will ensure that Additionally, we do not have any scheduling practices that address the ASCs are in a position to continue control over how a medical record may routine, urgent and emergent needs of serving the needs and promoting the be used in a legal proceeding. ASCs and their patients without health and safety of their patients. Comment: Several commenters stated compromising patient safety. Comment: Several commenters stated that patient notice requirements should Comment: Some commenters stated be applied equally in all provider that there were several urgent that the requirement to have the patient obtain a written referral is an unrealistic settings. procedures for which patients (many of Response: We agree with these expectation to meet when a patient is whom may not have a primary-care commenters. We reviewed the presenting to the ASC for an immediate physician) self-refer to ASCs. In such conditions set out for other providers procedure. instances, under the proposed rule, and suppliers when finalizing this rule. these patients would be unable to have Response: We do not believe that the The patient rights requirement for ASCs the procedure completed on the same requirement of obtaining a referral is now comparable to other CMS day they present at the ASC. would be a burden for most patients providers and suppliers, as appropriate. Response: We agree with these who generally seek an opinion and commenters. There are times when obtain a referral from their primary IV. Provisions of the Final Regulation patients visit ASCs for urgent matters physician. However, we are eliminating In this final rule, we are adopting the even though these patients do not have the proposed requirement at § 416.50(h), provisions as set forth in the April 23, primary care physicians to provide them which includes the provision that a 2010 proposed rule with the following with referrals. Patients such as these are patient must obtain a written referral. revisions: seen in some ASCs across the country Instead, ASCs should continue to use • We revised § 416.50(a)(1) to delete to obtain the necessary urgent care, their current referral policies for such the reference to the timing of the notice sometimes on the same day they contact procedures. We have taken this of patient rights exception. We are the ASC. We agree that the ASC patient approach because we believe ASCs are making a conforming change to rights proposed rule could negatively in the best position to know whether it § 416.50(a)(2)(i) (redesignated as impact the patient’s receipt of care in is appropriate to require patients to § 416.50(c)(1) in this final rule). those situations. The revisions we have bring referrals for procedures performed • We revised § 416.50(a)(1) to change made in this final rule, reflected in on the same day the patient comes to the timing of the notice of patient rights § 416.50(a), will allow for the the ASC for treatment. from ‘‘in advance of the date of the completion of such urgent procedures Comment: One commenter stated that procedure’’ to ‘‘prior to the start of the within the timeframes that best meet the the guidelines for surveyors in the State surgical procedure.’’ schedules of the patient and the ASC. Operations Manual have recognized the • We revised § 416.50(d)(6) to specify Comment: Some commenters believe appropriateness of surgical procedures that the ASC must provide ‘‘the patient, that implementing the proposed limited performed on the same day that a the patient’s representative, or the

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patient’s surrogate’’ with written notice competency are not health and safety that approximately one in five (which of a grievance decision. The proposed laws. Therefore, in this final rule, we would ordinarily require two medical rule only included the ‘‘patient.’’ have deleted the words ‘‘health and visits, one on each of two separate days) Although this change was not proposed safety’’. The deletion of these words in would be reduced to one visit by in the proposed rule, we are making it no way impact the intent or the allowing ASCs to perform surgical because it is a minor technical protection of patient’s rights in the ASC. procedures on the same day a patient is correction to bring this provision into Because of the nontechnical nature of referred to the ASC. As a result, about accordance with the other notice both of these corrections, and in 1,400,000 visits can be avoided. We provisions for ASCs as well as other accordance with the Administrative estimate that the average visit to an ASC providers. Procedure Act, we find it unnecessary to requires two and one half hours of • We revised § 416.50(e)(2) to delete provide notice and comment to correct patient time (30 minutes to get to the the words ‘‘health and safety’’ because these omissions. Therefore, we are ASC, a 30 minute wait to be seen, 60 competency is not a ‘‘health and safety’’ waiving notice of proposed rulemaking minutes for the visit, and 30 minutes to law. This is a technical correction and and an opportunity to comment on the return home). We value patient time at makes no change in established policy. nontechnical corrections in this rule. $10 an hour. We therefore project a • We removed the exceptional savings in patient time of about 35 requirement at § 416.50(h) which VI. Collection of Information Requirements million dollars a year from 1,400,000 allowed an ASC in the case of an trips avoided because of ASCs emergency to provide patients rights The information collection and performing procedures on the same day information in advance of the date of recordkeeping requirements for the ASC patients are referred to the ASC. We also the procedure. Patient Rights CfC were previously project that the average provider cost for accounted for in the November 18, 2008 V. Waiver of Notice Proposed the visit eliminated is about $20, which final rule entitled ‘‘Changes to the Rulemaking includes 15 minutes of doctor’s time, 15 Ambulatory Surgical Center Conditions minutes of a nurse’s time and 15 We ordinarily publish a notice of for Coverage.’’ This ASC Patient Rights minutes of clerical processing time, to proposed rulemaking in the Federal final rule does not impose information Register and invite public comment on provide the patient with an assortment collection and recordkeeping of forms and informational materials the proposed rule. The notice of requirements. Consequently, it need not proposed rulemaking includes a (including patient rights). Taking into be reviewed by the Office of account time spent on patients’ rights at reference to the legal authority under Management and Budget under the which the rule is proposed, and the the remaining visit, we believe that the authority of the Paperwork Reduction net time saving would be about $10. We terms and substances of the proposed Act of 1995 (44 U.S.C. 35). rule or a description of the subjects and project that this will result in 17.5 issues involved. This procedure can be VII. Regulatory Impact Statement million dollars a year in provider cost waived, however, if an agency finds We have examined the impact of this savings. On average, a facility would good cause that a notice-and-comment rule as required by Executive Order realize savings of about $3,500, procedure is impracticable, 12866 on Regulatory Planning and assuming that one-fifth of 1,400 visits unnecessary, or contrary to the public Review (September 30, 1993), Executive were avoided. These savings would be interest and incorporates a statement of Order 13563 on Improving Regulation slightly offset by additional time spent the finding and its reasons in the rule and Regulatory Review (January 18, on mailing costs. We did not, however, issued. In completing this final rule, we 2011), the Regulatory Flexibility Act calculate the cost for mailing out patient determined that there were two (RFA) (September 19, 1980, Pub. L. 96– rights information because these instances in the proposed rule which 354), section 1102(b) of the Social documents would be included in the were incorrectly stated. These two Security Act, section 202 of the informational packets that ASCs statements have been corrected in this Unfunded Mandates Reform Act of 1995 typically mail to their patients. final rule, as follows: (March 22, 1995; Pub. L. 104–4), The RFA requires agencies to analyze In the proposed rule, at § 416.50(d)(6), Executive Order 13132 on Federalism options for regulatory relief of small we did not specify that the patient’s (August 4, 1999) and the Congressional businesses in cases were rules would representative (if applicable) should Review Act (5 U.S.C. 804(2)). impose a ‘‘significant economic impact also be provided with written notice of Executive Order 12866 directs on a substantial number of small its grievance decision. However, agencies to assess all costs and benefits entities.’’ For purposes of the RFA, throughout the preamble portion of the of available regulatory alternatives and, small entities include small businesses, rule, we indicated that the patient or the if regulation is necessary, to select nonprofit organizations, and small patient’s representative should receive regulatory approaches that maximize governmental jurisdictions. Most patient rights information. The omission net benefits (including potential hospitals and most other providers and from § 416.50(d)(6) was an oversight, economic, environmental, public health suppliers are small entities, either by which did not in any way reflect our and safety effects, distributive impacts, nonprofit status or by having revenues intent to include the representative in and equity). A regulatory impact of $7.0 million to $34.5 million in any all instances where patient rights analysis (RIA) must be prepared for 1 year. Individuals and States are not information was provided. Additionally, major rules with economically included in the definition of a small in the proposed rule, at § 416.50(e)(2), significant effects ($100 million or more entity. We estimate there are we proposed that if a patient was in any 1 year). This rule does not reach approximately 5,200 Medicare adjudged incompetent under applicable the economic threshold and thus is not participating ASCs with average State health and safety laws by a court considered a major rule. admissions of approximately 1,432 of proper jurisdiction, the rights of the The rule does, however, create patients per ASC (based on the number patient would be exercised by the substantial savings for both patients and of patients seen in ASCs in 2009). Many person appointed under State law to act facilities. In 2009, there were ASCs are considered to be small on the patient’s behalf. However, State approximately 7 million ASC entities, by having annual revenues of laws that address a patient’s admissions. Of this amount, we estimate less than $7 million. Based on our

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estimate that on average facilities would Authority: Secs. 1102 and 1871 of the Part 420 of this subchapter, and where save about $3,500, we do not believe Social Security Act (42 U.S.C. 1302 and applicable, provide a list of physicians that this would be an ‘‘economically 1395hh). who have financial interest or significant’’ amount. Accordingly, we ownership in the ASC facility. Subpart C—Specific Conditions for have determined that this rule does not Disclosure of information must be in Coverage require a regulatory flexibility analysis. writing. Section 1102(b) of the Social Security ■ 2. Section 416.50 is revised as follows: * * * * * Act requires us to prepare a regulatory ■ a. Redesignate paragraph (d) as (d) Standard: Submission and impact analysis if a rule may have a paragraph (g). investigation of grievances. The ASC significant impact on the operations of ■ b. Redesignate paragraph (c) as must establish a grievance procedure for a substantial number of small rural paragraph (f). documenting the existence, submission, hospitals. This analysis must conform to ■ c. Redesignate paragraph (b) as investigation, and disposition of a the provisions of section 604 of the paragraph (e). patient’s written or verbal grievance to RFA. However, this final rule only ■ d. Revise newly designated paragraph the ASC. The following criteria must be affects ambulatory surgical centers and (e). met: ■ not hospitals. As a result, we are not e. Redesignate paragraph (a)(3) as (1) All alleged violations/grievances preparing an analysis for section 1102 paragraph (d). relating, but not limited to, ■ (b) of the Act because we believe and f. Revise newly designated paragraph mistreatment, neglect, verbal, mental, the Secretary has determined that this (d). sexual, or physical abuse, must be fully ■ g. Redesignate paragraphs (a)(2) rule will not have a significant impact documented. introductory text, (a)(2)(i), (a)(2)(ii) and on the operations of a substantial (2) All allegations must be (a)(2)(iii) as paragraphs (c) introductory number of small rural hospitals. immediately reported to a person in text, (c)(1), (c)(2), and (c)(3) respectively. Section 202 of the Unfunded ■ h. Amend newly redesignated authority in the ASC. Mandates Reform Act of 1995 also paragraph (c)(1) by removing the words (3) Only substantiated allegations requires that agencies assess anticipated ‘‘in advance of the date of the must be reported to the State authority costs and benefits before issuing any procedure, with information’’ and or the local authority, or both. rule whose mandates require spending replacing it with ‘‘with written (4) The grievance process must in any 1 year by State, local or tribal information’’. specify timeframes for review of the governments, in the aggregate, or by the ■ i. Redesignate paragraph (a)(1)(ii) as grievance and the provisions of a private sector of $100 million in 1995 paragraph (b). response. dollars, updated annually for inflation. ■ j. Revise the newly designated (5) The ASC, in responding to the In 2011, that threshold level is paragraph (b). grievance, must investigate all approximately $136 million. This final ■ k. Revise paragraph (a). grievances made by a patient, the rule will not reach this spending ■ m. Revise the introductory text. patient’s representative, or the patient’s threshold. The revisions read as follows: surrogate regarding treatment or care Executive Order 13132 establishes that is (or fails to be) furnished. certain requirements that an agency § 416.50 Condition for coverage—Patient Rights. (6) The ASC must document how the must meet when it promulgates a final grievance was addressed, as well as The ASC must inform the patient or rule that imposes substantial direct provide the patient, the patient’s the patient’s representative or surrogate requirement costs on State and local representative, or the patient’s surrogate of the patient’s rights and must protect governments, preempts State law, or with written notice of its decision. The and promote the exercise of these rights, otherwise has Federalism implications. decision must contain the name of an as set forth in this section. The ASC This final rule has no Federalism ASC contact person, the steps taken to must also post the written notice of implications and does not impose any investigate the grievance, the result of patient rights in a place or places within costs on State or local governments. the grievance process and the date the the ASC likely to be noticed by patients Therefore, the requirements of grievance process was completed. waiting for treatment or by the patient’s Executive Order 13132 are not (e) Standard: Exercise of rights and applicable. representative or surrogate, if applicable. respect for property and person. (1) The In accordance with the provisions of (a) Standard: Notice of Rights. An patient has the right to the following: Executive Order 12866, this regulation ASC must, prior to the start of the (i) Be free from any act of was not reviewed by the Office of surgical procedure, provide the patient, discrimination or reprisal. Management and Budget. the patient’s representative, or the (ii) Voice grievances regarding List of Subjects in 42 CFR Part 416 patient’s surrogate with verbal and treatment or care that is (or fails to be) written notice of the patient’s rights in provided. Health facilities, Health professions, a language and manner that ensures the (iii) Be fully informed about a Medicare, Reporting and recordkeeping patient, the representative, or the treatment or procedure and the expected requirements. surrogate understand all of the patient’s outcome before it is performed. For the reasons set forth in the rights as set forth in this section. The (2) If a patient is adjudged preamble, the Centers for Medicare & ASC’s notice of rights must include the incompetent under applicable State Medicaid Services amends 42 CFR part address and telephone number of the laws by a court of proper jurisdiction, 416 as set forth below: State agency to which patients may the rights of the patient are exercised by report complaints, as well as the Web the person appointed under State law to PART 416—AMBULATORY SURGICAL site for the Office of the Medicare act on the patient’s behalf. SERVICES Beneficiary Ombudsman. (3) If a State court has not adjudged (b) Standard: Disclosure of physician a patient incompetent, any legal ■ 1. The authority citation for part 416 financial interest or ownership. The representative or surrogate designated continues to read as follows: ASC must disclose, in accordance with by the patient in accordance with State

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law may exercise the patient’s rights to Medicare—Supplementary Medical Dated: August 11, 2011. the extent allowed by State law. Insurance Program) Donald M. Berwick, * * * * * Administrator, Centers for Medicare & (Catalog of Federal Domestic Assistance Medicaid Services. Program No. 93.773, Medicare—Hospital Approved: October 7, 2011. Insurance; and Program No. 93.774, Kathleen Sebelius, Secretary, Department of Health and Human Services. [FR Doc. 2011–27171 Filed 10–18–11; 11:15 am] BILLING CODE 4120–01–P

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DEPARTMENT OF HEALTH AND 4. By hand or courier. Alternatively, site as soon as possible after they have HUMAN SERVICES you may deliver (by hand or courier) been received: http://www.regulations. your written comments ONLY to the gov. Follow the search instructions on Centers for Medicare & Medicaid following addresses prior to the close of that Web site to view public comments. Services the comment period: Comments received timely will also a. For delivery in Washington, DC— be available for public inspection as 42 CFR Parts 482 and 485 Centers for Medicare & Medicaid they are received, generally beginning [CMS–3244–P] Services, Department of Health and approximately 3 weeks after publication Human Services, Room 445–G, Hubert of a document, at the headquarters of RIN 0938–AQ89 H. Humphrey Building, 200 the Centers for Medicare & Medicaid Independence Avenue, SW., Medicare and Medicaid Programs; Services, 7500 Security Boulevard, Washington, DC 20201. Baltimore, Maryland 21244, Monday Reform of Hospital and Critical Access (Because access to the interior of the Hospital Conditions of Participation through Friday of each week from Hubert H. Humphrey Building is not 8:30 a.m. to 4 p.m. To schedule an AGENCY: Centers for Medicare & readily available to persons without appointment to view public comments, Medicaid Services (CMS), Department Federal government identification, phone 1–800–743–3951. of Health and Human Services. commenters are encouraged to leave Acronyms ACTION: Proposed rule. their comments in the CMS drop slots located in the main lobby of the AHA American Hospital Association SUMMARY: This proposed rule would building. A stamp-in clock is available AOA American Osteopathic Association revise the requirements that hospitals for persons wishing to retain a proof of APRN Advanced Practice Registered Nurse and critical access hospitals (CAHs) filing by stamping in and retaining an BBA Balanced Budget Act must meet to participate in the Medicare extra copy of the comments being filed.) CAH Critical Access Hospital and Medicaid programs. These b. For delivery in Baltimore, MD— CCN CMS Certification Number proposed changes are an integral part of Centers for Medicare & Medicaid CDC Centers for Disease Control and our efforts to reduce procedural burdens Services, Department of Health and Prevention CfC Condition for Coverage on providers. This proposed rule Human Services, 7500 Security CoP Condition of Participation reflects the Centers for Medicare and Boulevard, Baltimore, MD 21244–1850. CMS Centers for Medicare & Medicaid Medicaid Services’ (CMS’) commitment If you intend to deliver your Services to the general principles of the comments to the Baltimore address, call DNV Det Norske Veritas President’s Executive Order 13563, telephone number (410) 786–9994 in EACH Essential Access Community released January 18, 2011, entitled advance to schedule your arrival with Hospital ‘‘Improving Regulation and Regulatory one of our staff members. H&P History and Physical Examination Review.’’ Comments erroneously mailed to the HAI Healthcare-Associated Infection addresses indicated as appropriate for HFAP Healthcare Facilities Accreditation DATES: To be assured consideration, hand or courier delivery may be delayed Program comments must be received at one of HHS U.S. Department of Health and Human and received after the comment period. the addresses provided below, no later Services For information on viewing public than 5 p.m. on December 23, 2011. MRHFP Medicare Rural Hospital Flexibility comments, see the beginning of the Program ADDRESSES: In commenting, please refer SUPPLEMENTARY INFORMATION section. OBRA Omnibus Budget Reconciliation Act to file code CMS–3244–P. Because of FOR FURTHER INFORMATION CONTACT: OPO Organ Procurement Organization staff and resource limitations, we cannot CDR Scott Cooper, USPHS, (410) 786– PA Physician Assistant accept comments by facsimile (FAX) RIA Regulatory Impact Analysis transmission. 9465. RFA Regulatory Flexibility Act You may submit comments in one of Jeannie Miller, (410) 786–3164. RPCH Rural Primary Care Hospital four ways (please choose only one of the Lisa Parker, (410) 786–4665. SBA Small Business Administration SBREFA Small Business Regulatory ways listed): Mary Collins, (410) 786–3189. 1. Electronically. You may submit Enforcement Fairness Act Diane Corning, (410) 786–8486. electronic comments on this regulation UMRA Unfunded Mandates Reform Act to http://www.regulations.gov. Follow Sarah Fahrendorf, (410) 786–3112. Table of Contents the ‘‘Submit a comment’’ instructions. SUPPLEMENTARY INFORMATION: 2. By regular mail. You may mail Submitting Comments: We welcome This proposed rule is organized as follows: written comments to the following comments from the public on all issues I. Background address ONLY: set forth in this proposed rule to assist A. Introduction us in fully considering issues and B. Legal Basis and Purpose of Hospital Centers for Medicare & Medicaid CoPs Services, Department of Health and developing policies. You can assist us C. Relationship of This Rulemaking to Human Services, Attention: CMS–3244– by referencing the file code (CMS–3244– Future Reforms P, P.O. Box 8010, Baltimore, MD 21244– P) and the specific ‘‘issue identifier’’ II. Provisions of the Proposed Regulation 8010. Please allow sufficient time for that precedes the section on which you A. Revisions To Allow Flexibility and mailed comments to be received before choose to comment. Eliminate Burdensome CoPs the close of the comment period. Inspection of Public Comments: All 1. Governing Body (§ 482.12) 3. By express or overnight mail. You comments received before the close of 2. Patient’s Rights (§ 482.13) may send written comments to the the comment period are available for 3. Medical Staff (§ 482.22) following address ONLY: viewing by the public, including any 4. Nursing Services (§ 482.23) 5. Medical Record Services (§ 482.24) Centers for Medicare & Medicaid personally identifiable or confidential 6. Infection Control (§ 482.42) Services, Department of Health and business information that is included in 7. Outpatient Services (§ 482.54) Human Services, Attention: CMS–3244– a comment. We post all comments 8. Transplant Center Process P, Mail Stop C4–26–05, 7500 Security received before the close of the Requirements—Organ Recovery and Boulevard, Baltimore, MD 21244–1850. comment period on the following Web Receipt (§ 482.92)

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9. Definitions (§ 485.602) and Provision of requirements have developed over unless otherwise designated as a Services (§ 485.635) decades, reflecting new statutory necessary provider prior to January 1, B. Clarifying Changes requirements, changes in technology or 2006. 10. Pharmaceutical Services (§ 482.25) and medical practice, and the evolution of The CoPs are organized according to Infection Control (§ 482.42) the health delivery system. The goal of the types of services a hospital may 11. Personnel Qualifications (§ 485.604) offer, and include specific, process 12. Surgical Services (§ 485.639) this retrospective review is to reduce C. Other Options Considered system costs by removing obsolete or oriented requirements for each hospital III. Collection of Information Requirements burdensome requirements. service or department. The purposes of these conditions are to protect patient IV. Response to Comments B. Legal Basis and Purpose of Hospital V. Regulatory Impacts health and safety and to ensure that CoPs VI. Regulations Text quality care is furnished to all patients Sections 1861(e)(1) through (8) of the in Medicare-participating hospitals. In I. Background Social Security Act (the Act) provide accordance with Section 1864 of the A. Introduction that a hospital participating in the Act, State surveyors assess hospital Medicare program must meet certain This proposed rule reflects the compliance with the conditions as part specified requirements. Section Centers for Medicare and Medicaid of the process of determining whether a 1861(e)(9) of the Act specifies that a Services’ (CMS’) commitment to the hospital qualifies for a provider hospital also must meet such other general principles of the President’s agreement under Medicare. However, requirements as the Secretary finds under section 1865 of the Act, hospitals Executive Order 13563, released January necessary in the interest of the health can elect to be reviewed instead by 18, 2011, entitled ‘‘Improving and safety of individuals furnished private accreditation organizations Regulation and Regulatory Review.’’ In services in the institution. Under this approved by CMS as having standards this proposed rule we seek to reduce the authority, the Secretary has established and survey procedures that are at least regulatory burden placed on hospitals. regulatory requirements that a hospital equivalent to those used by CMS and We have identified a number of existing must meet to participate in Medicare at State surveyors. CMS-approved hospital hospital CoPs that we believe could be 42 CFR part 482, CoPs for Hospitals. accreditation programs include those of reformed, simplified, or eliminated in Section 1905(a) of the Act provides that The Joint Commission (TJC), the order to reduce unnecessary burden and Medicaid payments from States may be American Osteopathic Association/ costs placed on hospitals and critical applied to hospital services. Under Healthcare Facilities Accreditation access hospitals (CAHs) under existing regulations at 42 CFR 440.10(a)(3)(iii) Program (AOA/HFAP), and Det Norske regulations. Earlier this year, the and 42 CFR 440.20(a)(3)(ii), hospitals Veritas Healthcare (DNV) (See 42 CFR President reaffirmed his commitment to are required to meet the Medicare CoPs part 488, Survey and Certification Executive Order 12866, which was in order to participate in Medicaid. Procedures.). issued in 1993 and has long governed On May 26, 1993, CMS published a the process of regulatory development final rule in the Federal Register C. Relationship of This Rulemaking to and review. He also issued Executive entitled ‘‘Medicare Program; Essential Future Reforms Order 13563 directing agencies to select Access Community Hospitals (EACHs) The reforms we propose in this rule the least burdensome approaches, to and Rural Primary Care Hospitals are intended to reduce the cost and minimize cumulative costs, to simplify (RPCHs)’’ (58 FR 30630) that burden of existing CoPs. They are based and harmonize overlapping regulations, implemented sections 6003(g) and 6116 in large part on ideas that have been and to identify and consider flexible of the Omnibus Budget Reconciliation provided to us by hospitals and approaches that maintain freedom of Act (OBRA) of 1989 and section 4008(d) organizations representing hospitals, by choice for the American public. of OBRA 1990. That rule established health care professionals, and by other Executive Order 13563 also requires requirements for the EACH and RPCH stakeholders, as well as through recent agencies to engage in a process of providers that participated in the seven- research and our own evaluation of reviewing existing regulations to see if state demonstration program that was current practices. We are committed to those rules make sense and continue to designed to improve access to hospital working with, and welcome suggestions be justified. The reforms contemplated and other health services for rural for future rulemaking from, affected in this proposed rule are intended to residents. parties to identify other reforms to the meet the letter and spirit of the Sections 1820 and 1861(mm) of the CoPs that would reduce unnecessary requirement in the President’s Executive Act, as amended by section 4201 of the burden on hospitals, while allowing Order 13563, issued January 18, 2011, Balanced Budget Act (BBA) of 1997, hospitals maximum flexibility in entitled ‘‘Improving Regulation and replaced the EACH/RPCH program with meeting the Federal requirements Regulatory Review,’’ for reviewing the Medicare Rural Hospital Flexibility necessary to fulfill our quality of care existing regulations to see if those rules Program (MRHFP), under which a responsibilities. make sense and continue to be justified. qualifying facility can be designated as They also meet the objectives of section a CAH. CAHs participating in the II. Provisions of the Proposed 610 of the Regulatory Flexibility Act MRHFP must meet the conditions for Regulations (RFA), which also requires agencies to designation specified in the statute and, In accordance with the President’s review the impact of existing rules on under section 1820(c)(2)(B)(i)(I) of the Executive Order 13563, we are small businesses or other small entities Act, must meet the CoPs located at 42 reviewing regulations in an effort to for possible reforms to reduce burden CFR part 485, subpart F. Among such reduce burden, maximize patient safety, and costs. requirements, a CAH must be located in and reflect current industry standards. Under this initiative, we are a rural area (or an area treated as rural) We have identified several priority areas conducting a retrospective review of the and must be located more than a 35- in the CoPs for both hospitals (42 CFR CoPs that we apply to hospitals, in order mile (or in the case of mountainous part 482) and CAHs (42 CFR part 485) to remove or revise obsolete, terrain or in areas with only secondary to update and revise. Our identification unnecessary, or burdensome provisions. roads available, more than a 15-mile and prioritization of these areas was a Most of the existing hospital drive) from a hospital or another CAH result of outreach to hospital

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stakeholders, such as the American patient’s death: (1) Each death that CMS, which would include the use of Hospital Association (AHA) and TJC; occurs while the patient is in restraint facsimile, as well as an option for and internal discussions among various or seclusion; (2) each death that occurs electronic reporting. In the event that components at CMS. We believe that within 24 hours after the patient has electronic reporting technology these proposed revisions may eliminate been removed from restraint or develops more rapidly than the or significantly reduce those instances seclusion; and (3) each death known to requirements for this section, we have where the CoPs are duplicative, the hospital that occurs within one proposed the term ‘‘electronically’’ unnecessary, and/or burdensome. week after restraint or seclusion where rather than ‘‘email’’ to build in a small it is reasonable to assume that the measure of flexibility. A. Revisions To Allow Flexibility and restraint or seclusion contributed 3. Medical Staff (§ 482.22) Eliminate Burdensome CoPs directly or indirectly to the patient’s 1. Governing Body (§ 482.12) death. The CMS condition of participation Included under these broad reporting on ‘‘Medical Staff,’’ at § 482.22, We propose to revise the ‘‘Governing requirements are those deaths in which concerns the organization and body’’ requirements as follows: The no seclusion is used, and the only accountability of the hospital medical Governing body CoP (§ 482.12) states restraints used are soft, two-point wrist staff. CMS first adopted the term that the hospital must have an effective restraints. The patients typically ‘‘medical staff’’ in 1986 when it began governing body that is legally needing soft two-point wrist restraints using the term at § 482.22 in place of responsible for the conduct of the are individuals in critical care settings, ‘‘physicians,’’ to allow hospitals hospital as an institution. We have such as intensive care units, where such maximum flexibility in the granting of interpreted the governing body CoP as restraints are medically necessary. For privileges and the organization of their requiring that each hospital facility have example, soft two-point wrist restraints professional staff (51 FR 22010). These a separate governing body (http://www. can be used to prevent patients from changes were introduced to reflect the cms.gov/manuals/downloads/ trend of extending patient care _ _ removing medically necessary devices som107ap a hospitals.pdf). and equipment such as central lines, responsibilities to practitioners other Based on our experience with endotracheal tubes, and nasogastric than doctors of medicine or osteopathy. hospitals and the input provided by tubes. CMS is not aware of any CMS has more recently modernized its stakeholders through anecdotal research—or even any anecdotal approach to medical staff requirements evidence, we believe that hospitals in a information—suggesting a cause-and- with respect to telemedicine services multi-hospital system (defined here as effect relationship between the use of through the rule ‘‘Medicare and those having more than one CMS soft, two-point wrist restraints and Medicaid Programs: Changes Affecting Certification Number (CCN)) can be patient deaths. Hospital and Critical Access Hospital effectively governed by a single CMS is therefore proposing to modify Conditions of Participation: governing body. Thus, we propose to the reporting requirements for hospitals Telemedicine Credentialing and revise and clarify the governing body when the circumstances of a patient’s Privileging,’’ that became effective July requirement to reflect current hospital death involve only the use of soft two- 5, 2011 (76 FR 25563). organizational structure whereby multi- point wrist restraints and no use of CMS is now proposing to further hospital systems have integrated their seclusion. At § 482.13(g)(4) we propose modernize hospitals’ medical staffing governing body functions to oversee that hospitals would be required to policies. We believe these changes care in a more efficient and effective notify CMS of the deaths described at would provide hospitals the clarity and manner. Specifically, we propose to § 482.13(g)(2) (soft two-point wrist flexibility they need under federal law revise § 482.12 to state that ‘‘There must restraints and no use of seclusion) to maximize their staffing opportunities be an effective governing body that is within seven days after the date of death for all practitioners, and particularly for legally responsible for the conduct of through a log or other system. We non-physician practitioners, under their the hospital.’’ propose that the record would include, individual States’ laws. We would retain the current provision at a minimum, the patient’s name, date First, we propose to redesignate that requires the persons legally of birth, date of death, attending § 482.22(a)(2) to § 482.22(a)(5) and responsible for the conduct of the physician, primary diagnosis(es), and revise it by adding language to clarify hospital to carry out the functions medical record number. We propose that a hospital may grant privileges to specified in Part 482 of our regulations that hospitals make the log or other both physicians and non-physicians to that pertain to the governing body if the system accessible to CMS upon request practice within their State scope of hospital does not have an organized at all times. We are unable to eliminate practice, regardless of whether they are governing body. the reporting requirement for these also appointed to the hospital’s medical deaths due to statutory provisions in the staff. That is, technical membership in 2. Patient’s Rights (§ 482.13) Children’s Health Act that require such a hospital’s medical staff would not be On December 8, 2006, we published deaths to be reported. a prerequisite for a hospital’s governing a final rule in the Federal Register For deaths involving all other types of body to grant practice privileges to entitled ‘‘Medicare and Medicaid restraints and all forms of seclusion, we practitioners. Programs; Hospital Conditions of would retain the current, more Hospitals wishing to bring on Participation: Patients’ Rights’’ (71 FR extensive reporting requirements, additional practitioners without also 71378). In that final rule we revised the including notice to CMS by telephone, making them members of the medical hospital standards for the use of no later than the close of business on staff would follow the same restraint and seclusion, and set forth the next business day following requirements specified in current new standards for staff training and knowledge of the patient’s death. regulation. That is, the medical staff death reporting. In particular, section We are proposing to introduce a would examine the credentials of each 482.13(g) of the final rule requires measure of flexibility to these candidate and make recommendations hospitals to report no later than the requirements and redesignate them at to the governing body. Medical staff close of business on the next business § 482.13(g)(1), by providing additional conducting the evaluations would day following knowledge of the reporting options, as determined by operate under their own hospitals’

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policies and procedures. Moreover, the practitioners as members of their organization and accountability of the medical staff would continue to be medical staffs, if the State law in which medical staff. These requirements are limited by State law, and thus would their hospital operates permits it. set forth at § 482.22(b)(3). Presently, the not be permitted to grant a practitioner However, the numerous questions we hospital may assign these management candidate any privileges beyond those have received in this area indicate that tasks to either an individual doctor of allowed in the State where the hospital our current regulation is unclear. medicine or osteopathy or, when is located, where he or she would Therefore, we are proposing language to permitted by State law of the State in ultimately practice. revise the section by clarifying that which the hospital is located, a doctor We believe this proposed language being a member of a hospital’s medical of dental surgery or dental medicine. would provide hospitals with the clarity staff is not a prerequisite to being CMS proposes to expand the list to they need to explore new and expanded granted privileges in the hospital, include doctors of podiatric medicine approaches to care giving. Hospitals regardless of whether a practitioner is a (DPMs). We believe this change would would be able to increase the number of physician or a non-physician. permit a podiatric physician to serve as practitioners who could perform various One of our chief concerns, in the the president, or its equivalent, of a functions and duties, up to the context of proposing this change, is to hospital’s medical staff in a significant regulatory boundaries allowed under ensure that all practitioners working at number of states. CMS is aware that in their State licensing and scope of a hospital would continue to follow the such states, the laws underscore the practice laws. rules set forth for ‘‘Medical Staff’’ at widely held conclusion that the These proposed revisions are in § 482.22. Thus, we are proposing education, training, and experience of response to requests received from language within this provision that podiatric physicians are similar to that stakeholders prior to the beginning of would require those physicians and of their allopathic and osteopathic this rulemaking process. Many of these non-physicians, who have been granted colleagues with respect to serving in stakeholders expressed the opinion that practice privileges within their scope of such a hospital leadership position. some CMS requirements, particularly practice but without appointment to the With this proposed change, CMS wishes those related to medical staff, may stand medical staff, to be subject to the to ensure its hospital leadership in direct conflict with functions requirements contained within this requirements are not in conflict with permitted under State practice acts and section. That is, they would be subject State laws that would otherwise allow laws. In such cases, our requirements to the same hospital requirements, podiatric physicians to serve in this would be unnecessarily restricting the medical staff bylaws, and medical staff capacity. Moreover, CMS recognizes scope of practice of certain categories of oversight as outlined under this CoP that the act of being selected as the non-physician practitioners (for and to which appointed medical staff president of the medical staff reflects example, Advanced Practice Registered members are also subject. Alternatively, the high level of confidence in which a Nurses (APRNs), Physician Assistants a hospital could establish categories candidate is held by his or her peers. (PAs), Physical Therapists (PTs), within its medical staff to create Speech-language Pathologists (SLPs), distinctions between practitioners who 4. Nursing Services (§ 482.23) and Doctors of Pharmacy (PharmDs)). have full membership and a new We propose to revise the hospital Thus, stakeholders maintain, current category for those who could be nursing service requirements at § 482.23 regulatory impediments may be unduly classified as having an ‘‘associate,’’ (b)(4), ‘‘Nursing services,’’ which limiting access to care and/or delaying ‘‘special,’’ or ‘‘limited’’ membership. currently requires a hospital to ensure treatment for patients and causing Such a structure is neither required nor that the nursing staff develop, and keep undue burden to practitioners (for suggested; we are providing it here as an current, a nursing care plan for each example, the need to seek out example of one possible way for a patient. We propose that for those physicians to co-sign orders). Our hospital to align all of its practitioners hospitals that use an interdisciplinary proposed changes would remove these under the ‘‘Medical Staff’’ rules. plan of care in providing patient care, barriers and allow hospitals to move We believe these proposed changes the care plan for nursing services be forward in new ways to improve patient would complement and build upon developed and kept current as part of care, subject to State law. present state and federal reform the hospital’s overall interdisciplinary The second area we propose to initiatives, including those set forth in care plan. address relates to the general the Affordable Care Act (ACA), to An interdisciplinary care plan management and oversight of address the healthcare workforce optimizes the involvement of the practitioners. Prior to the beginning of shortages. We especially believe these various healthcare disciplines (such as this rulemaking process, we received proposed changes would support efforts nursing, respiratory care, occupational questions from some hospitals about the to provide better health care in therapy, and pharmacy) to identify and appropriate credentialing and medically underserved communities. document patient treatment goals and privileging process for APRNs. We These changes would provide more objectives, interventions, and progress believe the changes we are proposing at flexibility to small hospitals and to in meeting those goals and objectives. § 482.22(a)(5) would address them. For critical access hospitals (CAHs) in rural We propose to revise our requirements example, some hospitals have areas and regions with a limited supply to be less burdensome and more in line questioned whether APRNs should be of primary care and specialized with current practice by proposing that, managed by the human resources providers. They would also provide for those hospitals that use an department, as most registered nurses needed flexibility to hospitals located in interdisciplinary care plan, the nursing are, or by the medical staff, as most PAs impoverished urban centers. These services care plan could be integrated are. We believe that, to the extent changes would also provide States with into the overall hospital allowed under their States’ law, most additional regulatory flexibility to interdisciplinary care plan. This would hospitals already manage and oversee support their efforts to address the decrease the burden of the nursing staff the services of APRNs through their shortage of primary care providers. having to develop two care plans, one medical staffs. In fact, technically, our The third area in which we are to fulfill the nursing services current regulations already allow proposing changes concerns the more requirement and the other to fulfill the hospitals to appoint non-physician direct responsibilities for the particular hospital’s requirement for an

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interdisciplinary care plan, and would such orders meet the requirements of giving patients access at the bedside to improve the quality of patient care by § 482.24(c)(3), as discussed below. urgently needed medications, such as the effective and timely communication Much of the evidence on the nitroglycerine tablets and inhalers, and of information pertaining to the nursing effectiveness of hospital standing orders selected non-prescription medications, care of the patient. is in the context of their use by Rapid such as lotions and rewetting eye drops. We propose to revise the current Response Teams (RRTs) and then only These proposed changes would apply to Nursing services CoP at § 482.23(c) by when applied in a very limited and the self-administration of both hospital- adding new provisions that would allow focused manner. A search of the issued medications and the patient’s for drugs and biologicals to be prepared medical literature revealed that there own medications brought into the and administered on the orders of may be additional areas where standing hospital. practitioners other than those specified orders have some efficacy in the Hospitals that choose to develop and under § 482.12(c). We are also proposing hospital setting. (http://www. implement a program that allows for a further revision to § 482.23(c) that innovations.ahrq.gov/content.aspx? patients and caregivers/support persons would add a new provision allowing id=1750; http://www.cdc.gov/mmwr/ to administer certain medications would orders for drugs and biologicals to be PDF/rr/rr5416.pdf). be expected to address the program in These areas include: their hospital policies and procedures. documented and signed by practitioners • other than those specified under Emergency department (ED) We would expect a collaborative effort § 482.12(c). We would allow for these admission/triage in particular for certain by the hospital’s medical staff, nursing two revisions only if such practitioners conditions such as acute asthma, acute department, and pharmacy department are acting in accordance with State law, myocardial infarction, and stroke (we to develop these policies and including scope of practice laws, and would expect that standing orders procedures. A hospital would need to: only if the hospital has granted them would be authenticated by an ED assure that a practitioner had issued an privileges to do so. physician or nonphysician practitioner order, consistent with hospital policy, These proposed revisions are in when subsequent orders during the ED permitting self-administration of response to requests that CMS received visit are authenticated for the patient); medications; assess patient and • Improving immunization rates from stakeholders prior to our beginning caregiver/support person capacity to (beyond those for influenza and the rulemaking process. Many of these self-administer specific medications; pneumococcal as currently allowed provide patient and caregiver/support stakeholders expressed the opinion that under the CoPs); and person instruction regarding the safe some of the CMS requirements impede • Postoperative recovery areas. and accurate administration of the the scope of practice of certain Although the current hospital CoPs specified drugs and biologicals (for categories of practitioners (for example, already allow for nurse-initiated specific hospital-issued medications APRNs, PAs, and Doctors of Pharmacy influenza and pneumococcal and, if determined to be needed, for a (PharmDs)). They maintain that such vaccinations (under medical staff- patient’s own medications brought in regulatory impediments may limit approved hospital policy), an expanded from home); ensure the security of access to care or delay treatment for use of standing orders for other medications for each patient; identify a patients; may cause undue burden to immunizations, which have clearly patient’s own medications and visually practitioners (for example, the need to established and nationally recognized evaluate those medications for integrity; seek out physicians to co-sign orders); guidelines (for example, CDC guidelines and document the administration of and may stand in direct conflict with for Hepatitis B vaccination of at-risk each medication in the patient’s medical functions allowed under State practice newborns), may be a mechanism, under record. laws. the CoPs, for improved patient care. We believe that this provision, In proposing these changes, we are We propose to eliminate the allowing for patient self-administration aware that some States may not allow requirement, currently at § 482.23(c)(3), of medication, particularly those specific practitioners to exercise such that non-physicians must have special medications brought in from the privileges. We are also aware that some training in administering blood patient’s home, may provide hospitals States may limit the categories of transfusions and intravenous with a means to make care more patient- practitioners from which a registered medications. We believe that this centered and adaptable to patient and nurse (as part of his or her scope of training is standard practice, and thus caregiver/support person needs. practice) may receive and carry out does not need to be prescribed in these Medical Record Services (§ 482.24) orders. However, we believe that these regulations. proposed revisions would not only At § 482.23(c)(4) we propose that On November 27, 2006, CMS allow hospitals to more fully use these those who administer blood published a final rule that made practitioners in the care of patients, but transfusions and intravenous revisions to specific provisions of the that changes to what we view as medications do so in accordance with hospital CoPs at 42 CFR part 482 (71 FR unnecessary regulatory prohibitions State law and approved medical staff 68694). The current requirements, as would serve to greatly reduce the policies and procedures. We propose to finalized at § 482.24(c)(1)(i) in the 2006 regulatory burden for hospitals and retain § 482.23(c)(4) and redesignate it at rule, specify that all orders, including allow for more efficient care practices. § 482.23(c)(5), without any content verbal orders, must be dated, timed, and Within this section of the Nursing change. authenticated promptly by the ordering services CoP, we are also proposing We also propose additional revisions practitioner. Also included in the rule changes that would allow hospitals to at proposed § 482.23(c)(6) that would was an exception to this requirement at use standing orders. At § 482.23(c)(1)(ii), allow hospitals the flexibility to develop § 482.24(c)(1)(ii), which allows, for the 5 we propose to allow for the preparation and implement policies and procedures year period following January 26, 2007, and administration of drugs and for a patient and his or her caregivers/ all orders, including verbal orders, to be biologicals on the orders contained support persons to administer specific dated, timed, and authenticated by the within pre-printed and electronic medications (non-controlled drugs and ordering practitioner or another standing orders, order sets, and biologicals).This proposal would be practitioner who is responsible for the protocols for patient orders, but only if consistent with the current practice of care of the patient as specified under

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§ 482.12(c) and who is authorized to timeframe for authentication of orders, where it is not practicable for a nurse to write orders by hospital policy in including verbal orders. obtain the order and authentication accordance with State law. When the Due to the risk of error involved in the from the physician or practitioner prior rule was published in late 2006, the 5- use of verbal orders, we encourage to the provision of care. In all cases year sunset provision was included with hospitals to keep the use of such orders protocols and standing orders must be the thought that such an exception to a minimum and to establish policies medically necessary for the patients to would not be needed five years hence that discourage their use. When verbal whom they are applied, and the treating since various technologies (for example, orders must be used, hospitals should physician must be able to modify, computerized physician order entry and have their own policies in place (e.g., cancel, void or decline to authenticate authentication from a distance through ‘‘read-back and verify’’ requirements) to orders that were not medically a telecommunication medium) would ensure accuracy in the transcribing of necessary in a particular situation. have evolved and proliferated to the orders, particularly those involving Under no circumstances should a extent where in-person authentication medication dosages. hospital use standing orders in a As discussed above in the Nursing manner that requires any staff not by a practitioner would no longer be services CoP section, we are proposing common or necessary. Though authorized to write patient orders to changes to that CoP as well as to the make clinical decisions outside of their technologies have certainly advanced in Medical records services CoP that the five years since publication of the scope of practice in order to initiate would allow hospitals to use standing such orders. Hospital policies and rule, there is still not universal orders as long as certain provisions were application and use of these procedures that discuss the use of met. In this rule, we propose new standing orders should address well- advancements in hospitals or among provisions to § 482.24(c)(3) that would practitioners. defined clinical scenarios as a standard allow a hospital to use pre-printed and of practice for the use of such orders. Additionally, § 482.24(c)(1)(iii) electronic standing orders, order sets, We would expect the policies and establishes that all verbal orders must be and protocols for patient orders only if procedures to also address the process authenticated based upon Federal and the hospital: (1) Establishes that such by which a standing order is developed; State law; in the absence of a State law orders and protocols have been approved; monitored; initiated by designating a specific timeframe for the reviewed and approved by the medical authorized staff; and subsequently authentication of verbal orders, this staff in consultation with the hospital’s authenticated by physicians or provision then specifies that all verbal nursing and pharmacy leadership; (2) practitioners responsible for the care of orders must be authenticated within 48 demonstrates that such orders and the patient. Under the CoPs, all orders, hours. Many stakeholders in the protocols are consistent with nationally whether written or verbal, must be hospital community, including The recognized and evidence-based authenticated and documented in the guidelines; (3) ensures that the periodic Joint Commission and the American patient’s medical record by a and regular review of such orders and Hospital Association, have pointed out practitioner responsible for the care of protocols is conducted by the medical to us that this requirement is not only the patient. staff, in consultation with the hospital’s a particularly burdensome one for We would also expect to see specific hospitals, but also one that does not nursing and pharmacy leadership, to determine the continuing usefulness criteria for a nurse or other authorized have any appreciable benefit for patients personnel to initiate the execution of a with regard to safe care. We are and safety of the orders and protocols; and (4) ensures that such orders and particular standing order clearly proposing to consolidate three existing protocols are dated, timed, and identified in the protocol for the order, provisions into one new provision at authenticated promptly in the patient’s for example, the specific clinical § 482.24(c)(2). Specifically, we would medical record by the ordering situations, patient conditions, or remove existing paragraphs (c)(1)(i) practitioner or another practitioner diagnoses by which initiation of the through (c)(1)(iii) and add a new responsible for the care of the patient as order would be justified. Policies and § 482.24(c)(2). Existing paragraph (c)(2) specified under § 482.12(c) and procedures should also address the would be redesignated as (c)(3). This authorized to write orders by hospital instructions that the medical, nursing, new provision would retain the policy in accordance with State law. and other applicable professional staff requirement that all orders, including For additional guidance on the use of receive on the conditions and criteria verbal orders, must be dated, timed, and standing orders, stakeholders should for using standing orders as well as any authenticated promptly by the ordering review the CMS memorandum (CMS individual staff responsibilities practitioner, but would add the S&C–09–10) issued on October 24, 2008 associated with the initiation and exception currently contained at (http://www.cms.gov/Survey execution of standing orders. An order § 482.24(c)(1)(ii) by allowing for CertificationGenInfo/downloads/ that has been initiated for a specific authentication by either the ordering SCLetter09-10.pdf), where we pointed patient must be added to the patient’s practitioner or ‘‘another practitioner out our strong support of the use of medical record at the time of initiation, who is responsible for the care of the evidence-based protocols, developed by or as soon as possible thereafter. patient as specified under § 482.12(c) the medical staff and based on Likewise, standing order policies and and authorized to write orders by recognized standards of practice, that procedures must specify the process hospital policy in accordance with State advance the quality of care provided to whereby the physician or other law.’’ In this way we would remove the patients. CMS, through the CoPs, practitioner responsible for the care of sunset provision and the 48-hour requires hospitals and practitioners to the patient acknowledges and timeframe requirement for take a thoughtful and responsible authenticates the initiation of all authentication of orders and instead approach when using pre-printed and standing orders after the fact, with the defer to hospital policy and State law electronic standing orders, order sets, exception of influenza and for establishment of any timeframe. If and protocols, particularly those orders pneumococcal polysaccharide vaccines, there was no State law establishing such that may be initiated as part of an which do not require such a timeframe, then a hospital would be emergency response or as part of an authentication in accordance with allowed to establish their own evidence-based treatment regimen § 482.23(c)(2).

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The policies and procedures must 7. Outpatient Services (§ 482.54) chains of command within a hospital also establish a process for monitoring Under the CoPs, the provision of regarding its management of patient and evaluating the use of standing outpatient services is an optional services. orders, including proper adherence to hospital service. However, if a hospital Therefore, in this proposed rule, we the order’s protocol. There must also be provides outpatient services, the are proposing revisions to this CoP that a process for the identification and services must meet the needs of patients would allow hospitals greater flexibility timely completion of any requisite according to acceptable standards of in determining the management updates, corrections, modifications, or practice as required at § 482.54. The structure of outpatient services that revisions to pre-printed and electronic current provision at § 482.54(b)(1) also would be tailored to the scope and standing orders, order sets, and requires the hospital to assign an complexity of the services offered by an protocols. individual to be responsible for individual hospital. We propose to change the existing provision at We believe that these proposed outpatient services. § 482.54(b) by revising the provision at changes would do much to advance the We are aware that increasingly more § 482.54(b)(1) to allow hospitals to practice of evidence-based medicine hospital services are offered as assign one or more individuals to be and would ensure more consistent care outpatient services today than when this responsible for outpatient services. We for all patients. particular CoP was first developed. As hospitals have expanded the outpatient also propose to revise the current 6. Infection Control (§ 482.42) services offered to patients, many provision at § 482.54(b)(2), which hospitals have determined that it is in currently requires a hospital to have CMS introduced Infection Control as the best interests of patient safety and appropriate professional and a CoP in 1986 amidst growing management practices to appoint more nonprofessional personnel available at recognition that infections and than one individual to oversee the each location where outpatient services communicable diseases were potentially various services offered and also to fully are offered, by proposing to add a exposing hospital patients to significant integrate their outpatient services with measure of flexibility such that pain and risk, and driving up direct inpatient services. Additionally, these hospitals would make their personnel hospital charges (51 FR 22010, 22027). hospitals have realized that as they have decisions based on the scope and The regulation increased hospital expanded the variety of outpatient complexity of outpatient services accountability and sought to identify, services offered, a single outpatient offered. prevent, control, investigate, and report services leader may not possess the 8. Transplant Center Process infections and communicable diseases training and expertise to oversee the Requirements—Organ Recovery and of patients and hospital personnel. The myriad services that the hospital is Receipt (§ 482.92) regulation also established a capable of providing in the outpatient requirement for hospitals to keep a log setting. For example, a hospital that On March 30, 2007, CMS published a to identify problems and for offers pediatric, gynecological, and final rule entitled ‘‘Medicare Program: improvement to be made when orthopedic outpatient services may find Hospital Conditions of Participation: problems were identified. it advantageous and more efficient to Requirements for Approval and Re- Since this requirement was published, have each of these outpatient Approval of Transplant Centers To advances in infection control departments managed by a professional Perform Organ Transplants’’ (72 FR 15198). This final rule set forth hospital surveillance systems have made the with a background and expertise in the CoPs for the approval and re-approval of need for a separate infection log relevant specialty and who is also transplant centers at 42 CFR part 482, obsolete. We have also received responsible for these hospital departments in the inpatient setting. subpart E, including § 482.92, the complaints from stakeholders that the Rather than have just one individual, section involving blood type and other log requirement is too prescriptive and who may only have qualifications and vital data verification. Likewise, CMS burdensome. We therefore propose to experience in one of these areas, as the addressed the regulatory requirements eliminate the current requirement at person responsible for only the for organ procurement organizations in § 482.42(a)(2), proposing instead to outpatient services of all three the 2006 final rule entitled ‘‘Medicare allow hospitals flexibility in their specialties, hospitals would be able to and Medicaid Programs; Conditions for approach to the tracking and make more efficient use of department Coverage for Organ Procurement surveillance of infections. The modern directors who would oversee both Organizations (OPOs),’’ which surveillance systems already in use inpatient and outpatient services for a published in the May 31, 2006 Federal include infection detection, data particular specialty. In fact, the current Register (71 FR 30982). This rule set collection and analysis, monitoring, and regulations at § 482.54(a) require forth the Conditions for Coverage (CfCs) evaluation of preventive interventions. outpatient services to be, ‘‘integrated for OPOs, and it, too, included These activities are already required at with inpatient services.’’ requirements for blood type verification. § 482.42(a)(1), which we propose to Under the current requirement at The transplant center and OPO rules retain under § 482.42(a). Specifically, § 482.54(b)(1), hospitals that are using were designed to work in tandem to the infection control officer or officers multiple leaders must hire another achieve CMS’ goals of safe, effective, are required to develop a system for director to oversee these highly and efficient care for all patients. identifying, reporting, investigating, and qualified and expert directors who are However, since the time of publication, controlling infections and already exercising responsibility for CMS has become aware of the potential communicable diseases of patients and their respective areas, often for both for duplicative, overlapping efforts personnel. The requirements at inpatient and outpatient services. We related to blood type verification. This § 482.42(a), together with modern have reason to believe, and feedback proposed rule would address this surveillance practices, have made the from stakeholders has confirmed that unnecessary duplication by removing requirement for a separate infection this situation may be causing certain blood type verification control log unnecessarily redundant and unnecessary staff costs, increased requirements for transplant centers set burdensome. administrative burden, and confused forth at § 482.92(a).

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As further described below, the transplant recipients in an adverse through (b)(4), ‘‘that the CAH staff requirements set forth in the transplant manner. In fact, we believe the changes furnishes as direct services.’’ We believe center rule at § 482.92(a) and in the OPO are wholly in keeping with our the proposed revisions will provide rule at § 486.344(d)(2)(ii) and overarching aims to (1) ensure timely CAHs with additional flexibility, § 486.344(e) are redundant and care for patients who are waiting for increase the ability of CAHs to provide burdensome for providers as presently organs for transplantation; and (2) services that are required to ensure structured. Each blood type and other establish sufficient quality and access to care, decrease burden on data verification requires procedural standards to ensure that CAHs, and positively impact the costs of documentation which must be transplants are performed in a safe and health care delivery. We also propose to physically signed and retained. For efficient manner. CMS believes the eliminate the definition of ‘‘Direct cases where the recovery is conducted overall impact of this change would be Services’’ at § 485.602 since it will no by a surgeon on call for the OPO to free up time and resources for longer be applicable. recovering for his/her own program, transplant recovery teams and centers. The governing body, or the person both the OPO and transplant center This change is thus expected to benefit principally responsible for the operation rules apply. As a practical matter, this all parties involved in the practice of of the CAH under § 485.627(b)(2), would has meant one set of paperwork for each organ transplantation. continue to be responsible for all entity, and, in some cases, a third set of Definitions (§ 485.602) and Provision of services furnished by the CAH whether paperwork maintained with the Services (§ 485.635) or not they are furnished directly, under surgeon’s records. The transplant arrangements, or under agreements. The hospital must maintain a copy of its The current CoP at § 485.602 and governing body or responsible person signed verification and make it available § 485.635(b) require CAHs to furnish must ensure that all furnished services for the onsite surveyors of its organ certain types of services directly rather enable the CAH to comply with all transplant program. OPOs maintain than through contracts or under applicable conditions of participation blood matching documentation for their arrangements. Specifically, the CoP at and standards for the contracted onsite surveyors as well. In practice, for § 485.635(b) requires CAH staff to services. such cases, this means organ recovery provide, as direct services, (1) We believe that changing this teams must produce and protect two diagnostic and therapeutic services that requirement will alleviate an sets of paperwork alongside the are commonly furnished in a unnecessary burden on CAHs and recovered organs. physician’s office or at another entry provide greater access to quality health In addition, because the ultimate point into the health care system; (2) care. recipient is not always known at the laboratory services; (3) radiology time of organ recovery, as there may be services; and (4) emergency procedures. B. Clarifying Changes In our view, the current regulation several potential matches pending the 10. Pharmaceutical Services (§ 482.25) does not provide sufficient flexibility for final receipt of lab work confirming the and Infection Control (§ 482.42) compatibility of various blood antigens, the CAH to address efficiencies and the management of paperwork verifying alleviate work force shortages by We propose to make a minor technical the blood types for each intended organ affiliating with other providers and change to the requirement at recipient becomes even more entities, as well as by utilizing § 482.25(b)(6). The current requirement burdensome. temporary agencies. Healthcare facilities states that drug administration errors, In order to reduce the amount of in rural settings often face challenges adverse drug reactions, and verification paperwork, CMS proposes due to limited resources, small size, and incompatibilities must be reported to to amend the existing regulations location with regard to recruiting and the hospital’s quality assurance governing transplant centers by retaining appropriately qualified health program, if appropriate. Additionally, removing the provision at § 482.92(a) care professionals as employees. Their we propose to make a minor technical which requires the transplant team to inability to use contracted services in change to the requirement at verify blood type before organ recovery. some situations in lieu of hiring § 482.42(b)(1). The current requirement We would redesignate current employees to provide certain services, states that the chief executive officer, paragraph (b) and (c) as (a) and (b), places an increased burden on CAHs. In the medical staff, and the director of respectively. particular, it may be more efficient for nursing services must ensure that the CMS is proposing this change in an a CAH to contract with a provider in the hospital-wide quality assurance effort to reduce administrative burden quantity that the CAH requires, to program and training programs address for transplant centers and the surgeons effectively address the needs of its problems identified by the infection recovering for these centers. We believe patients. Under the current CoP, control officer or officers. Therefore, in this change will also remove any legal however, the CAH cannot pursue this both § 482.25(b)(6) and § 482.42(b)(1) we ambiguities which may arise on behalf option for the required services in these propose to replace the term ‘‘quality of ‘‘on-call’’ organ recovery surgeons specialty areas. assurance program’’ with the more and team members who fall under both We believe that what is most current term ‘‘quality assessment and the rules of the OPOs they are removing important in terms of quality and safety performance improvement program.’’ the organs for and the rules of the of care is that these required services are This change would clarify that we transplant hospitals where they are made available by the CAH, not that the expect drug errors, adverse reactions, privileged. The change also would qualified professionals providing those and incompatibilities to be addressed in produce cost savings because the services be employees of the CAH. The a hospital’s QAPI program, as required ‘‘extra’’ verifications will no longer be proposed revisions to § 485.635(b) at § 482.21. conducted. would eliminate the requirement that Because the blood type verification is CAH staff must provide certain services 11. Personnel Qualifications (§ 485.604) conducted at numerous points in time directly and changes the heading of the Many of the former EACH/RPCH CoPs and by multiple physicians and standard, ‘‘Direct services,’’ to ‘‘Patient were adopted for the new CAH program clinicians, CMS does not expect that services.’’ We also propose to revise the (see 62 FR 46008, August 29, 1997), this proposed change would impact language in paragraphs § 485.635(b)(1) including the definition for clinical

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nurse specialist. In this NPRM we are patients by the hospital.’’ We do not som107ap_a_hospitals.pdf), a hospital proposing to revise the definition of a believe that the current Medical staff may adopt a policy allowing submission clinical nurse specialist at § 485.604(a) CoP language implies that we require a of an H&P prior to the patient’s hospital to reflect the definition in the statute at single and separate medical staff for admission or registration by a § 1861(aa)(5)(B). Specifically, we each hospital within a multi-hospital practitioner who may not be a member propose to change the definition at system. Therefore, we have retained the of the hospital’s medical staff or who § 485.604(a) to state that a clinical nurse current requirement without revision. does not have admitting privileges by specialist is a registered nurse licensed However, based on the anecdotal that hospital, or by a qualified licensed to practice nursing in the State in which evidence and input provided by individual who does not practice at that the clinical nurse specialist services are stakeholders on this issue, we request hospital but is acting within his/her performed, that holds an advanced comment on whether we need to scope of practice under State law or degree in a defined clinical area of propose any clarifying language. regulation. When an H&P is completed nursing from an accredited educational Based on stakeholder feedback, we within the 30 days before admission or institution. considered revising the overall registration, the hospital must ensure organizational structure of the CoPs to 12. Surgical Services (§ 485.639) that an updated medical record entry condense current requirements for documenting an examination for any The current surgical services CoP was departmental leadership responsibilities changes in the patient’s condition is promulgated in 1995 (60 FR 45814, into a single, non-specific CoP that placed in the patient’s medical record. September, 1, 1995) to ensure adequate would allow hospitals to appoint This examination must be conducted by health and safety protection for patients. hospital leaders based on hospital- a practitioner who is credentialed and However, the provision of surgical established qualifications and needs privileged by the hospital’s medical staff services is not a required CAH service specific to each hospital. However, we to perform an H&P. under the Act at section 1820(c); believe that the department-specific The update note to the H&P must therefore, we are proposing to make organization of the current CoPs, and document an examination for any the current specialty-department- changes to this CoP to clarify that it is changes in the patient’s condition since specific leadership requirements, are an optional service for CAHs. The the time that the patient’s H&P was appropriate, and can be compatible with proposed technical change to the CoP performed that might be significant for the leadership standards of our introductory text is as follows: the planned course of treatment. If, ‘‘If a CAH provides surgical services, stakeholders. We are specifically upon examination, the licensed surgical procedures must be performed seeking comment on this issue. practitioner finds no change in the in a safe manner by qualified Medical Record Services (§ 482.24) patient’s condition since the H&P was practitioners who have been granted completed, he/she may indicate in the clinical privileges by the governing We considered modifying the patient’s medical record that the H&P body of the CAH or responsible regulatory requirement at current was reviewed, the patient was individual in accordance with the § 482.24(c)(2) to clarify the intent of the examined, and that ‘‘no change’’ has designation requirements under rule in situations where a patient has occurred in the patient’s condition since paragraph (a) of this section.’’ received a medical history and physical examination (H&P) by either a non- the H&P was completed. We note that C. Other Options Considered hospital practitioner or a practitioner we do not specify the extent of the In addition to the proposals discussed with hospital privileges prior to the examination that must be conducted; above, we considered the alternative patient’s hospital visit. When an H&P rather, we defer to the clinical judgment options, described below, for revising has been completed for a patient within of hospital staff to determine the extent the CoPs. the most recent 30-day period prior to of the necessary H&P update. We the patient’s admission or registration, believe that our interpretation of the Medical Staff (§ 482.22) the current regulation requires a H&P update requirement assures that all Similar to the changes proposed in hospital to ensure documentation of, patients undergoing surgery or this rule that would allow a multi- ‘‘[a]n updated examination of the anesthesia are properly evaluated for all hospital system the option of having a patient, including any changes in the contraindications in accordance with single governing body legally patient’s condition. * * *’’ the clinical judgment of hospital staff responsible for the conduct of the We believe that some stakeholders without an undue duplication of hospital (§ 482.12), we considered may be interpreting our current services and documentation. Therefore, changes to the Medical staff CoP at requirements in a way that would we do not believe that the regulation § 482.22 that would allow a multi- require a hospital to conduct a full should be amended. We are specifically hospital system the option of having a update to an H&P that was conducted seeking comment on this issue. single organized medical staff within 30 days prior to the patient’s Physical Environment (§ 482.41) responsible for the quality of medical admission or registration. As put forth care provided to patients by all of the in our November 27, 2006 final rule Currently, hospitals are required to hospitals in the system. Stakeholders related to this issue (‘‘Medicare and meet the standards of the 2000 edition have reported that multi-hospital Medicaid Programs; Hospital Conditions of the Life Safety Code (LSC), which is systems have both integrated their of Participation: Requirements for not the most recent edition. Many governing body functions and their History and Physical Examinations; accrediting bodies, as well as state and medical staff functions to oversee Authentication of Verbal Orders; local jurisdictions, require hospitals to patient care in a more efficient manner. Securing Medications; and comply with more recent versions, such The current language of § 482.22 Postanesthesia Evaluations,’’ 71 FR as the 2003, 2006, or 2009 edition of the states that the hospital ‘‘must have an 68673, 68675) and as stated in our LSC. Complying with both the 2000 organized medical staff that operates current Interpretive Guidelines (CMS. edition of the LSC, for Federal purposes, under bylaws approved by the ‘‘State Operations Manual.’’ Pub 100– and a more recent edition, for governing body and is responsible for 07, Appendix A, http://cms.gov/ accreditation or other purposes, can be the quality of medical care provided to manuals/Downloads/ challenging for hospitals when there are

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inconsistencies between the two A. ICRs Regarding Condition of ICPs. Based on our experience with versions. Participation: Patient’s Rights (§ 482.13) hospitals, a nurse would develop and We expect the 2012 edition of the LSC Proposed § 482.13(g) would remove maintain the nursing care plan for each to be released in Fall 2011. Based on the the current requirement for hospitals to patient. The nurse would also be content of the 2012 edition, we will notify CMS by telephone no later than responsible for identifying the sections of each nursing care plan that needed to decide whether it or another more the close of business the next business be integrated into the hospital’s ICP and recent edition, is appropriate for day following knowledge of a patient’s transferring that information into the incorporation into the regulations for death for patients who die when no ICP. Thus, allowing hospitals to include seclusion has been used and the only hospitals and other affected providers the nursing care plan in the ICP for each restraints used on the patient were soft, and suppliers. Any regulatory changes patient would save the nurse the time non-rigid, cloth-like materials, which would be addressed through separate she or he is currently spending were applied exclusively to the patient’s notice-and-comment rulemaking. We identifying and transferring information wrist(s). This requirement would are specifically seeking comment on this from the separate nursing care plan into include patients who died within 24 issue. the ICP and maintaining the separate hours of having been removed from nursing care plan. III. Collection of Information these types of restraints. In those cases, Requirements In the currently approved OMB the hospital must report to CMS by control number 0938–0328, we recording in a log or other system the Under the Paperwork Reduction Act indicated that the creation and information required at proposed of 1995, we are required to provide maintenance of a nursing care plan § 482.13(g)(2)(i) and (ii). We are 60-day notice in the Federal Register constituted a usual and customary proposing this change only for deaths and solicit public comment before a business practice and did not assign a where the patient died while either in collection of information requirement is burden for this requirement in soft two-point wrist(s) restraints or accordance with 5 CFR 1320.3(b)(2). submitted to the Office of Management within 24 hours of having been removed and Budget (OMB) for review and Since completing that package, we have from soft two-point wrist(s) restraints reconsidered our estimate of that approval. In order to fairly evaluate provided that: (a) There is no reason to whether an information collection analysis. While we continue to believe believe the death was caused by those that creating and maintaining a health should be approved by OMB, section restraints, (b) that those were the only 3506(c)(2)(A) of the Paperwork care plan for each patient is a usual and restraints used, and (c) that no seclusion customary practice for hospitals, we do Reduction Act of 1995 requires that we was used. solicit comment on the following issues: not believe that is usual and customary We believe that we previously for hospitals to develop and maintain a • The need for the information underestimated the burden and costs separate nursing care plan when they collection and its usefulness in carrying associated with the current reporting also develop and maintain an ICP. out the proper functions of our agency. requirement. After discussions with We will be revising the current • The accuracy of our estimate of the other CMS staff, we now believe that burden estimates for OMB control information collection burden. this reporting would be done by a nurse number 0938–0328 to reflect the burden rather than a clerical person and that estimated to be associated with the • The quality, utility, and clarity of there are substantially more deaths that current regulations and would adjust for the information to be collected. occurred to patients while they were in any burden reductions resulting from • Recommendations to minimize the soft, non-rigid, cloth-like material, this provision once the current proposal information collection burden on the which were applied exclusively to a is finalized. For a more detailed affected public, including automated patient’s wrist(s), or within 24 hours of discussion of estimated burden and cost collection techniques. being removed from this type of savings, please see the Regulatory We are soliciting public comment on restraints. Impact Analysis section of this rule. We will be revising the current each of these issues for the following C. ICRs Regarding Condition of sections of this document that contain burden estimates for OMB control number 0938–0328 to reflect the burden Participation: Medical Record Services information collection requirements (§ 482.24) (ICRs): estimated to be associated with the current regulations and would adjust for In the currently approved OMB According to CMS, there are about any burden reductions resulting from control number 0938–0328, we 4,900 hospitals (not including CAHs) this provision once the current proposal indicated that most of the patient- that are certified by Medicare and/or is finalized. For a more detailed related activities, such as authentication Medicaid. We will use those figures to discussion of estimated burden and cost of verbal orders and using standing determine the burden for this rule. In savings, please see the Regulatory orders, constituted a usual and addition, throughout this section, we Impact Analysis section of this rule. customary business practice and did not estimate costs based on average hourly assign a burden for this requirement in wages for different healthcare providers B. ICRs Regarding Condition of accordance with 5 CFR 1320.3(b)(2). and attorneys. Unless indicated Participation: Nursing Services However, we have reconsidered our otherwise, we obtained these average (§ 482.23) analysis. We believe that the hourly wages from the United States The current hospital CoPs require that authentication of verbal orders should Bureau of Labor Statistics’ ‘‘May 2010 hospitals ensure that the nursing staff be governed by state law and not National Occupational Employment and develops, and keeps current, a nursing mandated by the Federal government. In Wage Estimates United States’’ (http:// care plan for each patient (42 CFR addition, while writing orders is www.bls.gov/oes/current/oes_nat.htm 482.23(b)(4)). Proposed 482.23(b)(4) generally a usual and customary accessed on September 28, 2011). We would allow those hospitals that have business practice in hospitals, hospitals also added 30 percent to the indicated interdisciplinary care plans (ICPs) to can also choose how those orders will average hourly wage to allow for have their nursing care plans developed be conveyed. We believe that some overhead and fringe benefits. and kept current as part of the hospital’s hospitals are not currently using

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standing orders as often as they would E. ICRs Regarding Condition of approaches that maximize net benefits choose to due to our CoPs. Therefore, by Participation: Transplant Center Process (including potential economic, allowing authentication of verbal orders Requirements—Organ Recovery and environmental, public health and safety to be governed by state law and Receipt (§ 482.92) effects, distributive impacts, and expanding the use of standing orders, We propose removing 482.92(a) equity). Executive Order 13563 we believe that these provisions would entirely. The elimination of this section emphasizes the importance of result in a burden reduction. quantifying both costs and benefits, would remove the burden on the part of We will be revising the current reducing costs, harmonizing rules, and transplant centers by eliminating a burden estimates for OMB control promoting flexibility. A Regulatory requirement to review and compare number 0938–0328 to reflect the burden Impact Analysis (RIA) must be prepared blood type and other vital data before estimated to be associated with the for rules with economically significant organ recovery takes place. current regulations and would adjust for effects ($100 million or more in any one In the currently approved OMB any burden reductions resulting from year). This proposed rule is an control number 0938–1069, we this provision once the current proposal ‘‘economically’’ significant regulatory indicated that the verification by the is finalized. For a more detailed action under section 3(f)(1) of Executive transplant hospital recovery physician discussion of estimated burden and cost Order 12866. Accordingly, the Office of savings, please see the Regulatory when the recipient was known Management and Budget (OMB) has Impact Analysis section of this rule. constituted a usual and customary reviewed this proposed rule. business practice and did not assign a D. ICRs Regarding Condition of burden for this requirement in 2. Statement of Need Participation: Infection Control accordance with 5 CFR 1320.3(b)(2). In Executive Order 13563, the (§ 482.42) However, since that PRA package was President recognized the importance of The current hospital CoPs require that approved by OMB, several members of a streamlined, effective, efficient ‘‘the infection control officer or officers the transplant community have regulatory framework designed to must maintain a log of incidents related repeatedly told CMS that this promote economic growth, innovation, to infections and communicable verification was unnecessary and job-creation, and competitiveness. To disease’’ (42 CFR 482.42(a)(2)). We are burdensome because OPOs already achieve a more robust and effective proposing to eliminate this requirement perform this type of verification prior to regulatory framework, the President has for keeping a dedicated log of incidents organ recovery in accordance with directed each executive agency to related to infections and communicable 486.344(d)(2)(ii). Therefore, we have establish a plan for ongoing diseases, proposing instead to allow reconsidered our estimate of the burden retrospective review of existing hospitals flexibility in their approach to for this requirement. significant regulations to identify those the tracking and surveillance of We will be revising the current rules that can be eliminated as obsolete, infections. burden estimates for OMB control unnecessary, burdensome, or In the currently approved OMB number 0938–0328 to reflect the burden counterproductive or that can be control number 0938–0328, we did not estimated to be associated with the modified to be more effective, efficient, assign a burden for creating and current regulations and would adjust for flexible, and streamlined. Consistent maintaining this log. However, we have any burden reductions resulting from with this directive, CMS has conducted reconsidered our analysis. We believe this provision once the current proposal a retrospective review of the conditions there are many alternatives available is finalized. For a more detailed of participation it imposes on hospitals that present an even greater opportunity discussion of estimated burden and cost to remove or revise obsolete, to monitor and analyze infection control savings, please see the Regulatory unnecessary, or burdensome provisions. activities than keeping a log as currently Impact Analysis section of this rule. The goal of the retrospective review is required by the CoPs. In addition, we to identify opportunities reduce system IV. Response to Comments believe that the log is a format that costs by removing obsolete or hospitals are using only because of the Because of the large number of public burdensome requirements while CMS requirement and that they are comments we normally receive on maintaining patient care and outcomes. producing data in this fashion in Federal Register documents, we are not CMS had not reviewed the entire set addition to the format they are using for able to acknowledge or respond to them of Conditions of Participation for their own purposes. Thus, while individually. We will consider all Hospitals in many years. These identifying and monitoring infections comments we receive by the date and requirements had grown over time and, that patient have during hospitalization time specified in the DATES section of while often revised, had not been would be usual and customary for this preamble, and, when we proceed subject to a complete review. CMS staff hospitals, we believe that requiring with a subsequent document, we will as well as CMS stakeholders, including hospitals to keep a log rather than respond to the comments in the TJC, the American Medical Association, decide how they could best keep track preamble to that document. the AHA, and many others, had of this information is burdensome for identified problematic requirements V. Regulatory Impacts hospitals. over the years. Accordingly, we decided We will be revising the current A. Regulatory Impact Analysis to conduct a retrospective review of the burden estimates for OMB control conditions of participation imposed on number 0938–0328 to reflect the burden 1. Introduction hospitals and to remove or revise estimated to be associated with the We have examined the impacts of this obsolete, unnecessary, or burdensome current regulations and will adjust for rulemaking as required by Executive provisions, and to increase regulatory any burden reductions resulting from Orders 12866 (September 1993) and flexibility while identifying and adding this provision once the current proposal 13563 (January 2011). Executive Orders opportunities to improve patient care is finalized. For a more detailed 12866 and 13563 direct agencies to and outcomes. We analyzed all potential discussion of estimated burden and cost assess all costs and benefits of available reforms and revisions of the CoPs for savings, please see the Regulatory regulatory alternatives and, if regulation both the costs and the benefits that they Impact Analysis section of this rule. is necessary, to select regulatory would bring to hospitals and CAHs,

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Based on our analysis, we decided to hospitals and CAHs through cost higher priorities with greater benefit pursue those regulatory revisions that savings. both to patients directly and through the would reflect the substantial advances 3. Summary of Impacts increased flexibility that institutions that have been made in healthcare will have to reengineer internal delivery and that would benefit These proposed reductions in process processes. We present a summary of and procedure requirements will these cost reducing changes in Table 2. facilitate redirection of staff resources to

TABLE 1—SECTION-BY-SECTION SUMMARY OF COST SAVINGS TO HOSPITALS AND CAHS [Entries rounded to nearest $100K if under $50M and to nearest $10M if higher]

Annual savings Regulatory area Section ($K)

Patient’s Rights—Death Notice Soft Restraints ...... 482.13 9,900 Medical Staff ...... 482.22 330,000 Nursing Services—Care Plan ...... 482.23 110,000 Medical Record Services—Authentication ...... 482.24 80,000 Medical Record Services—Standing Orders ...... 482.24 90,000 Infection Control—Eliminate Log ...... 482.42 6,600 Outpatient Services ...... 482.54 300,000 Transplant Organ recovery ...... 482.92 200 CAH Direct Services ...... 485.635 15,800

Total ...... 942,500

Some of these savings come simply 4. Anticipated Impacts for patients who die when no seclusion from reductions in process requirements has been used and the only restraints and reporting. The changes in the area There are about 4,900 hospitals and used on the patient were soft, non-rigid, 1,200 CAHs that are certified by of Medical staffing and several other cloth-like materials, which were applied Medicare and/or Medicaid. We use areas would allow hospitals more exclusively to the patient’s wrists. these figures to estimate the potential flexibility in hiring and staffing Reporting would also be removed for impacts of this proposed rule. decisions, including use of part-time patients who died within 24 hours of According to CMS’ Center for Medicaid, and contract staff, to provide patient having been removed from these types Children’s Health Insurance Program services efficiently and effectively. Total of restraints. (CHIP), and Survey and Certification We estimate that full reporting of all national hospital spending is about nine (CMCS), for fiscal year (FY) 2010, TJC hundred billion dollars a year and about such instances would result in 882,000 accredited 3,839 hospitals and 365 occurrences. This is much greater than half of this is spent on staff CAHs. For TJC-accredited hospitals and compensation (source: AHA Hospital the assumption that originally CAHs we will use the figures of 3,800 established this reporting requirement Statistics). Thus, the potential and 400, respectively. For non TJC- in the final rule (71 FR 71425). magnitude of the efficiencies that could accredited hospitals and CAHs, we will However, since the requirements have be achieved is very large. use the figures of 1,100 and 800, come into effect, we believe our initial Clearly, the amount of savings respectively. In addition, we use the estimate was low. Also, the assumption actually realized through these reforms following average hourly wages for in the 2006 final rule was that these will depend on the individual decisions nurses and physicians respectively: $45 functions would be carried out by a of about 6,100 hospitals (including and $124 (BLS Wage Data by Area and clerical person. Based on our experience CAHs), over time. We cannot predict the Occupation, including both hourly with hospitals, this assumption is extent or speed of these elective wages and fringe benefits, at http:// incorrect. A registered nurse would be changes. Other factors, such as www.bls.gov/bls/blswage.htm and the more appropriate staff member to impending physician shortages and the http://www.bls.gov/ncs/ect/). The make the call and to enter the growing use of other practitioners to analysis below overlaps with the information into a patient’s medical perform many physician functions will Collection of Information Requirements record. The difference between the play a role as will State decisions on section for many individual items. That average hourly wage for a clerical laws delineating scope of practice. section contains more technical and person and a registered nurse ($18.88 legal detail as appropriate under the per hour versus $45 per hour) would Furthermore, for the requirements Paperwork Reduction Act, but that is account for a significant discrepancy in that we propose to modify or delete, we not necessary or appropriate in a estimated burden between the 2006 are not aware of any information Regulatory Impact Analysis. Readers final rule and this proposed rule. suggesting that the change we propose may wish to consult both sections on Similar to the 2006 rule, we still would create consequential risks for some topics. estimate that it would take about fifteen patients. In other words, we do not minutes (or .25 hours) to comply with believe that any requirement we Death Notices for Soft Restraints (Patient’s Rights § 482.13) this requirement for each occurrence. propose to eliminate has saved lives in The estimate of the time is also based on recent decades. We propose to remove the current our experiences with hospitals as well We welcome comments on ways to requirement for hospitals to notify CMS as feedback from stakeholders that better estimate the likely effects of these by telephone no later than the close of indicates that this estimate is reforms within the broader array of business the next business day reasonable. Therefore, we estimate that influences on delivery of care. following knowledge of a patient’s death this reduction in burden would reduce

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a hospital’s burden hours by 45 hours Statistics) and the impact that the to expire early 2012) that allows for each year valued at $45 per hour for an proposed changes could have on staffing orders to be authenticated by another annual savings of $2,025. Thus, we costs for hospitals in light of this practitioner who is responsible for the estimate that for all 4,900 hospitals this number. Thus, many reasonable care of the patient and who, in would result in a savings of about variations of our assumptions would accordance with hospital policy State $9,922,500. lead to a similar magnitude of savings. law, is authorized to write orders. We welcome comments on these We believe that this provision would Medical Staff (§ 482.22) estimates and on ways to improve them. result in a burden reduction. We would Our changes and clarifications expect a registered nurse or compliance regarding medical staff and privileging Nursing Services Care Plan (§ 482.23) officer to be responsible for checking would allow hospitals to substitute and The current hospital CoPs require that medical records and flagging orders rearrange actual delivery of care. In hospitals ensure that the nursing staff needing authentication, particularly particular, use of Advanced Practice develops, and keeps current, a nursing those verbal orders nearing the current Nurse Practitioners (APRNs) and care plan for each patient. Our proposal 48-hr timeframe. Based on our Physician Assistants (PAs) in lieu of would allow those hospitals that have experience with hospitals and feedback higher-paid physicians could provide interdisciplinary care plans (ICPs) to from stakeholders on this issue, we immediate savings to hospitals. We have have their nursing care plans developed believe that hospitals will save one hour no precise basis for calculating potential and kept current as part of the hospital’s of a nurse’s time every day for 365 savings, which in any event depend on ICPs. burden hours for each hospital future staffing and management Based on our experience with annually. For all 4,900 hospitals, this decisions, but they are very substantial. hospitals, a nurse would develop and would result in a reduction of 1,788,500 For purposes of this analysis we have maintain the nursing care plan for each burden hours, valued at $45 per hour for reached an estimate of $330 million patient. The nurse would also be a savings of $80,482,500. using the following assumptions: responsible for identifying the sections We are also proposing to add new • All hospitals are able, under State of each nursing care plan that needed to provisions to allow hospitals to use pre- scope of practice laws (that is, 4,900 be integrated into the hospital’s ICP and printed and electronic standing orders, hospitals), and one third of these are transferring that information into the order sets, and protocols for patient willing (that is, 1,617), to make such ICP. Thus, allowing hospitals to include orders if the hospital ensures that these medical staff substitutions; the nursing care plan in the ICP for each orders: have been reviewed and • There are on average 7,000 patient would save the nurse the time approved by the medical staff and inpatient hospital stays per hospital per he or she is currently spending nursing and pharmacy leadership; are year (from AHA Hospital Statistics); identifying and transferring information consistent with nationally recognized • The average hospital stay is about 5 from the separate nursing care plan into guidelines; are reviewed periodically days (per AHA statistics); the ICP and maintaining the separate and regularly by medical staff and • On average, each patient receives nursing care plan. We believe that many nursing and pharmacy leadership; and approximately 75 minutes (1.25 hours) hospitals have already developed are dated, timed, and authenticated by of a physician’s time (for example, in- methods for eliminating this time- a practitioner who is responsible for the person visits/assessments, including wasting step, particularly those care of the patient and who is patient and family education; review of hospitals that have largely implemented authorized to write orders by hospital patient lab and other diagnostic test an electronic health records system. policy in accordance with State law. In results; documentation of orders, Assuming that about 60 percent have addition, we proposed to allow for progress notes, and other entries in the done so, this reform would only affect drugs and biologicals to be prepared and medical record; performance of minor roughly 16 million patients (40 percent administered on the orders of other procedures; and discussion of the of 40 million admissions). practitioners if they are acting in patient’s condition with other staff) We estimate that allowing a hospital accordance with State law and scope of during an average 5-day stay; to use only the ICP would save the practice and the hospital has granted • At a minimum, 33 percent of this nurse an average of nine minutes or 0.15 them the privileges to do so. physician per patient time would now hours and would affect 16,000,000 The use of standing orders, order sets, be covered by nonphysician patients. Thus, the proposed provision and protocols reduces a hospital’s practitioners (for example, APRNs and would result in a reduction of 2,400,000 burden in several ways. Initially, it PAs); and burden hours valued at $45 per hour for saves the physician or other practitioner • There is an average salary a savings of $108,000,000. the time it takes to write out the orders. difference of $71 an hour between It also saves the physician the time it physicians and these practitioners. Medical Record Services— would take to go back to the chart or call The resulting savings estimate of Authentication and Standing Orders a nurse with a verbal order if the about $330 million annually (1,617 (§ 482.24) physician forgets a particular order. The hospitals × 7,000 inpatient hospital We are proposing to revise the nurses also save time when standing stays × 1.25 hours of physician/ Medical Records CoP to eliminate the orders are used. The orders are more nonphysician practitioner time × $71 requirement for authentication of verbal legible so there is less time interpreting per hourly wage difference × 33 percent orders within 48 hours if no State law and calling physicians for verification. of physician time with patients covered specifying a timeframe exists. Since we Nurses also need to call physicians less by nonphysician practitioners) could believe that very few States have frequently when there is a change in the obviously be much higher or lower if authentication timeframe requirements, patient’s condition or they feel there any of the parameters above changed. we do not believe that the few States needs to be a change in the care the Additionally, we have restricted our that may have such requirements would patient is receiving. Patients also benefit estimates to inpatient hospital stays and impact the potential savings we are from standing orders because there we did not include a discussion of the estimating here. We are also proposing would be less delay in the delivery of approximately 620,000,000 annual to make permanent the temporary needed care to a patient. Thus, we hospital outpatient visits (AHA Hospital provision (5-year Sunset provision due believe that expanding the use of

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standing orders would significantly addition, since publication of the valued at $124 per hour for a monetary reduce the hospital’s burden. existing rule, the transplant community savings of $161,820. Based on our experience with has repeatedly told CMS that the Infection Control Log (§ 484.42) hospitals and on stakeholder feedback verification that we propose to delete is regarding the issue of standing orders, burdensome and unnecessary. We are proposing to eliminate a we estimate that these provisions would Under the current requirements for requirement for keeping a dedicated log affect 13 million patients or roughly this situation, the OPO performs a of incidents related to infections and one-third of hospital admissions. We verification before organ recovery, the communicable diseases, proposing also estimate that using standing orders surgeon working for the transplant instead to allow hospitals flexibility in would result in a burden reduction of an center performs a verification before their approach to the tracking and average of 4 minutes or 0.07 hours for organ recovery, and the transplant surveillance of infections. We believe each of these patients. Thus, expanding center surgeon performs another the changes we are proposing overall the use of standing orders would result verification before the organ is would result in the more efficient use of in a reduction of 700,000 burden hours transplanted. Under the proposed time. valued at $124 per hour for a savings of requirement, the OPO performs a We believe that the current log $86,800,000. verification before organ recovery and requirement requires roughly 30 hours annually of a nurse’s time per hospital Outpatient Services (§ 482.54) the transplant center surgeon performs a verification before the organ is (i.e., an average of 600 to 900 log entries Our proposed liberalization of transplanted. We would eliminate the per year and 2–3 minutes per entry). outpatient services supervision will verification that is conducted by the Thus, for all 4,900 hospitals this change permit large savings. Under the existing staff working on behalf of the transplant would result in a savings of 147,000 Condition of Participation, only one center that must occur prior to organ burden hours valued at $45 per hour for person may direct outpatient services. recovery. In addition, the responsibility a savings of $6,615,000. Similar to our estimates for medical staff for maintaining these records is very CAH Provision of Services (§ 485.635) savings, what savings hospitals may unclear, and has caused conflict Our proposed removal of the ‘‘direct realize would depend largely on their between surgeons, transplant centers, future decisions, and cannot be services’’ requirement imposed on and the hospitals where the organ CAHs would eliminate the requirement predicted with any precision. For recoveries are performed. Elimination of purposes of estimation, we have that certain services be provided only by the extra verification step removes this employees and not through contractual developed an estimate that illustrates source of conflict and confusion. the potential. Under this estimate, we arrangements with entities such as Between July 1, 2009 and June 30, assume that two-thirds of the hours community physicians, laboratories, or 2010, the United States saw 2,293 heart eliminated would represent net savings, radiology services. Opportunities may and 1,699 lung transplants. During the since existing directors obviously be limited because CAHS are both small same time frame, there were also 16,679 perform significant coordination and overwhelmingly located in rural transplants for kidneys, 6,301 for livers, functions that would have to be areas where there may not be realistic and 371 for pancreases. (Scientific performed however the work is alternatives to direct hiring. We estimate Registry of Transplant Recipients organized. To be more specific, that this could produce savings of (SRTR) http://srtr.org/csr/current/ potential savings are based on the approximately one tenth of one full-time nats.aspx, date last accessed 6/9/10). following: equivalent staff person in payroll Most organ recoveries for heart and lung • Two-thirds of hospitals elected to savings on average, at an average transplants are conducted by surgeons redirect these overall director functions compensation cost of $66, for a total of working for their own transplant (3,267 hospitals); about $16 million saved annually across • On average, each position centers. By contrast, in the case of all 1,200 CAHs. Savings might be represents 2,000 hours per year; kidneys, livers, and pancreases, these considerably larger, and we welcome • Only two-thirds of the hours organs are typically recovered by information and data on this question. surgeons who are on-call for an OPO eliminated represented net savings; and 5. Alternatives Considered • Compensation averages about $70 and who are not also working for, or an hour. privileged at, the same transplant center From within the entire body of Based on these assumptions, this where the organ is delivered. For conditions of participation, the most reform would produce $305 million purposes of this analysis, we assume serious candidates for reform were those annually in staff savings (3,267 that 25 percent of kidney, liver and identified by stakeholders, by recent hospitals × 2,000 hours × 2⁄3 × $70 per pancreas organ recoveries are conducted research, or by experts as unusually hour). A similar result would be by surgeons who are working for the burdensome if not unchanged. This obtained if four-fifths of hospitals transplant centers. It is in this small subset of the universe of standards is the redirected these functions, but the net percentage of transplant cases, roughly focus of this proposed rule. We hours saved were only a little more than 5,800, together with the total number of welcome comments on whether we half of the current hours. heart and lung transplants, where the properly selected the best candidates for requirement for an additional change, and will consider suggestions Transplant Organ Recovery (§ 482.92) verification has resulted in overlapping for additional reform candidates from We propose removing the current and burdensome requirements. For the the entire body of conditions of blood typing requirement entirely. The purpose of analysis, we have assumed participation for hospitals and CAHs. elimination of this section would that conducting the verification and A second set of alternatives arises remove transplant center burden by filing the corresponding paperwork because there are obviously various eliminating a requirement to review and would take 8 minutes and that there are ways to draft each requirement. For compare blood type and other vital data 9,972 transplant cases. We therefore each requirement that we have proposed before organ recovery takes place. The conclude that removing the duplicative for deletion or modification there are a OPOs already perform this type of verification requirement will result in number of possible options, including verification prior to organ recovery. In an annual savings of 1,305 burden hours making no change, making the change

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we propose, and in some but not all 6. Uncertainty 7. Accounting Statement cases making some in-between change. Most standards have an ‘‘either-or’’ Our estimates of the effects of this As required by OMB Circular A–4 nature, but we welcome comments on regulation are subject to significant (available at http://www.whitehouse possible variations. There is a final set uncertainty. While CMS is confident .gov/omb/circulars/a004/a-4.pdf), we of alternatives revolving around entirely that these reforms would provide have prepared an accounting statement. different methods of achieving potential flexibilities to hospitals that would As previously explained, achieving the benefits, such as incentive payments yield cost savings, we are uncertain full scope of potential savings will through Medicare or other health plans about the magnitude of these effects. In depend on future decisions by hospitals, to high-performing institutions, or addition, as we previously explained, by State regulators, and others. Many publishing quality scores to make we do not believe that any requirement other factors will influence long-term hospital strengths and weaknesses we propose to eliminate achieved any results. We believe, however, that likely transparent to both the public at large consequential improvements in patient savings and benefits will reach many and to practitioners. A number of such safety. Thus, we are confident that the billions of dollars. Our primary estimate reforms are underway. Likewise, there rule would yield net benefits. In this of the net savings to hospitals from are alternatives such as technical analysis we provided some illustrative reductions in regulatory requirements assistance through Quality Improvement estimates to suggest the potential that we can quantify at this time, offset Organizations (QIOs) funded by CMS, savings these reforms could achieve by increases in other regulatory costs, also underway under the latest QIO under certain assumptions. We welcome are approximately $940 million a year. contracts. We welcome comments on comments on ways to better estimate the We welcome comments on both the such alternatives. likely effects of these reforms. overall estimate and its components.

TABLE 2—ACCOUNTING STATEMENT: CLASSIFICATION OF ESTIMATED COSTS AND SAVINGS [$ in millions]

Units Primary Category estimate Discount Period Year dollars rate covered

Benefits None

Costs

¥$940 2012 7% 2012–16

Annualized Monetized reductions in Costs $940 2012 3% 2012–16

Transfers None

B. Regulatory Flexibility Act hospitals (including CAHs) are non- Analysis, actions that do not negatively profit and about one-third (many affect costs or revenues by about 3 to 5 The Regulatory Flexibility Act (RFA), overlapping) have annual revenues percent a year are not economically as modified by the Small Business below the SBA size threshold. Because significant. We believe that no hospitals Regulatory Enforcement Fairness Act of the great majority qualifies as ‘‘small of any size will be negatively affected. 1996 (SBREFA), requires agencies to entities,’’ HHS policy for many years Accordingly, we have determined that determine whether proposed or final has been to treat all hospitals as small this proposed rule would not have a rules would have a ‘‘significant entities deserving protection under the significant economic impact on a economic impact on a substantial RFA. Although the overall magnitude of substantial number of small entities, number of small entities’’ and, if so, to the paperwork, staffing, and related cost and that an Initial Regulatory Flexibility prepare a Regulatory Flexibility reductions to hospitals and CAHs Analysis is not required. Analysis and to identify in the notice of proposed under this rule is Notwithstanding this conclusion, we proposed rulemaking or final economically significant, these savings believe that this RIA and the preamble rulemaking any regulatory options that are likely to be only about one percent as a whole meet the requirements of the could mitigate the impact of the of total hospital costs. Total national RFA for such an analysis. proposed regulation on small inpatient hospital spending is In addition, section 1102(b) of the businesses. For purposes of the RFA, approximately nine hundred billion Social Security Act requires us to small entities include businesses that dollars a year, or an average of about prepare a regulatory impact analysis if are small as determined by size $150 million per hospital, and our a rule may have a significant impact on standards issued by the Small Business primary estimate of the net effect of the operations of a substantial number Administration (SBA), nonprofit these proposals on reducing hospital of small rural hospitals. This analysis organizations, and small governmental costs is only about $940 million must conform to the provisions of the jurisdictions. Individuals and States are annually (although potentially far RFA. For purposes of section 1102(b) of not included in the definition of a small higher). This is an average of slightly the Act, we define a small rural hospital entity. The SBA size threshold for over $150,000 in savings on average for as a hospital that is located outside of ‘‘small entity’’ hospitals is $34.5 million the 6,100 hospitals (including CAHs) a Metropolitan Statistical Area and has or less in annual revenues. Also, all that are regulated through the fewer than 100 beds. We do not believe non-profit hospitals are small entities Conditions of Participation. Under HHS a regulatory impact analysis is required under the RFA. About three-fifths of all guidelines for Regulatory Flexibility here for the same reasons previously

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described and because, in addition, our PART 482—CONDITIONS OF the patient are those applied exclusively proposals are particularly cost-reducing PARTICIPATION FOR HOSPITALS to the patient’s wrist(s), and which are for the smallest hospitals, including composed solely of soft, non-rigid, especially CAHs (which in most cases 1. The authority citation for part 482 cloth-like materials, the hospital staff have no more than 25 beds). continues to read as follows: must report to CMS by recording in a Authority: Secs. 1102, 1871 and 1881 of log or other system, the following C. Unfunded Mandates Reform Act of the Social Security Act (42 U.S.C. 1302, information: 1995 1395hh, and 1395rr), unless otherwise noted. (i) Any death that occurs while a Section 202 of the Unfunded Subpart B—Administration patient is in such restraints; and Mandates Reform Act (UMRA) of 1995 (ii) Any death that occurs within 24 requires that agencies assess anticipated 2. Section 482.12 is amended by hours after a patient has been removed costs and benefits before issuing any revising the introductory text to read as from such restraints. rule whose mandates on State, local, or follows: (3) For deaths described in paragraphs (g)(1) and (g)(2) of this section, staff Tribal governments in the aggregate, or § 482.12 Condition of participation: on the private sector, require spending Governing body. must document in the patient’s medical record the date and time the death was in any one year of $100 million in 1995 There must be an effective governing reported to CMS. dollars, updated annually for inflation. body that is legally responsible for the (4) For deaths described in paragraph That threshold level is currently about conduct of the hospital. If a hospital (g)(2) of this section, entries into the log $136 million. This proposed rule would does not have an organized governing or other system must be documented as eliminate or reform existing body, the persons legally responsible for follows: requirements and would allow hospitals the conduct of the hospital must carry (i) Each entry must be made not later and CAHs to achieve substantial savings out the functions specified in this part than seven days after the date of death through staffing reforms. Accordingly, that pertain to the governing body. no analysis under UMRA is required. of the patient; * * * * * (ii) Each entry must document the D. Federalism § 482.13 Condition of participation: patient’s name, date of birth, date of Executive Order 13132 on Federalism Patient’s rights. death, attending physician’s name, establishes certain requirements that an 3. Section 482.13 is amended by— medical record number, and primary agency must meet when it publishes a a. Revising paragraphs (g)(1), (g)(2), diagnosis(es); and proposed rule (and subsequent final and (g)(3). (iii) The information must be made rule) that imposes substantial direct b. Adding a new paragraph (g)(4). available in either written or electronic requirement costs on State and local The revisions and additions read as form to CMS immediately upon request. follows: governments, preempts State law, or Subpart C—Basic Hospital Functions otherwise has Federalism implications. § 482.13 Condition of participation: We have determined that this proposed Patient’s rights. 4. Section 482.22 is amended by— rule would not significantly affect the * * * * * a. Revising the introductory rights, roles, or responsibilities of the (g) * * * paragraph. States. This proposed rule would not (1) With the exception of deaths b. Revising paragraph (a) introductory impose substantial direct requirement described under paragraph (g)(2) of this text. costs on State or local governments, section, the hospital must report the a. Adding a new paragraph (a)(5). preempt State law, or otherwise following information to CMS by b. Revising (b)(3). implicate federalism. It does, however, telephone, facsimile, or electronically, The revisions and additions read as facilitate the ability of States to reform as determined by CMS, no later than the follows: their scope of practice laws without close of business on the next business Federal requirements reducing the § 482.22 Condition of participation: day following knowledge of the Medical staff. effectiveness of such reforms. We patient’s death: understand that about half of the States (i) Each death that occurs while a The hospital must have an organized are considering such reforms, and we patient is in restraint or seclusion. medical staff that operates under bylaws support such efforts. (ii) Each death that occurs within 24 approved by the governing body and is hours after the patient has been responsible for the quality of medical VI. Regulations Text removed from restraint or seclusion. care provided to patients by the List of Subjects (iii) Each death known to the hospital hospital. that occurs within 1 week after restraint (a) Standard: Composition of the 42 CFR Part 482 or seclusion where it is reasonable to medical staff. The medical staff must be composed of doctors of medicine or Grant programs—Health, Hospitals, assume that use of restraint or osteopathy and, in accordance with Medicaid, Medicare, Reporting and placement in seclusion contributed State law, may also be composed of recordkeeping requirements. directly or indirectly to a patient’s death, regardless of the type(s) of other practitioners appointed by the 42 CFR Part 485 restraint used on the patient during this governing body. Grant programs—Health, Health time. ‘‘Reasonable to assume’’ in this * * * * * facilities, Medicaid, Medicare, context includes, but is not limited to, (5) The medical staff must examine Reporting and recordkeeping deaths related to restrictions of the credentials of candidates applying requirements. movement for prolonged periods of for practice privileges and medical staff time, or death related to chest membership within the hospital, as well For the reasons set forth in the compression, restriction of breathing, or as the credentials of practitioners preamble, the Centers for Medicare & asphyxiation. applying only for hospital practice Medicaid Services proposes to amend (2) When no seclusion has been used privileges, and make recommendations 42 CFR chapter IV as set forth below: and when the only restraints used on to the governing body for the

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appointment of these candidates and the licensing requirements, and in (E) Document the administration of approval of these privileges in accordance with the approved medical each medication in the patient’s medical accordance with State law and hospital staff policies and procedures. record. policies and procedures. A physician or (3) With the exception of influenza (ii) If the hospital allows a patient to nonphysician practitioner who has been and pneumococcal polysaccharide self-administer his or her own specific granted practice privileges by the vaccines, which may be administered medications brought into the hospital, governing body for practice activities per physician-approved hospital policy then the hospital must have policies and authorized within his or her State scope after an assessment of contraindications, procedures in place to: of practice is subject to all medical staff orders for drugs and biologicals must be (A) Assure that a practitioner requirements contained in this section. documented and signed by a responsible for the care of the patient (b) * * * practitioner who is authorized to write has issued an order, consistent with (3) The responsibility for organization orders in accordance with State law and hospital policy, permitting self- and conduct of the medical staff must be hospital policy, and who is responsible administration of medications the assigned only to: for the care of the patient as specified patient brought into the hospital; (i) An individual doctor of medicine under § 482.12(c). (B) Assess the capacity of the patient or osteopathy, (i) If verbal orders are used, they are (or the patient’s caregiver/support (ii) A doctor of dental surgery or to be used infrequently. person where appropriate) to self- dental medicine, when permitted by (ii) When verbal orders are used, they administer the specified medication(s), State law of the State in which the must only be accepted by persons who and also determine if the patient (or the hospital is located; or are authorized to do so by hospital patient’s caregiver/support person (iii) A doctor of podiatric medicine, policy and procedures consistent with where appropriate) needs instruction in when permitted by State law of the State Federal and State law. the safe and accurate administration of in which the hospital is located. (iii) Orders for drugs and biologicals the specified medication(s); * * * * * may be documented and signed by other (C) Identify the specified 5. Section 482.23 is amended by— practitioners not specified under medication(s) and visually evaluate the a. Revising paragraph (b)(4). § 482.12(c) only if such practitioners are medication(s)for integrity; b. Revising paragraph (c). acting in accordance with State law and (D) Ensure the security of the The revisions and additions read as scope of practice and only if the medication(s) for each patient; and follows: hospital has granted them privileges to (E) Document the administration of § 482.23 Condition of participation: do so. each medication in the patient’s medical Nursing services. (4) Blood transfusions and record. 6. Section 482.24 is amended by— * * * * * intravenous medications must be administered in accordance with State a. Removing paragraphs (c)(1)(i), (b) * * * (c)(1)(ii), and (c)(1)(iii). (4) The hospital must ensure that the law and approved medical staff policies b. Redesignating (c)(2) as (c)(4). nursing staff develops, and keeps and procedures. (5) There must be a hospital c. Adding a new paragraph (c)(2). current, a nursing care plan for each d. Adding a new paragraph (c)(3). procedure for reporting transfusion patient. The nursing care plan may be The revisions and additions read as reactions, adverse drug reactions, and part of an interdisciplinary care plan. follows: * * * * * errors in administration of drugs. (c) Standard: Preparation and (6) The hospital may allow a patient § 482.24 Condition of participation: administration of drugs. (1) Drugs and (or his or her caregiver/support person Medical record services. biologicals must be prepared and where appropriate) to self-administer * * * * * administered in accordance with both hospital-issued medications and (c) * * * Federal and State laws, the orders of the the patient’s own medications brought (2) All orders, including verbal orders, practitioner or practitioners responsible into the hospital, as defined and must be dated, timed, and authenticated for the patient’s care as specified under specified in the hospital’s policies and promptly by the ordering practitioner or § 482.12(c), and accepted standards of procedures. another practitioner who is responsible practice. (i) If the hospital allows a patient to for the care of the patient as specified (i) Drugs and biologicals may be self-administer specific hospital-issued under § 482.12(c) and authorized to prepared and administered on the medications, then the hospital must write orders by hospital policy in orders of other practitioners not have policies and procedures in place accordance with State law. specified under § 482.12(c) only if such to: (3) Hospitals may use pre-printed and practitioners are acting in accordance (A) Assure that a practitioner electronic standing orders, order sets, with State law, including scope of responsible for the care of the patient and protocols for patient orders only if practice laws, and only if the hospital has issued an order, consistent with the hospital: has granted them privileges to do so. hospital policy, permitting self- (i) Establishes that such orders and (ii) Drugs and biologicals may be administration; protocols have been reviewed and prepared and administered on the (B) Assess the capacity of the patient approved by the medical staff in orders contained within pre-printed and (or the patient’s caregiver/support consultation with the hospital’s nursing electronic standing orders, order sets, person where appropriate) to self- and pharmacy leadership; and protocols for patient orders only if administer the specified medication(s); (ii) Demonstrates that such orders and such orders meet the requirements of (C) Instruct the patient (or the protocols are consistent with nationally § 482.24(c)(3). patient’s caregiver/support person recognized and evidence-based (2) All drugs and biologicals must be where appropriate) in the safe and guidelines; administered by, or under supervision accurate administration of the specified (iii) Ensures that the periodic and of, nursing or other personnel in medication(s); regular review of such orders and accordance with Federal and State laws (D) Ensure the security of the protocols is conducted by the medical and regulations, including applicable medication(s) for each patient; and staff, in consultation with the hospital’s

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nursing and pharmacy leadership, to (2) Have appropriate professional and standards imposed under section 353 of determine the continuing usefulness nonprofessional personnel available at the Public Health Service Act (42 U.S.C. and safety of the orders and protocols; each location where outpatient services 236a). (See the laboratory requirements and are offered, based on the scope and specified in part 493 of this chapter.) (iv) Ensures that such orders and complexity of outpatient services. The services provided include: protocols are dated, timed, and (i) Chemical examination of urine by authenticated promptly in the patient’s Subpart E—Requirements for Specialty stick or tablet method or both (including medical record by the ordering Hospitals urine ketones); practitioner or another practitioner § 482.92 [Amended] responsible for the care of the patient as (ii) Hemoglobin or hematocrit; 10. Section 482.92 is amended by— specified under § 482.12(c) and (iii) Blood glucose; authorized to write orders by hospital a. Removing paragraph (a). (iv) Examination of stool specimens policy in accordance with State law. b. Redesignating paragraphs (b) and (c) as (a) and (b) respectively. for occult blood; * * * * * 7. In § 482.25 paragraph (b)(6) is PART 485—CONDITIONS OF (v) Pregnancy tests; and revised to read as follows: PARTICIPATION SPECIALIZED (vi) Primary culturing for transmittal PROVIDERS to a certified laboratory. § 482.25 Condition of participation: Pharmaceutical services. 11. The authority citation for part 485 (3) Radiology services. Radiology * * * * * continues to read as follows: services furnished by the CAH are (b) * * * provided by personnel qualified under Authority: Secs. 1102 and 1871 of the State law, and do not expose CAH (6) Drug administration errors, Social Security Act (42 U.S.C. 1302 and adverse drug reactions, and 1395(hh)). patients or personnel to radiation incompatibilities must be immediately hazards. reported to the attending physician and, Subpart F—Conditions of (4) Emergency procedures. In if appropriate, to the hospital’s quality Participation: Critical Access Hospitals accordance with requirements of assessment and performance (CAHs) § 485.618, the CAH provides medical improvement program. § 485.602 [Removed] services as a first response to common * * * * * life-threatening injuries and acute 8. Section 482.42 is amended by 12. Section 485.602 is removed. 13. Section 485.604(a) is revised to illness. revising paragraph (a) and (b)(1) to read read as follows: as follows: 15. Section 485.639 is amended by revising the introductory text to read as § 485.604 Personnel qualifications. § 482.42 Condition of participation: follows: Infection control. * * * * * * * * * * (a) Clinical nurse specialist. A clinical § 485.639 Condition of participation: Surgical services. (a) Standard: Organization and nurse specialist must be a person who— (1) Is a registered nurse and is policies. A person or persons must be If a CAH provides surgical services, licensed to practice nursing in the State designated as infection control officer or surgical procedures must be performed in which the clinical nurse specialist officers to develop and implement in a safe manner by qualified policies governing control of infections services are performed; and (2) Holds an advanced degree in a practitioners who have been granted and communicable diseases. The clinical privileges by the governing infection control officer or officers must defined clinical area of nursing from an accredited educational institution. body, or responsible individual, of the develop a system for identifying, CAH in accordance with the designation reporting, investigating, and controlling * * * * * 14. Section 485.635(b) is revised to requirements under paragraph (a) of this infections and communicable diseases section. of patients and personnel. read as follows: * * * * * * * * * * § 485.635 Condition of participation: (b) * * * Provision of services. (Catalog of Federal Domestic Assistance (1) Ensure that the hospital-wide * * * * * Program No. 93.773, Medicare—Hospital quality assessment and performance (b) Standard: Patient services. (1) Insurance; and Program No. 93.774, improvement (QAPI) program and General: The CAH provides those Medicare—Supplementary Medical Insurance Program) (Catalog of Federal training programs address problems diagnostic and therapeutic services and Domestic Assistance Program No. 93.778, identified by the infection control supplies that are commonly furnished Medical Assistance Program) officer or officers; and in a physician’s office or at another * * * * * entry point into the health care delivery Dated: September 30, 2011. system, such as a low intensity hospital Donald M. Berwick, Subpart D—Optional Hospital Services outpatient department or emergency Administrator, Centers for Medicare & 9. Section 482.54 is amended by department. These CAH services Medicaid Services. revising paragraph (b) to read as follows: include medical history, physical Approved: October 6, 2011. examination, specimen collection, Kathleen Sebelius, § 482.54 Condition of participation: assessment of health status, and Outpatient services. treatment for a variety of medical Secretary. Department of Health and Human * * * * * conditions. Services. (b) Standard: Personnel. The hospital (2) Laboratory services. The CAH [FR Doc. 2011–27175 Filed 10–18–11; 11:15 am] must— provides basic laboratory services BILLING CODE 4120–01–P (1) Assign one or more individuals to essential to the immediate diagnosis and be responsible for outpatient services. treatment of the patient that meet the

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DEPARTMENT OF HEALTH AND Services, Attention: CMS–9070–P, Mail approximately 3 weeks after publication HUMAN SERVICES Stop C4–26–05, 7500 Security of a document, at the headquarters of Boulevard, Baltimore, MD 21244–1850. the Centers for Medicare & Medicaid Centers for Medicare & Medicaid 4. By hand or courier. Alternatively, Services, 7500 Security Boulevard, Services you may deliver (by hand or courier) Baltimore, Maryland 21244, Monday your written comments ONLY to the through Friday of each week from 42 CFR Chapter IV following addresses prior to the close of 8:30 a.m. to 4 p.m. To schedule an [CMS–9070–P] the comment period: appointment to view public comments, a. For delivery in Washington, DC— phone 1–800–743–3951. RIN 0938–AQ96 Centers for Medicare & Medicaid I. Background Services, Department of Health and Medicare and Medicaid Program; Human Services, Room 445–G, Hubert In January 2011, the President issued Regulatory Provisions To Promote H. Humphrey Building, 200 Executive Order 13563, ‘‘Improving Program Efficiency, Transparency, and Independence Avenue, SW., Regulations and Regulatory Review.’’ Burden Reduction Washington, DC 20201. Section 6 of that order requires agencies to identify rules that may be AGENCY: Centers for Medicare & (Because access to the interior of the ‘‘outmoded, ineffective, insufficient, or Medicaid Services (CMS), HHS. Hubert H. Humphrey Building is not excessively burdensome, and to modify, ACTION: Proposed rule. readily available to persons without Federal government identification, streamline, expand, or repeal them in SUMMARY: This proposed rule identifies commenters are encouraged to leave accordance with what has been and proposes reforms in Medicare and their comments in the CMS drop slots learned.’’ In accordance with the Medicaid regulations that CMS has located in the main lobby of the Executive Order, the Secretary of the identified as unnecessary, obsolete, or building. A stamp-in clock is available Department of Health & Human Services excessively burdensome on health care for persons wishing to retain a proof of (HHS) published on May 18, 2011, a providers and beneficiaries. This filing by stamping in and retaining an Preliminary Plan for Retrospective proposed rule would increase the ability extra copy of the comments being filed.) Review of Existing Rules (http:// of health care professionals to devote b. For delivery in Baltimore, MD— www.whitehouse.gov/21stcenturygov/ actions/21st-century-regulatory-system). resources to improving patient care, by Centers for Medicare & Medicaid As shown in the plan, the Centers for eliminating or reducing requirements Services, Department of Health and Medicare & Medicaid Services (CMS) that impede quality patient care or that Human Services, 7500 Security has identified many obsolete and divert providing high quality patient Boulevard, Baltimore, MD 21244–1850. burdensome rules that could be care. This is one of several rules that we If you intend to deliver your eliminated or reformed to improve are proposing to achieve regulatory comments to the Baltimore address, call effectiveness or reduce unnecessary red reforms under Executive Order 13563 telephone number (410) 786–9994 in tape and other costs, with a particular on Improving Regulation and Regulatory advance to schedule your arrival with focus on freeing up resources that health Review and the Department’s Plan for one of our staff members. care providers, health plans, and States Retrospective Review of Existing Rules. Comments erroneously mailed to the addresses indicated as appropriate for could use to improve or enhance patient DATES: To be assured consideration, health and safety. CMS has also comments must be received at one of hand or courier delivery may be delayed and received after the comment period. examined policies and practices not the addresses provided below, no later codified in rules that could be changed than 5 p.m. on December 23, 2011. For information on viewing public comments, see the beginning of the or streamlined to achieve better ADDRESSES: In commenting, please refer outcomes for patients while reducing SUPPLEMENTARY INFORMATION section. to file code CMS–9070–P. Because of burden on providers of care. CMS has staff and resource limitations, we cannot FOR FURTHER INFORMATION CONTACT: also identified non-regulatory changes accept comments by facsimile (FAX) Ronisha Davis, (410) 786–6882. to increase transparency and to become transmission. We have also included a subject a better business partner. You may submit comments in one of matter expert and contact information As explained in the plan, HHS is four ways (please choose only one of the under the ‘‘Provisions of the Proposed committed to the President’s vision of ways listed): Regulations’’ section for each provision creating an environment where agencies 1. Electronically. You may submit set out in this proposed rule. incorporate and integrate the ongoing electronic comments on this regulation SUPPLEMENTARY INFORMATION: retrospective review of regulations into to http://www.regulations.gov. Follow Inspection of Public Comments: All Department operations to achieve a the ‘‘Submit a comment’’ instructions. comments received before the close of more streamlined and effective 2. By regular mail. You may mail the comment period are available for regulatory framework. The objective is written comments to the following viewing by the public, including any to improve the quality of existing address ONLY: Centers for Medicare & personally identifiable or confidential regulations consistent with statutory Medicaid Services, Department of business information that is included in requirements; streamline procedural Health and Human Services, Attention: a comment. We post all comments solutions for businesses to enter and CMS–9070–P, P.O. Box 8012, Baltimore, received before the close of the operate in the marketplace; maximize MD 21244–1850. comment period on the following Web net benefits (including benefits that are Please allow sufficient time for mailed site as soon as possible after they have difficult to quantify); and reduce costs comments to be received before the been received: http:// and other burdens on businesses to close of the comment period. www.regulations.gov. Follow the search comply with regulations. Consistent 3. By express or overnight mail. You instructions on that Web site to view with the commitment to periodic review may send written comments to the public comments. and to public participation, HHS will following address ONLY: Centers for Comments received timely will also continue to assess its existing significant Medicare & Medicaid Services, be available for public inspection as regulations in accordance with the Department of Health and Human they are received, generally beginning requirements of Executive Order 13563.

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HHS welcomes public suggestions about retroactively imposed some additional immediately available to assist in appropriate reforms. If, at any time, structural requirements. We believe that emergency evacuation. members of the public identify possible some of these additional requirements, While the risks of fire are very low in reforms to streamline requirements and such as smoke compartments (per a dialysis facility, the costs of to reduce existing burdens, HHS will section 20.3.7/21.3.7 of NFPA 101) are complying with the Federal LSC give those suggestions careful unnecessary for most ESRD facilities. requirements in dialysis facilities are consideration. Therefore, along with Smoke compartments, for example, are high. Through research discussed in the this proposed rule, we seek ideas from required in hospital and ambulatory following paragraph, CMS has learned the public to help identify areas for surgical centers where patients are that the actual costs for renovation and possible reform. anesthetized, unconscious, or sleeping construction necessary for compliance overnight. Smoke compartments are with the additional requirements of II. Provisions of the Proposed NFPA 101 for dialysis facilities are Regulations unnecessary in ESRD facilities as these compartments support a ‘‘defend in considerable and profoundly exceed the The following is a description of each place’’ fire strategy which assumes the original government estimate of $1,960 of the proposals set forth in this occupants of a location cannot as published in the preamble to the new proposed rule. We have grouped the immediately evacuate in case of fire. 2008 ESRD/LSC regulations. proposals into three categories—(1) However, in dialysis facilities, the To estimate the true costs for Removes unnecessarily burdensome evacuation process from fire is rapid renovation and construction necessary requirements; (2) removes obsolete disconnection from the dialysis to comply with the requirements for regulations; and (3) responds to machine and a quick exit. NFPA 101, in June 2011, CMS asked stakeholder concerns. There are 14 In retrospect, the additional structural ESRD providers to provide estimates of specific reforms included in this requirements of NFPA 101 potentially the financial impact of implementing proposed rule. As noted above, we seek could improve patient safety from fire in four potentially-costly additional comments on additional areas for future specific dialysis facilities that pose a requirements of NFPA 101. They reforms in these three areas or others. higher risk for life safety from fire by included smoke compartment barriers, their proximity to a potential fire source occupancy separations, hazardous area A. Removes Unnecessarily Burdensome separations, and upgraded fire alarms. Requirements or their barriers to prompt evacuation from fire. These higher risk locations are Owners of 3,756 of 5,600 existing The following proposals seek to certified dialysis facilities responded to provide some form of burden relief to those dialysis facilities that are adjacent to occupancies that contain ‘‘industrial the CMS request for cost projections. providers and suppliers by modifying, The responders represented removing, or streamlining current high hazard contents’’ and those facilities that do not have a readily approximately 70 percent of existing regulations that we have identified as dialysis facilities, including hospital- excessively burdensome. available exit to the outside for swift, unencumbered evacuation. owned facilities and those owned by small, medium, and large dialysis 1. End-Stage Renal Disease (ESRD) Data demonstrate that there is an Facilities (§ 494.60) organizations. extremely low risk of fire in outpatient The data collected showed that Current regulations at 42 CFR part 494 dialysis facilities, and there are no approximately 50 percent (an estimated provide Conditions for Coverage (CfCs) recorded patient injuries or death due to 2,800) of the existing ESRD facilities for Medicare-participating end-stage fire in the 40 years of the Medicare would require renovations or upgrading renal disease (ESRD) facilities. Effective ESRD program. The Federal Emergency of at least one of the four elements to February 9, 2009, these regulations were Management Agency’s (FEMA) Topical comply with the requirements of NFPA updated to include Federal Life Safety Fire Report Series (TFRS) documented 101. There are several reasons why, in Code (LSC) provisions that we applied the low fire risk of ESRD facilities, June 2011, approximately 50 percent of to ESRD facilities to standardize CMS which ranked lowest (0.1 percent) in existing dialysis facilities had not been regulations across provider types. When fire incidence among all health care renovated to comply with the February the new regulation was first facilities. (Medical Facility Fires, TFRS 2009 implementation date. The primary promulgated, we believed that Volume 9, Issue 4). The reason that the reason is the pervasive inconsistency in standardized application of the LSC was fire risk is so low in dialysis facilities is knowledge, interpretation, and desirable and that the costs for ESRD due to the following combination of application of NFPA 101 to ESRD facilities would not be excessive. factors: • facilities that we have become aware of However, we have since determined ESRD facilities do not have fire since the 2009 implementation date. that standardization may not be ignition sources commonly found in There was a high variability in the cost appropriate given the non-residential other medical facilities, for example, estimates submitted, ranging from a low and unique characteristics of ESRD cooking, anesthesia, paint shops, or of $23,500 to a high of $222,000 for an facilities and the increased burden piped-in gases, and are generally existing facility which needed to created by these requirements without configured with open patient treatment renovate, construct and upgrade all four the commensurate benefit. Chapters 20 areas providing exits directly to the components. The average per facility and 21 of the National Fire Protection outside; • cost estimates submitted for the Agency’s (NFPA) 101 LSC, 2000 Dialysis patients are not additional structural requirements of Edition, were incorporated by reference anesthetized and are required at NFPA 101 are as follows: in the ESRD regulations at § 494.60(e). § 494.60(d)(2) of the ESRD regulation to • Smoke compartments—$32,544. When implemented, these Federal be trained in emergency disconnect • Occupancy separation—$28,139. LSC regulations were found to duplicate from their dialysis treatment and • Hazardous areas separation— many provisions of already existing evacuation from the building; $16,976. State and local fire safety codes covering • Section 494.60(d)(4) of the ESRD The total average cost for a facility to ESRD facilities. Although the State and regulation requires that staff be present meet all three would be $77,659. We local codes protected patients from fire in the patient treatment area at all times suspect that the variability of the hazards, the NFPA 101 LSC during treatment and therefore estimates may be due to different State

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and local requirements already in We intend to use the NFPA definition Contact: Thomas Hamilton, 410–786– existence, differences in contractor of ‘‘high hazard occupancy’’ found at 9493. costs, varying building characteristics A.3.3.134.8.2, Annex A, NFPA 101, Life 2. ASC Emergency Equipment (for example, age, size, construction Safety Code 2000, which applies to type), and the inconsistent ‘‘occupancies where gasoline and other Section 1832(a)(2)(F)(i) of the Act interpretations and applications of flammable liquids are handled, used or specifies that Ambulatory Surgical NFPA 101 that are prevalent across the stored under such conditions that Centers (ASCs) must meet health, safety, nation. The wide range of estimates involve possible release of flammable and other requirements specified by the makes it difficult to determine an vapors; where grain dust, wood flour or Secretary in regulation in order to average cost related to implementation plastic dusts, aluminum or magnesium participate in Medicare. The Secretary is of NFPA 101. However, using the dust, or other explosive dusts are responsible for ensuring that the average costs for the individual produced; where hazardous chemicals Conditions for Coverage (CfCs) and their structural requirements listed above, if or explosives are manufactured, stored, enforcement are adequate to protect the 50 percent or 2,800 facilities required or handled; where cotton or other health and safety of all individuals only renovation for hazardous area combustible fibers are processed or treated by ASCs, whether they are separation, the savings would be $47.5 handled under conditions that might Medicare beneficiaries or other patients. million. If 2,800 facilities required produce flammable flyings; and where To implement the CfCs, we determine renovation for all three structural other situations of similar hazard exist.’’ compliance through State survey requirements, the total savings from the We note that all ESRD facilities would agencies that conduct onsite inspections burden reduction at the average estimate still be required to comply with State using these requirements. ASCs also for all three would be $217 million. and local fire codes and safety standards may be deemed to meet Medicare standards if they are certified by one of These amounts represent a significant under § 494.20. We also propose the national accrediting organizations financial burden on facilities, with little revising § 494.60(e)(2) to clarify which whose standards meet or exceed the or no improvement in patient safety ESRD facilities must use sprinkler- equipped buildings: those housed in CfCs. The ASC regulations were first from fire for a majority of them. published on August 5, 1982 (47 FR Expenditures of this magnitude would multi-story buildings of lesser fire protected construction types (Types 34082). Most of the revisions since then likely divert resources away from areas have been payment related with the which do affect dialysis patient safety, II(000), III(200), or V(000), as defined in NFPA 101), which were constructed exception of a final rule published on such as infection control and November 18, 2008 (73 FR 68502) that prevention. after January 1, 2008; and those housed in high rise buildings over 75 feet in revised four existing health and safety The cost estimates do not account for height. We note that this revision would CfCs and created three new health and the added burden that renovation to not change the meaning or intent of safety CfCs (42 CFR 416.41 through comply with NFPA 101 would impose § 494.60(e)(2), but instead would clarify 416.43 and 416.49 through 416.52). on dialysis patients who must be it. That provision states that dialysis Sections 416.44(c)(1) through (c)(9) relocated to other ESRD facilities for facilities participating in Medicare as of provide a detailed list of specific their treatments during construction. October 14, 2008, may continue to use emergency equipment that must be Significant additional costs would also non-sprinklered buildings if such available to the ASC’s operating room, be incurred by Federal government buildings were constructed before for example, emergency call system; agencies and State Survey Agencies for January 1, 2008, and State law so oxygen; mechanical ventilator oversight activities of LSC surveys permits. assistance equipment including airways, which often duplicate State LSC The ESRD CfCs also address other manual breathing bag, and ventilator; surveys. topics related to fire and building safety cardiac defibrillator; cardiac monitoring Based on information gained since that will remain in place under our equipment; tracheotomy set; publication of the updated ESRD CfC, proposed revision. These existing CfC laryngoscopes and endotracheal tubes; we have concluded that the enforcement requirements include specific rules on suction equipment; and emergency of the Federal LSC requirements of how to handle chemicals related to the medical equipment and supplies NFPA 101 add costs out of proportion dialysis process, as well as general specified by the medical staff. In recent to any added protection that they may requirements for appropriate training in years, we have learned from the ASC afford in dialysis facilities which are not emergency preparedness for the staff community that some of this equipment at higher risk of fire penetration from and patients, including provisions for is outdated, while other equipment is adjacent industrial ‘‘high hazard’’ instructions on disconnecting from the not applicable to the emergency needs occupancies and where swift, dialysis machine during an emergency of all ASCs. The emergency equipment unencumbered evacuation to the and instructions on emergency CfC has not been revised since its outside is available. Therefore, we evacuation. We welcome comments inception in 1982. To ensure that no propose revising § 494.60(e)(1) to from the public on whether the other ASC is burdened with maintaining restrict mandatory compliance with the ESRD CfCs can be improved in a way unnecessary equipment, we are NFPA 101 LSC to those ESRD facilities that minimizes provider burden while proposing to revise the requirements for located adjacent to ‘‘high hazardous’’ protecting patient safety or, alternately, this CfC. occupancies and those facilities whose the extent to which remaining We propose to remove the list of patient treatment areas are not located at requirements are necessary and emergency equipment at § 416.44(c)(1) grade level with direct access to the appropriate for the care and safety of through (c)(9) and propose at § 416.44(c) outside. This revision would retain the dialysis patients. Similarly, we note that to require that ASCs, in conjunction NFPA 101 LSC protections for those other CMS regulations include CfCs, with their governing body and the facilities in higher-risk locations while and we seek comments on whether we medical staff, develop policies and relieving burden on those for whom the should revisit these or other regulatory procedures which specify the types of subdivision of building space and other provisions or whether existing emergency equipment that would be additional LSC requirements of NFPA requirements are necessary and appropriate for the facility’s patient 101 are unnecessary. appropriate. population, and make the items

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immediately available at the ASC to re-enrollment bar of a minimum of 1 ineligible for Medicare billing purposes) handle inter- or post-operative year shall be imposed. for providers or suppliers that have not emergencies. We are also proposing that We believe that the re-enrollment bar submitted a Medicare claim for 12 the emergency equipment identified by is unnecessary in certain situations. consecutive months. If the deactivated the ASC meet the current acceptable Accordingly, we propose to eliminate provider does furnish services and standards of practice in the ASC the re-enrollment bar in instances when attempts to submit a claim after the date industry. We believe that these providers and suppliers have not of deactivation, the claim would be proposed changes would enable ASCs to responded timely to requests for denied. Therefore, once deactivated, a better meet current demands, while also revalidation of enrollment or other new provider or supplier enrollment ensuring ASCs have the flexibility requests for information initiated by application must be submitted and necessary to respond to emergency CMS. Specifically, we propose revising processed by the Medicare contractor needs and incorporate the use of § 424.535(c) to expressly provide that before the billing privileges can be modern equipment most suitable for the the re-enrollment bar would not apply reactivated. procedures performed in the facility. if the revocation is based solely upon We propose to revise § 424.540(a) to We note that a potential disadvantage the failure of a provider or supplier to apply only to those providers and of the approach we propose is that, by respond timely to a revalidation request suppliers who do not submit a Form allowing ASCs to identify the or other request for information. We CMS–855I (the enrollment form for emergency equipment most appropriate believe that this change is appropriate individual physicians and non- for each individual facility, there could because the re-enrollment bar in such physician practitioners) to enroll in the be increased variation in emergency circumstances often results in Medicare program. Physicians and non- preparedness between different ASCs, unnecessarily harsh consequences for physician practitioners are deactivated even among ASCs that provide very the provider or supplier and causes most often due to billing inactivity. To similar services. We therefore invite beneficiary access issues in some cases. reactivate their Medicare billing comment on our proposed approach and We have learned of numerous instances privileges, they must resubmit an on any alternatives to our approach. An when the provider’s failure to respond enrollment application. We are most concerned with example of such an alternative might be to a revalidation request was organizations that fail to submit a claim for us to categorize ASCs according to unintentional; that is, the provider was within a 12-month period, since the major services they provide (such as not aware of the request due to, for business organizations would generally ASCs that typically use general instance, misrouted mail or a clerical submit a claim on a more frequent basis. anesthesia), and then specify a mistake. This is different from other Conversely, we believe that there are minimum array of equipment tailored to revocation reasons, which may be more instances in which individual the various categories of risk. serious; for example, we revoke providers that have been excluded from practitioners may have a valid reason Contact: Jacqueline Morgan, 410–786– Medicare, Medicaid, or other Federal for not filing claims within a 12-month 4282. health care programs or that have been period. For instance, the practitioner— 3. Revocation of Enrollment and Billing convicted of a felony under (1) May be enrolled in Medicare, but Privileges in the Medicare Program § 424.535(a)(2) and (a)(3), respectively. generally only treats non-Medicare (§ 424.535) Finally, there is another, less restrictive patients; or (2) may have two separately- regulatory remedy available for enumerated practice locations listed on On June 27, 2008, we published a addressing a failure to respond timely to its Form CMS–855I, yet typically only final rule in the Federal Register (73 FR a revalidation request. This remedy is performs services at one of them. 36448) entitled ‘‘Medicare Program; discussed below in section II.A.4.c. Further, the 12-month deactivation Appeals of CMS or CMS Contractor Contact: Morgan Burns, 202–690– and reactivation processes also increase Determinations When a Provider or 5145. the workload and administrative costs Supplier Fails to Meet the Requirements of Medicare contractors. Accordingly, for Medicare Billing Privileges.’’ In that 4. Deactivation of Medicare Billing our proposal to revise § 424.540(a) rule, we added a new provision at Privileges (§ 424.540) would remove this unnecessary burden § 424.535(c) to provide that: ‘‘After a On April 21, 2006, we published a without jeopardizing our ability to provider, supplier, delegated official, or final rule in the Federal Register (71 FR detect and prevent fraud and abuse. We authorizing official has had their billing 20753) entitled ‘‘Medicare Program; have issued guidance that requires our privileges revoked, they are barred from Requirements for Providers and contractors to conduct certain participating in the Medicare program Suppliers to Establish and Maintain verification activities to guard against from the effective date of the revocation Medicare Enrollment.’’ As part of that physician and non-physician until the end of the re-enrollment bar. rule, we established provisions for the practitioner identity theft. We believe The re-enrollment bar is a minimum of deactivation of Medicare billing that this would lessen the danger that 1 year, but not greater than 3 years, privileges at § 424.540. the unused billing numbers of these depending on the severity of the basis individuals would be accessed by others a. Section 424.540(a)(1) for revocation.’’ The purpose of this to submit false claims. provision was to prevent providers and Section 424.540(a)(1) specifies that suppliers from being able to Medicare billing privileges may be b. Section 424.540(a)(2) immediately re-enroll in Medicare after deactivated if Medicare claims are not Section 424.540(a)(2) specifies that a their billing privileges were revoked. submitted for 12 consecutive months. provider or supplier’s Medicare billing Section 424.535(a)(1) and The purpose of this provision was to privileges may be deactivated if it fails § 424.535(c), respectively, provide prevent situations in which unused, idle to report a change to its enrollment that—(1) Medicare billing privileges Medicare billing numbers could be information within 90 calendar days or, may be revoked when a provider or accessed by individuals and entities to for changes in ownership or control, supplier is determined not to be in submit false claims. Currently, Medicare within 30 calendar days. We are not compliance with our enrollment provider or supplier enrollment billing proposing to alter this provision. We requirements; and (2) a post-revocation privileges are deactivated (made believe it is necessary for providers and

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suppliers to understand the importance participation for ICFs/ID at subpart I that displays the OMB control numbers of furnishing updated enrollment part 483. has not been updated since December 8, information to the Medicare program, Also, we are proposing to add a 1995. We believe that, it is no longer for incorrect or aged data can lead to requirement that a certified ICF/ID must necessary to maintain the chart, because improper payments. be surveyed on average every 12 months an inventory of currently approved CMS with a maximum 15-month survey information collections, including OMB c. Section 424.540(a)(3) interval. Current regulations at 42 CFR control numbers, is displayed on a We propose to add a new part 442 require that ICFs/ID be public Web site at http:// § 424.540(a)(3) that would allow us to surveyed for compliance with www.reginfo.gov/public/do/PRAMain. deactivate, rather than revoke, the conditions of participation at least every The Web site provides more timely Medicare billing privileges of a provider 12 months on a relatively fixed access to the OMB control numbers for or supplier that fails to furnish complete schedule. By contrast, nursing homes CMS information collection requests and accurate information and all must be surveyed for compliance with than the process of publishing updates supporting documentation within 90 certification standards at intervals of in the CFR. Also, as part of our quarterly calendar days of receiving notification between 12 and 15 months. We notice of CMS issuances, which is to submit an enrollment application and anticipate the proposed change in the published each quarter in the Federal supporting documentation, or resubmit certification period would have positive Register, we will remind reviewers and certify to the accuracy of its impacts on the care provided in these where they can find the most current enrollment information. Although the facilities as well as the efficient and list of information collections and OMB deactivated provider or supplier would effective operation of State survey control numbers. For these reasons, we still have to submit a complete agencies responsible for regulating ICFs/ are proposing to remove and reserve enrollment application to reactivate its ID. We also anticipate that the adoption subpart C since the content of the billing privileges, it would remain of flexible survey scheduling would information contained in this subpart is enrolled in Medicare and would not be encourage more consistent staffing at obsolete and more readily available on subject to other, ancillary consequences levels that support certification the public Web site. that a revocation entails: for instance, a standards. Contact: Ronisha Davis, 410–786– prior revocation must be reported in In addition, State survey agency 6882. resources are strained by the rigid section 3 of the Form CMS–855I 2. Removal of Obsolete Provisions timelines imposed in the current application, whereas a prior Related to Initial Determinations, deactivation need not. In fact, it is for regulation. For example, if a complaint Appeals, and Reopenings of Part A and this reason that we believe our proposal results in an abbreviated survey 10 or 11 Part B Claims and Entitlement would reduce the burden on the months into the facility’s certification Determinations (§ 405.701 Through provider and supplier communities. period, the current regulation does not § 405.877) allow the State agency to expand the Contact: Morgan Burns, 202–690– In this rule, we propose to remove the 5145. complaint survey for the purpose of completing the requirements of annual obsolete provisions contained in 42 CFR 5. Duration of Agreement for certification at the same time. Instead, part 405 subparts G and H governing Intermediate Care Facilities for the the State is required to conduct another initial determinations, appeals, and Intellectually Disabled (Referred to in full survey at 12 months, which is reopenings of Part A and Part B claims, Current Regulations as Intermediate duplicative. More flexibility would and determinations and appeals Care Facilities for the Mentally allow States to use their survey staff in regarding an individual’s entitlement to Retarded) (§ 442.15 Through § 442.109) a targeted fashion, allocating resources benefits under Part A and Part B of Medicare. Section 1869 of the Act and As described elsewhere in this where needed to assure resident safety and quality of care, rather than being 42 CFR part 405 subpart I set forth the preamble, we are replacing the use of current policies for such the term ‘‘mentally retarded’’ with the forced to meet rigid regulatory timelines that do not bear a relationship to the determinations, appeals, and term ‘‘intellectually disabled’’ as reopenings. described in this program, so we have needs of residents. Contact: Thomas Hamilton, 410–786– On November 15, 2002, we published used the new term in these proposed 9493. a comprehensive proposed rule in the provisions. Federal Register (67 FR 69312), entitled Section 1910 of the Act provides for B. Removes Obsolete or Duplicative ‘‘Changes to the Medicare Claims the certification and approval of Regulations or Provides Clarifying Appeal Procedures,’’ to implement the Intermediate Care Facilities for the Information relevant claims and appeals provisions Intellectually Disabled (ICFs/ID). The following proposals seek to contained in the Medicare, Medicaid, Current regulations at § 442.109 and remove requirements in the Code of and SCHIP Benefits Improvement and § 442.110 address ICFs/ID provider Federal Regulations (CFR) that are no Protection Act of 2000 (BIPA) (Pub. L. agreements and limit the ICFs/ID longer needed or enforced. We have 106–554). In this proposed rule, we provider agreements under Medicaid to identified regulations that have become established, in one location (part 405 annual time limits. We propose to obsolete and need to be updated. subpart I), provisions governing all remove the time limited agreements for aspects of Part A and Part B claims ICFs/ID at § 442.16. We also are 1. OMB Control Numbers for Approved appeals. In 2003, the Medicare proposing to eliminate this requirement Collections of Information (§ 400.300 Prescription Drug, Improvement, and at § 442.15, § 442.109, and § 442.110. and § 400.310) Modernization Act of 2003 (MMA) (Pub. We propose to replace the requirement Part 400 subpart C requires the L. 108–173) made further changes to the with an open ended agreement which, collection and display of control Medicare claims appeals process. On consistent with nursing facilities (NFs), numbers assigned by the Office of March 8, 2005, we published an interim would remain in effect until the Management and Budget (OMB) to final rule with comment period in the Secretary or a State determines that the collections of information contained in Federal Register (70 FR 11420) to ICF/ID no longer meets the conditions of CMS regulations. The chart at § 400.310 implement provisions of the proposed

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rule, and to explain how the recently representatives with respect to the by an ALJ hearing, Medicare Appeals enacted MMA provisions would be applicable appeal rights and procedures. Council review, and judicial review in implemented. On December 9, 2009, we However, while we believe that all pre- accordance with the provisions in part published a final rule in the Federal BIPA appeals have been processed, we 405 subpart I. If a party demonstrates Register (74 FR 65296) entitled, cannot be completely certain that no that they received an ALJ hearing ‘‘Changes to the Medicare Claims pending pre-BIPA appeals currently decision under subpart G, and requested Appeal Procedures,’’ responding to exist. In order to ensure that parties but did not receive a decision, dismissal comments received on the interim final receive due process for their claim or denial of review notice from the rule implementing part 405 subpart I. disputes, we propose that any newly Departmental Appeals Board, the party Part 405 subparts G and H contain the identified pre-BIPA appeals be handled would be entitled to request Medicare policies for initial determinations, under the current appeals provisions set Appeals Council review under part 405 appeals, and reopenings of Medicare forth in part 405 subpart I. (We note that subpart I. Part A and Part B claims, before the all reopening actions, regardless of effective date of BIPA (referred to as whether the determination or decision TABLE 1—PRE-BIPA PART A APPEALS ‘‘pre-BIPA appeals’’). In addition, part was made under the pre-BIPA process, 405 subparts G and H contain initial determinations on claims, and, as Pending Pre-BIPA Appeal resumes at provisions regarding initial level of appeal in part the following level in explained above, initial determinations 405 subpart G part 405 subpart I determinations and appeals with respect and appeals with respect to Medicare to an individual’s entitlement to entitlement, are currently processed Reconsideration Redetermination Medicare Parts A and B. Under subparts under the applicable procedures in part (§ 405.710). (§ 405.940). G and H, initial determinations and 405 subpart I.) We believe that ALJ Hearing QIC Reconsideration appeals with respect to an individual’s maintaining a separate pre-BIPA claim (§ 405.720). (§ 405.960). entitlement to Medicare Parts A and B appeals process in the unlikely event Departmental Appeals Medicare Appeals were conducted by the Social Security Board Review Council Review such an appeal is discovered is (§ 405.724). (§ 405.1100). Administration (SSA) and governed by inefficient and impracticable. Using the the provisions set forth in 20 CFR part current appeals process under subpart I, Table 2 below illustrates how we 404 subpart J. Under part 405 subpart I, for all appeal requests filed on or after we explain that the SSA makes initial propose to process any pre-BIPA Part B the effective date of this rule, as appeals identified after the effective determinations regarding an finalized, would reduce potential individual’s entitlement to Medicare date of this rule, as finalized, under our confusion about applicable appeal current regulations at part 405 subpart Parts A and B, and conducts procedures, and would enable parties to reconsiderations of those initial I. If a party demonstrates that they take advantage of the reduced decision- requested a carrier review of an initial determinations, in accordance with 20 making timeframes and other process CFR part 404, subpart J (see 42 CFR determination under subpart H, but did improvements offered throughout part not receive a carrier review 405.904). However, entitlement appeals 405 subpart I (for example, panel beyond the reconsideration level (that determination or dismissal, the party reviews during the Qualified would be entitled to request a is, to an Administrative Law Judge, the Independent Contractor (QIC) Medicare Appeals Council, or Federal redetermination, followed by QIC reconsideration process for claims reconsideration, ALJ hearing, Medicare District Court) are governed by the denied as not medically reasonable and appeals procedures set forth in part 405 Appeals Council review and judicial necessary (see § 405.968(c)), and the subpart I. review in accordance with the right to escalate cases to the next level The provisions in part 405 subpart I provisions in part 405 subpart I. If a were intended to replace the provisions of appeal when the QIC, Administrative party demonstrates that they received a in part 405 subparts G and H once all Law Judge (ALJ) or Medicare Appeals carrier review determination and pre-BIPA appeals were completed. Council does not issue a decision within requested a carrier hearing but did not However, we determined it was the applicable adjudication timeframe receive a carrier hearing officer decision necessary to establish a phased-in (see § 405.970, § 405.1104, and or dismissal under subpart H, the party implementation approach for part 405 § 405.1132). would be entitled to request a QIC subpart I appeals, and to maintain the Table 1 below illustrates how we reconsideration followed by an ALJ existing provisions in subparts G and H propose to process any pre-BIPA Part A hearing, Medicare Appeals Council until the completion of all pre-BIPA appeals identified after the effective review and judicial review in appeals (see, 74 FR 11424). With the date of this rule, as finalized, under our accordance with the provisions in part publication of the December 9, 2009 current regulations at part 405 subpart 405 subpart I. If a party demonstrates final rule, some pre-BIPA appeals had I. If a party demonstrates that they had that they received a carrier hearing not been completed. Thus, we were requested reconsideration under part officer decision, and requested but did unable to remove the appeals provisions 405 subpart G, but did not receive a not receive an ALJ hearing decision or in subparts G and H at that time. decision or dismissal, the party would dismissal under subpart H, the party In this rule, we propose to remove the be entitled to request a redetermination, would be directed to request a QIC obsolete provisions since it is our followed by a QIC reconsideration, ALJ reconsideration, followed by an ALJ expectation that in the 6 years since hearing, Medicare Appeals Council hearing, Medicare Appeals Council publication of the March 8, 2005 interim review, and judicial review in review and judicial review in final rule, any party with a pending pre- accordance with the provisions in part accordance with the provisions in part BIPA appeal would have received an 405 subpart I. If a party demonstrates 405 subpart I. Finally, if a party appeal decision or would have brought that they received a reconsideration demonstrates that they received an ALJ the pending matter to our attention. We decision and requested an ALJ hearing hearing decision under subpart H, and believe that removing these regulations under part 405 subpart G but did not requested but did not receive a decision, would eliminate any possible confusion receive an ALJ hearing decision or dismissal or denial of review notice among Medicare beneficiaries, dismissal, the party would be entitled to from the Departmental Appeals Board providers, suppliers, and their request a QIC reconsideration, followed under subpart H, the party would be

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entitled to request Medicare Appeals TABLE 2—PRE-BIPA PART B APPEALS provider or supplier billing privileges, Council review under part 405 and the appeal rights afforded to the subpart I. Pending pre-BIPA Appeal resumes at parties to those determinations. As these level of appeal in part the following level in We are proposing that parties seek a procedures do not relate directly to 405 subpart H part 405 subpart I initial determinations and appeals of QIC reconsideration before requesting Medicare claims, they were not and receiving a hearing before an ALJ Review of Initial De- Redetermination included in part 405 subpart I. However, under subpart I for several reasons. termination (§ 405.940). (§ 405.807). these provisions are not obsolete and are First, we note that several subpart I Carrier Hearing QIC Reconsideration still applicable to provider and supplier procedural requirements at the ALJ level (§ 405.821). (§ 405.960). enrollment actions. We also note that of appeal are predicated on a QIC ALJ Hearing QIC Reconsideration we are making minor technical edits to conducting a reconsideration. For (§ 405.855). (§ 405.960). the current text to refine the section. example, the right to request an ALJ Departmental Appeals Medicare Appeals Finally, we also propose to remove hearing under § 405.1000 and Board Review Council Review § 405.753 and § 405.877 (‘‘Appeal of a § 405.1002 is premised on a party being (§ 405.856). (§ 405.1100). categorization of a device.’’). These dissatisfied with a QIC reconsideration regulations are obsolete because they no With very limited exceptions as noted longer comport with the definition of decision. In addition, under below, the provisions in subparts G and ‘‘national coverage determination’’ in § 405.966(a)(2) and § 405.1028, absent a H related to the processing of initial showing of good cause, evidence not section 1869(f) of the Act, as amended determinations, reopenings, and appeals by section 522 of BIPA. The Food and submitted before the issuance of the QIC of claims under Part A and Part B of reconsideration by a provider, supplier, Drug Administration’s (FDA) Medicare, and determinations and categorization of a product as a category or beneficiary represented by a provider appeals regarding an individual’s or supplier would be excluded from A device is not a determination of entitlement to benefits under Part A and whether or not the item is covered consideration by the ALJ. Thus, Part B of Medicare are obsolete because under title XVIII of the Act. Under channeling appeals through the QIC of the new procedures set forth in § 405.203(c), we use the FDA reconsideration level would ensure that subpart I. We propose to remove all categorization in making a coverage parties are afforded an opportunity to such obsolete provisions. The decision. Thus, our decision (acting on submit relevant evidence without provisions in subparts G and H the FDA’s categorization) to deny a having to demonstrate good cause for identified below are either unrelated to claim for a category A device is an not submitting it during the pre-BIPA claims or entitlement appeals and are initial determination that is subject to process. Second, we believe channeling still in effect, or were inadvertently not review through the claims appeals pre-BIPA appeals through the QIC included in subpart I, and accordingly, process. reconsideration process would benefit would be retained and redesignated to Contact: Flosetta Rowry, 410–786– parties. For example, we believe parties subpart I. 8492. We propose to retain § 405.706, would benefit from the panel review by 3. ASC Infection Control Program physicians and other appropriate health ‘‘Decisions of utilization review committees,’’ and redesignate the (§ 416.44) care professionals at the QIC level when section as § 405.925 in subpart I. This claims are denied as not medically In existing regulations at 42 CFR regulatory provision explains that—(1) 416.51, we require all ASCs to adhere to reasonable and necessary under section The decisions made by the utilization regulations regarding Infection Control, 1862(a)(1)(A) of the Act. We also believe review committees are not initial which include the requirement that all the administrative record would be determinations made by the Secretary ASCs develop an infection control more fully developed with respect to the within the meaning of section 1869 of program. The regulations also describe medical and scientific evidence the Act; (2) are not subject to the appeal; how ASCs must set up their infection considered by such panels. Third, in and (3) further explains how utilization control program, such as the order for a party to seek expedited review committee decisions may be requirement that the ASC designate a access to judicial review under used in payment and coverage qualified professional who has training § 405.990, the party must first have decisions. In drafting the regulations in infection control and the ASC’s received a QIC reconsideration, or the under part 405 subpart I, we obligation to establish a plan of action appeal must have been escalated from inadvertently omitted this section. For regarding preventing, identifying, and the QIC to the ALJ level (see, clarity, and to ensure that beneficiaries managing infections and communicable § 405.990(b)). To ensure a party may and providers understand that diseases. seek expedited access to judicial review, utilization review committee decisions Current regulations also contain a if such review is appropriate, we are are not appealable, and in furtherance of provision for infection control that is proposing to channel pre-BIPA appeals our goal to include all relevant claims located within the physical through the QIC reconsideration process appeals procedures in one place, we are environment standard in 42 CFR when the party has not received an ALJ proposing to retain § 405.706, and 416.44(a)(3). The requirement states that decision. Finally, as noted above, we redesignate it as § 405.925. an ASC must establish a program for believe that having one set of rules In addition, we propose to retain identifying and preventing infections, apply to all appeals would eliminate the § 405.874, ‘‘Appeals of CMS or a CMS maintaining a sanitary environment, contractor,’’ and redesignate the confusion and uncertainty regarding the and reporting the results to the provisions as § 405.800, § 405.803, appropriate authorities. This regulatory appropriate procedures to follow should § 405.806, § 405.809, § 405.812, requirement was part of the original there be any existing pre-BIPA appeals. § 405.815, and § 405.818. These CfCs first published for ASCs in 1982. provisions set forth, among other things, Publication of the November, 2008 ASC the procedures related to denials of final rule elevated the infection control provider or supplier enrollment requirements from a standard level applications, revocations of Medicare under the Environment condition to a

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separate condition level requirement, and benefit inquiries between the NCPDP Telecommunication Standard thus making the regulatory requirement prescriber and Plan Sponsor. The latter Implementation Guide, Version 5, in the Environment CfC duplicative. two transactions, NCPDP Telecom 5.1 Release 1 (Version 5.1) and equivalent The Infection Control CfC located at and the 4010/4010A are also adopted as NCPDP Batch Standard Implementation § 416.51 expands and broadens the HIPAA transaction standards. Guide, Version 1, Release 1 (Version infection control requirements that were In the November 7, 2005 final rule, we 1.1), for transmitting eligibility inquiries part of the original ASC requirements in discussed the means for updating the and responses between dispensers and the Environment CfC. Therefore, we Part D e-prescribing standards. In Part D sponsors with an effective date of propose to remove the requirement at instances in which an e-prescribing January 1, 2012. § 416.44(a)(3), located in the standard has also been adopted as a Contact: Andrew Morgan, 410–786– Environment CfC, as it is unnecessary HIPAA transaction standard in 45 CFR and obsolete. We believe this change part 162, the process for updating the e- 2543. would alleviate any duplicative efforts prescribing standard would have to be 5. Physical and Occupational Therapist and confusion regarding the infection coordinated with the maintenance and Qualifications (§ 440.110) control requirements. modification of the applicable HIPAA Contact: Jacqueline Morgan, 410–786– transaction standard. In the January 16, Current regulations detail provider 4282. 2009 final rule, entitled ‘‘Health qualifications for a ‘qualified physical Insurance Reform; Modifications to the therapist’ under Medicaid at 42 CFR 4. E-Prescribing (§ 423.160) Health Insurance Portability and 440.110(a)(2). Section 440.110(b)(2) The MMA amended title XVIII of the Accountability Act (HIPAA) Electronic details the provider qualifications for a Act to establish a voluntary prescription Transaction Standards’’ (74 FR 3296), ‘qualified occupational therapist’ under drug benefit program. Under those we revised § 162.1102, § 162.1202, Medicaid. These current regulations provisions, prescription Drug Plan § 162.1302, § 162.1402, § 162.1502, contain outdated terminology (PDP) sponsors and Medicare Advantage § 162.1602, § 162.1702, and § 162.1802 referencing several professional (MA) organizations offering Medicare to adopt the ASC X12 Technical Reports organizations. Also some of the current Advantage-Prescription Drug Plans Type 3, Version 005010 (Version 5010), qualification requirements do not (MA–PD) are required to establish as a replacement of the current X12 address individuals who have been electronic prescription drug programs to Version 4010 and 4010A1 standards trained outside of the United States, or provide for electronic transmittal of (Version 4010/4010A). Covered entities refer to outdated requirements, which certain information to the prescribing conducting HIPAA standards are could unintentionally exclude provider and dispensing pharmacy and required to use Version 5010 by January otherwise qualified therapists resulting pharmacist. This includes information 1, 2012. The complete discussion of in diminished access to care for about eligibility, benefits (including these standards may be found in the Medicaid beneficiaries. drugs included in the applicable January 16, 2009 final rule (74 FR 3296). formulary, any tiered formulary In the same final rule, effective Medicare regulations at § 484.4 were structure and any requirements for prior January 1, 2012, we revised § 162.1102, updated through a November 27, 2007 authorization), the drug being § 162.1202, § 162.1302, and § 162.1802 final rule (72 FR 66406), effective prescribed or dispensed and other drugs by adding a new paragraph (c) to each January 1, 2008. While these personnel listed in the medication history, as well of these sections to adopt the NCPDP qualifications are detailed under home as the availability of lower cost, Telecommunication Standard health services, we indicated in the therapeutically appropriate alternatives Implementation Guide, Version D, preamble to the November 27, 2007 (if any) for the drug prescribed. The Release 0 and equivalent NCPDP Batch final rule, that therapy services must be MMA directed the Secretary to Standard Implementation Guide, provided according to the same promulgate uniform standards for the Version 1, Release 2 (collectively, standards and policies in all settings, to electronic transmission of this data. Version D.0) in place of the NCPDP the extent possible and consistent with In the November 7, 2005, final rule Telecommunication Standard statute, and revised multiple regulations (70 FR 67568), entitled ‘‘Medicare Implementation Guide, Version 5, to cross-reference the personnel Program; E–Prescribing and the Release 1 and equivalent NCPDP Batch qualifications for therapists in § 484.4 to Prescription Drug Program,’’ CMS Standard Batch Implementation Guide, the personnel requirements in many adopted three e-prescribing foundation Version 1, Release 1 (collectively, other sections. standards to be used for e-prescribing Version 5.1), for the following retail We are proposing at § 440.110 to for the Medicare Part D program. The pharmacy drug transactions: health care remove the outdated personnel three foundation standards are—(1) The claims or equivalent encounter qualifications language in the current National Council for Prescription Drug information; eligibility for a health plan; Medicaid regulations and instead cross Programs (NCPDP) SCRIPT version 5.0., referral certification and authorization; reference the updated Medicare which provides for communications and coordination of benefits. personnel qualifications for physical between the prescriber and dispenser; Therefore, for consistency with the therapists and occupational therapists (2) the NCPDP Telecommunication current HIPAA transaction standards, Standard Version 5 release 1 (NCPDP and the need for covered entities under § 484.4. This proposal has the Telecom 5.1) and equivalent NCPDP (prescribers and dispensers) to comply potential to broaden the scope of Batch Standard Batch Implementation with HIPPA, we propose to revise providers that may be able to provide Guide version 1.1 which is the § 423.160(b)(3), to—(1) Update Version PT and OT services, by streamlining the transaction between the dispenser and 4010/4010A with Version 5010; (2) qualifications so that certain providers the Plan, and the ASC X12N 270/271 adopt the NCPDP Telecommunication are not excluded from providing Health Care Eligibility Benefit Inquiry Standard Implementation Guide, services under Medicaid. In addition, it and Response, Version 4010; and (3) the Version D, Release 0 (Version D.0) and strengthens the consistency of standards Addenda to Health Care Eligibility equivalent NCPDP Batch Standard across Medicare and Medicaid. Inquiry and Response, Version 4010A1 Implementation Guide, Version 1, Contact: Adrienne Delozier, 410–786– (4010/4010A) for conducting eligibility Release 2 (Version 1.2); and (3) retire 0278.

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6. Definition of Donor Document Second, we also believe that it is public. In the comment period (§ 486.302) important to include the requirement associated with this proposed rule, we that the donor document be ‘‘executed welcome additional suggestions from Section 486.302 includes the by the patient.’’ While this may appear stakeholders. We have identified following definition: ‘‘Donor document self-evident, we want to emphasize that nomenclature and definition changes is any documented indication of an the decision by a living person to donate that would hopefully increase individual’s choice in regard to organs and/or tissue after his or her transparency and enhance our donation that meets the requirements of death is always a voluntary decision. relationship with the public. the governing State law.’’ In recent Therefore, we have modified the Nomenclature Changes years, the concept of the donor definition to account for this. document and the opportunities for These changes to the definition of the 1. Redefining the Term ‘‘Beneficiary’’ individuals to express their wishes donor document only affect the (§ 400.200 Through § 400.203) concerning organ and/or tissue donation documentation of an individual’s In response to comments from the have changed. An individual can wishes concerning organ and/or tissue public to discontinue our use of the indicate his or her wishes not only on donation while they are alive and can term ‘‘recipient’’ under Medicaid, we a driver’s license through a State’s legally make those decisions. In the have been using the term ‘‘beneficiary’’ Department of Motor Vehicles, but also absence of a valid donor document, the to mean all individuals who are entitled on various registries or even in separate donation decisions would rest with the to, or eligible for, Medicare or Medicaid documents. Therefore, we believe that individual who is legally responsible for services. We are proposing to add a our definition in § 486.302 should be making these decisions, usually the definition of ‘‘beneficiary’’ in § 400.200 updated. Moreover, the focus on patient person’s next of kin. that applies to patients under the rights has increased over the last several Contact: Jacqueline Morgan, 410–786– Medicare and Medicaid programs. We years. For example, we published a final 4282. would remove the terms ‘‘beneficiary’’ rule on November 19, 2010 entitled, 7. Administration and Governing Body and ‘‘recipient’’ from § 400.202 and ‘‘Changes to the Hospital and Critical (§ 486.324) § 400.203, respectively, and we would Access Hospital Conditions of make a nomenclature change to replace Participation to Ensure Visitation Rights On May 31, 2006, we published a final rule in the Federal Register (71 FR ‘‘recipient’’ with ‘‘beneficiary’’ for All Patients’’ (CMS–3228–F). In light throughout 42 CFR chapter IV. The of this increased focus, we believe that 30982) entitled, ‘‘Conditions for Coverage for Organ Procurement action to refer to beneficiaries instead of the current definition, does not fully recipients has already been allow for the various ways individuals Organizations (OPOs).’’ The final rule established several requirements, for implemented. We are simply can express their choices in the donor conforming our regulations to our process. In addition, we believe it is OPOs at § 486.324, including a number of requirements related to the current use of the term ‘‘beneficiary.’’ In important to emphasize that the creating this definition it is not our decision to donate organs and/or tissue administration and governing body of an OPO. Due to an error in publishing intent to exclude or include anyone who before death is the decision of the would or would not have previously individual. the final rule, paragraph (e) was inadvertently inserted twice (71 FR been understood to be a beneficiary. We We propose replacing the current 31052). welcome comments on whether this definition of ‘‘donor document’’ in We are proposing to remove the definition could be improved to attain § 486.302 with the following definition, duplicate paragraph (e), which appears that objective. ‘‘[D]onor document means any immediately after § 486.324(d). It does Contact: Ronisha Davis, 410–786– documented indication of an not alter or change the legal 6882. individual’s choice that was executed requirement, nor does it create a change by the patient, in accordance with any 2. Replace the Terms ‘‘Mental in information collection requirements Retardation’’ and ‘‘Mentally Retarded’’ applicable State law, before his or her or other regulatory burden. death, and that states his or her wishes With ‘‘Intellectual Disability’’ and Contact: Jacqueline Morgan, 410–786– ‘‘Intellectually Disabled’’ Throughout 42 regarding organ and/or tissue donation.’’ 4282. This new definition modifies the CFR title IV current definition in two ways. First, 8. Requirement for Enrolling in the We are proposing to change the while the current definition refers to Medicare Program (§ 424.510) terminology we use in the program ‘‘an individual’s choice’’ it does not We have identified an incorrect currently called Intermediate Care recognize the right of the individual to reference in § 424.510(a), due to a Facilities for the Mentally Retarded. identify their wishes more specifically. typographic error. We are proposing to Section 1905(d) of the Act states that, Donor documents may simply allow for replace the incorrect reference to ‘‘The term ‘‘intermediate care facility for the choice of whether or not to be an paragraph (c) (the effective date for the mentally retarded’’ means an organ and/or tissue donor, however, reimbursement for providers and institution (or distinct part thereof) for some individuals may choose to use suppliers seeking accreditation from a the mentally retarded or persons with documents that allow them to express CMS-approved accreditation related conditions * * *.’’ In 2010, their wishes in more detail. For organization) with a reference to Rosa’s Law (Pub. L. 111–256) amended example, some people may choose to be paragraph (d) (the enrollment statutory language in several health and an organ donor, but not a tissue donor. requirements). education statues, directing that ‘‘in Others may not want to consent to the Contact: Morgan Burns, 202–690– amending the regulations to carry out donation of specific organs. Therefore, 5145 this Act, a Federal agency shall ensure we believe our proposed definition that the regulations clearly state—(A) should cover documents or other ways C. Responds to Stakeholder Concerns That an intellectual disability was for individuals to express their wishes The following proposals seek to formerly termed ‘‘mental retardation’’; more specifically, and we have modified respond to some of the concerns and and (B) that individuals with the definition accordingly. feedback that we have received from the intellectual disabilities were formerly

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termed ‘‘individuals who are mentally information collection requirements October 31, 2012) to the Office of retarded.’’ (ICRs): Management and Budget for review. CMS regulations at 42 CFR chapter IV include numerous references to ‘‘mental A. Removes Unnecessarily Burdensome 3. ICRs Regarding Revocation of retardation.’’ These regulatory Requirements Enrollment and Billing Privileges in the Medicare Program (§ 424.535) provisions reflect the statutory benefit 1. ICRs Regarding End-Stage Renal category at section 1905(d) of the Act, Disease Facilities Condition for In this rule, we are proposing to which uses the term ‘‘mental Coverage: Physical Environment eliminate the re-enrollment bar in retardation’’ in the facility type (§ 494.60) instances when Medicare providers and designation, ‘‘Intermediate Care Facility suppliers have not responded timely to In this rule, we are proposing to limit for the Mentally Retarded.’’ Rosa’s Law requests for revalidation of enrollment the number of ESRD facilities that must did not specifically list the Act within or other requests for information. This meet the LSC requirements found in its scope, and therefore did not require would allow providers and suppliers to chapters 20 and 21 of NFPA 101. This any change to existing CMS regulations. attempt to re-enroll in Medicare sooner proposal would reduce burden on ESRD However, consistent with Rosa’s Law than would be the case if the re- facilities in terms of costly structural and in response to numerous inquiries enrollment bar applied. However, the modifications. However, this proposed from provider and advocate overall information collection burden change does not impact any information organizations as to when CMS will involved—specifically, the need to collections under the Paperwork comply with the spirit of Rosa’s Law, submit a Form CMS–855 initial Reduction Act. we propose to adopt the term enrollment application—would not ‘‘intellectual disability’’ (as used under 2. ICRs Regarding Condition for change. Our proposed revision would Rosa’s Law) in our regulations at Coverage: Emergency Equipment— therefore neither increase nor decrease § 400.203. We would define the term Ambulatory Surgical Centers (ASCs) the existing information collection ‘‘intellectually disabled’’ to mean the (§ 416.44) burden related to this requirement. condition that was previously referred Proposed § 416.44(c) would require 4. ICRs Regarding Deactivation of to as ‘‘mentally retarded’’ in section ASCs to coordinate, develop, and revise Medicare Billing Privileges (§ 424.540) 1919(e)(7)(G)(ii) of the Act. This ASC policies and procedures that would In this rule, we are proposing to nomenclature change does not represent specify the types of emergency restrict the deactivation provisions in any change in information collection equipment required for use in the ASC’s § 424.540(a)(1) to providers and requirements or other burden for the operating room. The equipment must be suppliers that do not complete the Form provider community or the State survey immediately available for use during CMS–855I application. Physicians and agencies. Current forms may be used by emergency situations, be appropriate for non-physician practitioners would the State survey agencies until current the facility’s patient population and be therefore not have their Medicare billing supplies are exhausted. The change maintained by appropriate personnel. privileges deactivated if they did not would require revision of forms CMS– The burden associated with these bill Medicare for 12 consecutive 3070G and CMS–3070H, as discussed requirements is the time and effort months. below. required by an ASC to develop revised We estimate that an average of Contact: Peggye Wilkerson, 410–786– policies and procedures governing the approximately 12,000 physicians and 4857. identification and maintenance of non-physician practitioners have been III. Collection of Information emergency equipment that would deactivated each year pursuant to Requirements typically be required to address the § 424.540(a)(1). These individuals have Under the Paperwork Reduction Act intra- or post-operative emergency been required to submit a complete of 1995, we are required to provide 60- complications specific to the types of Form CMS–855I application to their day notice in the Federal Register and procedures performed in the ASC and Medicare contractor in order to solicit public comment before a the needs of their specific patient reactivate their Medicare billing collection of information requirement is population. privileges. With our proposed change, submitted to the Office of Management We believe that approximately 5,200 however, this step would no longer be and Budget (OMB) for review and ASCs would have to comply with these necessary because the deactivation approval. In order to fairly evaluate requirements. We estimate that would not have occurred. whether an information collection proposed § 416.44(c) would impose a For purposes of this ICR, we estimate should be approved by OMB, section one-time burden of two hours associated that 10,800 physicians and non- 3506(c)(2)(A) of the Paperwork with revising the policies and physician practitioners (or 90 percent of Reduction Act of 1995 requires that we procedures pertaining to the list of the the aforementioned 12,000 total) would solicit comment on the following issues: emergency equipment and supplies continue to submit Form CMS–855I • The need for the information maintained and commonly used by the (OMB No. 0938–0685) reactivation collection and its usefulness in carrying ASC during emergency responses to applications absent our proposed out the proper functions of our agency. their specific patient population. The change. The estimated ‘‘per application’’ • The accuracy of our estimate of the total burden associated with this task burden of completing the application is information collection burden. would be approximately 5,200 hours. 5 hours, at a per hour cost of $50. This • The quality, utility, and clarity of The total cost associated with this results in a total savings in collection of the information to be collected. requirement would be $468,000 (5,200 × information costs for Medicare-enrolled • Recommendations to minimize the $90—based on an hourly nurse’s salary physicians and non-physician information collection burden on the ($45.00 × 2 hours), including fringe practitioners of approximately $2.7 affected public, including automated benefits, as specified by the Bureau of million per year (10,800 × 5 × $50). collection techniques. Labor Statistics for 2009). Consistent with this proposed change, We are soliciting public comment on Consistent with this proposed change, we will submit a revision to control each of these issues for the following we will submit a revision to control number 0938–0685 to the Office of sections of this document that contain number 0938–1071 (expiration date Management and Budget for review.

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5. ICRs Regarding Duration of standards to mirror the HIPAA in information collection or other Agreement for ICFs/ID (§ 442.15) standards that will be in effect as of regulatory burden. January 1, 2012. There is no burden In this rule, we are proposing to 2. ICRs Regarding Definitions Specific to (addition or reduction) associated with remove the time limited agreements for Medicaid (§ 400.203) intermediate care facilities. There is no this proposal. In this rule, we are proposing to add reduction in burden or cost for the 5. ICRs Regarding Physical Therapy, to the regulations a definition of intermediate care facility providers but Occupational Therapy, and Services for ‘‘intellectual disability’’ for purposes of the regulation change would help to Individuals With Speech, Hearing, and the Medicaid program that would define reduce the paperwork and staff time Language Disorders (§ 440.110) it, consistent with Rosa’s law (Pub. L. required by State agencies in processing In this rule, we are proposing to 111–256), as the condition formerly temporary extensions of the provider update and align provider qualifications referred to as ‘‘mental retardation’’ and agreements that are required until the for PT and OT professionals. This we would replace all references in CMS onsite survey occurs. In addition, proposal has the potential to broaden regulations to ‘‘mental retardation’’ with providers and State agencies would no the scope of providers that may be able ‘‘intellectual disability.’’ Furthermore, longer face the uncertainty created by to provide PT and OT services, by we propose to replace the term the issuance of the multiple temporary streamlining the qualifications so that ‘‘mentally retarded,’’ as defined in extensions due to the provider certain providers are not excluded from section 1919(e)(7)(G)(ii) of the Act, with agreements. Consistent with this providing services under Medicaid. ‘‘intellectually disabled.’’ This proposal proposed change, we will submit a However, this proposed change does not would create no change in information revision to control number 0938–0062. impact any information collections collection or other regulatory burden. B. Removes Obsolete or Duplicative under the paperwork reduction Act. The change would require revision of Regulations or Provides Clarifying forms CMS–3070G and CMS–3070H, 6. ICRs Regarding Definitions Information which are approved under OMB control (§ 486.302) number 0938–0062 (expiration date 1. ICRs Regarding Display of Currently In this rule, we are proposing to April 30, 2013). CMS will submit this Valid OMB Control Numbers (§ 400.310) modify the definition of ‘‘donor collection to OMB for review. In this rule, we are proposing to document’’ to improve the ability of If you comment on these information remove the chart at § 400.310 that patients to indicate their wishes collection and recordkeeping display OMB control numbers because regarding the donation of organs and requirements, please do either of the the information has become obsolete. tissue, while also emphasizing that the following: This proposal would not produce any patient’s decision is voluntary. We do 1. Submit your comments reduction or increase in burden, but not expect that there would be any electronically as specified in the would ensure that the public is viewing changes in the collection of information ADDRESSES section of this proposed rule; the most current information regarding requirements for OPOs. We anticipate or OMB control numbers. that the enhanced ability individuals 2. Submit your comments to the initially would have to more specifically Office of Information and Regulatory 2. ICRs Regarding Initial identify their wishes would reduce Affairs, Office of Management and Determinations, Reconsiderations, burden associated with vague and Budget, Appeals, and Reopenings Under unclear designations. Attention: CMS Desk Officer, [CMS– Medicare Part A and B (§ 405.701 9070–P]; through § 405.877) 7. ICRs Regarding Condition: Fax: (202) 395–5806; or The provisions in part 405 subparts G Administration and Governing Body E-mail: and H that we are proposing to remove (§ 486.324) [email protected]. primarily are obsolete and no longer in In this rule, we are proposing the IV. Response to Comments use. We do not expect an increase or removal of the duplicate paragraph (e) reduction in burden, but believe that it of § 486.324. This proposal would not Because of the large number of public would be beneficial to ensure that result in any change in information comments we normally receive on providers or suppliers affected are using collection or other regulatory burden. Federal Register documents, we are not the post BIPA appeals process. able to acknowledge or respond to them 8. ICRs Regarding Requirement for individually. We will consider all 3. ICRs Regarding Condition for Enrolling in the Medicare Program comments we receive by the date and Coverage: Infection Control— (§ 424.510) time specified in the DATES section of Ambulatory Surgical Centers (ASCs) In this rule, we are proposing to this preamble, and, when we proceed (§ 416.44) correct a typographical error found in with a subsequent document, we will In this rule, we are proposing to § 424.510(a). This proposal would create respond to the comments in the remove the requirement at § 416.44(a)(3) no change in information collection or preamble to that document. regarding infection control that is other regulatory burden. V. Regulatory Impact Analysis duplicative of § 416.51. The removal of this requirement would not result in any C. Responds to Stakeholder Concerns We have examined the impact of this reduced or additional burden on ASCs, Nomenclature Changes rule as required by Executive Order but would alleviate any duplicative 12866 on Regulatory Planning and 1. ICRs Regarding General Definitions efforts and confusion regarding the Review (September 30, 1993), Executive (§ 400.200) infection control requirements. Order 13563 on Improving Regulation In this rule, we are proposing to add and Regulatory Review (February 2, 4. ICRs Regarding Standards for a definition of ‘‘beneficiary’’ in 2011), the Regulatory Flexibility Act Electronic Prescribing (§ 423.160) § 400.200 that applies to patients under (RFA) (September 19, 1980, Pub. L. 96– In this rule, we are proposing to the Medicare and Medicaid programs. 354), section 1102(b) of the Social update the current e-prescribing This proposal would create no change Security Act, section 202 of the

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Unfunded Mandates Reform Act of 1995 section 3(f)(1) of Executive Order 12866. B. Overall Impact (March 22, 1995; Pub. L. 104–4), and Accordingly, this proposed rule was Executive Order 13132 on Federalism reviewed by the Office of Management There are cost savings in many areas. (August 4, 1999). and Budget. Two areas of one-time savings are particularly substantial. First, as Executive Orders 12866 and 13563 A. Statement of Need indicated earlier in the preamble, we direct agencies to assess all costs and In Executive Order 13563, the estimate that one-time savings to ESRD benefits of available regulatory President recognized the importance of facilities are likely to range from about alternatives and, if regulation is a streamlined, effective, efficient $47.5 to $217 million. Second, we also necessary, to select regulatory regulatory framework designed to approaches that maximize net benefits estimate a one-time savings of $18.5 promote economic growth, innovation, million to ASCs through reduced (including potential economic, job creation, and competitiveness. To environmental, public health and safety emergency equipment requirements. achieve a more robust and effective Both of these estimates are uncertain effects, distributive impacts, and regulatory framework, the President has and total savings could be significantly equity). Executive Order 13563 directed each executive agency to higher. Among the many types of emphasizes the importance of establish a plan for ongoing quantifying both costs and benefits, retrospective review of existing recurring savings that these proposals reducing costs, harmonizing rules, and significant regulations to identify those would create, physicians and other promoting flexibility. A regulatory rules that can be eliminated as obsolete, providers would avoid business and impact analysis (RIA) must be prepared unnecessary, burdensome, or payment losses that are difficult to for major rules with economically counterproductive or that can be estimate but likely to be in the tens of significant effects ($100 million or more modified to be more effective, efficient, millions of dollars annually through the in any 1 year). We estimate that this flexible, and streamlined. This proposal reforms we propose for reenrollment proposed rule would reduce costs to responds directly to the President’s and billing processes. We have regulated entities and to patients by instructions in Executive Order 13563 identified other kinds of savings that more than $100 million, perhaps as by reducing outmoded or unnecessarily providers and patients will realize much as $200 million in the first year. burdensome rules, and thereby throughout this preamble. All of these It would also create significant life increasing the ability of health care are summarized in the table that savings benefits. It is therefore an entities to devote resources to providing follows. economically significant rule under high quality patient care.

TABLE 3—SECTION-BY-SECTION ECONOMIC IMPACT ESTIMATES

Likely savings Section Frequency or benefits ($ millions)

A. Removes Unnecessarily Burdensome Requirements: 1. End-Stage Renal Disease (ESRD) Facilities (§ 494.60) ...... One-Time ...... 108.7 2. ASC Emergency Equipment (§ 416.44) ...... One-Time ...... 18.5 3. Revocation of Enrollment/Billing Privileges (§ 424.535) ...... Recurring ...... 10.0 4. Deactivation of Medicare Billing Privileges (§ 424.540) ...... Recurring ...... 26.7 5. Duration of Agreement for ICFs/ID (§ 442.15–§ 442.109) ...... Recurring ...... <1 B. Removes Obsolete or Duplicative Regulations: 1. OMB Control Numbers for Information Collection (§ 400.300 and § 400.310) ...... Recurring ...... <1 2. Removal of Obsolete Provisions Related to Processing Part A and Part B Claims Recurring ...... <1 and Entitlement Determinations (§ 405.701 through § 405.877). 3. ASC Infection Control Program (§ 416.44) ...... Recurring ...... <1 4. E-prescribing (§ 423.160) ...... Recurring ...... <1 5. Physical and Occupational Therapist Qualifications (§ 440.110) ...... Recurring ...... <1 6. Definition of Donor Document (§ 486.302) ...... Recurring ...... (1) 7. Administration and Governing Body (§ 486.324) ...... Recurring ...... <1 8. Requirement for Enrolling in the Medicare Program (§ 424.510) ...... Recurring ...... <1 C. Responds to Stakeholder Concerns: Nomenclature Changes 1. Redefining the Term ‘‘Beneficiary’’ (§ 400.200 through § 400.203) ...... Recurring ...... <1 2. Replace ‘‘Mental Retardation’’ terminology with ‘‘Intellectual Disability’’ (throughout Recurring ...... (1) 42 CFR title IV). 1 See Text.

There are two areas of potentially These donors provide a total of about we propose could and likely would tip significant benefits, above and beyond 21,000 transplanted organs (see the that decision in some cases. However, cost savings to providers. First, OPTN/SRTR Annual Report at http:// we do not have a basis for quantifying improved organ donation consent optn.transplant.hrsa.gov/ar2009/). The this potential increase in donations. We language that would enable prospective decision to make a firm, written welcome comment on the extent to donors to specify their intentions more decision on whether or not to be a which this policy change may increase clearly would have a positive effect on potential donor, and on the willingness organ donation and any information that organ donation. There are of families to honor that decision, can would assist in quantifying these approximately 8,000 cadaveric organ turn on very small issues of personal impacts. donors annually in the United States. preference. We believe that the change

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In addition, while Rosa’s Law began the needs of the facility (1,500 ASCs × to the $2.7 million we estimate in the elimination of official Federal $12,300 = total savings of about $18.5 reduced information collection costs. In government use of the pejorative term million). this regard, we point out that $2,000 ‘‘mental retardation,’’ our proposal With respect to the revocation reform, represents only a fraction of one percent would complete this step for CMS the number of affected providers is of average annual physician billing to regulations. The reform undoubtedly certainly very small as a proportion of Medicare, or less than one week of has substantial value to millions of the total universe of over one million billing lost. We believe that losses are Americans, not only to the intellectually Medicare providers, of whom over likely to be this low because this disabled but also to their families and 900,000 are physicians and other problem is most likely to occur with friends, and also to the many millions practitioners. Based on administrative providers whose practices include who simply object to such labeling. data, we estimate that the number of relatively few Medicare patients, or who However, we have no data that would affected physicians and other otherwise do not depend heavily on enable a precise calculation of this practitioners that would be affected by Medicare reimbursements (for example, value. this reform is between 1,000 and 2,000, part-time practices and those nearing Taking all of the proposed reforms a fraction of one percent of these. We retirement). We welcome additional together, we estimate that the overall have no statistical data on the resultant information on the likely magnitude and cost savings that this rule would create economic effects; but if the average frequency of such losses, and on may approach $200 million in the first provider loses as little as $10,000 in physician and other provider situations year. This includes the one-time savings billable Medicare patient care services most likely to be affected by such losses. related to ESRD reforms, as well as the as a result of deactivation, total lost Of the remaining reforms, most have savings to providers in lost billings, business for 1,000 providers could be minor cost savings as shown in Table 1 paperwork costs, confusion, and other $10 million annually. In this regard, through entries of $1 million or less. We burden reductions discussed throughout gross annual physician practice revenue welcome comments on whether some of this preamble. in America approaches $1 million a year these proposed reforms may create (see, for example, the practice expense larger savings that we have failed to C. Anticipated Impacts data in http://www.modernmedicine. identify. The potential cost savings from com/modernmedicine/article/ reduced ESRD requirements are articleDetail.jsp?id=143141). Since D. Uncertainty discussed extensively in that preamble Medicare pays about one third of Our estimates of the effects of this section on those reforms. Assuming that revenue received for professional regulation are subject to significant the average cost for a facility to meet services such as physician care, the loss uncertainty. While the Department is three structural standards would have we estimate is one or two weeks of confident that these reforms will been $77,659, and that one half of all Medicare billing, on average. We provide flexibilities to facilities that will facilities would have needed to make welcome additional information on the yield cost savings, we are uncertain one half of these investments, total likely magnitude and frequency of such about the magnitude of these effects. In savings would be $108.7 million (2,800 losses. addition, as we previously explained, × ($77,659/2)). With respect to deactivation of there may be significant additional The only other large one-time savings Medicare billing privileges, based on health benefits. Thus, we are confident estimates are those resulting from existing enrollment data we believe that that the rule would yield net benefits. In reforms of Ambulatory Surgical Center about 12,000 physicians and non- this analysis we provided some Emergency equipment requirements, physician practitioners may be affected illustrative estimates to suggest the and reforms in the revocations or annually. While the information potential savings these reforms could deactivation of billing privileges. As to collection consequences are relatively achieve under certain assumptions. We ASC, we estimate that the three most small (see the Information Collection welcome comments on ways to better costly types of equipment are as follows: section of this preamble), the problems estimate the likely effects of these Tracheostomy kit $100.00, this creates for both providers and reforms. cricothyrotomy kit $200.00 and patients are more substantial, including mechanical ventilator $12,000. We confusion about which bills are paid, E. Accounting Statement utilized fiscal year 2010 surveyor chains of correspondence between the As required by OMB Circular A–4 worksheets completed by the States provider, the patient, and the Medicare (available at http://www.whitehouse. when conducting ASC surveys to contractor, and even in many cases an gov/omb/circulars/a004/a-4.pdf), we project the distribution of the types of inability of providers to obtain have prepared an accounting statement. ASC services nationally. We estimate reimbursement for services provided. We estimate that the overall cost savings that about two-thirds of the Furthermore, although the direct that this rule would create may approximately Medicare 5,200 certified paperwork costs are small, the amount approach $200 million in the first year. ASCs are functioning as multipurpose of time and effort involved may deter This includes the one-time savings facilities. Those that are not some of these providers from even related to ESRD reforms, as well as the multipurpose facilities would not have attempting to reactivate their billing savings to providers in lost billings, to spend $12,300 in total for costly privileges. Nonetheless, even if the paperwork costs, confusion, and other equipment that would not be utilized. average lost billing amounts (over and burden reductions discussed throughout We have estimated the savings by above amounts previously calculated for this preamble. There are also potentially breaking down each specialty type of deactivations) are only on average substantial life-saving benefits that ASC that would not be considered a $2,000, total annual costs in patient could reach hundreds of millions of multipurpose facility and that may not services that were unbilled or simply dollars annually. Annualized savings eliminate all three pieces of equipment not provided would be $24 million are shown in the accounting statement or choose just one or two depending on (12,000 providers × $2,000), in addition below.

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TABLE 4—ACCOUNTING STATEMENT [Dollars in millions]

Discount rate Period Category Primary estimate Year dollars (%) covered

Benefits: Unquantified Qualitative Value of Lives Saved Through Potentially hundreds of lives 2012 7 2012–16 Increases in Organ Donations. saved but no precise esti- mate. Potentially hundreds of lives 2012 3 2012–16 saved but no precise esti- mate. Annualized savings from reduced ESRD facility invest- $30 ...... 2012 7 2012–16 ments and reduced ASC costs (see Table 3). $30 ...... 2012 3 2012–16 Annualized savings to providers from billing improve- $40 ...... 2012 7 2012–16 ments and other reforms (see Table 3). $40 ...... 2012 3 2012–16 Costs: None. Transfers: None.

F. Regulatory Flexibility Act prepares an IRFA for rules that, like this attempt to navigate excessive or obsolete one, create a significant positive or contradictory regulatory The Regulatory Flexibility Act (RFA) economic impact by reducing burden on requirements. By making these changes, requires agencies to analyze options for small entities. In this case all of the we believe health professionals would regulatory relief of small entities when economic effects of the proposed rule have increased resources to devote to proposed rules create a significant are positive, and some are economically improving patient care, increasing economic impact on a substantial significant. In particular, provisions that accessibility to care and reducing number of small entities. For purposes allow physicians and other providers associated health care costs. We invite of the RFA, small entities include small and suppliers to continue to participate and welcome comments on any and all businesses, nonprofit organizations, and in Medicare despite correspondence of the provisions of the proposed rule small governmental jurisdictions. Most mishaps would save as many as 12,000 with regard to the impacts of the burden hospitals and most other Medicare or small entity providers annually reductions, as well as alternatives, if Medicaid providers and suppliers are thousands, and in some cases tens of any, we should consider in the final rule small entities, either by nonprofit status thousands, of dollars in lost revenues, as or in future rulemaking on other or by having revenues of $7.0 million to well as reduce costs of confusion and regulatory provisions. $34.5 million in any 1 year. Individuals correspondence to both these providers In addition, section 1102(b) of the and States are not included in the and their patients. Most of these Social Security Act requires us to definition of a ‘‘small entity.’’ This providers are physicians, but other prepare a regulatory impact analysis if proposed rule would reduce costs to affected professionals include clinical a rule may have a significant impact on tens of thousands of physicians, ASCs, psychologists, physician assistants, the operations of a substantial number ESRD facilities, and other small entities. nurse practitioners, and physical of small rural hospitals. This analysis Provisions in this proposed rule would therapists. Substantial savings would must conform to the provisions of benefit some providers or suppliers in also accrue to most of about 6,500 ESRD section 603 of the RFA. For purposes of all or virtually all of the industries providers from our proposal to section 1102(b) of the Act, we define a identified as ‘‘Ambulatory Health Care eliminate fire safety requirements that small rural hospital as a hospital that is Services’’ under the Census Bureau’s are vital in residential provider settings, located outside of a metropolitan North American Industry Classification but unnecessary in ambulatory care statistical area and has fewer than 100 System (NAICS, codes 621111 through facilities such as these. Approximately beds. This rule has no direct effects on 621999). While most of the effects half of the 5,200 ASCs would benefit hospitals. Therefore, we are not would be minimal (for example, from more sensible emergency preparing an analysis for section 1102(b) eliminating obsolete and redundant or equipment policies. In addition, while of the Act because we have determined, confusing regulatory requirements), we we cannot estimate the number of and the Secretary certifies, that this estimate that the impact on at least positively affected entities for every proposed rule would not have a several thousand of these small entities provision we propose, these reforms significant impact on the operations of would be economically significant. The would benefit about 6,400 Intermediate a substantial number of small rural purpose of the RFA is to reduce burdens Care Facilities through elimination of hospitals. on regulated entities, and HHS pejorative nomenclature that interprets the RFA as requiring an Initial pervasively affects their names and G. Unfunded Mandates Reform Act Regulatory Flexibility Analysis (IRFA) operations. All of the provisions Section 202 of the Unfunded only when a proposed rule creates an included in the proposed rule aim to Mandates Reform Act of 1995 (UMRA) adverse economic impact. Accordingly, identify and eliminate duplicative, also requires that agencies assess we certify that this proposed rule would overlapping, outdated and conflicting anticipated costs and benefits before not have a significant economic impact regulatory requirements that issuing any rule whose mandates on a substantial number of small unnecessarily add confusion or costs to require expenditures in any 1 year of entities. HHS nonetheless voluntarily various providers or patients as they $100 million in 1995 dollars, updated

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annually for inflation on either State, 42 CFR Part 486 7. Redesignate § 405.706 in subpart G local, or tribal governments, or the Grant programs—health, Health as § 405.925 in subpart I. private sector. In 2011, that threshold is facilities, Medicare, Reporting and Subpart G—[Removed and Reserved] approximately $136 million. This recordkeeping requirements, X-rays. proposed rule mandates no new 8. Remove and reserve subpart G 42 CFR Part 494 expenditures by either State, local, or consisting of § 405.701 through tribal governments, or the private sector. Health facilities, Kidney diseases, § 405.705 and § 405.708 through H. Federalism Medicare, Reporting and recordkeeping § 405.753. requirements. 9. Subpart H is revised to read as Executive Order 13132 establishes For the reasons set forth in the follows: certain requirements that an agency preamble, the Centers for Medicare & must meet when it promulgates a Medicaid Services proposes to amend Subpart H—Appeals Under the proposed rule (and subsequent final 42 CFR chapter IV as set forth below: Medicare Part B Program rule) that imposes substantial direct Sec. requirement costs on State and local PART 400—INTRODUCTION; DEFINITIONS 405.800 Appeals of CMS or a CMS governments, preempts State law, or contractor. otherwise has Federalism implications. 1. The authority citation for part 400 405.803 Appeals rights. Since this regulation does not impose continues to read as follows: 405.806 Impact of reversal of contractor any costs on State or local governments, determinations on claims processing. Authority: Secs. 1102 and 1871 of the 405.809 Reinstatement of provider or the requirements of Executive Order Social Security Act (42 U.S.C. 1302 and 13132 are not applicable. supplier billing privileges following 1395hh) and 44 U.S.C. Chapter 35. corrective action. List of Subjects 405.812 Effective date for DMEPOS Subpart B—Definitions supplier’s billing privileges. 42 CFR Part 400 2. Section 400.200 is amended by 405.815 Submission of claims. adding the definition of ‘‘beneficiary’’ in 405.818 Deadline for processing provider Grant programs—health, Health enrollment initial determinations. facilities, Health maintenance alphabetical order to read as follows: organizations (HMO), Medicaid, Authority: Secs. 1102, 1866(j), and 1871 of § 400.200 General definitions. the Social Security Act (42 U.S.C. 1302, Medicare, Reporting and recordkeeping 1395cc(j), and 1395hh). requirements. * * * * * Beneficiary means a person who is 42 CFR Part 405 entitled to Medicare benefits and/or has Subpart H—Appeals Under the been determined to be eligible for Medicare Part B Program Administrative practice and Medicaid. procedure, Health facilities, Health § 405.800 Appeals of CMS or a CMS * * * * * contractor. professions, Kidney diseases, Medical devices, Medicare, Reporting and § 400.202 [Amended] A CMS contractor’s (that is, a carrier, Fiscal Intermediary or Medicare recordkeeping requirements, Rural 3. Section 400.202 is amended by Administrative Contractor (MAC)) areas, X-rays. removing the definition of determination that a provider or 42 CFR Part 416 ‘‘beneficiary.’’ 4. Section 400.203 is amended by supplier fails to meet the requirements removing the definition of ‘‘recipient’’ for Medicare billing privileges. Health facilities, Health professions, (a) Denial of a provider or supplier and adding the definition of Medicare, Reporting and recordkeeping enrollment application. If CMS or a ‘‘intellectual disability’’ in alphabetical requirements. CMS contractor denies a provider’s or order to read as follows: 42 CFR Part 423 supplier’s enrollment application, CMS § 400.203 Definitions specific to Medicaid. or the CMS contractor notifies the Administrative practice and * * * * * provider or supplier by certified mail. procedure, Emergency medical services, Intellectual disability means the The notice includes the following: Health facilities, Health Maintenance condition that was previously referred (1) The reason for the denial in Organizations (HMO), Health to as mental retardation. sufficient detail to allow the provider or professionals, Medicare, Penalties, * * * * * supplier to understand the nature of its Privacy, Reporting and recordkeeping deficiencies. requirements. Subpart C—[Removed and Reserved] (2) The right to appeal in accordance with part 498 of this chapter. 42 CFR Part 424 5. Subpart C, consisting of §§ 400.300 (3) The address to which the written Emergency medical services, Health and 400.310, is removed and reserved. appeal must be mailed. facilities, Health professions, Medicare, (b) Revocation of Medicare billing PART 405—FEDERAL HEALTH privileges—(1) Notice of revocation. If Reporting and recordkeeping INSURANCE FOR THE AGED AND requirements. CMS or a CMS contractor revokes a DISABLED provider’s or supplier’s Medicare billing 42 CFR Part 440 6. The authority citation for part 405 privileges, CMS or a CMS contractor continues to read as follows: notifies the supplier by certified mail. Grant programs—health, Medicaid. The notice must include the following: Authority: Secs. 205(a), 1102, 1861, (i) The reason for the revocation in 42 CFR Part 442 1862(a), 1869, 1871, 1874, 1881, and 1886(k) of the Social Security Act (42 U.S.C. 405(a), sufficient detail for the provider or Grant programs—health, Health 1302, 1395x, 1395y(a), 1395ff, 1395hh, supplier to understand the nature of its facilities, Health professions, Medicaid, 1395kk, 1395rr and 1395ww(k)), and sec. 353 deficiencies. Nursing homes, Reporting and of the Public Health Service Act (42 U.S.C. (ii) The right to appeal in accordance recordkeeping requirements. 263a). with part 498 of this chapter.

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(iii) The address to which the written (b) If a supplier is determined not to the claims previously were filed timely appeal must be mailed. have qualified for billing privileges in but were rejected, they are considered (2) Effective date of revocation. The one period but qualified in another, filed timely upon resubmission. revocation of a provider’s or supplier’s Medicare contractors process claims for Previously denied claims for items or billing privileges is effective 30 days services furnished to beneficiaries services furnished during a period of after CMS or the CMS contractor mails during the period for which the supplier denial or revocation may be resubmitted notice of its determination to the was Medicare-qualified. Subpart C of to CMS within 1 year after the date of provider or supplier, except if the this part sets forth the requirements for reinstatement or reversal. revocation is based on a Federal the recovery of overpayments. exclusion or debarment, felony (c) If a revocation of a supplier’s § 405.818 Deadline for processing provider enrollment initial determinations. conviction, license suspension or billing privileges is reversed upon revocation, or the practice location is appeal, the supplier’s billing privileges Contractors approve or deny complete determined by CMS or its contractor not are reinstated back to the date that the provider or supplier enrollment to be operational. When a revocation is revocation became effective. applications to approval or denial based on a Federal exclusion or (d) If the denial of a supplier’s billing within the following timeframes: debarment, felony conviction, license privileges is reversed upon appeal and (a) Initial enrollments—Contractors suspension or revocation, or the practice becomes binding, then the appeal process new enrollment applications location is determined by CMS or its decision establishes the date that the within 180 days of receipt. contractor not to be operational, the supplier’s billing privileges become (b) Revalidation of existing revocation is effective with the date of effective. enrollments—Contractors process revalidations within 180 days of receipt. exclusion or debarment, felony § 405.809 Reinstatement of provider or conviction, license suspension or supplier billing privileges following (c) Change-of-information and revocation or the date that CMS or its corrective action. reassignment of payment request— contractor determined that the provider If a provider or supplier completes a Contractors process change-of- or supplier was no longer operational. corrective action plan and provides information and reassignment of (3) Payment after revocation. sufficient evidence to the CMS payment requests within 90 days of Medicare does not pay, and the CMS contractor that it has complied fully receipt. contractor rejects, claims for services with the Medicare requirements, the PART 416—AMBULATORY SURGICAL submitted with a service date on or after CMS contractor may reinstate the SERVICES the effective date of a provider’s or provider’s or supplier’s billing supplier’s revocation. privileges. The CMS contractor may pay 10. The authority citation for part 416 § 405.803 Appeals rights. for services furnished on or after the continues to read as follows: effective date of the reinstatement. The Authority: Secs. 1102 and 1871 of the (a) A provider or supplier may appeal effective date is based on the date the the initial determination to deny a Social Security Act (42 U.S.C. 1302 and provider or supplier is in compliance 1395hh). provider or supplier’s enrollment with all Medicare requirements. A CMS application, or if applicable, to revoke contractor’s refusal to reinstate a Subpart C—Specific Conditions for current billing privileges by following supplier’s billing privileges based on a Coverage the procedures specified in part 498 of corrective action plan is not an initial this chapter. determination under part 498 of this 11. Section 416.44 is amended by— (b) The reconsideration of a chapter. a. Removing paragraph (a)(3). determination to deny or revoke a b. Revising paragraph (c). provider or supplier’s Medicare billing § 405.812 Effective date for DMEPOS The revisions read as follows: privileges is handled by a CMS Regional supplier’s billing privileges. Office or a contractor hearing officer not If a CMS contractor, contractor § 416.44 Condition for coverage— involved in the initial determination. hearing officer, or ALJ determines that Environment. (c) Providers and suppliers have the a DMEPOS supplier’s denied enrollment * * * * * opportunity to submit evidence related application meets the standards in (c) Standard: Emergency equipment. to the enrollment action. Providers and § 424.57 of this chapter and any other The ASC medical staff and governing suppliers must, at the time of their requirements that may apply, the body of the ASC coordinates, develops, request, submit all evidence that they determination establishes the effective and revises ASC policies and want to be considered. date of the billing privileges as not procedures to specify the types of (d) If supporting evidence is not earlier than the date the carrier made emergency equipment required for use submitted with the appeal request, the the determination to deny the DMEPOS in the ASC’s operating room. The contractor contacts the provider or supplier’s enrollment application. equipment must meet the following supplier to try to obtain the evidence. Claims are rejected for services requirements: (e) If the provider or supplier fails to furnished before that effective date. (1) Be immediately available for use submit the evidence before the during emergency situations. § 405.815 Submission of claims. contractor issues its decision, the (2) Be appropriate for the facility’s provider or supplier is precluded from A provider or supplier succeeding in patient population. introducing new evidence at higher having its enrollment application denial (3) Be maintained by appropriate levels of the appeals process. or billing privileges revocation reversed personnel. in a binding decision, or in having its § 405.806 Impact of reversal of contractor billing privileges reinstated, may submit * * * * * determinations on claims processing. claims to the CMS contractor for PART 423—VOLUNTARY MEDICARE (a) Claims for services furnished to services furnished during periods of PRESCRIPTION DRUG BENEFIT Medicare beneficiaries during a period Medicare qualification, subject to the in which the supplier billing privileges limitations in § 424.44 of this chapter, 12. The authority citation for part 423 were not effective are rejected. regarding the timely filing of claims. If continues to read as follows:

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Authority: Section 1860D–4(e) of the be enrolled, a provider or supplier must and certify to the accuracy of its Social Security Act (42 U.S.C 1395w–104(e)). meet enrollment requirements specified enrollment information. in paragraph (d) of this section. Subpart D—Cost Control and Quality * * * * * Improvement Requirements * * * * * 16. Section 424.535 is amended by PART 440—SERVICES: GENERAL 13. Section 423.160 is amended by revising paragraph (c) to read as follows: PROVISIONS revising paragraph (b)(3) to read as follows: § 424.535 Revocation of enrollment and 18. The authority citation for part 440 billing privileges in the Medicare program. continues to read as follows: § 423.160 Standards for electronic * * * * * Authority: Sec. 1102 of the Social Security prescribing. (c) Reapplying after revocation. After Act (42 U.S.C. 302). * * * * * a provider, supplier, delegated official, (b) * * * Subpart A—Definitions (3) Eligibility. (i) The Accredited or authorizing official has had their Standards Committee X12N 270/271– billing privileges revoked, they are 19. Section 440.110 is amended by Health Care Eligibility Benefit Inquiry barred from participating in the revising paragraphs (a)(2) and (b)(2) to and Response, Version 5010, April Medicare program from the effective read as follows: date of the revocation until the end of 2008, ASC X12N/005010x279 § 440.110 Physical therapy, occupational (incorporated by reference in paragraph the re-enrollment bar. The re-enrollment bar is a minimum of 1 year, but not therapy, and services for individuals with (c)(2)(i) of this section), for transmitting speech, hearing, and language disorders. eligibility inquiries and responses greater than 3 years, depending on the between prescribers and Part D severity of the basis for revocation. The (a) * * * sponsors. re-enrollment bar does not apply in the (2) A ‘‘qualified physical therapist’’ is (ii) The National Council for event a revocation of Medicare billing an individual who meets personnel Prescription Drug Programs privileges is imposed under paragraph qualifications for a physical therapist at Telecommunication Standard (a)(1) of this section based upon a § 484.4. Specification, Version D, Release 0 provider or supplier’s failure to respond (b) * * * timely to a revalidation request or other (Version D.0), August 2007, and (2) A ‘‘qualified occupational request for information. equivalent NCPDP Batch Standard therapist’’ is an individual who meets Batch Implementation Guide, Version 1, * * * * * personnel qualifications for an Release 2 (Version 1.2), January 2006 17. Section 424.540(a) is revised to occupational therapist at § 484.4. supporting Telecommunications read as follows: * * * * * Standard Implementation Guide, Version D, Release 0 (Version D.0), § 424.540 Deactivation of Medicare billing PART 442—STANDARDS FOR privileges. August 2007, for the NCPDP Data PAYMENT TO NURSING FACILITIES Record in the Detail Data Record (a) Reasons for deactivation. CMS AND INTERMEDIATE CARE (incorporated by reference in paragraph may deactivate the Medicare billing FACILITIES FOR THE MENTALLY (c)(1)(iii) of this section), for privileges of a provider or supplier for RETARDED transmitting eligibility inquiries and any of the following reasons: responses between dispensers and Part (1) The provider or supplier does not 20. The authority citation for part 442 D sponsors. submit any Medicare claims for 12 continues to read as follows: * * * * * consecutive calendar months. This Authority: Sec. 1102 of the Social Security requirement does not apply to suppliers Act (42 U.S.C. 1302), unless otherwise noted. PART 424—CONDITIONS FOR that enroll in the Medicare program MEDICARE PAYMENT using a Form CMS–855I. The 12-month Subpart B—Provider Agreements period will begin the 1st day of the 1st 14. The authority citation for part 424 21. Section 442.15 is revised to read month without a claims submission continues to read as follows: as follows: through the last day of the 12th month Authority: Secs. 1102 and 1871 of the without a submitted claim. § 442.15 Duration of agreement for ICFs/ Social Security Act (42 U.S.C. 1302 and ID. 1395hh). (2) The provider or supplier does not report a change to the information (a) The agreement for an ICF/MR Subpart P—Requirements for supplied on the enrollment application remains in effect until the Secretary Establishing and Maintaining Medicare within 90 calendar days of when the determines that the facility no longer Billing Privileges change occurred. Changes that must be meets the applicable requirements. The reported include, but are not limited to, State Survey Agency must conduct a 15. Section 424.510 is amended by a change in practice location, a change survey of the facility to determine revising paragraph (a) to read as follows: of any managing employee, and a compliance with the requirements at a § 424.510 Requirements for enrolling in change in billing services. A change in survey interval of no greater than the Medicare program. ownership or control must be reported 15 months. (a) Providers and suppliers must within 30 calendar days as specified in (b) FFP is available for services submit enrollment information on the § 424.520(b) and § 424.550(b). furnished by a facility for up to 30 days applicable enrollment application. Once (3) The provider or supplier does not after its agreement expires or terminates the provider or supplier successfully furnish complete and accurate under the conditions specified in completes the enrollment process, information and all supporting § 441.11 of this subchapter. including, if applicable, a State survey documentation within 90 calendar days and certification or accreditation of receipt of notification from CMS to § 442.16 [Removed and Reserved] process, CMS enrolls the provider or submit an enrollment application and 22. Section 442.16 is removed and supplier into the Medicare program. To supporting documentation, or resubmit reserved.

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Subpart C—Certification of ICFs/ID Subpart G—Requirements for incorporated by reference at Certification and Designation and § 403.744(a)(1)(i) of this chapter). 23. Section 442.109 is revised to read Conditions for Coverage: Organ (2) Notwithstanding paragraph (e)(1) as follows: Procurement Organizations of this section, dialysis facilities participating in Medicare as of October § 442.109 Certification period for ICFs/ID: 26. Section 486.302 is amended by 14, 2008 that require sprinkler systems General provisions. revising the definition of ‘‘donor are those housed in multi-story (a) A survey agency may certify a document’’ to read as follows: buildings of construction Types II(000), facility that fully meets applicable § 486.302 Definitions. III(200), or V(000), as defined in the requirements. The State Survey Agency 2000 edition of the Life Safety Code of * * * * * must conduct a survey of each ICF/MR the National Fire Protection Association not later than 15 months after the last Donor document means any (which is incorporated by reference at documented indication of an day of the previous survey. § 403.744(a)(1)(i) of this chapter), individual’s choice that was executed section 21.1.6.3, which were (b) The statewide average interval by the patient, in accordance with any constructed after January 1, 2008; and between surveys must be 12 months or applicable State law, prior to his or her those housed in high rise buildings over less, computed in accordance with death, and that states his or her wishes 75 feet in height. paragraph (c) of this section. regarding organ and/or tissue donation. * * * * * (c) The statewide average interval is * * * * * computed at the end of each Federal Nomenclature Changes § 486.324 [Amended] fiscal year by comparing the last day of 30. In 42 CFR chapter IV, remove the most recent survey for each 27. Section 486.324 is amended by ‘‘Recipient’’ and ‘‘Recipients’’ wherever participating facility to the last day of removing the second paragraph (e). they appear and add in their place each facility’s previous survey. ‘‘Beneficiary’’ and ‘‘Beneficiaries,’’ PART 494—CONDITIONS FOR respectively. 24. Section 442.110 is amended by COVERAGE FOR END-STAGE RENAL revising paragraph (b) to read as follows: DISEASE FACILITIES 31. In 42 CFR chapter IV, remove ‘‘Mental Retardation,’’ ‘‘Mentally § 442.110 Certification period for ICFs/ID 28. The authority citation for part 494 Retarded’’ and the abbreviated form with standard-level deficiencies. continues to read as follows: ‘‘MR’’ wherever they appear and add in * * * * * Authority: Secs.1102 and 1871 of the their place ‘‘Intellectual Disability,’’ (b) The survey agency may certify a Social Security Act (42 U.S.C. 1302 and ‘‘Intellectually Disabled’’ and ‘‘ID,’’ facility for a period that ends no later 1395hh). respectively. than 60 days after the last day specified (Catalog of Federal Domestic Assistance in the plan for correcting deficiencies. Subpart B—Patient Safety Program No. 93.773, Medicare—Hospital The certification period must not exceed Insurance; and Program No. 93.774, 29. Section 494.60(e) is revised to 15 months, including the period Medicare—Supplementary Medical read as follows: allowed for corrections. Insurance Program) * * * * * § 494.60 Condition: Physical environment. (Catalog of Federal Domestic Assistance Program No. 93.778, Medical Assistance * * * * * Program) PART 486—CONDITIONS FOR (e) Standard: Fire safety. (1) Except as Dated: July 28, 2011. COVERAGE OF SPECIALIZED provided in paragraph (e)(2) of this SERVICES FURNISHED BY section, by February 9, 2009, dialysis Donald M. Berwick, SUPPLIERS facilities that are located adjacent to Administrator, Centers for Medicare & high hazardous occupancies or do not Medicaid Services. 25. The authority citation for part 486 provide one or more exits to the outside Approved: October 6, 2011. continues to read as follows: at grade level from the patient treatment Kathleen Sebelius, Authority: Secs. 1102, 1138, and 1871 of area level, must comply with applicable Secretary, Department of Health and Human the Social Security Act (42 U.S.C. 1302, provisions of the 2000 edition of the Services. 1320b–8, and 1395hh) and section 371 of the Life Safety Code of the National Fire [FR Doc. 2011–27176 Filed 10–18–11; 11:15 am] Public Health Service Act (42 U.S.C. 273). Protection Association (which is BILLING CODE 4120–01–P

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Reader Aids Federal Register Vol. 76, No. 205 Monday, October 24, 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 999...... 65411 Executive orders and proclamations 741–6000 1435...... 64839 Proclamations: The United States Government Manual 741–6000 1700...... 63846 8723...... 62283 Other Services 8724...... 62285 8 CFR Electronic and on-line services (voice) 741–6020 8725...... 62287 Proposed Rules: Privacy Act Compilation 741–6064 8726...... 62289 100...... 61622 Public Laws Update Service (numbers, dates, etc.) 741–6043 8727...... 62291 216...... 61288 TTY for the deaf-and-hard-of-hearing 741–6086 8728...... 62293 245...... 61288 8729...... 62295 8730...... 63529 9 CFR ELECTRONIC RESEARCH 8731...... 63531 77...... 61251, 61253 World Wide Web 8732...... 63803 Proposed Rules: Full text of the daily Federal Register, CFR and other publications 8733...... 63805 is located at: www.fdsys.gov. 71...... 62313, 63210 8734...... 63807 77...... 62313, 63210 Federal Register information and research tools, including Public 8735...... 63809 78...... 62313, 63210 Inspection List, indexes, and links to GPO Access are located at: 8736...... 63999 90...... 62313, 63210 www.ofr.gov. 8737...... 65095 121...... 61228, 62312 E-mail 8738...... 65097 FEDREGTOC-L (Federal Register Table of Contents LISTSERV) is 8739...... 65099 10 CFR an open e-mail service that provides subscribers with a digital Executive Orders: 50...... 63541 form of the Federal Register Table of Contents. The digital form 13585...... 62281 52...... 63541 of the Federal Register Table of Contents includes HTML and 13586...... 63533 429...... 65362 PDF links to the full text of each document. 13587...... 63811 431...... 65362 To join or leave, go to http://listserv.access.gpo.gov and select Administrative Orders: 1021...... 63764 Online mailing list archives, FEDREGTOC-L, Join or leave the list Memorandums: Proposed Rules: (or change settings); then follow the instructions. Memorandum of 26...... 61625 PENS (Public Law Electronic Notification Service) is an e-mail September 28, 50...... 63565 service that notifies subscribers of recently enacted laws. 2011 ...... 61247 430 ...... 61999, 62644, 63211, To subscribe, go to http://listserv.gsa.gov/archives/publaws-l.html Presidential 65616, 65631, 65633 and select Join or leave the list (or change settings); then follow Determination No. 431...... 61288, 63566 the instructions. 2011–17 of 810...... 65634 FEDREGTOC-L and PENS are mailing lists only. We cannot September 30, 11 CFR respond to specific inquiries. 2011 ...... 62597 Reference questions. Send questions and comments about the Presidential 104...... 61254 Federal Register system to: [email protected] Determination No. 109...... 61254 The Federal Register staff cannot interpret specific documents or 2011–18 of Proposed Rules: regulations. September 30, 110...... 63567 Reminders. Effective January 1, 2009, the Reminders, including 2011 ...... 62599 111...... 63570 Rules Going Into Effect and Comments Due Next Week, no longer Notices: 12 CFR appear in the Reader Aids section of the Federal Register. This Notice of October 19, information can be found online at http://www.regulations.gov. 2011 ...... 65355 309...... 63817 310...... 63817 CFR Checklist. Effective January 1, 2009, the CFR Checklist no 5 CFR longer appears in the Federal Register. This information can be Proposed Rules: found online at http://bookstore.gpo.gov/. 1201...... 63537 204...... 64250 Proposed Rules: 210...... 64259 FEDERAL REGISTER PAGES AND DATE, OCTOBER Ch. XXXVI ...... 63206 1310...... 64264 61033–61248...... 3 6 CFR 13 CFR 61249–61554...... 4 Proposed Rules: 108...... 63542 61555–61932...... 5 31...... 62311 120...... 63151, 63542 61933–62280...... 6 123...... 63542 7 CFR 62281–62596...... 7 125...... 63542 62597–63148...... 11 6...... 63538 Proposed Rules: 63149–63536...... 12 52...... 64001 121 ...... 61626, 62313, 63216, 63537–63816...... 13 319...... 63149 63510 63817–64000...... 14 906...... 61249 124...... 62313 64001–64228...... 17 930...... 65357 125...... 61626, 62313 64229–64780...... 18 953...... 65360 126...... 62313 64781–65094...... 19 985...... 61933 127...... 62313 65095–65356...... 20 Proposed Rules: 65357–65608...... 21 331...... 61228, 62312 14 CFR 65609–65926...... 24 810...... 61287 21...... 64229

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23...... 65101 1304...... 64813 Proposed Rules: 41 CFR 25 ...... 62603, 63818, 63822, 1306...... 64813 100...... 63239 301–11...... 63844 63823, 65103, 65105 1308...... 65371 117...... 63858 39 ...... 61033, 61036, 61255, 1309...... 61563 334...... 62692 42 CFR 61555, 61558, 61559, 61561, 1311...... 64813 36 CFR 110...... 62306 62605, 63156, 63159, 63161, Proposed Rules: 416...... 65886 63163, 63167, 63169, 63172, 316...... 64868 7...... 61266 Proposed Rules: 63177, 64001, 64003, 64781, 870...... 64224 230...... 65121 5...... 61294 64785, 64788, 64791, 64793 1308...... 65424 1258...... 62632 71...... 63891 64795, 64798, 64801 Proposed Rules: 25 CFR 73...... 61206 61...... 63183 212...... 62694 417...... 63018 71 ...... 61257, 61258, 64233, Proposed Rules: 214...... 62694 422...... 63018 64234, 64235, 64236, 65106 514...... 62684 215...... 62694 423...... 63018 73...... 64003 523...... 63236 218...... 62694 Ch. IV...... 65909 97 ...... 61038, 61040, 64005, 571...... 63237 222...... 62694 482...... 65891 64006 228...... 62694 26 CFR 483...... 63018 Proposed Rules: 241...... 62694 485...... 65891 21...... 61999 1 ...... 61946, 64816, 65110 251...... 62694 25...... 63851 301...... 62607 254...... 62694 44 CFR 39 ...... 61633, 61638, 61641, 602...... 61946, 61947 292...... 62694 64...... 61954 61643, 61645, 62321, 62649, Proposed Rules: 67...... 61279 38 CFR 62653, 62656, 62658, 62661, 1 ...... 62327, 62684, 63574, Proposed Rules: 62663, 62667, 62669, 62671, 64879, 65138, 65634 1...... 65133 67 ...... 61070, 61295, 61649, 62673, 63229, 63571, 64038, 27 CFR 62006, 62329 64283, 64285, 64287, 64289, 39 CFR 206...... 61070 64291, 64293, 64844, 64847, Proposed Rules: 122...... 61052 64849, 64851, 64854, 64857, 46 CFR 9...... 63852 Proposed Rules: 65136, 65419, 65421 20...... 65639 108...... 62962 43...... 64859 28 CFR 111...... 62000, 65640 117...... 62962 71 ...... 63235, 64041, 64295 104...... 65112 133...... 62962 15 CFR Proposed Rules: 40 CFR 160...... 62962 524...... 65428 2...... 64010 164...... 62962 744...... 63184 180...... 62962 922...... 63824 29 CFR 9...... 61566 52 ...... 61054, 61057, 62635, 199...... 62962 Proposed Rules: 104...... 63188 62640, 63549, 64015, 64017, Proposed Rules: 922...... 65566 500–899...... 64237 64020, 64237, 64240, 64823, 160...... 62714 1952...... 63188, 63190 16 CFR 64825 530...... 63581 4022...... 63836 80...... 65382 531...... 63581 2...... 63833 Proposed Rules: 81...... 64825 47 CFR 1450...... 62605 570...... 61289 82...... 61269 Proposed Rules: 579...... 61289 93...... 63554 Ch. I ...... 62309 Ch. II...... 62678, 64865 112...... 64245 20...... 63561 30 CFR 1700...... 64042 180...... 61587, 61592 32...... 61279 Ch. II ...... 64432 52...... 61279 17 CFR 271...... 62303 Ch. V...... 64432 372...... 64022 61...... 61279, 61956 12...... 63187 Proposed Rules: 721...... 61566 64 ...... 61279, 61956, 63561 Proposed Rules: 75...... 63238 799...... 65385 69...... 61279 229...... 63573 915...... 64043 Proposed Rules: 73...... 62642 240...... 65784 926...... 64045, 64047 2...... 64055 Proposed Rules: 249...... 63573, 65784 938...... 64048 9...... 65431 1 ...... 61295, 63257, 65472 51...... 64059 15...... 61655 19 CFR 31 CFR 52 ...... 61062, 61069, 61291, 25...... 65472 10...... 65365 1...... 62297 62002, 62004, 63251, 63574, 54...... 64882 24...... 65365 31...... 61046 63859, 63860, 64065, 64186, 73...... 62330 162...... 65365 538...... 63191, 63197 64880, 64881, 65458 48 CFR 163...... 65365 560...... 63191, 63197 60 ...... 63878, 65138, 65653 178...... 65365 1060...... 62607 63...... 65138 212...... 61279 201...... 61937 Proposed Rules: 81...... 65458 247...... 61279 206...... 61937 1010...... 64049 82...... 65139 252...... 61279, 61282 207...... 61937 93...... 63575 Proposed Rules: 210...... 61937, 64803 32 CFR 97...... 63251, 63860 24...... 63896 351...... 61042 211...... 65112 98...... 61293 52...... 63896 1902...... 62630 112...... 64296 211...... 64885 20 CFR 1909...... 64237 122...... 65431 215...... 61296, 64297 404...... 65107, 65366 174...... 61647 225...... 61296, 64297 408...... 65107 33 CFR 180...... 61647 252 ...... 61296, 64297, 64885 416...... 65107, 65366 100...... 62298, 63837 257...... 63252 9903...... 61660 422...... 65107 117 ...... 63839, 63840, 64009, 261...... 63252 49 CFR 65118, 65120, 65375 264...... 63252 21 CFR 165 ...... 61259, 61261, 61263, 265...... 63252 18...... 61597 Ch. I ...... 61565 61947, 61950, 62301, 63199, 268...... 63252 19...... 61597 165...... 64810 63200, 63202, 63547, 63841, 271...... 63252 541...... 65610 558...... 65109 64818, 64820, 65376, 65378, 302...... 63252 Proposed Rules: 1300...... 64813 65380, 65609 721...... 65580 236...... 63849 1301...... 61563 334...... 62631 799...... 65580 580...... 65485

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Ch. X...... 63276 600...... 61985 Proposed Rules: 63720, 64996 1241...... 63582 622 ...... 61284, 61285, 62309, 17 ...... 61298, 61307, 61321, 622...... 65324, 65662 63563, 64248 61330, 61482, 61532, 61782, 635...... 62331, 65673 50 CFR 648 ...... 61059, 61060, 61061, 61826, 61856, 61896, 62016, 648...... 61661 17 ...... 61599, 61956, 62722 61995, 62642 62165, 62213, 62259, 62504, 660...... 65155, 65673 23...... 61978 679 ...... 61996, 63204, 63564 62740, 62900, 62928, 63094, 226...... 65324 63360, 63420, 63444, 63480,

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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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