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EPA air standards 1/5 SLUP/MBS

Vol. 77 Thursday,
No. 3 January 5, 2012
Pages 419–728
OFFICE OF THE FEDERAL REGISTER
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.
II Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012
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Contents Federal Register
III
Vol. 77, No. 3
Thursday, January 5, 2012
Agricultural Marketing Service
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Specialty Crop Block Grant Program, 470–471
Agriculture Department
See Agricultural Marketing Service
See Food and Nutrition Service
See Forest Service
Centers for Disease Control and Prevention
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 507–509
Statement of Organization, Functions, and Delegations of
Authority, 509–511
Children and Families Administration
PROPOSED RULES
Affects of Current SACWIS Regulations on Tribes
Administering a Title IV–E Program, 467–468
Civil Rights Commission
NOTICES
Meetings; Sunshine Act, 472
Coast Guard
RULES
Drawbridge Operations:
Atlantic Intracoastal Waterway, Wrightsville Beach, NC,
423
Corson Inlet, Stathmere, NJ, 420
Long Island, NY Inland Waterway from East Rockaway
Inlet to Shinnecock Canal, NY, 421–423
Sacramento River, Paintersville, CA, 419
St. Johns River, Jacksonville, FL, 419–420
Commerce Department
See International Trade Administration
See National Oceanic and Atmospheric Administration
See Patent and Trademark Office
Commodity Futures Trading Commission
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Rules Relating to Regulation of Domestic Exchange-
Traded Options, 477–478
Consumer Product Safety Commission
NOTICES
Meetings; Sunshine Act, 478
Petitions:
Exception from the Lead Content Limits, 478–479
Defense Nuclear Facilities Safety Board
NOTICES
Meetings; Sunshine Act, 479–480
Department of Transportation
See Pipeline and Hazardous Materials Safety
Administration
Education Department
NOTICES
Applications for New Awards:
Field Initiated Projects Program, 480–484
Meetings:
Equity and Excellence Commission, 484–485
Energy Department
See Energy Efficiency and Renewable Energy Office
See Federal Energy Regulatory Commission
NOTICES
Meetings:
Fusion Energy Sciences Advisory Committee, 485
Energy Efficiency and Renewable Energy Office
NOTICES
Meetings:
Wind Plant Performance; Modeling and Testing Needs for
Complex Air Flow Characterization, 485–486
Engraving and Printing Bureau
NOTICES
Privacy Act; Systems of Records, 551–552
Environmental Protection Agency
RULES
EPAAR Clause for Compliance with Policies for
Information Resources Management, 427–429
National Emissions Standards for Hazardous Air Pollutants
from Secondary Lead Smelting, 556–591
Regulation of Fuels and Fuel Additives:
Identification of Additional Qualifying Renewable Fuel
Pathways under Renewable Fuel Standard Program,
700–727
PROPOSED RULES
Regulation of Fuels and Fuel Additives:
Identification of Additional Qualifying Renewable Fuel
Pathways under Renewable Fuel Standard Program,
462–467
NOTICES
Control of Emissions from New Highway Vehicles and
Engines:
Approval of New Scheduled Maintenance for Selective
Catalytic Reduction Technologies, 488–497
Control of Emissions from New Nonroad Compression-
Ignition Engines:
Approval of New Scheduled Maintenance for Selective
Catalytic Reduction Technologies, 497–499
Federal Communications Commission
PROPOSED RULES
Program Carriage Rules; Revisions, 468–469
Federal Emergency Management Agency
RULES
Changes in Flood Elevation Determinations, 423–427
NOTICES
Major Disaster Declarations:
Virginia; Amendment No. 4, 513
Federal Energy Regulatory Commission
NOTICES
Combined Filings, 486–487
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IV Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Contents
Paper Hearing Procedures:
ITC Holdings Corp., 487–488
Federal Highway Administration
NOTICES
Limitation on Claims against a Proposed Transportation
Project, 531–532
Federal Housing Finance Agency
NOTICES
Privacy Act of 1974; System of Records, 499–506
Federal Maritime Commission
NOTICES
Agreements Filed, 506
Federal Motor Carrier Safety Administration
NOTICES
Qualification of Drivers; Exemption Applications; Diabetes
Mellitus, 532–537
Qualification of Drivers; Exemption Applications; Epilepsy
and Seizure Disorders, 537–539
Qualification of Drivers; Exemption Applications; Vision,
539–546
Federal Railroad Administration
NOTICES
Adjustment of Nationwide Significant Risk Threshold, 546–
547
Federal Reserve System
PROPOSED RULES
Enhanced Prudential Standards and Early Remediation
Requirements for Covered Companies, 594–663
Federal Transit Administration
NOTICES
Fiscal Year 2011 Public Transportation on Indian
Reservations Program Project Selections, 547–551
Limitation on Claims against a Proposed Transportation
Project, 531–532
Financial Crimes Enforcement Network
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 552–553
Fiscal Service
NOTICES
Surety Companies Acceptable on Federal Bonds;
Amendments:
Evergreen National Indemnity Co., 553
Surety Companies Acceptable on Federal Bonds;
Terminations:
Western Bonding Co., 553–554
Fish and Wildlife Service
RULES
Endangered and Threatened Wildlife and Plants:
Removal of the Regulation that Excludes U.S. Captive-
Bred Scimitar-Horned Oryx, Addax, and Dama
Gazelle from Certain Prohibitions, 431–438
PROPOSED RULES
Endangered and Threatened Wildlife and Plants:
Listing Two Distinct Population Segments of Broad-
Snouted Caiman, 666–697
Food and Nutrition Service
NOTICES
Emergency Food Assistance Program:
Availability of Foods for Fiscal Year 2012, 471–472
Forest Service
NOTICES
Request for Nominations:
National Advisory Committee for Implementation of the
National Forest System Land Management Planning
Rule; Correction, 472
Health and Human Services Department
See Centers for Disease Control and Prevention
See Children and Families Administration
See National Institutes of Health
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals, 506–507
Homeland Security Department
See Coast Guard
See Federal Emergency Management Agency
See Transportation Security Administration
Interior Department
See Fish and Wildlife Service
See Land Management Bureau
See National Park Service
International Trade Administration
NOTICES
Anti-circumvention Inquiries:
Certain Steel Threaded Rod from the People’s Republic of
China, 473–474
International Trade Commission
NOTICES
Complaints:
Certain Portable Communication Devices, 515–516
Justice Department
NOTICES
Lodging of Consent Decrees Under CERCLA, 516–517
Lodging of Consent Decrees Under the Clean Air Act, 517–
518
Lodging of Consent Decrees Under the Clean Water Act,
518
Land Management Bureau
NOTICES
Conveyance of Public Lands for Recreation and Public
Purposes:
Clark County, NV; Correction, 514
Records of Decision; Availability:
North Steens 230 kilovolt Transmission Line, Harney
County, OR, 514–515
National Institutes of Health
NOTICES
Meetings:
Center for Scientific Review, 511–513
National Oceanic and Atmospheric Administration
RULES
Fisheries of the Exclusive Economic Zone Off Alaska:
Inseason Adjustment to the 2012 Gulf of Alaska Pollock
and Pacific Cod Total Allowable Catch Amounts,
438–440
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Federal Register /Vol. 77, No. 3 / Thursday, January 5, 2012 / Contents V
NOTICES
2012 Annual Determination for Sea Turtle Observer
Requirement, 474–476
Endangered and Threatened Species:
Southern Oregon/Northern California Coast Coho Salmon
Evolutionarily Significant Unit Recovery Plan, 476
Meetings:
Science Advisory Board, 476–477
National Park Service
NOTICES
National Register of Historic Places:
Pending Nominations and Related Actions, 515
Nuclear Regulatory Commission
PROPOSED RULES
Measurement and Control of Combustible Gas Generation
and Dispersal, 441–442
Patent and Trademark Office
PROPOSED RULES
Changes to Implement Miscellaneous Post Patent Provisions
of the Leahy–Smith America Invents Act, 442–448
Changes to Implement the Preissuance Submissions by
Third Parties Provision of the Leahy–Smith America
Invents Act, 448–457
Implementation of Statute of Limitations Provisions for
Office Disciplinary Proceedings, 457–461
Pipeline and Hazardous Materials Safety Administration
RULES
Clarification and Further Guidance on the Fireworks
Approvals Policy, 429–431
Public Debt Bureau
See Fiscal Service
Securities and Exchange Commission
NOTICES
Self-Regulatory Organizations; Proposed Rule Changes:
Chicago Board Options Exchange, Inc., 518–520
Chicago Board Options Exchange, Inc. and National Stock
Exchange, Inc., 521–527
Options Clearing Corp., 520
The National Securities Clearing Corp., 528–529
Small Business Administration
NOTICES
Disaster Declarations:
Alaska, 530
Vermont; Amendment 7, 530
Virginia; Amendment 1, 530
State Department
NOTICES
Advisory Committee on Private International Law; Charter
Renewal, 530–531
Surface Transportation Board
NOTICES
Release of Waybill Data, 551
Transportation Department
See Federal Highway Administration
See Federal Motor Carrier Safety Administration
See Federal Railroad Administration
See Federal Transit Administration
See Pipeline and Hazardous Materials Safety
Administration
See Surface Transportation Board
See Transportation Security Administration
Transportation Security Administration
NOTICES
Agency Information Collection Activities; Proposals,
Submissions, and Approvals:
Enhanced Security Procedures at Certain Airports in the
Washington, DC, Area, 513–514
Treasury Department
See Engraving and Printing Bureau
See Financial Crimes Enforcement Network
See Fiscal Service
Separate Parts In This Issue
Part II
Environmental Protection Agency, 556–591
Part III
Federal Reserve System, 594–663
Part IV
Interior Department, Fish and Wildlife Service, 666–697
Part V
Environmental Protection Agency, 700–727
Reader Aids
Consult the Reader Aids section at the end of this page for
phone numbers, online resources, finding aids, reminders,
and notice of recently enacted public laws.
To subscribe to the Federal Register Table of Contents
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archives, FEDREGTOC-L, Join or leave the list (or change
settings); then follow the instructions.
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CFR PARTS AFFECTED IN THIS ISSUE
A cumulative list of the parts affected this month can be found in the
Reader Aids section at the end of this issue.
VI Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Contents
10 CFR
Proposed Rules:
50.........................................441
52.........................................441
100.......................................441
12 CFR
Proposed Rules:
252.......................................594
33 CFR
117 (5 documents) .....419, 420,
421, 423
37 CFR
Proposed Rules:
1 (2 documents) ..........442, 448
11.........................................457
40 CFR
80.........................................462
Proposed Rules:
80.........................................700
42 CFR
63.........................................556
44 CFR
65 (2 documents) ........423, 425
45 CFR
Proposed Rules:
1355.....................................467
47 CFR
Proposed Rules:
76.........................................468
48 CFR
1552.....................................427
49 CFR
173.......................................429
50 CFR
17.........................................431
679.......................................438
Proposed Rules:
17.........................................666
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This section of the FEDERAL REGISTER
contains regulatory documents having general
applicability and legal effect, most of which
are keyed to and codified in the Code of
Federal Regulations, which is published under
50 titles pursuant to 44 U.S.C. 1510.
The Code of Federal Regulations is sold by
the Superintendent of Documents. Prices of
new books are listed in the first FEDERAL
REGISTER issue of each week.
Rules and Regulations Federal Register
419
Vol. 77, No. 3
Thursday, January 5, 2012
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2011–1066]
Drawbridge Operation Regulation;
Sacramento River, Paintersville, CA
AGENCY: Coast Guard, DHS.
ACTION: Notice of temporary deviation
from regulations.
SUMMARY: The Commander, Eleventh
Coast Guard District, has issued a
temporary deviation from the regulation
governing the operation of the
Paintersville Drawbridge across
Sacramento River, mile 33.4, at
Paintersville, CA. The deviation is
necessary to allow California
Department of Transportation to paint
and perform routine maintenance on the
drawbridge. This deviation allows
single leaf operation of the double leaf
bascule style drawbridge during the
project.
DATES: This deviation is effective from
7 a.m., January 6, 2012 to 6 p.m. on
April 4, 2012.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of the docket USCG–
2011–1066 and are available online by
going to http://www.regulations.gov,
inserting USCG–2011–1066 in the
‘‘Keyword’’ box and then clicking
‘‘Search’’. They are also available for
inspection or copying at the Docket
Management Facility (M–30), U.S.
Department of Transportation, West
Building Ground Floor, Room W12–140,
1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email David H. Sulouff, Chief, Bridge
Section, Eleventh Coast Guard District;
telephone (510) 437–3516, email
David.H.Sulouff@uscg.mil If you have
questions on viewing the docket, call
Renee V. Wright, Program Manager,
Docket Operations, telephone (202)
366–9826.
SUPPLEMENTARY INFORMATION: The
California Department of Transportation
has requested a temporary change to the
operation of the Paintersville
Drawbridge, mile 33.4, over Sacramento
River, at Paintersville, CA. The
drawbridge navigation span provides a
vertical clearance of 24 feet above Mean
High Water in the closed-to-navigation
position. The draw opens on signal from
May 1 through October 31 from 6 a.m.
to 10 p.m. and from November 1
through April 30 from 9 a.m. to 5 p.m.
At all other times the draw shall open
on signal if at least four hours notice is
given to the drawtender at the Rio Vista
bridge across the Sacramento River,
mile 12.8, as required by 33 CFR
117.189(a). Navigation on the waterway
is commercial and recreational.
Either leaf of the double bascule
drawspan may be secured in the closedto-
navigation position from 7 a.m.,
January 6, 2012 to 6 p.m. on April 4,
2012, to allow Caltrans to conduct
painting and maintenance on the bridge.
The opposite leaf will continue to
operate normally, providing unlimited
vertical clearance and 77 feet horizontal
clearance between leafs. A work
platform will be installed below the
secured leaf, reducing vertical clearance
by 6 feet. This temporary deviation has
been coordinated with waterway users.
No objections to the proposed
temporary deviation were raised.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Dated: December 9, 2011.
D.H. Sulouff,
District Bridge Chief, Eleventh Coast Guard
District.
[FR Doc. 2011–33769 Filed 1–4–12; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2011–1028]
Drawbridge Operation Regulation; St.
Johns River, Jacksonville, FL
AGENCY: Coast Guard, DHS.
ACTION: Notice of temporary deviation
from regulations.
SUMMARY: The Commander, Seventh
Coast Guard District, has issued a
temporary deviation from the regulation
governing the operation of the Florida
East Coast automated railroad bridge
across the St. Johns River, mile 24.9, in
Jacksonville, Florida. The regulation is
set forth in 33 CFR 117.325(b). The
deviation is necessary to enable the
bridge owner to repair the bridge. This
deviation will result in the bridge
remaining closed to navigation during
extensive periods of daylight hours.
DATES: This deviation is effective from
8 a.m. on January 15, 2012 through
5 p.m. on March 29, 2012.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of docket USCG–2011–
1028 and are available online by going
to http://www.regulations.gov, inserting
USCG–2011–1028 in the ‘‘Keyword’’
box and then clicking ‘‘Search’’. They
are also available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Michael Lieberum, Seventh
District Bridge Branch, Coast Guard;
telephone (305) 415–6744, email
Michael.B.Lieberum@uscg.mil. If you
have questions on viewing the docket,
call Renee V. Wright, Program Manager,
Docket Operations, telephone (202)
366–9826.
SUPPLEMENTARY INFORMATION: The bridge
owner has determined that extensive
repairs are required on the Florida East
Coast automated railroad bridge over the
St. Johns River in Jacksonville, Florida.
This temporary deviation will enable
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420 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
the bridge owner to make necessary
repairs to the bridge. The bridge
provides a vertical clearance of 5 feet
above mean high water in the closed
position and a horizontal clearance of
195 feet.
The normal operating schedule for the
bridge is set forth in 33 CFR 117.325(b).
33 CFR 117.325(b) states that the draw
is normally in the fully open position,
displaying flashing green lights to
indicate that vessels may pass. When a
train approaches, large signs on both the
upstream and downstream sides of the
bridge flash ‘‘Bridge Coming Down,’’ the
lights go to flashing red, and siren
signals sound. After an eight minute
delay, the draw lowers and locks if there
are no vessels under the draw. The draw
remains down for a period of eight
minutes or while the approach track
circuit is occupied. After the train has
cleared, the draw opens and the lights
return to flashing green.
The deviation will be in effect from 8
a.m. on January 15, 2012 through 5 p.m.
on March 29, 2012. As a result of this
deviation, the Florida East Coast
automated railroad bridge over the St.
Johns River will remain closed to
navigation from 8 a.m. until 11:30 a.m.
and from 12:30 p.m. until 5 p.m.
Sundays through Thursdays from 8 a.m.
on January 15, 2012 through 5 p.m. on
March 29, 2012. This deviation will
affect all vessel traffic transiting under
the bridge. Vessels may not pass
underneath the bridge in closed
position, and there are no alternate
routes for vessel traffic. Due to the
nature of the repair work, it would take
a minimum of two hours to open in an
emergency as the bridge would have to
be rebalanced before it could open.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Dated: December 22, 2011.
W.D. Baumgartner,
Rear Admiral, U.S. Coast Guard, Commander,
Seventh Coast Guard District.
[FR Doc. 2011–33819 Filed 1–4–12; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2011–1139]
Drawbridge Operation Regulation;
Corson Inlet, Stathmere, NJ
AGENCY: Coast Guard, DHS.
ACTION: Notice of temporary deviation
from regulations.
SUMMARY: The Commander Fifth Coast
Guard District has issued a temporary
deviation from the regulations
governing the operation of the Corson
Inlet Bridge (County Route 619), across
Corson Inlet, mile 0.9 in Strathmere, NJ.
The deviation is necessary to facilitate
the replacement of the steel railing. This
deviation restricts operation of the draw
span; no openings will be allowed
during the course of the project, while
the railings on the moveable span
portion of the bridge are replaced.
DATES: This deviation is effective from
5 a.m. on January 15, 2012 until 5 p.m.
on February 15, 2012.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket are part of docket USCG–2011–
1139 and are available online by going
to http://www.regulations.gov, inserting
USCG–2011–1139 in the ‘‘Keyword’’
box and then clicking ‘‘Search’’. They
are also available for inspection or
copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Terrance Knowles, Environmental
Protection Specialist, Fifth Coast Guard
District; telephone (757) 398–6587,
email Terrance.A.Knowles@uscg.mil. If
you have questions on viewing the
docket, call Renee V. Wright, Program
Manager, Docket Operations, telephone
(202) 366–9826.
SUPPLEMENTARY INFORMATION: The Cape
May County Bridge Commission, who
owns and operates this bascule
drawbridge, has requested a temporary
deviation from the current operating
regulations set out in 33 CFR 117.714 to
facilitate the replacement of the bridge
railings.
Under the regular operating schedule,
the bridge operates as follows: The draw
shall open on signal; however, from
October 1 through May 15 from 10 p.m.
to 6 a.m. and from 6 a.m. to 10 p.m. on
December 25 the draw need open only
if at least two hours notice is provided.
The Corson Inlet Bridge (CR–619) at
mile 0.9, across Corson Inlet in
Strathmere, NJ has a vertical clearance
in the closed position to vessels of 15
feet above mean high water (MHW).
Under this temporary deviation, the
Corson Inlet Bridge will be closed to
vessels requiring an opening, from
5 a.m. on January 15, 2012 to 5 p.m. on
February 15, 2012. The drawbridge will
not be able to open in the event of an
emergency. Vessels that can pass under
the bridge without a bridge opening may
do so at all times. Vessels have an
alternate ocean route to the south
through Townsends Inlet.
Though the span will be closed for the
project, the 15 feet of vertical navigation
clearance will remain available
throughout the project. Furthermore, the
50 feet of horizontal clearance will be
reduced to 25 feet temporarily only if/
when barges are used beneath the span
to facilitate this project.
Historically, there were no vessel
openings provided for the months of
January through February in 2011. The
Coast Guard has coordinated the
restrictions with the Cape May County
Bridge Commission/contractor and will
inform the other users of the waterways
through our Local and Broadcast
Notices to Mariners of the closure
periods for the bridge so that vessels can
arrange their transits to minimize any
impact caused by the temporary
deviation.
In accordance with 33 CFR 117.35(e),
the drawbridge must return to its regular
operating schedule immediately at the
end of the designated time period.
This deviation from the operating
regulations is authorized under 33 CFR
117.35.
Dated: December 22, 2011.
Waverly W. Gregory, Jr.,
Bridge Program Manager, Fifth Coast Guard
District.
[FR Doc. 2011–33824 Filed 1–4–12; 8:45 am]
BILLING CODE 9110–04–P
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 421
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2011–1132]
RIN 1625–AA09
Drawbridge Operation Regulation;
Long Island, New York Inland
Waterway From East Rockaway Inlet to
Shinnecock Canal, NY
AGENCY: Coast Guard, DHS.
ACTION: Temporary final rule.
SUMMARY: The Coast Guard has
temporarily changed the drawbridge
operation regulations that govern the
operation of the Smith Point Bridge,
mile 6.1, across Narrow Bay, between
Smith Point and Fire Island, New York.
This temporary final rule is necessary to
facilitate the completion of a major
bridge rehabilitation project.
DATES: This temporary final rule is
effective from January 5, 2012, through
May 25, 2012. The rule has been
enforced with actual notice since
December 22, 2011.
ADDRESSES: Documents indicated in this
preamble as being available in the
docket, are part of docket USCG–2011–
1132 and are available online by going
to http://www.regulations.gov, inserting
USCG–2011–1132 in the ‘‘Keyword’’
box, and then clicking ‘‘Search.’’ This
material is also available for inspection
or copying at the Docket Management
Facility (M–30), U.S. Department of
Transportation, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue SE., Washington, DC 20590,
between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Ms Judy Leung-Yee, Project
Officer, First Coast Guard District Bridge
Branch, (212) 668–7165, judy.k.leungyee@
uscg.mil. If you have questions on
viewing the docket, call Renee V.
Wright, Program Manager, Docket
Operations, telephone (202) 366–9826.
SUPPLEMENTARY INFORMATION:
Regulatory Information
The Coast Guard is issuing this
temporary final rule without prior
notice and opportunity to comment
pursuant to authority under section 4(a)
of the Administrative Procedure Act
(APA) (5 U.S.C. 553(b)).
This provision authorizes an agency
to issue a rule without prior notice and
opportunity to comment when the
agency for good cause finds that those
procedures are ‘‘impracticable,
unnecessary, or contrary to the public
interest.’’ Under 5 U.S.C. 553(b)(B), the
Coast Guard finds that good cause exists
for not publishing a notice of proposed
rulemaking (NPRM) with respect to this
rule because it would be impracticable
and contrary to the public interest to
give prior notice and opportunity for
comment. As is more fully discussed
below, the rehabilitation work has
already begun on this bridge under a
temporary deviation published on
September 30, 2011, (76 FR 60733) and
that work was unexpectedly delayed.
This rule provides a time extension so
that the rehabilitation can be completed
in the shortest possible time frame.
Without this rule the work would have
to be suspended thereby delaying the
ultimate completion date. Further, as
stated in the temporary deviation this
waterway is used primarily by
recreational boaters who can safely pass
through the reduced horizontal
clearance caused by this rule, the
majority of whom do not operate during
the months when this rule will be in
effect.
Under 5 U.S.C. 553(d)(3), the Coast
Guard finds that good cause exists for
making this rule effective less than 30
days after publication in the Federal
Register for the reasons stated above.
Basis and Purpose
The Smith Point Bridge across Narrow
Bay, mile 6.1, between Smith Point and
Fire Island, New York, has a vertical
clearance in the closed position of 16
feet at mean high water and 18 feet at
mean low water. The drawbridge
operation regulations are listed at 33
CFR 117.799(d).
The waterway users are
predominantly recreational vessels of
various sizes.
On September 30, 2011, the Coast
Guard published a temporary deviation
(76 FR 60733) from the regulations
allowing single span bridge openings
from September 26, 2011 through
December 21, 2011, in order to facilitate
bridge rehabilitation construction at
Smith Point Bridge. Under the
temporary deviation the bridge was
allowed to open only one of the two
moveable spans for the passage of
vessels from September 26, 2011,
through December 21, 2011.
The bridge owner, Suffolk County
Department of Public Works, recently
advised the Coast Guard that the
cleaning and painting operations
delayed the structural steel repairs and
requested an extension of 156 days to
complete the rehabilitation project
necessary to allow the bridge to return
to its full two span operation. The Coast
Guard expects minimal marine traffic
transit through this bridge during the
proposed effective dates of this rule, and
all vessels known to use this waterway
can pass through the bridge with a
single span opening.
As a result, the Coast Guard is
publishing this temporary final rule to
help facilitate completion of the bridge
rehabilitation before the 2012 boating
season begins.
Discussion of Rule
The Coast Guard is publishing this
temporary final rule, extending single
span openings from December 22, 2011
through May 25, 2012, to help facilitate
completion of bridge rehabilitation
repairs. The rehabilitation repairs must
be completed before the bridge can open
both spans for the passage of vessel
traffic for the 2012 boating season.
The main navigation channel
provides 55 feet of horizontal clearance
with unobstructed vertical clearance
during a bridge opening.
During this temporary final rule the
main channel will provide 27.5 feet of
horizontal clearance with unobstructed
vertical clearance during a bridge
opening.
The Coast Guard believes that this
temporary final rule should meet the
reasonable needs of navigation because
the vessels that normally use this bridge
are recreational vessels that can safely
pass through a 27.5 foot horizontal
clearance due to their relative small
size. In addition, most of the above
recreational vessels do not operate
during the months when this rule will
be in effect.
Regulatory Analyses
We developed this rule after
considering numerous statutes and
executive orders related to rulemaking.
Below we summarize our analyses
based on 13 of these statutes or
executive orders.
Regulatory Planning and Review
This rule is not a significant
regulatory action under section 3(f) of
Executive Order 12866, Regulatory
Planning and Review, as supplemented
by Executive Order 13563, Improving
Regulation and Regulatory Review, and
does not require an assessment of
potential costs and benefits under
section 6(a)(3) of Executive Order
12866. The Office of Management and
Budget has not reviewed it under that
Order.
The Coast Guard determined that this
rule is not a significant regulatory action
for the following reasons. The bridge
presently cannot open two spans for
vessel traffic due to the fact that
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422 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
rehabilitation repairs have not been
completed. This action will facilitate
completion of the bridge repairs. Most
vessel traffic that uses this waterway
can fit through the bridge with a single
span opening.
Small Entities
Under the Regulatory Flexibility Act
(5 U.S.C. 601–612), we have considered
whether this rule would have a
significant economic impact on a
substantial number of small entities.
The term ‘‘small entities’’ comprises
small businesses, not-for-profit
organizations that are independently
owned and operated and are not
dominant in their fields, and
governmental jurisdictions with
populations of less than 50,000.
The Coast Guard certifies under 5
U.S.C. 605(b) that this rule will not have
a significant economic impact on a
substantial number of small entities.
This rule will affect the following
entities, some of which may be small
entities: the owners or operators of
vessels intending to transit the bridge
that cannot transit through a 27.5 foot
horizontal clearance. The bridge
presently cannot open two spans for the
passage of vessel traffic because the
rehabilitation repairs are not completed.
This action will facilitate completion of
the bridge repairs. Most vessel traffic
that uses this waterway can fit through
the bridge with a single span opening.
If you think that your business,
organization, or governmental
jurisdiction qualifies as a small entity
and that this rule would have a
significant economic impact on it,
please submit a comment (see
ADDRESSES) explaining why you think it
qualifies and how and to what degree
this rule would economically affect it.
Assistance for Small Entities
Under section 213(a) of the Small
Business Regulatory Enforcement
Fairness Act of 1996 (Pub. L. 104–121),
in the NPRM we offered to assist small
entities in understanding the rule so
that they could better evaluate its effects
on them and participate in the
rulemaking process.
Collection of Information
This rule calls for no new collection
of information under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501–
3520).
Federalism
A rule has implications for federalism
under Executive Order 13132,
Federalism, if it has a substantial direct
effect on State or local governments and
would either preempt State law or
impose a substantial direct cost of
compliance on them. We have analyzed
this rule under that Order and have
determined that it does not have
implications for federalism.
Unfunded Mandates Reform Act
The Unfunded Mandates Reform Act
of 1995 (2 U.S.C. 1531–1538) requires
Federal agencies to assess the effects of
their discretionary regulatory actions. In
particular, the Act addresses actions
that may result in the expenditure by a
State, local, or tribal government, in the
aggregate, or by the private sector of
$100,000,000 (adjusted for inflation) or
more in any one year. Though this rule
will not result in such an expenditure,
we do discuss the effects of this rule
elsewhere in this preamble.
Taking of Private Property
This rule will not cause a taking of
private property or otherwise have
taking implications under Executive
Order 12630, Governmental Actions and
Interference with Constitutionally
Protected Property Rights.
Civil Justice Reform
This rule meets applicable standards
in sections 3(a) and 3(b)(2) of Executive
Order 12988, Civil Justice Reform, to
minimize litigation, eliminate
ambiguity, and reduce burden.
Protection of Children
We have analyzed this rule under
Executive Order 13045, Protection of
Children from Environmental Health
Risks and Safety Risks. This rule is not
an economically significant rule and
would not create an environmental risk
to health or risk to safety that might
disproportionately affect children.
Indian Tribal Governments
This rule does not have tribal
implications under Executive Order
13175, Consultation and Coordination
with Indian Tribal Governments,
because it does not have a substantial
direct effect on one or more Indian
tribes, on the relationship between the
Federal Government and Indian tribes,
or on the distribution of power and
responsibilities between the Federal
Government and Indian tribes.
Energy Effects
We have analyzed this rule under
Executive Order 13211, Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use. We have
determined that it is not a ‘‘significant
energy action’’ under that order because
it is not a ‘‘significant regulatory action’’
under Executive Order 12866 and is not
likely to have a significant adverse effect
on the supply, distribution, or use of
energy. The Administrator of the Office
of Information and Regulatory Affairs
has not designated it as a significant
energy action. Therefore, it does not
require a Statement of Energy Effects
under Executive Order 13211.
Technical Standards
The National Technology Transfer
and Advancement Act (NTTAA) (15
U.S.C. 272 note) directs agencies to use
voluntary consensus standards in their
regulatory activities unless the agency
provides Congress, through the Office of
Management and Budget, with an
explanation of why using these
standards would be inconsistent with
applicable law or otherwise impractical.
Voluntary consensus standards are
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies.
This rule does not use technical
standards. Therefore, we did not
consider the use of voluntary consensus
standards.
Environment
We have analyzed this rule under
Department of Homeland Security
Management Directive 023–01 and
Commandant Instruction M16475.lD,
which guides the Coast Guard in
complying with the National
Environmental Policy Act of 1969
(NEPA) (42 U.S.C. 4321–4370f), and
have concluded that this action is one
of a category of actions which do not
individually or cumulatively have a
significant effect on the human
environment. This rule is categorically
excluded, under figure 2–1, paragraph
(32)(e), of the Instruction.
Under figure 2–1, paragraph (32)(e), of
the Instruction, an environmental
analysis checklist and a categorical
exclusion determination are not
required for this rule.
List of Subjects in 33 CFR Part 117
Bridges.
For the reasons discussed in the
preamble, the Coast Guard amends 33
CFR part 117 as follows:
PART 117—DRAWBRIDGE
OPERATION REGULATIONS
¦ 1. The authority citation for part 117
continues to read as follows:
Authority: 33 U.S.C. 499; 33 CFR 1.05–1;
Department of Homeland Security Delegation
No. 0170.1.
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 423
¦ 2. In Sec. 117.799, paragraph (d) is
suspended and paragraph (k) is added to
read as follows:
§ 117.799 Long Island, New York Inland
Waterway from East Rockaway Inlet to
Shinnecock Canal.
* * * * *
(k) The draws of the West Bay Bridge,
mile 0.0, across Quantuck Canal, Beach
Lane Bridge, mile 1.1, across Quantuck
Canal, and the Quoque Bridge, mile 1.1,
across Quoque Canal, shall open on
signal from October 1 through April 30
from 8 a.m. to 4 p.m. and from May 1
through September 30, from 6 a.m. to 10
p.m. The draw of the Smith Point
Bridge, mile 6.1, across Narrow Bay,
need open only one of the two movable
spans for the passage of vessel traffic
from December 22, 2011 through May
25, 2012. The draw shall open on signal
from December 22 through April 30
from 8 a.m. to 4 p.m. and from May 1
through May 25, 6 a.m. through 10 p.m.
At all other times during these periods,
the draws shall open as soon as possible
but no more than one hour after a
request to open is received.
Dated: December 21, 2011.
James B. McPherson,
Captain, U.S. Coast Guard, Acting
Commander, First Coast Guard District.
[FR Doc. 2011–33832 Filed 1–4–12; 8:45 am]
BILLING CODE 9110–04–P
DEPARTMENT OF HOMELAND
SECURITY
Coast Guard
33 CFR Part 117
[Docket No. USCG–2011–1134]
Drawbridge Operation Regulations;
Atlantic Intracoastal Waterway (AIWW),
Wrightsville Beach, NC
AGENCY: Coast Guard, DHS.
ACTION: Notice of temporary deviation
from regulations.
SUMMARY: The Commander, Fifth Coast
Guard District, has approved a
temporary deviation from the
regulations governing the operation of
the S.R. 74 Bridge across the AIWW,
mile 283.1, at Wrightsville Beach, NC.
The deviation restricts the operation of
the draw span to facilitate the structural
repair of the bridge.
DATES: This deviation is effective from
7 p.m. on January 3, 2012 until 7 a.m.
on March 15, 2012.
ADDRESSES: Documents mentioned in
this preamble as being available in the
docket USCG–2011–1134 and are
available online by going to http://
www.regulations.gov, inserting USCG–
2011–1134 in the ‘‘Keywords’’ box, and
then clicking ‘‘Search’’. This material is
also available for inspection or copying
the Docket Management Facility (M–30),
U.S. Department of Transportation,
West Building Ground Floor, Room
W12–140, 1200 New Jersey Avenue SE.,
Washington, DC 20590, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal Holidays.
FOR FURTHER INFORMATION CONTACT: If
you have questions on this rule, call or
email Mr. Bill H. Brazier, Bridge
Management Specialist, Fifth Coast
Guard District, telephone (757) 398–
6422, email Bill.H.Brazier@uscg.mil. If
you have questions on reviewing the
docket, call Renee V. Wright, Program
Manager, Docket Operations, (202) 366–
9826.
SUPPLEMENTARY INFORMATION: The North
Carolina Department of Transportation,
who owns and operates this bascule-lift
type bridge, has requested a temporary
deviation from the current operating
regulations set out in 33 CFR
117.821(a)(4), to facilitate the structural
repair of the bridge.
The S.R. 74 Bridge across the AIWW
mile 283.1, at Wrightsville Beach, NC
has a vertical clearance in the closed
position of 20 feet, above mean high
water.
Under the regular operating schedule,
the drawbridge shall open on signal for
commercial vessels at all times; and on
signal for pleasure vessels except
between 7 a.m. and 7 p.m. when the
drawbridge need only open on the hour.
Under this temporary deviation, the
structural repairs will restrict the
operation of the draw span to the
closed-to-navigation position, each day
from 7 p.m. to 7 a.m., beginning on
Tuesday, January 3, 2012 and ending on
Thursday, March 15, 2012; except vessel
openings will be provided with at least
two hours advance notice given to the
bridge operator. Each day between 7
a.m. and 7 p.m., the drawbridge will
continue to operate as set out in 33 CFR
117.821(a).
Vessels may transit under the
drawbridge while it is in the closed
position. The Atlantic Intracoastal
Waterway serves a variety of vessels
from tug and barge traffic to recreational
vessels traveling from Florida to Maine.
The Coast Guard will inform
unexpected users of the waterway
through our local and broadcast Notices
to Mariners of the limited operating
schedule for the drawbridge so that
vessels can arrange their transits to
minimize any impacts caused by the
temporary deviation. In 2011, from
January thru March, 7 p.m. to 7 a.m.,
this draw opened approximately 35
times per month. The Atlantic Ocean is
the alternate route for vessels and the
bridge will be able to open in the event
of an emergency.
In accordance with 33 CFR 117.35(e),
the draw must return to its original
operating schedule immediately at the
end of the designated time period. This
deviation from the operating regulations
is authorized under 33 CFR 117.35.
Dated: December 30 2011.
W.D. Lee,
Rear Admiral, District Commander, Fifth
Coast Guard District.
[FR Doc. 2012–51 Filed 1–3–12; 4:15 pm]
BILLING CODE 4910–15–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 65
[Docket ID FEMA–2011–0002]
Changes in Flood Elevation
Determinations
AGENCY: Federal Emergency
Management Agency, DHS.
ACTION: Final rule.
SUMMARY: Modified Base (1% annualchance)
Flood Elevations (BFEs) are
finalized for the communities listed
below. These modified BFEs will be
used to calculate flood insurance
premium rates for new buildings and
their contents.
DATES: The effective dates for these
modified BFEs are indicated on the
following table and revise the Flood
Insurance Rate Maps (FIRMs) in effect
for the listed communities prior to this
date.
ADDRESSES: The modified BFEs for each
community are available for inspection
at the office of the Chief Executive
Officer of each community. The
respective addresses are listed in the
table below.
FOR FURTHER INFORMATION CONTACT: Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street SW., Washington, DC 20472,
(202) 646–4064, or (email)
Luis.Rodriguez3@fema.dhs.gov.
SUPPLEMENTARY INFORMATION: The
Federal Emergency Management Agency
(FEMA) makes the final determinations
listed below of the modified BFEs for
each community listed. These modified
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424 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
BFEs have been published in
newspapers of local circulation and
ninety (90) days have elapsed since that
publication. The Deputy Federal
Insurance and Mitigation Administrator
has resolved any appeals resulting from
this notification.
The modified BFEs are not listed for
each community in this notice.
However, this final rule includes the
address of the Chief Executive Officer of
the community where the modified BFE
determinations are available for
inspection.
The modified BFEs are made pursuant
to section 206 of the Flood Disaster
Protection Act of 1973, 42 U.S.C. 4105,
and are in accordance with the National
Flood Insurance Act of 1968, 42 U.S.C.
4001 et seq., and with 44 CFR part 65.
For rating purposes, the currently
effective community number is shown
and must be used for all new policies
and renewals.
The modified BFEs are the basis for
the floodplain management measures
that the community is required either to
adopt or to show evidence of being
already in effect in order to qualify or
to remain qualified for participation in
the National Flood Insurance Program
(NFIP).
These modified BFEs, together with
the floodplain management criteria
required by 44 CFR 60.3, are the
minimum that are required. They
should not be construed to mean that
the community must change any
existing ordinances that are more
stringent in their floodplain
management requirements. The
community may at any time enact
stricter requirements of its own or
pursuant to policies established by other
Federal, State, or regional entities.
These modified BFEs are used to meet
the floodplain management
requirements of the NFIP and also are
used to calculate the appropriate flood
insurance premium rates for new
buildings built after these elevations are
made final, and for the contents in those
buildings. The changes in BFEs are in
accordance with 44 CFR 65.4.
National Environmental Policy Act.
This final rule is categorically excluded
from the requirements of 44 CFR part
10, Environmental Consideration. An
environmental impact assessment has
not been prepared.
Regulatory Flexibility Act. As flood
elevation determinations are not within
the scope of the Regulatory Flexibility
Act, 5 U.S.C. 601–612, a regulatory
flexibility analysis is not required.
Regulatory Classification. This final
rule is not a significant regulatory action
under the criteria of section 3(f) of
Executive Order 12866 of September 30,
1993, Regulatory Planning and Review,
58 FR 51735.
Executive Order 13132, Federalism.
This final rule involves no policies that
have federalism implications under
Executive Order 13132, Federalism.
Executive Order 12988, Civil Justice
Reform. This final rule meets the
applicable standards of Executive Order
12988.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains,
Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is
amended to read as follows:
PART 65—[AMENDED]
¦ 1. The authority citation for part 65
continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 3 CFR,
1978 Comp., p. 329; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp., p.376.
§ 65.4 [Amended]
¦ 2. The tables published under the
authority of § 65.4 are amended as
follows:
State and county Location and case
No.
Date and name of newspaper
where notice was published Chief executive officer of community Effective date of
modification
Community
No.
Alabama:
Baldwin (FEMA
Docket No.:
B-1211).
City of Orange
Beach (11–04–
4328P).
June 22, 2011; June 29, 2011;
The Islander.
The Honorable Tony Kennon, Mayor, City
of Orange Beach, 4099 Orange Beach
Boulevard, Orange Beach, AL 36561.
June 14, 2011 ................ 015011
Madison (FEMA
Docket No.:
B-1211).
City of Huntsville
(10–04–7862P).
June 22, 2011; June 29, 2011;
The Huntsville Times.
The Honorable Tommy Battle, Mayor,
City of Huntsville, 308 Fountain Circle,
8th Floor, Huntsville, AL 35801.
October 27, 2011 ........... 010153
Arizona:
Maricopa
(FEMA Docket
No.:
B-1206).
City of Peoria (11–
09–0647P).
June 2, 2011; June 9, 2011;
The Arizona Business Gazette.
The Honorable Bob Barrett, Mayor, City
of Peoria, 8401 West Monroe Street,
Peoria, AZ 85345.
October 7, 2011 ............. 040050
Maricopa
(FEMA Docket
No.:
B-1206).
Unincorporated
areas of Maricopa
County (11–09–
0647P).
June 2, 2011; June 9, 2011;
The Arizona Business Gazette.
The Honorable Andrew Kunasek, Chairman,
Maricopa County Board of Supervisors,
301 West Jefferson Street, 10th
Floor, Phoenix, AZ 85003.
October 7, 2011 ............. 040037
Navajo (FEMA
Docket No.:
B-1206).
Town of Snowflake
(10–09–1783P).
May 27, 2011; June 3, 2011;
The White Mountain Independent.
The Honorable Kelly Willis, Mayor, Town
of Snowflake, 81 West 1st South,
Snowflake, AZ 85937.
October 3, 2011 ............. 040070
California:
Shasta (FEMA
Docket No.:
B-1206).
Unincorporated
areas of Shasta
County (10–09–
3227P).
June 1, 2011; June 8, 2011;
The Red Bluff Daily News.
The Honorable Les Baugh, Chairman,
Shasta County Board of Supervisors,
1450 Court Street, Suite 308B, Redding,
CA 96001.
October 6, 2011 ............. 060358
Tehama (FEMA
Docket No.:
B-1206).
Unincorporated
areas of Tehama
County (10–09–
3227P).
June 1, 2011; June 8, 2011;
The Anderson Valley Post.
The Honorable Gregg Avilla, Chairman,
Tehama County Board of Supervisors,
727 Oak Street, Red Bluff, CA 96080.
October 6, 2011 ............. 065064
Colorado: Douglas
(FEMA Docket
No.: B-1219).
Unincorporated
areas of Douglas
County (11–08–
0044P).
July 7, 2011; July 14, 2011;
The Douglas County News-
Press.
The Honorable Jill Repella, Chair, Douglas
County Board of Commissioners,
100 3rd Street, Castle Rock, CO 80104.
June 30, 2011 ................ 080049
Kentucky: Fayette
(FEMA Docket
No.: B-1211).
Lexington-Fayette
Urban County
Government (11–
04–0368P).
June 22, 2011; June 29, 2011;
The Lexington Herald-Leader.
The Honorable Jim Gray, Mayor, Lexington-
Fayette Urban County Government,
200 East Main Street, Lexington,
KY 40507.
October 27, 2011 ........... 210067
Nevada: Clark
(FEMA Docket
No.: B-1211).
City of Las Vegas
(11–09–1593P).
June 23, 2011; June 30, 2011;
The Las Vegas Review-Journal.
The Honorable Oscar B. Goodman,
Mayor, City of Las Vegas, 400 Stewart
Avenue, Las Vegas, NV 89101.
June 16, 2011 ................ 325276
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 425
State and county Location and case
No.
Date and name of newspaper
where notice was published Chief executive officer of community Effective date of
modification
Community
No.
North Carolina:
Alamance
(FEMA Docket
No.:
B-1206).
City of Burlington
(10–04–4375P).
May 6, 2011; May 13, 2011;
The Times-News.
The Honorable Ronnie K. Wall, Mayor,
City of Burlington, 425 South Lexington
Avenue, Burlington, NC 27216.
September 12, 2011 ....... 370002
Alamance
(FEMA Docket
No.:
B-1206).
Town of Elon (10–
04–4375P).
May 6, 2011; May 13, 2011;
The Times-News.
The Honorable Jerry R. Tolley, Mayor,
Town of Elon, 104 South Williamson
Avenue, Elon, NC 27244.
September 12, 2011 ....... 370411
Buncombe
(FEMA Docket
No.:
B-1206).
Unincorporated
areas of Buncombe
County
(10–04–2274P).
May 13, 2011; May 20, 2011;
The Asheville Citizen-Times.
Ms. Wanda Greene, Buncombe County
Manager, 205 College Street, Suite
300, Asheville, NC 28801.
September 19, 2011 ....... 370031
Davidson
(FEMA Docket
No.:
B-1206).
Unincorporated
areas of Davidson
County (10–04–
3473P).
May 6, 2011; May 13, 2011;
The High Point Enterprise.
Mr. Robert Hyatt Davidson, County Manager,
913 Greensboro Street, Lexington,
NC 27292.
September 12, 2011 ....... 370307
Guilford (FEMA
Docket No.:
B-1206).
City of High Point
(10–04–3473P).
May 6, 2011; May 13, 2011;
The High Point Enterprise.
The Honorable Rebecca R. Smothers,
Mayor, City of High Point, 211 South
Hamilton Street, High Point, NC 27261.
September 12, 2011 ....... 370113
Madison (FEMA
Docket No.:
B-1206).
Unincorporated
areas of Madison
County (10–04–
8485P).
March 30, 2011; April 6, 2011;
The News-Record & Sentinel.
Mr. Steve Garrison, Madison County
Manager, 2 North Main Street, Marshall,
NC 28753.
August 4, 2011 ............... 370152
Union (FEMA
Docket No.:
B-1209).
Unincorporated
areas of Union
County (11–04–
1541P).
June 2, 2011; June 9, 2011;
The Charlotte Observer and
The Enquirer-Journal.
Ms. Cynthia Coto, Union County Manager,
Union County Government Center,
500 North Main Street, Room 918,
Monroe, NC 28112.
October 7, 2011 ............. 370234
Union (FEMA
Docket No.:
B-1209).
Village of Marvin
(11–04–1541P).
June 2, 2011; June 9, 2011;
The Charlotte Observer and
The Enquirer-Journal.
The Honorable Nick Dispenziere, Mayor,
Village of Marvin, 10004 New Town
Road, Marvin, NC 28173.
October 7, 2011 ............. 370514
(Catalog of Federal Domestic Assistance No.
97.022, ‘‘Flood Insurance.’’)
Dated: December 20, 2011.
Sandra K. Knight,
Deputy Associate Administrator for
Mitigation, Department of Homeland
Security, Federal Emergency Management
Agency.
[FR Doc. 2011–33772 Filed 1–4–12; 8:45 am]
BILLING CODE 9110–12–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
44 CFR Part 65
[Docket ID FEMA–2011–0002; Internal
Agency Docket No. FEMA–B–1235]
Changes in Flood Elevation
Determinations
AGENCY: Federal Emergency
Management Agency, DHS.
ACTION: Interim rule.
SUMMARY: This interim rule lists
communities where modification of the
Base (1% annual-chance) Flood
Elevations (BFEs) is appropriate because
of new scientific or technical data. New
flood insurance premium rates will be
calculated from the modified BFEs for
new buildings and their contents.
DATES: These modified BFEs are
currently in effect on the dates listed in
the table below and revise the Flood
Insurance Rate Maps (FIRMs) in effect
prior to this determination for the listed
communities.
From the date of the second
publication of these changes in a
newspaper of local circulation, any
person has ninety (90) days in which to
request through the community that the
Deputy Federal Insurance and
Mitigation Administrator reconsider the
changes. The modified BFEs may be
changed during the 90-day period.
ADDRESSES: The modified BFEs for each
community are available for inspection
at the office of the Chief Executive
Officer of each community. The
respective addresses are listed in the
table below.
FOR FURTHER INFORMATION CONTACT: Luis
Rodriguez, Chief, Engineering
Management Branch, Federal Insurance
and Mitigation Administration, Federal
Emergency Management Agency, 500 C
Street SW., Washington, DC 20472,
(202) 646–4064, or (email)
Luis.Rodriguez3@fema.dhs.gov.
SUPPLEMENTARY INFORMATION: The
modified BFEs are not listed for each
community in this interim rule.
However, the address of the Chief
Executive Officer of the community
where the modified BFE determinations
are available for inspection is provided.
Any request for reconsideration must
be based on knowledge of changed
conditions or new scientific or technical
data.
The modifications are made pursuant
to section 201 of the Flood Disaster
Protection Act of 1973, 42 U.S.C. 4105,
and are in accordance with the National
Flood Insurance Act of 1968, 42 U.S.C.
4001 et seq., and with 44 CFR part 65.
For rating purposes, the currently
effective community number is shown
and must be used for all new policies
and renewals.
The modified BFEs are the basis for
the floodplain management measures
that the community is required either to
adopt or to show evidence of being
already in effect in order to qualify or
to remain qualified for participation in
the National Flood Insurance Program
(NFIP).
These modified BFEs, together with
the floodplain management criteria
required by 44 CFR 60.3, are the
minimum that are required. They
should not be construed to mean that
the community must change any
existing ordinances that are more
stringent in their floodplain
management requirements. The
community may at any time enact
stricter requirements of its own or
pursuant to policies established by other
Federal, State, or regional entities. The
changes in BFEs are in accordance with
44 CFR 65.4.
National Environmental Policy Act.
This interim rule is categorically
excluded from the requirements of 44
CFR part 10, Environmental
Consideration. An environmental
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426 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
impact assessment has not been
prepared.
Regulatory Flexibility Act. As flood
elevation determinations are not within
the scope of the Regulatory Flexibility
Act, 5 U.S.C. 601–612, a regulatory
flexibility analysis is not required.
Regulatory Classification. This
interim rule is not a significant
regulatory action under the criteria of
section 3(f) of Executive Order 12866 of
September 30, 1993, Regulatory
Planning and Review, 58 FR 51735.
Executive Order 13132, Federalism.
This interim rule involves no policies
that have federalism implications under
Executive Order 13132, Federalism.
Executive Order 12988, Civil Justice
Reform. This interim rule meets the
applicable standards of Executive Order
12988.
List of Subjects in 44 CFR Part 65
Flood insurance, Floodplains,
Reporting and recordkeeping
requirements.
Accordingly, 44 CFR part 65 is
amended to read as follows:
PART 65—[AMENDED]
¦ 1. The authority citation for part 65
continues to read as follows:
Authority: 42 U.S.C. 4001 et seq.;
Reorganization Plan No. 3 of 1978, 3 CFR,
1978 Comp., p. 329; E.O. 12127, 44 FR 19367,
3 CFR, 1979 Comp., p. 376.
§ 65.4 [Amended]
¦ The tables published under the
authority of § 65.4 are amended as
follows:
State and county Location and case
No.
Date and name of newspaper
where notice was published Chief executive officer of community Effective date of
modification
Community
No.
Alabama:
Baldwin ............. City of Gulf Shores
(11–04–5389P).
October 7, 2011; October 14,
2011; The Islander.
The Honorable Robert S. Craft, Mayor,
City of Gulf Shores, 1905 West 1st
Street, Gulf Shores, AL 36547.
September 29, 2011 ....... 015005
Baldwin ............. City of Gulf Shores
(11–04–6730P).
October 11, 2011; October 18,
2011; The Islander.
The Honorable Robert S. Craft, Mayor,
City of Gulf Shores, 1905 West 1st
Street, Gulf Shores, AL 36547.
October 4, 2011 ............. 015005
Madison ............ City of Huntsville
(11–04–3252P).
September 8, 2011; September
15, 2011; The Huntsville
Times.
The Honorable Tommy Battle, Mayor,
City of Huntsville, 308 Fountain Circle,
8th Floor, Huntsville, AL 35801.
January 13, 2012 ........... 010153
Mobile ............... Unincorporated
areas of Mobile
County (11–04–
1739P).
October 27, 2011; November 3,
2011; The Press-Register.
The Honorable Merceria Ludgood, Chair,
Mobile County Commission, 205 Government
Street, Mobile, AL 36644.
March 2, 2012 ................ 015008
California:
Butte ................. Unincorporated
areas of Butte
County (11–09–
3448P).
October 7, 2011; October 14,
2011; The Chico Enterprise-
Record.
The Honorable Steve Lambert, Chairman,
Butte County Board of Supervisors,
3159 Nelson Avenue, Oroville, CA
95965.
February 13, 2012 .......... 060017
Napa ................. City of Napa (11–
09–3313P).
October 14, 2011; October 21,
2011; The Napa Valley Register.
The Honorable Jill Techel, Mayor, City of
Napa, 955 School Street, Napa, CA
94559.
February 20, 2012 .......... 060207
Napa ................. Unincorporated
areas of Napa
County (11–09–
3313P).
October 14, 2011; October 21,
2011; The Napa Valley Register.
The Honorable Bill Dodd, Chairman,
Napa County Board of Supervisors,
1195 3rd Street, Suite 310, Napa, CA
94559.
February 20, 2012 .......... 060205
San Mateo ........ City of San Carlos
(11–09–1259P).
October 7, 2011; October 14,
2011; The San Mateo Daily
Journal.
The Honorable Andy Klein, Mayor, City of
San Carlos, 600 Elm Street, San Carlos,
CA 94070.
February 13, 2012 .......... 060327
Solano .............. City of Fairfield (11–
09–1570P).
October 20, 2011; October 27,
2011; The Daily Republic.
The Honorable Harry T. Price, Mayor,
City of Fairfield, 1000 Webster Street,
Fairfield, CA 94533.
February 24, 2012 .......... 060370
Colorado:
Adams .............. City of Commerce
City (10–08–
1048P).
October 25, 2011; November 1,
2011; The Commerce City
Sentinel Express.
The Honorable Paul Natale, Mayor, City
of Commerce City, 7887 East 60th Avenue,
Commerce City, CO 80022.
March 2, 2012 ................ 080006
Adams &
Arapahoe.
City of Aurora (11–
08–0699P).
October 6, 2011; October 13,
2011; The Aurora Sentinel.
The Honorable Ed Tauer, Mayor, City of
Aurora, 15151 East Alameda Parkway,
Aurora, CO 80012.
February 10, 2012 .......... 080002
Florida:
Broward ............ City of Deerfield
Beach (11–04–
7254P).
October 6, 2011; October 13,
2011; The Sun-Sentinel.
The Honorable Peggy Noland, Mayor,
City of Deerfield Beach, 150 Northeast
2nd Avenue, Deerfield Beach, FL
33441.
September 29, 2011 ....... 125101
St. Johns .......... Unincorporated
areas of St. Johns
County (11–04–
4627P).
October 5, 2011; October 12,
2011; The St. Augustine
Record.
The Honorable Joseph Bryan. Chairman,
St. Johns County Board of Commissioners,
500 San Sebastian View, St.
Augustine, FL 32084.
February 9, 2012 ............ 125147
Seminole .......... City of Altamonte
Springs (11–04–
7292P).
October 27, 2011; November 3,
2011; The Orlando Sentinel.
The Honorable Patricia Bates, Mayor,
City of Altamonte Springs, 225 Newburyport
Avenue, Altamonte Springs,
FL 32701.
October 20, 2011 ........... 120290
Seminole .......... Unincorporated
areas of Seminole
County (11–04–
7523P).
October 27, 2011; November 3,
2011; The Orlando Sentinel.
The Honorable Brenda Carey, Chair,
Seminole County Board of Commissioners,
1101 East 1st Street, Sanford,
FL 32771.
October 20, 2011 ........... 120289
Georgia:
Columbia .......... Unincorporated
areas of Columbia
County (11–04–
5127P).
November 2, 2011; November
9, 2011; The Columbia
County News-Times.
The Honorable Ron C. Ross, Chairman,
Columbia County Board of Commissioners,
630 Ronald Reagan Drive
Building B, 2nd Floor, Evans, GA
30809.
October 27, 2011 ........... 130059
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 427
State and county Location and case
No.
Date and name of newspaper
where notice was published Chief executive officer of community Effective date of
modification
Community
No.
Liberty ............... City of Hinesville
(11–04–0768P).
September 30, 2011; October
7, 2011; The Coastal Courier.
The Honorable James Thomas, Jr.,
Mayor, City of Hinesville, 115 East Martin
Luther King, Jr. Drive, Hinesville, GA
31313.
September 26, 2011 ....... 130125
Liberty ............... Unincorporated
areas of Liberty
County (11–04–
0768P).
September 30, 2011; October
7, 2011; The Coastal Courier.
The Honorable John D. McIver, Chairman,
Liberty County Board of Commissioners,
112 North Main Street,
Hinesville, GA 31310.
September 26, 2011 ....... 130123
Mississippi: DeSoto City of Olive Branch
(11–04–4496P).
October 27, 2011; November 3,
2011; The DeSoto Times-
Tribune.
The Honorable Sam Rikard, Mayor, City
of Olive Branch, 9200 Pigeon Roost
Road, Olive Branch, MS 38654.
March 2, 2012 ................ 280286
Nevada:
Clark ................. City of Henderson
(11–09–3801P).
October 6, 2011; October 13,
2011; The Las Vegas Review-
Journal.
The Honorable Andy A. Hafen, Mayor,
City of Henderson, 240 Water Street,
Henderson, NV 89015.
February 10, 2012 .......... 320005
Clark ................. Unincorporated
areas of Clark
County (11–09–
3801P).
October 6, 2011; October 13,
2011; The Las Vegas Review-
Journal.
The Honorable Susan Brager, Chair,
Clark County Board of Commissioners,
500 South Grand Central Parkway, Las
Vegas, NV 89155.
February 10, 2012 .......... 320003
Utah: Box Elder ....... City of Willard (11–
08–0207P).
September 28, 2011; October
5, 2011; The Box Elder
News Journal.
The Honorable Ken Braegger, Mayor,
City of Willard, 80 West 50 South, Willard,
UT 84340.
February 2, 2012 ............ 490011
Wyoming:
Campbell .......... City of Gillette (11–
08–0780P).
October 18, 2011; October 25,
2011; The News-Record.
The Honorable Tom Murphy, Mayor, City
of Gillette, 201 East 5th Street, Gillette,
WY 82717.
February 22, 2012 .......... 560007
Campbell .......... Unincorporated
areas of Campbell
County (11–08–
0780P).
October 18, 2011; October 25,
2011; The News-Record.
The Honorable Stephen F. Hughes,
Chairman, Campbell County Board of
Commissioners, 500 South Gillette Avenue,
Suite 1100, Gillette, WY 82717.
February 22, 2012 .......... 560081
(Catalog of Federal Domestic Assistance No.
97.022, ‘‘Flood Insurance.’’)
Dated: December 20, 2011.
Sandra K. Knight,
Deputy Associate Administrator for
Mitigation, Department of Homeland
Security, Federal Emergency Management
Agency.
[FR Doc. 2011–33773 Filed 1–4–12; 8:45 am]
BILLING CODE 9110–12–P
ENVIRONMENTAL PROTECTION
AGENCY
48 CFR Part 1552
[EPA–HQ–OARM–2010–0764; FRL–9616–2]
EPAAR Clause for Compliance With
EPA Policies for Information
Resources Management
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Final rule.
SUMMARY: EPA will amend the EPA
Acquisition Regulation (EPAAR) to
revise the content of a clause that
addresses compliance policies for
information resources management in
contracts. This revision incorporates to
the EPAAR, administrative changes to
update terminology and Web site links
related to EPA policies for information
resources management.
DATES: This final rule is January 20,
2012.
ADDRESSES: EPA has established a
docket for this action under Docket ID
No. EPA–HQ–OARM–2010–0764. All
documents in the docket are listed on
the www.regulations.gov Web site.
Although listed in the index, some
information is not publicly available,
e.g., CBI or other information whose
disclosure is restricted by statute.
Certain other material, such as
copyrighted material, is not placed on
the Internet and will be publicly
available only in hard copy form.
Publicly available docket materials are
available either electronically through
www.regulations.gov or in hard copy at
the Office of Environmental (OEI)
Information Docket, EPA/DC, EPA West,
Room 3334, 1301 Constitution Avenue
NW., Washington, DC. The Public
Reading Room is open from 8:30 a.m. to
4:30 p.m., Monday through Friday,
excluding legal holidays. The telephone
number for the Public Reading Room is
(202) 566–1744, and the telephone
number for the OEI Docket is (202) 566–
1752.
FOR FURTHER INFORMATION CONTACT:
Donna S. Blanding, Policy, Training,
and Oversight Division, Office of
Acquisition Management (3802R),
Environmental Protection Agency, 1200
Pennsylvania Avenue NW., Washington,
DC 20460; telephone number: (202)
564–1130; fax number: (202) 565–2475;
email address:
blanding.donna@epa.gov.
SUPPLEMENTARY INFORMATION:
I. General Information
A. Does this action apply to me?
Entities potentially affected by this
action include firms that are performing
or will perform under contract for the
EPA. This includes firms in all industry
groups.
II. Background
In May, 2010 during the review of
clause 1552.211–79 the EPA Office of
Environmental Information (OEI), the
Office of Acquisition Management
(OAM) and other offices found
information within this clause to be
outdated. The administrative updates to
the clause will bring it in line with
current EPA policy.
III. Final Rule
This rule amends the EPAAR to revise
the clause 1552.211–79, Compliance
with EPA Policies for Information
Resources Management. The proposed
rule was published on May 6, 2011. No
Comments were received.
IV. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review and Executive
Order 13563: Improving Regulation and
Regulatory Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order (EO)12866 (58 FR
51735, October 4, 1993) and E.O. 13563
(76 FR 3821, January 21, 2011).
Therefore, no review is required by the
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428 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
Office of Information and Regulatory
Affairs within the Office of Management
and Budget (OMB).
B. Paperwork Reduction Act
This action does not impose an
information collection burden under the
provisions of the Paperwork Reduction
Act, 44 U.S.C. 3501 et seq. No
information is collected under this
action.
C. Regulatory Flexibility Act (RFA), as
Amended by the Small Business
Regulatory Enforcement Fairness Act of
1996 (SBREFA), 5 U.S.C. 601 et seq.
The Regulatory Flexibility Act
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute; unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impact
of today’s final rule on small entities,
‘‘small entity’’ is defined as: (1) A small
business that meets the definition of a
small business found in the Small
Business Act and codified at 13 CFR
121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of this rule on small entities, I
certify that this action will not have a
significant economic impact on a
substantial number of small entities.
This action revises a current EPAAR
clause and does not impose
requirements involving capital
investment, implementing procedures,
or record keeping. This rule will not
have a significant economic impact on
small entities.
D. Unfunded Mandates Reform Act
Title II of the Unfunded Mandates
Reform Act of 1995 (UMRA), Public
Law 104–4, establishes requirements for
Federal agencies to assess the effects of
their regulatory actions on State, Local,
and Tribal governments and the private
sector.
This rule contains no Federal
mandates (under the regulatory
provisions of the Title II of the UMRA)
for State, Local, and Tribal governments
or the private sector. The rule imposes
no enforceable duty on any State, Local
or Tribal governments or the private
sector. Thus, the rule is not subject to
the requirements of Sections 202 and
205 of the UMRA.
E. Executive Order 13132: Federalism
Executive Order 13132, entitled
‘‘Federalism’’ (64 FR 43255, August 10,
1999), requires EPA to develop an
accountable process to ensure
‘‘meaningful and timely input by State
and Local officials in the development
of regulatory policies that have
federalism implications.’’ ‘‘Policies that
have federalism implications’’ is
defined in the Executive Order to
include regulations that have
‘‘substantial direct effects on the States,
on the relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government.’’
This rule does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. Today’s rule on
Compliance with EPA Policies for
Information Resources Management
provides updates to outdated
information currently in the clause,
these changes are administrative. Thus,
Executive Order 13132 does not apply
to this rule. In the spirit of Executive
Order 13132, and consistent with EPA
policy to promote communications
between EPA and State and Local
governments, EPA specifically solicited
comments from State and Local officials
on this rule and no comments were
received.
F. Executive Order 13175: Consultation
and Coordination With Indian Tribal
Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ This rule does not have
tribal implications, as specified in
Executive Order 13175. This rule on
EPA’s Policies for Information
Resources Management provides
guidance on the interaction between
contracting officials and contractors
only. This Executive Order 13175 does
not apply to this rule. EPA solicited
comments on this rule and no
comments were received from tribal
officials.
G. Executive Order 13045: Protection of
Children From Environmental Health
and Safety Risks
Executive Order 13045, entitled
‘‘Protection of Children from
Environmental Health and Safety Risks’’
(62 FR 19885, April 23, 1997), applies
to any rule that: (1) Is determined to be
economically significant as defined
under Executive Order 12886, and (2)
concerns an environmental health or
safety risk that may have a
proportionate effect on children. This
rule is not subject to Executive Order
13045 because it is not an economically
significant rule as defined by Executive
Order 12866, and because it does not
involve decisions on environmental
health or safety risks.
H. Executive Order 13211: Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution of Use’’ (66
FR 28335 (May 22, 2001), because it is
not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act of 1995 (NTTAA)
Section 12(d) (15 U.S.C 272 note) of
NTTA, Public Law 104–113, directs
EPA to use voluntary consensus
standards in its regulatory activities,
unless to do so would be inconsistent
with applicable law, or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.
materials specifications, test methods,
sampling procedures and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. The NTTA directs EPA to
provide Congress, through OMB,
explanations when the Agency decides
not to use available and applicable
voluntary consensus standards.
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 429
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this rule will
not have disproportionately high and
adverse human health or environmental
effects on minority or low-income
populations because it does not affect
the level of protection provided to
human health or the environment. This
rulemaking does not involve human
health or environmental affects.
K. Congressional Review Act
The Congressional Review Act, 5
U.S.C. 801 et seq., as added by the Small
Business Regulatory Enforcement
Fairness Act of 1996, does not apply
because this action is not a rule, for
purposes of 5 U.S.C. 804(3).
This rulemaking does not involve
technical standards. Therefore, EPA is
not considering the use of any voluntary
consensus standards.
List of Subjects in 48 CFR Part 1552
Environmental protection,
Government procurement.
Dated: November 18, 2011.
John R. Bashista,
Director, Office of Acquisition Management.
Therefore, 48 CFR Chapter 1552 is
amended as set forth below:
PART 1552—DESCRIBING AGENCY
NEEDS
¦ 1. The authority citation for part 1552
continues to read as follows:
Authority: 5 U.S.C. 301; Sec. 205(c), 63
Stat. 390, as amended, 40 U.S.C. 486(c); and
41 U.S.C. 418b.
¦ 2. Revise 1552.211–79 to read as
follows:
1552.211–79 Compliance With EPA
Policies for Information Resources
Management.
As prescribed in 1511.011–79, insert
the following clause:
Compliance with EPA Policies for
Information Resources Management
(a) Definition. Information Resources
Management (IRM) is defined as any
planning, budgeting, organizing,
directing, training, promoting,
controlling, and managing activities
associated with the burden, collection,
creation, use and dissemination of
information. IRM includes both
information itself and the management
of information and related resources
such as personnel, equipment, funds,
and technology. Examples of these
services include but are not limited to
the following:
(1) The acquisition, creation, or
modification of a computer program or
automated data base for delivery to EPA
or use by EPA or contractors operating
EPA programs.
(2) The analysis of requirements for,
study of the feasibility of, evaluation of
alternatives for, or design and
development of a computer program or
automated data base for use by EPA or
contractors operating EPA programs.
(3) Services that provide EPA
personnel access to or use of computer
or word processing equipment,
software, or related services.
(4) Services that provide EPA
personnel access to or use of: Data
communications; electronic messaging
services or capabilities; electronic
bulletin boards, or other forms of
electronic information dissemination;
electronic record-keeping; or any other
automated information services.
(b) General. The Contractor shall
perform any IRM-related work under
this contract in accordance with the
IRM policies, standards, and procedures
set forth on the Office of Environmental
Information policy Web site. Upon
receipt of a work request (i.e. delivery
order, task order, or work assignment),
the Contractor shall check this listing of
directives. The applicable directives for
performance of the work request are
those in effect on the date of issuance
of the work request. The 2100 Series
(2100–2199) of the Agency’s Directive
System contains the majority of the
Agency’s IRM policies, standards, and
procedures.
(c) Section 508 requirements. Contract
deliverables are required to be
compliant with Section 508
requirements. The Environmental
Protection Agency policy for 508
compliance can be found on the
Agency’s Directive System identified in
section (d) of this clause under policy
number CIO 2130.0, Accessible
Electronic and Information Technology.
Additional information on Section 508
including EPA’s 508 policy can be
found at www.epa.gov/accessibility.
(d) Electronic access. A complete
listing, including full text, of documents
included in the 2100 Series of the
Agency’s Directive System is
maintained on the EPA Public Access
Server on the Internet at http://epa.gov/
docs/irmpoli8/.
[FR Doc. 2011–33844 Filed 1–4–12; 8:45 am]
BILLING CODE P
DEPARTMENT OF TRANSPORTATION
Pipeline and Hazardous Materials
Safety Administration
49 CFR Part 173
[Docket No. PHMSA–2011–0315; Notice No.
11–13]
Clarification and Further Guidance on
the Fireworks Approvals Policy
AGENCY: Pipeline and Hazardous
Materials Safety Administration
(PHMSA), DOT.
ACTION: Clarification.
SUMMARY: This clarification provides
further guidance on PHMSA’s policy
that it will only accept fireworks
approvals applications from fireworks
manufacturers or their designated agents
and grant approvals only to
manufacturers of fireworks devices.
This clarification and additional
guidance follows the issuance of Docket
No. PHMSA–2010–0353; Notice 10–9,
published on June 29, 2011.
DATES: The policy clarification
discussed in this document is effective
January 5, 2012.
FOR FURTHER INFORMATION CONTACT: Mr.
Ryan Paquet, Director, Approvals and
Permits Division, Office of Hazardous
Materials Safety, (202) 366–4512,
PHMSA, 1200 New Jersey Avenue SE.,
Washington, DC 20590.
SUPPLEMENTARY INFORMATION:
I. Introduction
This document provides clarification
and further guidance on PHMSA’s
Office of Hazardous Materials Safety
(OHMS), Clarification of the Fireworks
Approval Policy published on June 29,
2011 (76 FR 38053). Specifically, this
document provides clarification and
additional guidance on how we intend
to implement our policy with respect to:
(1) EX classification approvals with
expiration dates; (2) applications from
non-manufacturers that seek to add new
item names to existing EX classification
approvals; and (3) applications from
non-manufacturers that were denied
prior to June 29, 2011.
In addition to addressing questions as
to how we intend to implement our
earlier policy clarification, this
document clarifies our policy regarding
the transfer of EX classification
approvals.
II. Background
The transportation of an explosive
(fireworks device) requires an EX
classification approval issued by
PHMSA, commonly referred to as an EX
number. The EX number is a unique
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430 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
identifier that indicates the device has
been classed and approved for
transportation in the U.S., and is
specific to a particular device as
specified in 49 CFR 173.56(j) and the
American Pyrotechnic Association
(APA) Standard 87–1.
PHMSA understands that it is a
common industry practice for fireworks
devices produced by one manufacturer
to be marketed and sold under different
trade names. Further, in the past, each
retailer, importer or distributor, in
addition to the manufacturer, applied
for and received an EX classification
approval for the identical fireworks
device. This practice resulted in
PHMSA processing multiple
applications and issuing multiple
approvals for the same fireworks device.
This redundant and burdensome
process did not promote the safe
transportation of explosives (fireworks
devices); instead, it impeded the
conduct of business for both the
fireworks industry and PHMSA.
On June 29, 2011, we issued a
clarification of our policy to issue
fireworks classification approvals only
to fireworks manufacturers, and accept
fireworks classification applications
only from fireworks manufacturers or
their U.S. designated agents. This policy
clarification was intended to restate the
requirements of the Hazardous Materials
Regulations (HMR), enhance safety by
ensuring accountability of
manufacturing, and reducing the
number of duplicate applications and
EX classification approvals being issued
for identical fireworks devices.
Since the policy clarification was
issued, we have received questions
about how we intend to implement it
with respect to: (1) EX classification
approvals with expiration dates; (2)
applications from non-manufacturers
that seek to add new item names to
existing EX classification approvals; and
(3) applications from non-manufacturers
that were denied prior to June 29, 2011.
We have also received questions
about our policy regarding the transfer
of EX classification approvals, which
was not addressed in the prior
clarification notice.
To address these questions regarding
our fireworks approvals policy, we are
providing the following clarification
and additional guidance.
III. EX Classification Approvals With
Expiration Dates
After June 29, 2011, only a
manufacturer that holds a valid EX
classification approval may reapply to
have the EX number renewed.
Regardless of who originally applied for
the approval, to renew the EX
classification approval, the
manufacturer or its designated agent
must be the entity who submits an
application for renewal and all
supporting documentation to
fireworks@dot.gov. The manufacturer
must sign and certify that the device for
which the approval is requested
conforms to the APA Standard 87–1,
and the descriptions and technical
information contained in the
application are complete and accurate
in accordance with § 173.56(j)(3).
All EX approvals with expiration
dates held by non-manufacturers will
expire as follows: Fireworks EX
approvals expiring January 1, 2012
through December 31, 2012 will expire
two years from the date indicated in the
approval. For example, a fireworks EX
approval expiring on January 1, 2012
will be extended until January 1, 2014.
A revised EX classification approval
will be automatically sent to the
approval holder on record with the new
expiration date. After December 31,
2014, the manufacturer or its designated
agent must submit the application for
renewal and all supporting
documentation to fireworks@dot.gov.
The manufacturer must sign and certify
that the device for which the approval
is requested conforms to the APA
Standard 87–1, and the descriptions and
technical information contained in the
application are complete and accurate
in accordance with § 173.56(j)(3).
Fireworks EX classification approvals
expiring January 1, 2013 through
December 31, 2015 will expire on the
date noted in the EX approval and will
not be extended. The manufacturer or
its designated agent must submit an
application for renewal and all
supporting documentation to
fireworks@dot.gov. The manufacturer
must sign and certify that the device for
which the approval is requested
conforms to the APA Standard 87–1,
and the descriptions and technical
information contained in the
application are complete and accurate
in accordance with § 173.56(j)(3). For
example, a fireworks EX Approval
expiring on March 22, 2014 will expire
on March 22, 2014.
All fireworks EX approvals with
expiration dates will expire by the end
of 2015.
IV. Requests To Add Additional Item
Names to Existing EX Classification
Approvals
We often receive applications to add
fireworks device item names to an
existing EX classification approval.
Only a manufacturer or its designated
agent may submit a request after June
29, 2011 to add an additional item name
to an existing EX approval.
If anyone other than the manufacturer
or its designated agent holds an existing
EX classification approval and it is
desired to add additional items to that
approval, then the manufacturer or its
designated agent must submit the EX
classification approval as a new
application.
V. Firework Applications Denied
Before June 29, 2011
Firework applications resubmitted
after June 29, 2011 by any person,
company or entity other than the
manufacturer or its designated agent
that were previously denied will not be
accepted unless those applications are
submitted by the manufacturer or its
designated agent as the applicant. The
manufacturer must sign and certify that
the device for which the approval is
requested conforms to the APA
Standard 87–1, and the descriptions and
technical information contained in the
application are complete and accurate
in accordance with § 173.56(j)(3).
VI. Non-Transferability of EX
Approvals
EX approvals are non-transferrable,
and therefore, may not be sold or
transferred. Accordingly, EX approvals
cannot be acquired in connection with
any sale of assets, sale of business,
acquisition or merger. PHMSA may find
a company in violation of the HMR
should a manufacturer attempt to use an
EX approval issued by PHMSA to
another company for manufacturing of
the device. The manufacturer or its
designated agent must submit an
application for a new approval. The
manufacturer must sign and certify that
the device for which the approval is
requested conforms to the APA
Standard 87–1, and the descriptions and
technical information contained in the
application are complete and accurate
in accordance with § 173.56(j)(3). If
approved, PHMSA will issue a new EX
approval to the manufacturer specified
in the application.
Summary
PHMSA’s Office of Hazardous
Materials Safety (OHMS), Approvals
Office will continue to issue approvals
only to fireworks manufacturers and
accept applications only from
manufacturers or their designated
agents. Consistent with this policy, we
will only reissue EX classification
approvals with expiration dates that
have been submitted by the
manufacturer or its designated agent. If
the manufacturer was not the original
applicant, the manufacturer or its
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 431
designated agent must submit the
application as a new application.
However, we will provide an extended
expiration date of two years for EX
classification approvals that expire
through December 31, 2012.
Additionally, we will only accept
applications that seek to add new item
names to existing EX classification
approvals from the manufacturer or its
designated agent. If the manufacturer
was not the original applicant, the
application must be submitted by the
manufacturer or its designated agent as
a new application. Further, applications
from non-manufacturers that were
denied prior to June 29, 2011 must be
resubmitted by the manufacturer.
Finally, EX approvals are nontransferable,
and therefore may not be
sold or transferred.
Issued in Washington, DC, on December
30, 2011.
Magdy El-Sibaie,
Associate Administrator for Hazardous
Materials Safety, Pipeline and Hazardous
Materials Safety Administration.
[FR Doc. 2011–33853 Filed 1–4–12; 8:45 am]
BILLING CODE 4910–60–P
DEPARTMENT OF THE INTERIOR
Fish and Wildlife Service
50 CFR Part 17
[Docket No. FWS–R9–IA–2010–0056;
FF09A30000 123 FXGO16710900000R4]
RIN 1018–AX29
Endangered and Threatened Wildlife
and Plants; Removal of the Regulation
That Excludes U.S. Captive-Bred
Scimitar-Horned Oryx, Addax, and
Dama Gazelle From Certain
Prohibitions
AGENCY: Fish and Wildlife Service,
Interior.
ACTION: Final rule.
SUMMARY: We, the U.S. Fish and
Wildlife Service (Service), are revising
the regulations that implement the
Endangered Species Act of 1973, as
amended (Act), by removing the
exclusion of U.S. captive-bred live
wildlife and sport-hunted trophies of
three endangered antelopes—scimitarhorned
oryx, addax, and dama gazelle—
from the prohibition of certain
activities, such as take and export,
under the Act. This change to the
regulations is in response to a court
order that found that the rule for these
three species violated section 10(c) of
the Act. These three antelope species
remain listed as endangered under the
Act, and a person will need to qualify
for an exemption or obtain an
authorization under the current
statutory and regulatory requirements to
conduct any prohibited activities.
DATES: This rule becomes effective on
April 4, 2012. An extended effective
date is being provided to facilitate in
outreach to the affected communities.
Several major industry events are
occurring in the beginning of 2012
where Service attendance will provide
greater communication on the impacts
of this rule and will ensure greater
compliance by the affected
communities. In addition, an extended
effective date will allow the affected
community to either legally sell their
specimens, if they choose to divest
themselves of these species, or to apply
for authorization or permits to continue
carrying out previously approved
activities.
ADDRESSES: You may obtain information
about permits or other authorizations to
carry out otherwise prohibited activities
by contacting the U.S. Fish and Wildlife
Service, Division of Management
Authority, Branch of Permits, 4401 N.
Fairfax Drive, Room 212, Arlington, VA
22203; telephone: (703) 358–2104 or
(toll free) (800) 358–2104; facsimile:
(703) 358–2281; email:
managementauthority@fws.gov; Web
site: http://www.fws.gov/international/
index.html.
FOR FURTHER INFORMATION CONTACT:
Robert R. Gabel, Chief, Division of
Management Authority, U.S. Fish and
Wildlife Service, 4401 N. Fairfax Drive,
Suite 212, Arlington, VA 22203;
telephone 703–358–2093; fax 703–358–
2280. If you use a telecommunications
devise for the deaf (TDD), call the
Federal Information Relay Service
(FIRS) at 800–877–8339.
SUPPLEMENTARY INFORMATION:
Background
On September 2, 2005 (70 FR 52319),
the Service determined that the
scimitar-horned oryx (Oryx dammah),
addax (Addax nasomaculatus), and
dama gazelle (Gazella dama) were
endangered throughout their ranges
under the Act (16 U.S.C. 1531 et seq.).
The numbers of these species of
antelopes in the wild have declined
drastically in the deserts of North Africa
over the past 50 years. The causes of
decline are habitat loss (desertification,
permanent human settlement, and
competition with domestic livestock),
regional military activity, and
uncontrolled killing. With the exception
of reintroduced animals, no sightings of
the scimitar-horned oryx have been
reported since the late 1980s. Remnant
populations of the addax may still exist
in remote desert areas, but probably
fewer than 600 occur in the wild. Only
small numbers of dama gazelle are
estimated to occur in the species’
historical range, with recent estimates of
fewer than 700 in the wild. Captivebreeding
programs operated by zoos and
private ranches have increased the
number of these antelopes, while
genetically managing their herds and
providing founder stock necessary for
reintroduction. The Sahelo-Saharan
Interest Group (SSIG) of the United
Nations Environment Program estimated
that there are 4,000–5,000 scimitarhorned
oryx, 1,500 addax, and 750
dama gazelle in captivity worldwide,
many of which are held in the United
States. Based on a 2010 census of its
members, the Exotic Wildlife
Association (EWA) estimates there are
11,032 scimitar-horned oryx, 5,112
addax, and 894 dama gazelle on EWA
member ranches.
On September 2, 2005 (the same date
that we listed the three antelopes as
endangered), the Service also published
a new regulation (70 FR 52310) at 50
CFR 17.21(h) to govern certain activities
with U.S. captive-bred animals of these
three species. For live antelopes,
including embryos and gametes, and
sport-hunted trophies of these three
species, the regulation authorized
certain otherwise prohibited activities
where the purpose of the activity is
associated with the management of the
species in a manner that contributed to
increasing or sustaining captive
numbers or to potential reintroduction
to range countries. These activities
include take; export or re-import;
delivery, receipt, carrying, transport or
shipment in interstate or foreign
commerce in the course of a commercial
activity; and sale or offer for sale in
interstate or foreign commerce.
The promulgation of the regulation at
50 CFR 17.21(h) was challenged as
violating section 10 of the Act and the
National Environmental Policy Act (42
U.S.C. 4321 et seq.) in the United States
District Court for the District of
Columbia (see Friends of Animals, et al.,
v. Ken Salazar, Secretary of the Interior
and Rebecca Ann Cary, et al., v. Rowan
Gould, Acting Director, Fish and
Wildlife Service, et al., 626 F. Supp. 2d
102 (D.D.C. 2009)). The Court found that
the rule for the three antelope species
violated section 10(c) of the Act by not
providing the public an opportunity to
comment on activities being carried out
with these three antelope species. On
June 22, 2009, the Court remanded the
rule to the Service for action consistent
with its opinion.
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432 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
To comply with the Court’s order, the
Service published a proposed rule on
July 7, 2011 (76 FR 39804), to remove
the regulation at 50 CFR 17.21(h), thus
eliminating the exclusion for U.S.
captive-bred scimitar-horned oryx,
addax, and dama gazelle from certain
prohibitions under the Act. Under the
proposed rule, any person who intend
to conduct an otherwise prohibited
activity with U.S. captive-bred scimitarhorned
oryx, addax, or dama gazelle
would need to qualify for an exemption
or obtain authorization for such activity
under the Act and applicable
regulations.
Removal of 50 CFR 17.21(h)
Under 50 CFR 17.21(h), individuals
carrying out certain activities that
would contribute to increasing or
sustaining the captive numbers of the
three species were not required to notify
the Service of those activities involving
these species, provided that those
activities met the criteria established
within these regulations. As the Service
was not notified of any proposed
activities, it could not in turn provide
the public an opportunity to comment
on those proposed activities. By
eliminating the regulation at 50 CFR
17.21(h) and requiring individuals to
submit an application, as described in
50 CFR 17.21(g) or 17.22, requesting
authorization to carry out an otherwise
prohibited activity, the Service can
provide the public a 30-day period to
comment on any proposed activities.
The elimination of this regulation does
not alter the current listing status of the
species, but does now require that the
Service must grant individuals
authorization prior to their conducting
any activity that is prohibited by the
Act.
The Service considered whether there
were alternative means to comply with
the Court’s ruling without requiring
ranches or other facilities holding these
species to obtain a permit or other
authorization. However, the Service was
unable to identify an alternative other
than the currently established
regulations at 50 CFR 17.21(g) and
17.22—providing for the registration of
captive-bred wildlife or issuance of a
permit—that would provide the public
an opportunity to comment on proposed
activities being carried out with these
species. In addition, the Service did not
receive any comments or suggestions
from the public that presented a viable
alternative (see Summary of Comments
and Our Responses, below).
Summary of Comments and Our
Responses
In our proposed rule (July 7, 2011; 76
FR 39804), we asked interested parties
to submit comments or suggestions
regarding the proposal to eliminate the
regulation at 50 CFR 17.21(h). The
comment period for the proposed rule
lasted for 30 days, ending August 8,
2011. We received 93 individual
comments during the comment period.
Comments were received from 2 State
agencies; 8 nongovernment
organizations, several of which
commented jointly; and 86 individuals,
most of whom either own ranches that
currently maintain animals of the three
antelope species or are associated with
such ranches. Many of the comments
did not specifically address the reason
for which the proposal was made—that
the exclusion violated the provisions of
section 10(c) of the Act—nor did they
present alternatives to the proposal to
eliminate the regulation; instead the
comments focused either on the impact
to the ranches if the regulation were
eliminated or on the listing of the
species. Of the commenters, six
supported the proposal to eliminate the
regulation, and 90 opposed the proposal
either directly or indirectly. Comments
pertained to several key issues. These
issues, and our responses, are discussed
below.
Issue 1: One commenter stated that
sections 10(c) and 10(d) of the Act
mandates the Service to provide the
required informational notice and an
opportunity to comment, but that the
Court did not require the Service to
develop a new permitting scheme or
adopt current permitting processes to
provide notice and comment. The
commenter went on to assert that the
Court, by finding that the plaintiffs did
not have standing to challenge the
merits of whether the activities
conducted on the ranches met the
criteria of section 10(a)(1)(A) of the Act,
had concluded that the ranches were,
therefore, meeting the enhancement
criteria and that any future permitting
should be ‘pro forma.’
Three nongovernment organizations
concluded that the Court gave the
Service no options but to vacate the
regulation and apply the same
permitting scheme currently outlined in
50 CFR 17.22 for these three antelope.
One commenter stated that, by
choosing to impose a permit system
instead of some other means of
addressing the Court’s finding, the
Service failed to consider other options.
The commenter expressed the opinion
that using the current permitting
process would cause the three species
more harm than good. Two other
commenters encouraged the Service to
consider all avenues and remedies and
the effects they would have on the three
antelope species.
Our Response: The Service agrees that
the Court’s finding left us no options but
to rescind the current regulation at 50
CFR 17.21(h). While the Service agrees
that the Court did not mandate us to
apply the same permitting scheme
established in 50 CFR 17.22 or the
registration process identified in 50 CFR
17.21(g), we could find no alternative
approach other than existing statutory
and regulatory procedures. Further, no
commenters provided reasonable
alternatives to this approach (see Issue
15, below). Consequently, with the
elimination of the regulation at 50 CFR
17.21(h), anyone wishing to carry out
otherwise prohibited activities would
need to either apply for a permit (50
CFR 17.22) or for the captive-bred
wildlife registration (50 CFR 17.21(g)).
The Service disagrees with the first
commenter’s statement that, because the
Court did not rule on the merits of
whether the ranches were meeting the
enhancement criteria, the Court found
that these ranches provide
enhancement. The Court did not rule
one way or another on the merits of the
plaintiffs’ case regarding the actions
conducted on ranches under sections
10(c) or 10(d). In addition, under 50
CFR 17.21(g) and 17.22, we cannot
unquestionably accept that the activities
of a ranch with these species have a
presumptive enhancement value and
therefore issue a permit or other
authorization ‘pro forma.’ Any applicant
requesting authorization to carry out an
otherwise prohibited activity would
need to provide adequate information
and documentation in their application
to show that they are meeting the
issuance criteria established at 50 CFR
17.21(g) or 17.22 before authorization
can be granted by the Service.
Issue 2: A large number (57) of
commenters expressed concern that
ranchers and other private holders of
captive-bred scimitar-horned oryx,
addax, and dama gazelle would no
longer have an economic incentive to
manage the species if the exclusions
were removed. Some commenters went
further in stating that the removal of the
exclusion would have substantial
negative economic impacts on game
farms and related support industries,
local economies, and jobs. Two
commenters stated that because most
businesses involved with these species
are extremely small, often with only one
or two employees, the proposed
regulation would be a significant burden
and that any pressure that affects local
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 433
business and citizens may have a major
impact on the viability of local
economies. One commenter stated that
the review and statistical findings of the
annual economic impact of removing
the exclusion was ‘‘abstract at best, and
incomplete, misleading, and
irresponsible to reality.’’ This
commenter stated that the use of $100
million by the Office of Management
and Budget (OMB) as the benchmark in
evaluating the merits of the economic
impact of the consequences associated
with permit requirements has no
quantitative support. The commenter
felt that OMB could not accurately
quantify the financial impact of lifting
the permit requirements for these three
species. Several commenters said that
the Service should keep the exclusion
for captive-bred individuals for the very
reason that these species are doing fine
without any further government
regulation.
Our Response: The elimination of this
regulation should not result in lower
economic incentives or a negative
economic impact, provided that the
ranches were carrying out activities that
were approved under the regulation.
The regulation at 50 CFR 17.21(h)
authorized certain otherwise prohibited
activities without a permit for
individuals or ranches that carried out
activities that contributed to increasing
or sustaining captive numbers of these
species. Further, the regulation required
each person or ranch claiming the
benefits of the exclusion to maintain
accurate records of activities, including
births, deaths, and transfers of
specimens. These same activities could
be authorized under 50 CFR 17.21(g) or
17.22. Thus, there should be little or no
reduction of allowable activities. With
the elimination of 50 CFR 17.21(h),
ranches, zoos, and private individuals
that maintain these three species will
need to submit an application,
including a nominal application fee, in
order to receive authorization for
activities that previously could have
been conducted without a permit. We
do not believe, however, that the
permitting process, including the
application fee or possible submission
of records that should already be
maintained, will result in any
significant financial burden. This is
particularly so given that the Service
has made efforts in recent years to
streamline the permitting process and
issue permits to authorize multiple
activities for an extended period of time.
The Service does recognize, however,
that there may be an economic impact
if people believe that the elimination of
this regulation changes the status of the
species and therefore creates a change in
activities that may be authorized.
Provided that the ranch, zoo, or
individual is carrying out activities that
benefit or enhance the propagation or
survival of the species, as was
previously required under the
regulation at 50 CFR 17.21(h), otherwise
prohibited activities, including limited
hunting for herd management purposes,
can be authorized. Ranches may need to
redesign their marketing efforts, but this
change to the regulations should not
stop ranches from conducting activities
that were previously authorized under
50 CFR 17.21(h).
The Service acknowledges the
commenter’s concern regarding the
benchmark in evaluating the merits of
the economic impact on ranches.
However, the use of $100 million is set
by Executive Order and the Small
Business Regulatory Enforcement
Fairness Act. The Service does not have
the ability to establish an alternative
benchmark or how the review is
conducted.
Issue 3: Two commenters wrote that
the removal of the exclusion leaves the
Service with two possible solutions:
either the species is allowed to go
extinct or the U.S. Government provides
subsidies for a mandated conservation
plan. The commenters felt that both of
these options have negative outcomes—
one results in extinction of the species
and the other increases government
spending at a time when cutbacks are
needed.
Our Response: The Service disagrees
that the removal of this regulation will
result in either the extinction of the
species or the need to subsidize
conservation efforts. Many facilities and
ranches that currently maintain these
species will continue to do so,
regardless of whether or not they are
exempt from prohibitions under the Act.
We are confident of this because a
number of similar species, also bred and
maintained in U.S. ranches, are subject
to the same permitting and registration
requirements we will apply to the three
antelope species when 50 CFR 17.21(h)
is removed (see DATES, above). The
species will not become extinct due to
our actions under this rulemaking.
Further, the Service cannot provide
subsidies to private ranches or facilities
to continue to maintain these species.
We are confident, however, that such
subsidies are not necessary and that
many, if not all, operations will
continue to maintain these species and
provide an ongoing conservation benefit
to the species.
Issue 4: Thirty-two commenters
pointed out that intensive wildlife
management by U.S. ranchers is the
reason the species exist today. These
commenters were concerned that
removal of the exclusion that allows
breeding and hunting of these animals
without a permit would impede private
captive propagation of these species.
They expressed the view that the
requirement of obtaining authorization
or permits before carrying out
previously exempted activities would
cause a significant loss of critical
genetic diversity because private
holders, who retain most of the captive
animals of these three species in the
United States, might dispose of their
current stock. Captive groups of these
species would shrink, and, potentially,
the species would be allowed to go
extinct. In addition, they stated that the
exclusion allows greater numbers of
these animals to be bred than the
numbers bred by zoos, wildlife parks,
and individuals alone, thus maintaining
a larger and more diverse gene pool,
which allows some ranchers to
contribute selected animals for possible
reintroduction to their natural
environment.
Our Response: The Service does not
believe that ranchers or other holders of
these species that are working for the
conservation of the species will reduce
or eliminate their herds just because a
permit or other authorization will now
be required. Ranches that currently have
other endangered hoofstock already
obtain permits for the same activities
with those other species. The Act does
not regulate possession or purely
intrastate activities (with the exception
of take). Provided that a ranch was
legally carrying out activities that were
authorized under 50 CFR 17.21(h)
before the elimination of that regulation,
the ranch should be able to continue
those activities under a permit or
registration. There should be no
reduction in herds that were actually
being used for conservation purposes.
It is possible, however, that the
number of ranches or private
individuals that currently maintain
these species could reduce the size of
their herds or remove them from their
property under the belief that
maintaining them would be an
economic burden. This reduction in the
number of herds should not
significantly influence the genetics of
the remaining herds, if they are being
properly maintained.
Issue 5: One commenter stated that
the numbers of animals maintained on
ranches given in the proposed rule were
incorrectly low and that the Exotic
Wildlife Association (EWA) has
numbers that are more accurate.
Our Response: The numbers
identified in the proposed rule were
estimates based on the information
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434 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
available at the time the rule was
drafted. The Service is aware that EWA
has conducted surveys that indicated
the actual numbers might be higher.
This does not affect what the Service is
legally required to do given the Court
order. We have incorporated EWA’s
estimates into this final rule (see
Background, above).
Issue 6: The Association of Zoos and
Aquariums (AZA) expressed concern
that the elimination of the exclusion
from prohibited activities for the captive
animals of these three species would
undermine their goal of maintaining
genetic diversity. They expressed
concerns that their members’ efforts in
moving listed species have been
hampered by permit delays of 6 to 9
months while enhancement findings are
being made, which is problematic
because there are very few in situ
conservation programs available for
these species.
Our Response: The Service is unclear
on how the removal of 50 CFR 17.21(h)
will affect the ability of AZA facilities
to maintain the genetic diversity of the
captive populations or to move animals
as part of this effort. Barring any failure
on the part of the applicant to meet the
criteria for permit issuance, in only
limited cases has the permitting process
for AZA facilities exceeded 120 days.
Except for the import or export of
animals, no permits will be required for
zoos to move animals among
institutions strictly for population
management purposes if there is no
commercial activity involved.
Issue 7: Three nongovernmental
organizations, in expressing their
support for the proposed rule, felt that
rescinding the regulation would further
avoid a precedent that commercial
exploitation is automatically authorized
merely on the theory that captive
breeding, in and of itself, will enhance
the survival of listed species.
Our Response: While the Service does
believe that captive breeding can
provide a significant benefit to
endangered species, such benefits can
only be realized when the breeding
program is scientifically based and
conducted in a manner that contributes
to the continued survival of the species.
This was the basis for establishing the
regulation at 50 CFR 17.21(h). However,
breeding just to breed, without adequate
attention to genetic composition and
demographics of the breeding
population, may not provide a clear
conservation benefit to an endangered
species. Even absent 50 CFR 17.21(h),
ranches, zoos, and private individuals
holding these three species should be
able to continue to maintain viable,
well-managed, captive groups of
animals that can be used as a source of
stock for reintroduction programs in the
future, if such actions are feasible and
beneficial to the long-term survival of
the species, as has been done for a
number of other species.
Issue 8: Numerous commenters raised
questions about the current listing of the
three species as endangered under the
Act. One commenter said that the U.S.
captive-bred animals of these three
species of exotic antelopes should never
have been included in the listing of the
species as endangered, because, in their
opinion, the Act was not meant to cover
privately owned animals. Three
commenters suggested that the Service
remove these species from the List of
Endangered and Threatened Wildlife at
50 CFR 17.11(h). Two commenters
recommended that the Service not
finalize any permit scheme for these
three species until the Service has fully
exhausted all options for altering the
current endangered species listing status
for U.S. captive herds, making permits
unnecessary for these captive animals.
One commenter argued that to eliminate
this exclusion without removing these
species from the List of Endangered and
Threatened Wildlife would violate the
President’s January 18, 2011, Executive
Order (E.O. 13563), which requires
Federal agencies to ‘‘identify and
consider regulatory approaches that
reduce burdens and maintain flexibility
and freedom of choice for the public.’’
Our Response: The proposed rule
only addressed the Court’s finding that
the regulations at 50 CFR 17.21(h)
violate section 10(c) of the Act.
Discussion of the listing status of these
species, including changing that status,
is outside the scope of this rulemaking.
Two petitions have been submitted to
the Service to request reconsideration of
the listing status of these species, but
the Service must complete this
rulemaking now in order to comply
with the Court order; we cannot delay
this action until the time when the
petitions have been fully addressed.
In addition to taking this action as
necessary to comply with the Court’s
order, the Service does not agree that
eliminating 50 CFR 17.21(h) will violate
the January 18, 2011, Executive Order.
In fact, the Executive Order calls on
Federal agencies to develop regulations
that ‘‘allow for public participation and
an open exchange of ideas.’’ While the
elimination of 50 CFR 17.21(h) has been
perceived as having a significant
economic impact on some ranches, it
has been determined that the benefits of
this action justify its costs by impose the
least burden on society and identifying
specify avenues for carrying out
otherwise prohibited activities.
Issue 9: Three commenters thought
the Federal government should not
regulate the harvest of animals that are
not native to the United States. They felt
that no permits should be needed to
provide a sustainable environment
where exotic species can thrive and
increase in numbers. The Texas
Department of Agriculture (DOA)
believes that ‘‘regulating the domestic
management of these animals is beyond
the fundamental intent of the
Endangered Species Act.’’
Our Response: The Service disagrees.
The Act specifically covers any species
that is listed as endangered or
threatened, whether it is native to the
United States or non-native and whether
it is in captivity or in the wild. The
prohibitions apply to all listed
specimens. But the Act’s prohibitions
are limited. Therefore, no permits are
required to breed or maintain a listed
species. It is only when an individual
attempts to carry out an activity that is
otherwise prohibited under the Act,
such as transport in interstate or foreign
commerce in the course of a commercial
activity, import or export, or take, that
the Service has a mandate to regulate
the activity.
Issue 10: The Texas Parks & Wildlife
Department (TPW) expressed concern
about the possible unintended
consequences of the proposed rule. If
the exclusion is revoked, the TPW is
concerned that some owners may
release animals onto previously
unoccupied range, leading to
uncontrolled population growth,
damage to native plant communities,
and other potentially negative impacts
on native habitat. Another commenter
expressed the same concern about the
huge herds of free-ranging exotics that
have escaped from captivity throughout
Texas, and believed it was important
that private landowners be able to
continue to control and manage exotic
animals in order to prevent destruction
of vegetation and degradation of wild
habitats by large numbers of native and
exotic ungulates. The commenter
thought it was, ‘‘critical that the state be
provided the option for exclusive
jurisdiction over the management of
non-native, non-indigenous exotic pig,
goat, sheep, elk, deer, antelope, and
gazelle species within the borders of
that State.’’ The commenter felt that this
would be consistent with the public
trust doctrine, under which the States
are entrusted with regulatory oversight
of native wildlife resources and impacts
of native wildlife.
Our Response: The Service does not
expect this rule to result in the
intentional release of significant
numbers of the three species into
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 435
previously unoccupied areas of the
United States. However, the Service
does recognize that there are freeranging
herds of exotic species in Texas
and other States that have a negative
impact on native vegetation and
wildlife. The Service also supports
efforts carried out by various States to
control these exotic species to reduce
their impacts on native ecosystems.
There are a number of exotic ungulates
listed under the Act as either
endangered or threatened that are
commonly held on ranches in Texas and
other States. We encourage cooperation
between State wildlife agencies and
ranches that maintain exotic species to
develop best management practices to
reduce the escape of exotic species.
Ongoing efforts are needed to coordinate
Federal and State efforts to control the
spread of these listed exotics onto
pristine areas where native wildlife and
vegetation could be affected.
Through the Act, Congress gave
jurisdiction to determine which species
qualify as endangered or threatened,
and responsibility for their protection
and recovery, to the Service and the
National Marine Fisheries Service.
States are essential partners in
endangered species conservation, but
only the Service can authorize activities
with these species that would be
otherwise prohibited, and nothing
under the public trust doctrine affects
this legal regime.
Issue 11: One commenter pointed out
that the Service has no plan or way of
taking custody of or caring for any of the
unwanted animals resulting from the
elimination of the exclusion at 50 CFR
17.21(h). The commenter also felt that
the Service or nongovernment
organizations that support the
elimination of the regulation should
provide a plan to reimburse or
compensate the owners of these animals
for their lost revenue and investment if
the regulation is eliminated. Another
commenter questioned whether taking
away the incentive for landowners to
propagate these species was in fact a
case of ‘‘de facto taking.’’ A third
commenter felt it would be a taking if
the final rule impedes his ability to have
economic benefit from maintaining
herds of these antelopes. Two other
commenters did not think the
government had the right to control
personal property. Finally, another
commenter said that the proposed
elimination of 50 CFR 17.21(h) infringes
on the free market and private property
rights.
Our Response: The commenter is
correct that the Service has no plans to
take custody of any animals currently
held on private property or to
compensate current owners for any
perceived loss of revenue. Such
compensation or assuming custody of
these species is not within the Service’s
authority. Further, the Service disagrees
that the elimination of 50 CFR 17.21(h)
constitutes a taking, because it does not
deprive the owners of these animals
from continuing to derive an economic
benefit from them. This rule is not a
taking of property because individuals
can obtain authorization for the same
otherwise prohibited activities with
these three endangered antelopes when
issuance criteria are met as they had
under 50 CFR 17.21(h). Provided that a
rancher meets the criteria for obtaining
a permit, which are similar or identical
to the criteria established at 50 CFR
17.21(h) for carrying out otherwise
prohibited activities, the rancher will be
able to obtain a permit or authorization
to carry out the same activities that the
rancher currently conducts. This rule
does not infringe on any property rights
or adversely affect the free market when
activities are conducted in a manner
consistent with the requirements of the
Act.
Issue 12: A number of commenters
raised the issue of hunting of these
species. Two commenters said that the
Service should protect endangered
exotic wildlife from hunting and further
killing. Three other commenters stated
that hunters have saved most of these
animals from decline and feel that
hunting these animals should not be
viewed as a threat to species numbers.
It is their supposition that the steady
hunting demand for these species has
ensured the continued propagation and
survival of the species. They pointed to
the conservation success story of North
American elk, white-tailed deer,
waterfowl, and turkeys as evidence that
their survival is due in large part to the
American hunter.
Our Response: The Service has stated
on numerous occasions that
scientifically based hunting programs
can provide a benefit to the long-term
survival of a species. The American
hunter has clearly provided benefits to
many species. Hunting of exotic species
within the United States can also benefit
the survival of the species involved if
the hunting program and other activities
with the species are carried out in a
manner that contributes to increasing or
sustaining the number of animals in
captivity or to potential reintroduction
to range countries.
Issue 13: Several commenters
suggested that the removal of the
exclusion at 50 CFR 17.21(h) is not
based on logic, but rather on political
opinions and personal philosophies to
end all hunting over sound science,
professional wildlife management, and
demonstrated success in preserving
these species.
Our Response: The removal of the
regulation at 50 CFR 17.21(h) is based
on the Court decision that the regulation
is in violation of section 10(c) of the
Act. The Service could see no other
option than to remove this regulation to
ensure that we complied with the Court
order. This action is not a reflection of
the Service’s position on hunting or
successes that have been achieved with
the three antelope species or any other
species.
Issue 14: Two commenters thought
that current conditions within the
native range of these species are not
conducive to reintroduction. They
expressed the opinion that few
governments of the native countries
want to protect or increase the numbers
of these species and stated that the
repatriation project of the Second Ark
Foundation and Exotic Wildlife
Association has met with many
roadblocks.
Our Response: The Service
understands that many factors
contribute to the successful
reintroduction of a species to its native
range. We acknowledge that the Second
Ark Foundation and Exotic Wildlife
Association have been confronted with
obstacles to providing specimens for
reintroduction, and we understand that
such reintroduction programs can often
be difficult in developing countries for
any species. Currently, we are aware
that there are only a limited number of
in situ conservation programs available
for these species, but that does not affect
how we must apply the requirements of
the Act to their captive animals in the
United States.
Issue 15: Many commenters expressed
concerns that the current permitting
process does not work well and is a
disincentive to ranching operations.
Two commenters thought the Service
should create an alternative permitting
process that includes an online
submission process to register herds and
obtain take permits electronically,
develop the ability to receive electronic
reports, develop scientifically based cull
requirements, and allocate permit
application fees to in situ conservation
efforts. One commenter suggested that
the Service implement a herd inventory
monitoring program to get additional
information for making permitting
decisions. Several commenters provided
specific examples of how to improve the
permitting process to reduce
unnecessary burdens in the interest of
the species. Suggestions included
combining the application processes for
registration under the captive wildlife
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436 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
registration (50 CFR 17.21(g)) and take
permits (50 CFR 17.22) or revising the
applications to be clearer. Other
comments included moving to an
electronic application process, making
permits valid for a longer period of time,
and reviewing and processing
applications in a more timely manner.
One commenter, while believing no
regulation is needed, could accept some
form of moderately priced, multi-year
permit that requires limited annual
report data. One commenter said
expectations related to transfers
between facilities, including breedingonly
and hunting-only operations, must
be well defined in order to provide
landowners with a transparent process.
Two commenters suggested working
with a State’s wildlife authority to
regulate and oversee the permitting
process to increase cooperation with
landowners. The AZA suggested that
there needs to be a provision that allows
AZA institutions to engage in timesensitive
international movement of
these animals for noncommercial
purposes, such as breeding loans or
reintroduction, without having to obtain
additional permits.
Several commenters expressed
opinions on what would constitute
enhancement or furthering the
conservation of the species so that
permits or authorizations could be
granted. Three nongovernment
organizations were concerned that the
existing permitting system would
undermine the conservation of these
antelope species due to questions on
whether or not current permits are being
issued in accordance with the Act. One
commenter suggested that permits must
provide flexibility in harvest allowances
to allow managers to maintain balanced
numbers relative to habitat carrying
capacities. Another commenter
recommended that the permit address
additional harvest protocols and
emergency response for when properties
enter severe, extreme, or exceptional
drought.
Our Response: These comments are
outside the scope of this rulemaking
because they do not address the Court’s
ruling that 50 CFR 17.21(h) violates
section 10(c) of the Act and the
rescission of 17.21(h). Nevertheless, the
Service appreciates the comments and
will consider them as we develop ways
to improve the efficiency and
effectiveness of our permitting process.
We are currently working on certain
improvements, such as the development
of electronic applications and more
timely review processes. We are
considering other efficiency
improvements as well. We encourage
anyone who has recommendations on
how to improve our current permitting
process to contact the Service’s Division
of Management Authority, Branch of
Permits (see ADDRESSES, above).
Issue 16: Two commenters
recommended that the public comment
period for permit applications, which is
currently 30 days, should be eliminated,
or reduced to no more than 14 days. In
addition, they suggested only comments
offered by knowledgeable persons that
actually own or deal with the species
should be considered.
Our Response: Section 10(c) of the
Act specifies that the comment period
be 30 days. Because the 30-day
comment period is set by statute, we
cannot shorten it by regulation. In
addition, the Act states that comments
are welcome from any interested party,
and therefore all comments that are
received during an open comment
period are considered .
Issue 17: One commenter suggested
that any new regulations should include
an anti-harassment provision with a
$10,000 fine for those who use the
information made available through the
application process to directly or
indirectly harass or otherwise interfere
with the applicant’s operation or
business. Harassment should include
the use of deception or
misrepresentation to get access to the
applicant’s private operations.
Our Response: The Service does not
have the authority to include an antiharassment
provision in our regulations
under the Act. There are other legal
remedies to address harassment.
Information that is made available
through the public comment process is
intended to provide the public an
understanding of the activities being
proposed. It is not intended to provide
anyone with the opportunity to harass
directly or indirectly, or to interfere in
lawfully conducted activities.
Issue 18: One commenter
recommended that the definition of
‘‘captive-bred’’ be amended, ‘‘to reflect
only those animals and genetic
materials designated for potential
reintroduction under the direction of
scientists of the Association of Zoos and
Aquariums (AZA) institutions for all
non-native, non-indigenous exotic pig,
goat, sheep, elk, deer, antelope and
gazelle species.’’ The commenter
suggested that this could be used as a
basis to exempt privately raised animals
on Texas ranches from any rules
defining ‘‘captive-bred’’ animals.
Our Response: The proposed rule
only addressed the Court’s finding that
the regulations at 50 CFR 17.21(h)
violate section 10(c) of the Act.
Discussion of the definition of ‘‘captivebred’’,
including changing that
definition within the regulations, is
outside the scope of this rulemaking.
However, the Act specifically covers
any species that is listed as endangered
or threatened, whether it is in captivity,
including those that are captive-bred or
wild. The prohibitions apply to all
listed specimens. Changes to the
definition would not be a basis for
exempting privately raised animals.
Consistent with the Court’s ruling that
the regulation at 50 CFR 17.21(h) is in
violation of section 10(c) of the Act and
following consideration of all
comments, the Service is eliminating
the regulation at 50 CFR 17.21(h). When
the final rule takes effect (see DATES,
above), individuals who intend to carry
out otherwise prohibited activities will
need to have authorization either under
50 CFR 17.21(g) or 17.22.
Required Determinations
Regulatory Planning and Review—
Executive Order 12866: The Office of
Management and Budget (OMB) has
determined that this rule is not
significant under Executive Order
12866. OMB bases its determination
upon the following four criteria:
(a) Whether the rule will have an
annual effect of $100 million or more on
the economy or adversely affect an
economic sector, productivity, jobs, the
environment, or other units of
government.
(b) Whether the rule will create
inconsistencies with other Federal
agencies’ actions.
(c) Whether the rule will materially
affect entitlements, grants, user fees,
loan programs, or the rights and
obligations of their recipients.
(d) Whether the rule raises novel legal
or policy issues.
Regulatory Flexibility Act: Under the
Regulatory Flexibility Act (as amended
by the Small Business Regulatory
Enforcement Fairness Act (SBREFA) of
1996), whenever a Federal agency is
required to publish a notice of
rulemaking for any proposed or final
rule, it must prepare and make available
for public comment a regulatory
flexibility analysis that describes the
effect of the rule on small entities (i.e.,
small businesses, small organizations,
and small government jurisdictions) (5
U.S.C. 601 et seq.). However, no
regulatory flexibility analysis is required
if the head of an agency certifies that the
rule will not have a significant
economic impact on a substantial
number of small entities. Thus, for a
regulatory flexibility analysis to be
required, impacts must exceed a
threshold for ‘‘significant impact’’ and a
threshold for a ‘‘substantial number of
small entities.’’ See 5 U.S.C. 605(b).
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 437
SBREFA amended the Regulatory
Flexibility Act to require Federal
agencies to provide a statement of the
factual basis for certifying that a rule
will not have a significant economic
impact on a substantial number of small
entities.
The U.S. Small Business
Administration (SBA) defines a small
business as one with annual revenue or
employment that meets or is below an
established size standard. We expect
that the majority of the entities involved
in taking, exporting, re-importing, and
selling in interstate or foreign commerce
of these three endangered antelopes are
considered small as defined by the SBA.
This rule requires individuals and
captive-breeding operations of the three
endangered antelopes to apply for
authorization and pay an application fee
of $100 to $200 every 1–5 years,
depending on the type of permit or
authorization, when conducting certain
otherwise prohibited activities. While
there are no accurate numbers of U.S.
facilities with these animals, estimates
range as high as about 400. It is not clear
if all of these facilities would be
conducting activities that would be
otherwise prohibited under the Act;
however, if the total is 400 and they all
require permits for continuing activities
they have been conducting under the
exclusion that is being rescinded, the
maximum annual cost to all of them for
obtaining permits would be about
$50,000–60,000. The regulatory change
is not major in scope and creates only
a modest financial or paperwork burden
on the affected members of the general
public.
We, therefore, certify that this rule
will not have a significant economic
effect on a substantial number of small
entities as defined under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.). A
regulatory flexibility analysis is not
required. Accordingly, a small entity
compliance guide is not required.
Small Business Regulatory
Enforcement Fairness Act: This rule is
not a major rule under 5 U.S.C. 804(2),
the Small Business Regulatory
Enforcement Fairness Act. This rule:
a. Will not have an annual effect on
the economy of $100 million or more.
This rule removes the regulation at 50
CFR 17.21(h) that excludes U.S. captivebred
scimitar-horned oryx, addax, and
dama gazelle from certain prohibitions
of the Act. Current estimates indicate
that about 12,000 to 13,000 of these
animals occur in captive-breeding
operations in the United States. About
11,000 are scimitar-horned oryx with a
value of $1,500 to $3,000 each (based on
internet advertisements), for a total
value of $33,000,000, although only a
fraction of these are sold for breeding or
as trophies annually. Addax and dama
gazelle are fewer in number (several
hundred each), but more valuable as
both breeding stock and trophies, with
values of mature animals up to $4,000–
$6,000 each. Assuming 2,000 animals of
these two species at a value of $4,000
each, the total value is $8,000,000, but
again the revenue generated by these
animals will be a fraction of this amount
because breeding operations will retain
a significant portion of their animals for
further breeding. Individuals and
captive-breeding operations will now
need to qualify for an exemption or
obtain endangered species permits or
other authorization to engage in certain
otherwise prohibited activities. Permit
application fees of $100–$200 will be
required for anyone seeking permits,
and we estimate up to 400 potential
permit applicants, although some
authorizations will remain in effect for
up to 5 years from one application. This
rule does not have a negative effect on
this part of the economy. It will affect
all businesses, whether large or small,
the same. There is not a
disproportionate share of benefits for
small or large businesses.
b. Will not cause a major increase in
costs or prices for consumers;
individual industries; Federal, State,
tribal, or local government agencies; or
geographic regions. This rule will result
in a small increase in the number of
applications for permits or other
authorizations to conduct otherwise
prohibited activities with these three
endangered antelope species.
c. Will not have significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of U.S.-based enterprises to
compete with foreign-based enterprises.
Unfunded Mandates Reform Act:
Under the Unfunded Mandates Reform
Act (2 U.S.C. 1501, et seq.):
a. This rule will not significantly or
uniquely affect small governments. A
small government agency plan is not
required.
b. This rule will not produce a
Federal requirement of $100 million or
greater in any year and is not a
‘‘significant regulatory action’’ under
the Unfunded Mandates Reform Act.
Takings: Under Executive Order
12630, this rule will not have significant
takings implications. A takings
implication assessment is not required.
This rule does not have takings
implications because individuals can
still obtain authorization for the same
otherwise prohibited activities with
these three endangered antelopes when
issuance criteria are met.
Federalism: This revision to part 17
does not contain significant Federalism
implications. A federalism impact
summary statement under Executive
Order 13132 is not required.
Civil Justice Reform: Under Executive
Order 12988, the Office of the Solicitor
has determined that this rule does not
unduly burden the judicial system and
meets the requirements of subsections
3(a) and 3(b)(2) of the Order.
Paperwork Reduction Act: The Office
of Management and Budget approved
the information collection in part 17
and assigned OMB Control Numbers
1018–0093 and 1018–0094. This rule
does not contain any new information
collections or recordkeeping
requirements for which OMB approval
is required under the Paperwork
Reduction Act of 1995 (44 U.S.C. 3501
et seq.). We may not conduct or sponsor
and a person is not required to respond
to a collection of information unless it
displays a currently valid OMB control
number.
National Environmental Policy Act
(NEPA): The Service has determined
that this rule is a regulatory change that
is administrative and legal in nature.
The rescission of this rule responds to
a Court ruling finding that 50 CFR
17.21(h) violates section 10(c) of the Act
and remanding to the agency for further
proceedings consistent with its opinion.
As such, the rule is categorically
excluded from further NEPA review as
provided by 43 CFR 46.210(i) of the
Department of the Interior’s
Implementation of the National
Environmental Policy Act of 1969
regulations (73 FR 61292; October 15,
2008). No further documentation will be
made.
Government-to-Government
Relationship with Tribes: Under the
President’s memorandum of April 29,
1994, ‘‘Government-to-Government
Relations with Native American Tribal
Governments’’ (59 FR 22951) and 512
DM 2, we have evaluated possible
effects on federally recognized Indian
Tribes and have determined that there
are no effects.
Energy Supply, Distribution or Use:
On May 18, 2001, the President issued
Executive Order 13211 on regulations
that significantly affect energy supply,
distribution, and use. This rule does not
significantly affect energy supplies,
distribution, and use. Therefore, this
action is a not a significant energy
action, and no Statement of Energy
Effects is required.
List of Subjects in 50 CFR Part 17
Endangered and threatened species,
Exports, Imports, Reporting and
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438 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
recordkeeping requirements,
Transportation.
Regulation Promulgation
For the reasons given in the preamble,
we are amending part 17, subchapter B
of chapter I, title 50 of the Code of
Federal Regulations, as follows:
PART 17—[AMENDED]
¦ 1. The authority citation for part 17
continues to read as follows:
Authority: 16 U.S.C. 1361–1407; 16 U.S.C.
1531–1544; 16 U.S.C. 4201–4245; Pub. L. 99–
625, 100 Stat. 3500; unless otherwise noted.
§ 17.21 [Amended]
¦ 2. Amend § 17.21 by removing
paragraph (h).
Dated: December 27, 2011.
Eileen Sobeck,
Acting Assistant Secretary for Fish and
Wildlife and Parks.
[FR Doc. 2012–23 Filed 1–3–12; 11:15 am]
BILLING CODE 4310–55–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
50 CFR Part 679
[Docket No. 101126522–0640–02]
RIN 0648–XA917
Fisheries of the Exclusive Economic
Zone Off Alaska; Inseason Adjustment
to the 2012 Gulf of Alaska Pollock and
Pacific Cod Total Allowable Catch
Amounts
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Temporary rule; inseason
adjustment; request for comments.
SUMMARY: NMFS is adjusting the 2012
total allowable catch (TAC) amounts for
the Gulf of Alaska (GOA) pollock and
Pacific cod fisheries. This action is
necessary because NMFS has
determined these TACs are incorrectly
specified, and will ensure the GOA
pollock and Pacific cod TACs are the
appropriate amounts based on the best
available scientific information for
pollock and Pacific cod in the GOA.
This action is consistent with the goals
and objectives of the Fishery
Management Plan for Groundfish of the
Gulf of Alaska.
DATES: Effective 1200 hrs, Alaska local
time (A.l.t.), January 5, 2012, until the
effective date of the final 2012 and 2013
harvest specifications for GOA
groundfish, unless otherwise modified
or superseded through publication of a
notification in the Federal Register.
Comments must be received at the
following address no later than 4:30
p.m., A.l.t., January 20, 2012.
ADDRESSES: You may submit comments
on this document, identified by NOAA–
NMFS–2011–0307, by any of the
following methods:
• Electronic Submission: Submit all
electronic public comments via the
Federal e-Rulemaking Portal
www.regulations.gov. To submit
comments via the e-Rulemaking Portal,
first click the ‘‘submit a comment’’ icon,
then enter NOAA–NMFS–2011–0307 in
the keyword search. Locate the
document you wish to comment on
from the resulting list and click on the
‘‘Submit a Comment’’ icon on that line.
• Mail: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Mail comments to P.O.
Box 21668, Juneau, AK 99802–1668.
• Fax: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Fax comments to (907)
586–7557.
• Hand Delivery to the Federal
Building: Address written comments to
Glenn Merrill, Assistant Regional
Administrator, Sustainable Fisheries
Division, Alaska Region NMFS, Attn:
Ellen Sebastian. Deliver comments to
709 West 9th Street, Room 420A,
Juneau, AK.
Instructions: Comments must be
submitted by one of the above methods
to ensure that the comments are
received, documented, and considered
by NMFS. Comments sent by any other
method, to any other address or
individual, or received after the end of
the comment period, may not be
considered. All comments received are
a part of the public record and will
generally be posted for public viewing
on www.regulations.gov without change.
All personal identifying information
(e.g., name, address) submitted
voluntarily by the sender will be
publicly accessible. Do not submit
confidential business information, or
otherwise sensitive or protected
information. NMFS will accept
anonymous comments (enter ‘‘N/A’’ in
the required fields if you wish to remain
anonymous). Attachments to electronic
comments will be accepted in Microsoft
Word or Excel, WordPerfect, or Adobe
PDF file formats only.
FOR FURTHER INFORMATION CONTACT:
Obren Davis, (907) 586–7228.
SUPPLEMENTARY INFORMATION: NMFS
manages the groundfish fishery in the
GOA exclusive economic zone
according to the Fishery Management
Plan for Groundfish of the Gulf of
Alaska (FMP) prepared by the North
Pacific Fishery Management Council
(Council) under authority of the
Magnuson-Stevens Fishery
Conservation and Management Act.
Regulations governing fishing by U.S.
vessels in accordance with the FMP
appear at subpart H of 50 CFR part 600
and 50 CFR part 679.
The final 2011 and 2012 harvest
specifications for groundfish in the GOA
(76 FR 11111, March 1, 2011) and
Pacific cod revision (76 FR 81860,
December 29, 2011) set the 2012 pollock
TAC at 121,649 metric tons (mt) and the
2012 Pacific cod TAC at 58,650 mt in
the GOA. In December 2011, the
Council recommended a 2012 pollock
TAC of 116,444 mt for the GOA, which
is less than the 121,649 mt established
by the final 2011 and 2012 GOA harvest
specifications. The Council also
recommended a 2012 Pacific cod TAC
of 65,700 mt for the GOA, which is more
than the 58,650 mt established by the
final 2011 and 2012 harvest
specifications for groundfish in the
GOA. The Council’s recommended 2012
TACs, and the area and seasonal
apportionments, are based on the Stock
Assessment and Fishery Evaluation
report (SAFE), dated November 2011,
which NMFS has determined is the best
available scientific information for these
fisheries.
Steller sea lions occur in the same
location as the pollock and Pacific cod
fisheries and are listed as endangered
under the Endangered Species Act
(ESA). Pollock and Pacific cod are a
principal prey species for Steller sea
lions in the GOA. The seasonal
apportionment of pollock and Pacific
cod harvest is necessary to ensure the
groundfish fisheries are not likely to
cause jeopardy of extinction or adverse
modification of critical habitat for
Steller sea lions. The regulations at
§ 679.20(a)(5)(iv) specify how the
pollock TAC will be apportioned. The
regulations at § 679.20(a)(6)(ii) and
§ 679.20(a)(12)(i) specify how the Pacific
cod TAC shall be apportioned.
In accordance with § 679.25(a)(1)(iii)
and (a)(2)(i)(B), the Administrator,
Alaska Region, NMFS (Regional
Administrator), has determined that,
based on the November 2011 SAFE
report for this fishery, the current GOA
pollock and Pacific cod TACs are
incorrectly specified. Consequently,
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Rules and Regulations 439
pursuant to § 679.25(a)(1)(iii), the
Regional Administrator is adjusting the
2012 GOA pollock TAC to 116,444 mt
and the 2012 GOA Pacific cod TAC to
65,700 mt.
Pursuant to § 679.20(a)(5)(iv), Table 6
of the final 2011 and 2012 harvest
specifications for groundfish in the GOA
(76 FR 11111, March 1, 2011) is revised
for the 2012 pollock TACs in the
Western, Central, and Eastern GOA
consistent with this adjustment.
TABLE 6—FINAL 2012 DISTRIBUTION OF POLLOCK IN THE CENTRAL AND WESTERN REGULATORY AREAS OF THE GOA;
SEASONAL BIOMASS DISTRIBUTION, AREA APPORTIONMENTS; AND SEASONAL ALLOWANCES OF ANNUAL TAC
[Values are rounded to the nearest metric ton and percentages are rounded to the nearest 0.01]
Season 1 Shumagin Chirikof Kodiak Total 2
(Area 610) (Area 620) (Area 630)
A (Jan 20–Mar 10) ................................... 5,797 (22.64%) 14,023 (54.76%) 5,787 (22.60%) 25,607
B (Mar 10–May 31) .................................. 5,797 (22.64%) 17,221 (67.25%) 2,589 (10.11%) 25,607
C (Aug 25–Oct 1) ..................................... 9,338 (36.47%) 7,282 (28.44%) 8,986 (35.10%) 25,606
D (Oct 1–Nov 1) ....................................... 9,338 (36.47%) 7,282 (28.44%) 8,986 (35.10%) 25,606
Annual Total ...................................... 30,270 45,808 26,348 102,426
1 As established by § 679.23(d)(2)(i) through (iv), the A, B, C, and D season allowances are available from January 20 to March 10, March 10
to May 31, August 25 to October 1, and October 1 to November 1, respectively. The amounts of pollock for processing by the inshore and offshore
components are not shown in this table.
2 The WYK and SEO District pollock TACs are not allocated by season and are not included in the total pollock TACs shown in this table.
Note: Seasonal allowances may not total precisely to annual TAC total due to rounding down, rather than up.
Pursuant to § 679.20(a)(6)(ii) and
§ 679.20(a)(12)(i), Table 8 of the final
2011 and 2012 harvest specifications for
groundfish in the GOA (76 FR 11111,
March 1, 2011) and Pacific cod revision
(76 FR 81860, December 29, 2011) is
revised for the 2012 Pacific cod TACs in
the Western, Central, and Eastern GOA
consistent with this adjustment.
TABLE 8—FINAL 2012 SEASONAL APPORTIONMENTS AND ALLOCATION OF PACIFIC COD TOTAL ALLOWABLE CATCH
AMOUNTS IN THE GOA; ALLOCATIONS FOR THE WESTERN GOA AND CENTRAL GOA SECTORS AND THE EASTERN
GOA INSHORE AND OFFSHORE PROCESSING COMPONENTS
[Values are rounded to the nearest metric ton and percentages to the nearest 0.01. Seasonal allowances may not total precisely to annual
allocation amount]
Regulatory area and
sector
Annual
allocation
(mt)
A Season B Season
Sector % of annual
non-jig TAC
Seasonal allowances
(mt)
Sector % of annual
non-jig TAC
Seasonal allowances
(mt)
Western GOA:
Jig (1.5% of TAC) ..... 315 N/A 189 N/A 126
Hook-and-line CV ..... 290 0.70 145 0.70 145
Hook-and-line C/P .... 4,100 10.90 2,257 8.90 1,843
Trawl CV ................... 7,952 27.70 5,736 10.70 2,216
Trawl C/P .................. 497 0.90 186 1.50 311
All Pot CV and Pot
C/P ........................ 7,869 19.80 4,100 18.20 3,769
Total ................... 21,024 60.00 12,614 40.00 8,410
Central GOA:
Jig (1.0% of TAC) ..... 427 N/A 256 N/A 171
Hook-and-line < 50
CV ......................... 6,174 9.32 3,938 5.29 2,235
Hook-and-line = 50
CV ......................... 2,835 5.61 2,372 1.10 464
Hook-and-line C/P .... 2,158 4.11 1,736 1.00 422
Trawl CV ................... 17,581 21.14 8,936 20.45 8,645
Trawl C/P .................. 1,775 2.00 847 2.19 928
All Pot CV and Pot
C/P ........................ 11,755 17.83 7,538 9.97 4,217
Total ................... 42,705 60.00 25,623 40.00 17,082
Eastern GOA .................... 1,971 Inshore (90% of Annual TAC) 1,774 Offshore (10% of Annual TAC) 197
Note: Seasonal apportionments may not total precisely due to rounding.
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440 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Rules and Regulations
Classification
This action responds to the best
available information recently obtained
from the fishery. The Assistant
Administrator for Fisheries, NOAA
(AA), finds good cause to waive the
requirement to provide prior notice and
opportunity for public comment
pursuant to the authority set forth at 5
U.S.C. 553(b)(B) as such requirement is
impracticable and contrary to the public
interest. This requirement is
impracticable and contrary to the public
interest as it would prevent NMFS from
responding to the most recent fisheries
data in a timely fashion and would
allow for harvests that exceed the
appropriate allocations for Pacific cod
based on the best scientific information
available. NMFS was unable to publish
a notice providing time for public
comment because the most recent,
relevant data only became available as
of December 29, 2011, and additional
time for prior public comment would
result in conservation concerns for the
ESA-listed Steller sea lions.
The AA also finds good cause to
waive the 30-day delay in the effective
date of this action under 5 U.S.C.
553(d)(3). This finding is based upon
the reasons provided above for waiver of
prior notice and opportunity for public
comment. Under § 679.25(c)(2),
interested persons are invited to submit
written comments on this action to the
above address until January 20, 2012.
This action is required by § 679.22
and § 679.25 and is exempt from review
under Executive Order 12866.
Authority: 16 U.S.C. 1801 et seq.
Dated: December 30, 2011.
Alan D. Risenhoover,
Director, Office of Sustainable Fisheries,
National Marine Fisheries Service.
[FR Doc. 2011–33849 Filed 1–4–12; 8:45 am]
BILLING CODE 3510–22–P
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This section of the FEDERAL REGISTER
contains notices to the public of the proposed
issuance of rules and regulations. The
purpose of these notices is to give interested
persons an opportunity to participate in the
rule making prior to the adoption of the final
rules.
Proposed Rules Federal Register
441
Vol. 77, No. 3
Thursday, January 5, 2012
NUCLEAR REGULATORY
COMMISSION
10 CFR Parts 50, 52, and 100
[Docket No. PRM–50–103; NRC–2011–0189]
Measurement and Control of
Combustible Gas Generation and
Dispersal
AGENCY: Nuclear Regulatory
Commission.
ACTION: Petition for rulemaking; notice
of receipt.
SUMMARY: The U.S. Nuclear Regulatory
Commission (NRC or the Commission)
has received a petition for rulemaking
(PRM), dated October 14, 2011, from the
Natural Resources Defense Council, Inc.
(NRDC or the petitioner). The petitioner
requests that the NRC amend its
regulations regarding the measurement
and control of combustible gas
generation and dispersal within a power
reactor system. The NRC is not
instituting a public comment period for
this PRM at this time.
DATES: January 5, 2012.
ADDRESSES: You can access publicly
available documents related to this
action, including the petition for
rulemaking, using the following
methods:
• NRC’s Public Document Room
(PDR): The public may examine and
have copies made, for a fee, publicly
available documents at the NRC’s PDR,
Room O1–F21, One White Flint North,
11555 Rockville Pike, Rockville,
Maryland 20852.
• NRC’s Agencywide Documents
Access and Management System
(ADAMS): Publicly available documents
created or received at the NRC are
available online in the NRC Library at
http://www.nrc.gov/reading-rm/
adams.html. From this page, the public
can gain entry into ADAMS, which
provides text and image files of the
NRC’s public documents. If you do not
have access to ADAMS or if there are
problems in accessing the documents
located in ADAMS, contact the NRC’s
PDR reference staff at 1– (800) –397–
4209, (301) 415–4737, or by email to
pdr.resource@nrc.gov. The PRM is
available in ADAMS under ADAMS
Accession Number ML11301A094.
• Federal Rulemaking Web Site:
Supporting materials related to the
petition for rulemaking can be found at
http://www.regulations.gov by searching
on Docket ID NRC–2011–0189. Address
questions about NRC dockets to Carol
Gallagher; telephone: (301) 492–3668;
email: Carol.Gallagher@nrc.gov.
FOR FURTHER INFORMATION CONTACT:
Cindy Bladey, Chief, Rules,
Announcements, and Directives Branch,
Division of Administrative Services,
Office of Administration, U.S. Nuclear
Regulatory Commission, Washington,
DC 20555–0001, telephone: (301) 492–
3667, email: Cindy.Bladey@nrc.gov.
SUPPLEMENTARY INFORMATION:
I. Introduction
On October 14, 2011, Mr. C. Jordan
Weaver, a Project Scientist for the
Natural Resources Defense Council, Inc.
(NRDC or petitioner) submitted a cover
letter and a petition for rulemaking
(PRM) to revise 10 CFR 50.44 (ADAMS
Accession No. ML11301A094). The
PRM, which was an attachment to the
NRDC cover letter signed by Mr.
Weaver, was itself signed by Mr. Mark
Edward Leyse. Mr. Leyse has previously
filed several other petitions for
rulemaking with the NRC on matters
related to the NRC’s requirements on the
emergency core cooling system (ECCS).
See PRM–50–73 (ADAMS Accession
No. ML012560310); PRM–50–73A
(ADAMS Accession No. ML020300271);
PRM–50–76 (ADAMS Accession No.
ML022240009); PRM–50–84 (ADAMS
Accession No. ML070871368); PRM–
50–93 (ADAMS Accession No.
ML093290250); PRM–50–95 (ADAMS
Accession No. ML102770018). The
NRDC PRM was docketed by the NRC
on October 27, 2011 as PRM–50–103.
II. Petitioner
The NRDC is a national, nonprofit,
membership environmental
organization incorporated in New York
in 1970. The NRDC has offices in
Washington, DC, New York City, San
Francisco, Chicago, Los Angeles, and
Beijing. The staff membership of NRDC
consists of lawyers, scientists, and
policy experts. The NRDC states that its
purpose is to maintain and enhance
environmental quality and monitor
Federal agency actions to ensure that
Federal statutes enacted to protect
human health and the environment are
fully and properly implemented. With
regard to the NRC, the NRDC asserts
that, since its inception in 1970, it has
sought to improve the environmental,
health, and safety conditions at the
nuclear facilities licensed by the NRC
and its predecessor agency.
III. Petition
Mark Leyse, an NRDC consultant,
researched and authored the PRM. The
PRM requests that the NRC amend its
regulations ‘‘to enhance hydrogen
mitigation at all [nuclear power plants]
regulated by NRC.’’ The PRM includes
six separate rulemaking requests
pertaining to pressurized water reactors
(PWRs) and boiling water reactors
(BWRs).
First, the petitioner requests that the
NRC ‘‘revise 10 CFR 50.44 to require
that all PWRs (with large dry
containments, sub-atmospheric
containments, and ice condenser
containments) and BWR Mark IIIs
operate with systems for combustible
gas control that would effectively and
safely control the potential total
quantity of hydrogen that could be
generated in different severe accident
scenarios.’’ The petitioner states that the
total quantity of hydrogen could exceed
the amount generated from the metalwater
reaction of 100 percent of the fuel
cladding because of contributions
produced by the metal-water reaction
with non-fuel components of the
reactor. The petitioner presents
information from various analyses and
reports to support this request.
Second, the petitioner requests that
the NRC revise 10 CFR 50.44 to ‘‘require
that BWR Mark Is and BWR Mark IIs
operate with systems for combustible
gas control or inerted containments that
would effectively and safely control the
potential total quantity of hydrogen that
could be generated in different severe
accident scenarios.’’ The petitioner
states that the total quantity of hydrogen
could exceed the amount generated
from the metal-water reaction of 100
percent of the fuel cladding because of
contributions produced by the metalwater
reaction with non-fuel
components of the reactor. The
petitioner presents information from
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442 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
various analyses and reports to support
this request.
Third, the petitioner requests that the
NRC revise 10 CFR 50.44 ‘‘to require
that PWRs and BWR Mark IIIs operate
with systems for combustible gas
control that would be capable of
precluding local concentrations of
hydrogen in the containment from
exceeding concentrations that would
support combustions, fast deflagrations,
or detonations that could cause a loss of
containment integrity or loss of
necessary accident mitigating features.’’
The petitioner presents information
from various analyses and reports to
support this request.
Fourth, the petitioner asserts that
‘‘[t]he current requirement that
hydrogen monitors be functional within
90-minutes after the initiation of safety
injection is inadequate for protecting
public and plant worker safety.’’ Thus,
the petitioner requests that the NRC
revise 10 CFR 50.44 to ‘‘require that
PWRs and BWR Mark IIIs operate with
combustible gas and oxygen monitoring
systems that are qualified in accordance
with 10 CFR 50.49. Petitioner also
requests that NRC revise 10 CFR 50.44
to require that after the onset of a severe
accident, combustible gas monitoring
systems be functional within a
timeframe that enables the proper
monitoring of quantities of hydrogen
indicative of core damage and indicative
of a potential threat to the containment
integrity.’’ The petitioner presents
information from various analyses and
reports to support this request.
Fifth, the petitioner requests that the
NRC revise 10 CFR 50.44 to ‘‘require
that licensees of PWRs and BWR Mark
IIIs perform analyses that demonstrate
containment structural integrity would
be retained in the event of a severe
accident.’’ Additionally, the petitioner
requests that the NRC revise 10 CFR
50.44 to require licensees of BWR Mark
Is and BWR Mark IIs to perform
analyses ‘‘using the most advanced
codes, which demonstrate containment
structural integrity would be retained in
the event of a severe accident.’’ The
petitioner presents information from
various analyses and reports to support
this request.
Sixth, the petitioner requests that the
NRC revise 10 CFR 50.44 to ‘‘require
that licensees of PWRs with ice
condenser containments and BWR Mark
IIIs (and any other NPPs that would
operate with hydrogen igniter systems)
perform analyses that demonstrate
hydrogen igniter systems would
effectively and safely mitigate hydrogen
in different severe accident scenarios.’’
The petitioner presents information
from various analyses and reports
regarding hydrogen igniter systems to
support this request.
IV. Determination of Petition
In PRM 50–103, the petitioner raises
six issues regarding the measurement
and control of combustible gas
generation and dispersal within a
reactor system. The Commission is
currently reviewing the
‘‘Recommendations for Enhancing
Reactor Safety in the 21st Century: The
Near-Term Task Force Review of
Insights from the Fukushima Dai-ichi
Accident’’ (Fukushima Task Force
Report, ML111861807), dated July 12,
2011. The six requests included in the
PRM relate to Recommendation 6 of the
Fukushima Task Force Report: ‘‘[t]he
task force recommends, as part of the
longer term review, that the NRC
identify insights about hydrogen control
and mitigation inside containment or in
other buildings as additional
information is revealed through further
study of the Fukushima Dai-ichi
accident.’’
The Commission has recently directed
staff to engage promptly with
stakeholders to review and assess the
recommendations of the Fukushima
Task Force Report for the purpose of
providing the Commission with fullyinformed
options and
recommendations. See U.S. Nuclear
Regulatory Commission, ‘‘Near-Term
Report and Recommendations for
Agency Actions Following the Events in
Japan,’’ Staff Requirements
Memorandum SECY–11–0093, August
19, 2011 (ADAMS Accession No.
ML112310021) and U.S. Nuclear
Regulatory Commission, ‘‘Engagement
of Stakeholders Regarding the Events in
Japan,’’ Staff Requirements
Memorandum COMWDM–11–0001/
COMWCO–11–0001, August 22, 2011
(ADAMS Accession No. ML112340693).
The NRC has, therefore, decided to
consider the issues raised by the PRM
in a manner consistent with the process
the Commission has established for
addressing the recommendations from
the Fukushima Task Force Report. Thus,
the NRC will defer review of this PRM
until the Commission gives further
direction on Recommendation 6, to
determine whether review of this PRM
should be integrated with the effort
related to the NRC staff’s review of
Fukushima Task Force
Recommendation 6. The NRC is not
requesting public comment at this time
but may do so in the future, if it decides
public comment would be appropriate.
V. Conclusion
The NRC will coordinate
consideration of the issues raised by
PRM 50–103 in a manner consistent
with the process the Commission has
established for addressing the
recommendations from the Fukushima
Task Force Report and is not providing
a separate opportunity for public
comment on this PRM at this time.
Dated at Rockville, Maryland, this 29th day
of December 2011.
For the Nuclear Regulatory Commission.
Andrew L. Bates,
Acting Secretary of the Commission.
[FR Doc. 2011–33817 Filed 1–4–12; 8:45 am]
BILLING CODE 7590–01–P
DEPARTMENT OF COMMERCE
United States Patent and Trademark
Office
37 CFR Part 1
[Docket No. PTO–P–2011–0072]
RIN 0651–AC66
Changes To Implement Miscellaneous
Post Patent Provisions of the Leahy-
Smith America Invents Act
AGENCY: United States Patent and
Trademark Office, Commerce.
ACTION: Notice of proposed rulemaking.
SUMMARY: The Leahy-Smith America
Invents Act expands the scope of
information that any party may cite in
a patent file, to include written
statements made by a patent owner
before a Federal court or the United
States Patent and Trademark Office
(Office) regarding the scope of any claim
of the patent, and it provides for how
such information may be considered in
ex parte reexamination, inter partes
review, and post grant review. The
Leahy-Smith America Invents Act also
provides for an estoppel that may attach
with respect to ex parte reexamination
based on an inter partes review or post
grant review proceeding. The Office is
revising the rules of practice to
implement these post-patent provisions,
as well as other miscellaneous
provisions of the Leahy-Smith America
Invents Act.
DATES: Comment Deadline Date: To be
ensured of consideration, written
comments must be received on or before
March 5, 2012.
ADDRESSES: Comments should be sent
by electronic mail addressed to:
post_patent_provisions@uspto.gov.
Comments may also be submitted by
mail addressed to: Mail Stop
Comments—Patents, Commissioner for
Patents, P.O. Box 1450, Alexandria, VA,
22313–1450, marked to the attention of
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 443
Kenneth M. Schor, Senior Legal
Advisor, Office of Patent Legal
Administration, Office of the Associate
Commissioner for Patent Examination
Policy.
Comments may also be sent by
electronic mail message over the
Internet via the Federal eRulemaking
Portal. See the Federal eRulemaking
Portal Web site (http://
www.regulations.gov) for additional
instructions on providing comments via
the Federal eRulemaking Portal.
Although comments may be
submitted by postal mail, the Office
prefers to receive comments by
electronic mail message over the
Internet because sharing comments with
the public is more easily accomplished.
Electronic comments are preferred to be
submitted in plain text, but also may be
submitted in ADOBE® portable
document format or MICROSOFT
WORD® format. Comments not
submitted electronically should be
submitted on paper in a format that
facilitates convenient digital scanning
into ADOBE® portable document
format.
The comments will be available for
public inspection at the Office of the
Commissioner for Patents, currently
located in Madison East, Tenth Floor,
600 Dulany Street, Alexandria, Virginia.
Comments also will be available for
viewing via the Office’s Internet Web
site (http://www.uspto.gov). Because
comments will be made available for
public inspection, information that the
submitter does not desire to make
public, such as an address or phone
number, should not be included in the
comments.
FOR FURTHER INFORMATION CONTACT:
Kenneth M. Schor, Senior Legal Advisor
((571) 272–7710), or Joseph F. Weiss, Jr.,
Legal Advisor ((571) 272–7759), Office
of Patent Legal Administration, Office of
the Associate Commissioner for Patent
Examination Policy.
SUPPLEMENTARY INFORMATION: Section 6
of the Leahy-Smith America Invents Act
replaces the current inter partes
reexamination proceedings with inter
partes review proceedings, and creates
new post grant review proceedings. See
Public Law 112–29, 125 Stat. 284
(2011). Section 6 of the Leahy-Smith
America Invents Act also provides for
an estoppel that may attach with respect
to ex parte reexamination based on an
inter partes review or post grant review
proceeding. The Office is proposing to
revise the rules of practice in title 37 of
the Code of Federal Regulations (CFR) to
implement these post-patent provisions,
along with changes in nomenclature
pertaining to the renaming of the ‘‘Board
of Patent Appeals and Interferences’’ as
the ‘‘Patent Trial and Appeal Board’’
and the replacement of references to
interference proceedings with references
to derivation proceedings. The post
grant review, inter partes review, and
derivation provisions of sections 3 and
6 of the Leahy-Smith America Invents
Act will be implemented by separate
rulemakings.
I. Background
Section 6(g) of the Leahy-Smith
America Invents Act amends 35 U.S.C.
301 to expand the information that can
be submitted in the file of an issued
patent by including written statements
made by a patent owner before a Federal
court or the Office regarding the scope
of any claim of the patent. The
provision limits the Office’s use of such
written statements to determining the
meaning of a patent claim in ex parte
reexamination proceedings that have
already been ordered and in inter partes
review and post grant review
proceedings that have been instituted.
This provision is effective on September
16, 2012.
Section 6(a) and (d) of the Leahy-
Smith American Invents Act also
contains provisions in new 35 U.S.C.
315(e)(1) and 35 U.S.C. 325(e)(1) for
estopping a third party requester from
filing a request for ex parte
reexamination, in certain instances
where the third party requester filed a
petition for inter partes review or post
grant review and a final written decision
under 35 U.S.C. 318(a) or 35 U.S.C.
328(a) has been issued. In addition, a
third party requester may not maintain
an ex parte reexamination if the
estoppel provisions are met during the
pendency of the ex parte reexamination
proceeding. The estoppel provisions
apply to the real party(ies) in interest of
the inter partes review or post grant
review petitioner and any privy of such
a petitioner. This provision is effective
on September 16, 2012.
In view of the estoppel provisions, the
Office needs to be aware of any final
written decision in an inter partes
review or post grant review regarding
the patentability of claims. Current
§ 1.565(a) requires the patent owner to
‘‘inform the Office of any prior or
concurrent proceedings in which the
patent is or was involved such as
interferences, reissues, ex parte
reexaminations, inter partes
reexaminations, or litigation and the
results of such proceedings.’’ Because
current § 1.565(a) uses open language to
provide a non-exhaustive listing of
proceedings that patent owner must
inform the Office about, the current rule
will include inter partes review and
post grant review proceedings, once
they become effective. In addition, the
third party requester (to whom the inter
partes review or post grant review
estoppel statutes are directed) may
inform the Office of a final written
decision in an inter partes review or
post grant review of the patent subject
to the ex parte reexamination by filing
a ‘‘Notification of Existence of Prior or
Concurrent Proceedings and Decisions
Thereon’’ pursuant to Manual of Patent
Examining Procedure (MPEP) § 2282
(8th ed. 2001) (Rev. 8, July 2010). MPEP
§ 2282 provides that ‘‘in order to ensure
a complete file, with updated status
information regarding prior or
concurrent proceedings regarding the
patent under reexamination, the Office
will, at any time, accept from any
parties, for entry into the reexamination
file, copies of notices of suits and other
proceedings involving the patent and
copies of decisions or papers filed in the
court from litigations or other
proceedings involving the patent.’’
[Emphasis added]
Section 6(h)(1) of the Leahy-Smith
America Invents Act amends 35 U.S.C.
303 to expressly identify the authority
of the Director to initiate reexamination
based on patents and publications cited
in a prior reexamination request under
35 U.S.C. 302, as well as on those cited
under 35 U.S.C. 301 (which was
previously expressly authorized). This
provision is effective on September 16,
2012.
Section 3(i) of the Leahy-Smith
America Invents Act replaces
interference proceedings with
derivation proceedings; section 3(j)
replaces the title ‘‘Board of Patent
Appeals and Interferences’’ with ‘‘Patent
Trial and Appeal Board’’ in 35 U.S.C.
134, 145, 146, 154, and 305; Section 6(a)
replaces inter partes reexamination with
inter partes review of a patent; Section
6(d) provides for post-grant review of
patents; and Section 7 amends 35 U.S.C.
6(b) to define the duties of the Patent
Trial and Appeal Board.
II. Discussion of Specific Rules
Title 37 of the Code of Federal
Regulations, Part 1, is proposed to be
amended as follows:
The undesignated center heading
before § 1.501: It is proposed that the
undesignated center heading be revised
to read ‘‘Citation of prior art and written
statements.’’
Section 1.501: Proposed § 1.501 is
rewritten to reflect the amendment to 35
U.S.C. 301 by section 6(g)(1) of the
Leahy-Smith America Invents Act. New
35 U.S.C. 301(a)(2) would permit a
submission under 35 U.S.C. 301 and
1.501 to contain, in addition to prior art
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444 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
(currently provided for in § 1.501),
‘‘statements of the patent owner filed in
a proceeding before a Federal court or
the Office in which the patent owner
took a position on the scope of any
claim of a particular patent’’ (claim
scope statements of the patent owner).
Proposed § 1.501 provides that a
submission can include prior art and
claim scope statements of the patent
owner. The term ‘‘Federal court’’ in 35
U.S.C. 301(a)(2) is understood to also
include the United States Court of
International Trade.
Section 1.501(a): Proposed
§ 1.501(a)(1), like current § 1.501(a),
provides for submission to the Office of
prior art directed to patents or printed
publications allegedly bearing on the
patentability of any claim of a particular
patent. Section 1.501(a)(2) newly
permits submission of statements of the
patent owner filed in a proceeding
before a Federal court or the Office in
which the patent owner took a position
on the scope of any claim of a patent
(claim scope statements). Any statement
submitted under this paragraph must be
accompanied by any other documents,
pleadings, or evidence from the
proceeding in which the statement was
filed that address the statement; and the
statement and accompanying
information under this paragraph must
be submitted in redacted form to
exclude information subject to an
applicable protective order. For
example, a third party may submit a
deposition of the patent owner
occurring during the course of the
Federal court proceeding where the
patent owner discusses the scope of a
patent claim. A party submitting any
submission that includes § 1.501(a)(2)
information should also consider
providing the following information to
assist the Office in identifying the
proceeding where the patent owner
claim scope statement was made: (1)
The forum in which the statement was
made (the specific Federal court or the
Office); (2) the Federal court or Office
proceeding designation (case citation or
numerical designation); (3) the status of
the proceeding; (4) the relationship of
the proceeding to the patent in which
the submission is being made; (5) an
identification of the specific papers of
the proceeding containing the statement
of the patent owner; and (6) an
identification of the portion(s) of the
papers relevant to the written statement
being asserted to constitute a statement
of the patent owner under 35 U.S.C.
301(a)(2). Any patent owner statement
regarding the scope of any claim of a
particular patent made outside of a
Federal court or Office proceeding is not
a written statement eligible for
submission under 35 U.S.C. 301(a)(2),
even though it may be later entered into
a Federal court or Office proceeding by
a party other than the patent owner. See
H.R. Rep. No. 112–98, Part 1, at page 46
(2011) (‘‘[t]his addition will counteract
the ability of patent owners to offer
differing interpretations of prior art in
different proceedings’’).
Section 1.501(b): Proposed
§ 1.501(b)(1) is directed to the 35 U.S.C.
301(b) requirement that the submission
include an explanation ‘‘in writing [of]
the pertinency and manner of applying
the prior art or written statements’’ to at
least one patent claim. Proposed
§ 1.501(b)(1) requires an explanation as
to how the information in the
submission is pertinent to the claim(s)
of the patent and how it is applied to
each of those claims. In some instances,
a combination of prior art and written
statements may be cited, while in other
situations only prior art or written
statements may be cited. In either
situation, an explanation as to how the
cited information applies to those
specific claims must be included with
the submission of patent owner
statements under 35 U.S.C. 301(a)(2).
Section 1.501(b)(1) requires an
explanation of the additional
information required by 35 U.S.C. 301(c)
(as a result of the Leahy-Smith America
Invents Act), because the additional
information addresses and provides
context to the written statement of the
patent owner; thus, it provides an
additional explanation as to how the
cited information is pertinent to the
claim(s).
Proposed § 1.501(b)(2) is directed to
the substance of the second sentence of
current § 1.501(a), which provides
regulatory authorization for a patent
owner submitter to include an
explanation of how the claims differ
from the prior art submitted. Proposed
§ 1.501(b)(2) simply adds statements of
patent owner under 35 U.S.C. 301(a)(2)
to the current regulatory authorization.
Section 1.501(c): Proposed § 1.501(c)
restates the last sentence of existing
§ 1.501(a) directed to the timing for a
submission under §§ 1.502 and 1.902
when there is a reexamination
proceeding pending for the patent in
which the submission is made. Pursuant
to current §§ 1.502 and 1.902, entry
(into the official patent file) of a proper
submission that is made after the date
of an order to reexamine will be delayed
(with certain exceptions specified in
§§ 1.502 and 1.902) until the
reexamination proceeding has been
concluded by the issuance and
publication of a reexamination
certificate. This prevents harassment of
the patent owner by frequent
submissions of prior art made during a
reexamination proceeding, as well as
unwarranted interruption and delay of
the reexamination proceeding, which
would be contrary to the mandate under
35 U.S.C. 305 and 35 U.S.C. 314(c) that
all reexamination proceedings are to be
‘‘conducted with special dispatch
within the Office.’’
Section 1.501(d): Proposed § 1.501(d)
restates existing § 1.501(b), to permit the
person making the submission to
exclude his or her identity from the
patent file by anonymously filing the
submission.
Section 1.501(e): Proposed § 1.501(e)
requires that a submission made under
§ 1.501 must reflect that a copy of the
submission has been served upon the
patent owner at the correspondence
address of record in the patent, and that
service was carried out in accordance
with § 1.248. Service is required to
provide notice to the patent owner of
the submission. The presence of a
certificate of service compliant with
§ 1.248(b) is prima facie evidence of
compliance with § 1.501(e). If service
upon patent owner is unsuccessful, the
submission must include proof of a
bona fide attempt to serve. Proof of a
bona fide attempt to serve must include
a statement of facts with an explanation
of the inability to serve the submission
upon patent owner, along with all
supporting evidence of the attempt of
service. The statement of facts must be
signed by a person having firsthand
knowledge of the facts recited, regarding
unsuccessful service. The statement of
facts should include the steps taken to
locate and serve the patent owner. A
statement of facts which provides a
mere conclusion or assertion of
unsuccessful service will not satisfy this
requirement. Copies of documentary
proof such as certified/registered mail
receipts, cover letters, telegrams or other
forms of evidence that support a finding
that the patent owner could not be
served should be made part of the
statement of facts. A submission will
not be entered into the patent’s Image
File Wrapper (IFW) if it does not
include either proof of service
compliant with § 1.248(b) or a sufficient
explanation and proof of a bona fide
attempt of service, and if such a
submission is inadvertently entered, it
will be expunged. Where a submission
complies with the rule, all information
included in the submission will be
made of record in the IFW of the patent.
A best practice for patent owners is to
regularly monitor the IFW record of
their patents in the event that a third
party was unsuccessful in serving the
patent owner at the correspondence
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 445
address of record. Such regular
monitoring allows a patent owner to be
aware of all information added to its
patent files.
Section 1.501(f): Proposed § 1.501(f)
limits the use of statements of the patent
owner and accompanying information
submitted under § 1.501(a)(2) to what is
provided for in 35 U.S.C. 301(d). Thus,
statements of the patent owner and
accompanying information submitted
under paragraph (a)(2) may only be used
for determination of the proper meaning
of a patent claim in: (1) An ex parte
reexamination proceeding that has been
ordered pursuant to 35 U.S.C. 304; (2)
an inter partes review proceeding that
has been instituted pursuant to 35
U.S.C. 314; and (3) a post grant review
proceeding that has been instituted
pursuant to 35 U.S.C. 324. Proposed
§ 1.501(f) follows from new 35 U.S.C.
301(d), which provides that ‘‘a written
statement submitted pursuant to
subsection (a)(2)’’ ‘‘shall not be
considered by the Office for any
purpose other than to determine the
proper meaning of a patent claim in a
proceeding that is ordered or instituted
pursuant to section 304, 314, or 324.’’
The reference to 35 U.S.C. 314 is
understood to apply to inter partes
review, and not to inter partes
reexamination, because inter partes
reexamination is being replaced by inter
partes review on the date that 35 U.S.C.
301(d) becomes effective (i.e.,
September 16, 2012). While inter partes
reexamination proceedings already
ordered will continue after September
16, 2012, 35 U.S.C. 314 is understood
not to apply to such proceedings.
Section 1.510: Proposed § 1.510(b)(2)
is revised, and new §§ 1.510(b)(6) and
(b)(7) are added to implement
provisions of the Leahy-Smith America
Invents Act. Section 1.510(b)(2) is
revised to require that a request for
reexamination identify every claim for
which reexamination is requested, and
for any statement of the patent owner
submitted pursuant to § 1.501(a)(2)
which is relied upon in the detailed
explanation, explain how that statement
is being used to determine the proper
meaning of a patent claim in connection
with prior art applied to that claim. New
35 U.S.C. 301(d) provides that a
statement of the patent owner, pursuant
to § 1.501(a)(2), may be relied upon in
the ex parte reexamination proceeding
only after reexamination has been
ordered. In order to comply with the
requirement of 35 U.S.C. 302 that the
‘‘request must set forth the pertinency
and manner of applying cited prior art
to every claim for which reexamination
is requested,’’ the ‘‘detailed
explanation’’ provided in the request
(pursuant to § 1.510(b)(2)) must explain
how each § 1.501(a)(2) statement is
being used to determine the proper
meaning of a patent claim in connection
with the applied prior art. This must be
explained for each claim for which the
§ 1.501(a)(2) statement is being used in
the request, and the explanation will be
considered by the Office during the
examination stage, if reexamination is
ordered. At the order stage, the Office
will use the broadest reasonable
interpretation of the claims, without
consideration to any § 1.501(a)(2)
statement relied upon in the detailed
explanation of a request.
New § 1.510(b)(6) requires that the
request contain a certification that the
statutory estoppel provisions of inter
partes review and post grant review do
not bar the third party from requesting
ex parte reexamination. To complement
this revision, § 1.510(b)(7) requires that
the request contain, as part of the
certification, a statement identifying the
real party(ies) in interest to the extent
necessary to determine whether an inter
partes review or post grant review filed
subsequent to an ex parte reexamination
bars the third party from maintaining a
pending ex parte reexamination. An ex
parte reexamination requester has the
option to remain anonymous. In order to
do so, the requester must: (1) Submit the
statement identifying the real party(ies)
in interest as a separate paper; (2) title
the paper as a statement identifying the
real party(ies) in interest; (3) request in
the paper that the Office to retain the
paper in confidence by sealing it; and
(4) include, in a clear and conspicuous
manner, an appropriate instructional
label designating the statement as a nonpublic
submission, e.g., NOT OPEN TO
THE PUBLIC FOR OFFICE USE ONLY.
The Office will then maintain the real
party(ies) in interest statement as a
sealed, non-public submission.
The estoppel provisions of inter
partes review and post grant review are
provided in new 35 U.S.C. 315(e)(1) and
325(e)(1), respectively. These estoppel
provisions bar a request for ex parte
reexamination (or maintenance of an ex
parte reexamination) by a third party
requester, the requester’s real party(ies)
in interest, or a privy, where the
requester petitioned for an inter partes
review or post grant review of a claim
in the patent that resulted in a final
written decision with respect to that
claim on any ground that the petitioner
raised or reasonably could have raised
during that inter partes review or post
grant review. The certification and
identification in new §§ 1.510(b)(6) and
1.510(b)(7) are consistent with the
practice of real party(ies) in interest
identification certification used for
existing inter partes reexamination. As
was the case for implementation of
§§ 1.915(b)(7) and 1.915(b)(8) for inter
partes reexamination, the certification
and identification to be implemented
via new §§ 1.510(b)(6) and 1.510(b)(7)
address Congress’s desire to prevent
harassment of the patent owner by third
parties. See H.R. Rep. No. 112–98 (Part
1), at 48.
Section 1.515: Section 1.515 is revised
to add: ‘‘A statement pursuant to
§ 1.501(a)(2) will not be considered by
the examiner in the examiner’s
determination on the request.’’ New 35
U.S.C. 301(d) states: ‘‘A written
statement submitted pursuant to
subsection (a)(2), and additional
information submitted pursuant to
subsection (c) [of 35 U.S.C. 301], shall
not be considered by the Office for any
purpose other than to determine the
proper meaning of a patent claim in a
proceeding that is ordered * * *
pursuant to section 304.’’ The Office
interprets 35 U.S.C. 301(d) as
prohibiting it from considering a
§ 1.501(a)(2) written statement when
making the determination of whether to
order ex parte reexamination under 35
U.S.C. 303. See also H.R. Rep. No. 112–
98, Part 1, at page 46 (2011). In making
the § 1.515(a) determination of whether
to order ex parte reexamination, the
Office will generally (except in the rare
case of an expired patent), give the
claims the broadest reasonable
interpretation consistent with the
specification (See In re Yamamoto, 740
F.2d 1569, 222 USPQ 934 (Fed. Cir.
1984)). Consideration of the evidentiary
weight to be accorded to a 35 U.S.C.
301(a)(2) statement (as to the meaning of
the claims with respect to the ultimate
patentability decision) will not be given
unless reexamination is ordered. If
reexamination is ordered, the patent
owner statements submitted pursuant to
35 U.S.C. 301(a)(2) will be considered to
the fullest extent possible when
determining the scope of any claims in
the patent which are subject to
reexamination.
Section 1.552: § 1.552 is rewritten to
include new subsection § 1.552(d) to
reflect the amendment of 35 U.S.C. 301
by section 6(g)(1) of the Leahy-Smith
America Invents Act. Proposed
§ 1.552(d) states: ‘‘Any statement of the
patent owner and any accompanying
information submitted pursuant to
§ 1.501(a)(2) which is of record in the
patent being reexamined (which
includes any reexamination files for the
patent) may be used after a
reexamination proceeding has been
ordered to determine the proper
meaning of a patent claim when
applying patents or printed
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446 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
publications.’’ New 35 U.S.C. 301(a)(2)
permits a submission under 35 U.S.C.
301 to contain ‘‘statements of the patent
owner filed in a proceeding before a
Federal court or the Office in which the
patent owner took a position on the
scope of any claim of a particular
patent.’’ Thus, written statements cited
under new 35 U.S.C. 301(a)(2) may be
considered after an ex parte
reexamination proceeding has been
ordered, but not in making the
determination of whether to order ex
parte reexamination under 35 U.S.C.
303. See 35 U.S.C. 301(d). See also H.R.
Rep. No. 112–98, Part 1, at page 46
(2011).
The Office also proposes to change
the nomenclature in title 37 CFR to
reflect renaming the ‘‘Board of Patent
Appeals and Interferences’’ as the
‘‘Patent Trial and Appeal Board,’’
including changes for the new trial
proceedings of inter partes review, post
grant review, and derivation.
Specifically, the Office proposes to
change ‘‘Board of Patent Appeals and
Interferences’’ to the ‘‘Patent Trial and
Appeal Board’’ in 37 CFR parts 1, 11,
and 41 (in §§ 1.1(a)(1)(ii), 1.4(a)(2),
1.6(d)(9), 1.8(a)(2)(i)(C), 1.9(g), 1.17(b),
1.36(b), 1.48(j), 1.136(a)(1)(iv),
1.136(a)(2), 1.136(b), 1.181(a)(1),
1.181(a)(3), 1.191, 1.197(a), 1.198,
1.248(c), 1.294(b), 1.301, 1.303(a),
1.304(a)(1), 1.304(a)(1)(ii), 1.324(d),
1.550(a), 1.701(a)(3), 1.701(c)(3),
1.702(a)(3), 1.702(b)(4), 1.702(e),
1.703(a)(5), 1.703(b)(4), 1.703(e),
1.704(c)(9), 1.937(a), 1.959, 1.979(a),
1.979(b), 1.981, 1.983(a), 1.983(c),
1.983(d), 1.983(f), 11.5(b)(1), 11.6(d),
41.1(a), 41.2, 41.10(a)–(c), and 41.77(a),
and in the title of part 41). The Office
likewise proposes to add specific
references to trial proceedings before the
Patent Trial and Appeal Board to
§§ 1.5(c), 1.6(d), 1.6(d)(9), 1.11(e),
1.136(a)(2), 1.136(b), 1.178(b), 1.248(c),
1.322(a)(3), 1.324(a), 1.324(d), 1.565(a),
1.565(e), 1.985(a), 1.985(b), 1.993,
10.1(s), 11.10(b)(3)(iii), and
11.57(b)(1)(i). Finally, the Office
proposes to add specific references to
derivation proceedings to §§ 1.48(j),
1.55(a)(3)(i), 1.55(a)(4)(i)(A), 1.103(g),
1.136(a)(1)(v), 1.313(b)(4), 1.701(a)(1),
1.701(c)(1)(i–ii), 1.701(c)(2)(iii),
1.702(b)(2), 1.702(c), 1.703(b)(2)(i–ii),
1.703(b)(3)(iii), 1.703(c)(1–2),
1.703(d)(3), and 5.3(b).
III. Rulemaking Considerations
A. Administrative Procedure Act
(APA): This proposed rule revises
existing rules governing prior art
citations and patent owner statements in
a patent file and ex parte reexamination
to implement the following provisions
of sections 3 and 6 of the Leahy-Smith
America Invents Act: (1) Section 6(g)
which amends 35 U.S.C. 301, to expand
the scope of information that can be
submitted in the file of an issued patent;
(2) the provisions of sections 6(a) and
6(d) (which newly enact inter partes
review and post grant review,
respectively) that provide for estoppels
effective as to proceedings before the
Office, including but not limited to
reexamination; and (3) sections 3(j) and
7 which change the title ‘‘Board of
Patent Appeals and Interferences’’ to
‘‘Patent Trial and Appeal Board,’’ and
change references to interference
proceedings to derivation proceedings.
Therefore, the changes in this
proposed rule are merely procedural
and/or interpretive. See Bachow
Communs., Inc. v. FCC, 237 F.3d 683,
690 (DC Cir. 2001) (rules governing an
application process are procedural
under the Administrative Procedure
Act); Inova Alexandria Hosp. v. Shalala,
244 F.3d 242, 350 (4th Cir. 2001) (rules
for handling appeals were procedural
where they did not change the
substantive standard for reviewing
claims); Nat’l Org. of Veterans’
Advocates v. Sec’y of Veterans Affairs,
260 F.3d 1365, 1375 (Fed. Cir. 2001)
(rule that clarifies interpretation of a
statute is interpretive).
Accordingly, prior notice and
opportunity for public comment are not
required pursuant to 5 U.S.C. 553(b) or
(c) (or any other law) and thirty-day
advance publication is not required
pursuant to 5 U.S.C. 553(d) (or any other
law). See Cooper Techs. Co. v. Dudas,
536 F.3d 1330, 1336–37 (Fed. Cir. 2008)
(stating that 5 U.S.C. 553, and thus 35
U.S.C. 2(b)(2)(B), does not require notice
and comment rulemaking for
‘‘interpretative rules, general statements
of policy, or rules of agency
organization, procedure, or practice.’’)
(quoting 5 U.S.C. 553(b)(A)). The Office,
however, is publishing these changes for
comment as it seeks the benefit of the
public’s views on the Office’s proposed
implementation of these provisions of
the Leahy-Smith America Invents Act.
B. Regulatory Flexibility Act: As prior
notice and an opportunity for public
comment are not required pursuant to 5
U.S.C. 553 or any other law, neither a
regulatory flexibility analysis nor a
certification under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) is
required. See 5 U.S.C. 603.
C. Executive Order 12866 (Regulatory
Planning and Review): This rulemaking
has been determined to be not
significant for purposes of Executive
Order 12866 (Sept. 30, 1993).
D. Executive Order 13563 (Improving
Regulation and Regulatory Review): The
Office has complied with Executive
Order 13563. Specifically, the Office
has, to the extent feasible and
applicable: (1) Made a reasoned
determination that the benefits justify
the costs of the rule; (2) tailored the rule
to impose the least burden on society
consistent with obtaining the regulatory
objectives; (3) selected a regulatory
approach that maximizes net benefits;
(4) specified performance objectives; (5)
identified and assessed available
alternatives; (6) involved the public in
an open exchange of information and
perspectives among experts in relevant
disciplines, affected stakeholders in the
private sector and the public as a whole,
and provided on-line access to the
rulemaking docket; (7) attempted to
promote coordination, simplification,
and harmonization across government
agencies and identified goals designed
to promote innovation; (8) considered
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public; and (9) ensured
the objectivity of scientific and
technological information and
processes.
E. Executive Order 13132
(Federalism): This rulemaking does not
contain policies with federalism
implications sufficient to warrant
preparation of a Federalism Assessment
under Executive Order 13132 (Aug. 4,
1999).
F. Executive Order 13175 (Tribal
Consultation): This rulemaking will not:
(1) Have substantial direct effects on one
or more Indian tribes; (2) impose
substantial direct compliance costs on
Indian tribal governments; or (3)
preempt tribal law. Therefore, a tribal
summary impact statement is not
required under Executive Order 13175
(Nov. 6, 2000).
G. Executive Order 13211 (Energy
Effects): This rulemaking is not a
significant energy action under
Executive Order 13211 because this
rulemaking is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Therefore,
a Statement of Energy Effects is not
required under Executive Order 13211
(May 18, 2001).
H. Executive Order 12988 (Civil
Justice Reform): This rulemaking meets
applicable standards to minimize
litigation, eliminate ambiguity, and
reduce burden as set forth in sections
3(a) and 3(b)(2) of Executive Order
12988 (Feb. 5, 1996).
I. Executive Order 13045 (Protection
of Children): This rulemaking does not
concern an environmental risk to health
or safety that may disproportionately
affect children under Executive Order
13045 (Apr. 21, 1997).
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 447
J. Executive Order 12630 (Taking of
Private Property): This rulemaking will
not effect a taking of private property or
otherwise have taking implications
under Executive Order 12630 (Mar. 15,
1988).
K. Congressional Review Act: Under
the Congressional Review Act
provisions of the Small Business
Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801 et seq.), prior to
issuing any final rule, the United States
Patent and Trademark Office will
submit a report containing the final rule
and other required information to the
United States Senate, the United States
House of Representatives, and the
Comptroller General of the Government
Accountability Office. The changes in
this notice are not expected to result in
an annual effect on the economy of 100
million dollars or more, a major increase
in costs or prices, or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of United States-based
enterprises to compete with foreignbased
enterprises in domestic and
export markets. Therefore, this notice is
not expected to result in a ‘‘major rule’’
as defined in 5 U.S.C. 804(2).
L. Unfunded Mandates Reform Act of
1995: The changes proposed in this
notice do not involve a Federal
intergovernmental mandate that will
result in the expenditure by State, local,
and tribal governments, in the aggregate,
of 100 million dollars (as adjusted) or
more in any one year, or a Federal
private sector mandate that will result
in the expenditure by the private sector
of 100 million dollars (as adjusted) or
more in any one year, and will not
significantly or uniquely affect small
governments. Therefore, no actions are
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995. See 2 U.S.C. 1501 et seq.
M. National Environmental Policy
Act: This rulemaking will not have any
effect on the quality of the environment
and is thus categorically excluded from
review under the National
Environmental Policy Act of 1969. See
42 U.S.C. 4321 et seq.
N. National Technology Transfer and
Advancement Act: The requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) are not
applicable because this rulemaking does
not contain provisions which involve
the use of technical standards.
O. Paperwork Reduction Act: The
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) requires that the
Office consider the impact of paperwork
and other information collection
burdens imposed on the public. This
proposed rulemaking involves
information collection requirements
which are subject to review by the
Office of Management and Budget
(OMB) under the Paperwork Reduction
Act of 1995 (44 U.S.C. 3501–3549). The
collection of information involved in
this notice has been submitted to OMB
under OMB control number 0651–00xx.
The proposed collection will be
available at OMB’s Information
Collection Review Web site (http://
www.reginfo.gov/public/do/PRAMain).
Needs and Uses: This information
collection is necessary so that the public
may file, in a patent, submissions of
patents and printed publications, and
statements of the patent owner filed in
a proceeding before a Federal court or
the Office in which the patent owner
took a position on the scope of any
claim of the patent. The public may use
this information to aid in ascertaining
the patentability and/or scope of the
claims of the patent.
Title of Collection: Post Patent Public
Submissions.
OMB Control Number: 0651–00xx.
Method of Collection: By mail,
facsimile, hand delivery, or
electronically to the Office.
Affected Public: Individuals or
households; businesses or other forprofits;
and not-for-profit institutions.
Estimated Number of Respondents:
1,000 responses per year.
Estimated Time Per Response: The
Office estimates that the responses in
this collection will take the public 10
hours.
Estimated Total Annual Respondent
Burden Hours: 10,000 hours per year.
Estimated Total Annual Respondent
Cost Burden: $3,400,000 per year.
The Office is soliciting comments to:
(1) Evaluate whether the proposed
information requirement is necessary for
the proper performance of the functions
of the Office, including whether the
information will have practical utility;
(2) evaluate the accuracy of the Office’s
estimate of the burden; (3) enhance the
quality, utility, and clarity of the
information to be collected; and (4)
minimize the burden of collecting the
information on those who are to
respond, including by using appropriate
automated, electronic, mechanical, or
other technological collection
techniques or other forms of information
technology.
Please send comments on or before
March 5, 2012 to Mail Stop Comments—
Patents, Commissioner for Patents, P.O.
Box 1450, Alexandria, VA, 22313–1450,
marked to the attention of Raul Tamayo,
Legal Advisor, Office of Patent Legal
Administration, Office of the Associate
Commissioner for Patent Examination
Policy. Comments should also be
submitted to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, New
Executive Office Building, Room 10202,
725 17th Street NW., Washington, DC
20503, Attention: Desk Officer for the
Patent and Trademark Office.
Notwithstanding any other provision
of law, no person is required to respond
to, nor shall a person be subject to a
penalty for failure to comply with, a
collection of information subject to the
requirements of the Paperwork
Reduction Act, unless that collection of
information displays a currently valid
OMB control number.
List of Subjects in 37 CFR Part 1
Administrative practice and
procedure, Courts, Freedom of
information, Inventions and patents,
Reporting and record keeping
requirements, Small businesses, and
Biologics.
For the reasons set forth in the
preamble, 37 CFR Part 1 is proposed to
be amended as follows:
PART 1—RULES OF PRACTICE IN
PATENT CASES
1. The authority citation for 37 CFR
Part 1 continues to read as follows:
Authority: 35 U.S.C. 2(b)(2), unless
otherwise noted.
2. The undesignated center heading
before § 1.501 is revised to read as
follows:
Citation of Prior Art and Written
Statements
3. Section 1.501 is revised to read as
follows:
§ 1.501 Citation of prior art and written
statements in patent files.
(a) Information content of submission:
At any time during the period of
enforceability of a patent, any person
may file a written submission with the
Office under this section, which is
directed to the following information:
(1) Prior art consisting of patents or
printed publications which the person
making the submission states to have a
bearing on the patentability of any claim
of the patent; or
(2) Statements of the patent owner
filed in a proceeding before a Federal
court or the Office in which the patent
owner took a position on the scope of
any claim of the patent. Any statement
submitted under this paragraph must be
accompanied by any other documents,
pleadings, or evidence from the
proceeding in which the statement was
filed that address the written statement,
and such statement and accompanying
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448 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
information under this paragraph must
be submitted in redacted form to
exclude information subject to an
applicable protective order. Submission
of a statement of the patent owner made
outside of a Federal court or Office
proceeding and later filed for inclusion
in a Federal court or Office proceeding
is not permitted by this section, and
such a submission will not be entered
into the patent file.
(b) Explanation included: A
submission pursuant to paragraph (a) of
this section:
(1) Must explain in writing the
pertinence and manner of applying any
prior art submitted under paragraph
(a)(1) of this section and any written
statement and accompanying
information submitted under paragraph
(a)(2) of this section to at least one claim
of the patent, in order for the
submission to become a part of the
official file of the patent; and
(2) May, if the submission is made by
the patent owner, include an
explanation of how the claims differ
from any prior art submitted under
paragraph (a)(1) of this section or any
written statements and accompanying
information submitted under paragraph
(a)(2) of this section.
(c) Reexamination pending: If a
reexamination proceeding has been
requested and is pending for the patent
in which the submission is filed, entry
of the submission into the official file of
the patent is subject to the provisions of
§§ 1.502 and 1.902.
(d) Identity: If the person making the
submission wishes his or her identity to
be excluded from the patent file and
kept confidential, the submission papers
must be submitted anonymously
without any identification of the person
making the submission.
(e) Service of the submission: A
submission made under this section
must reflect that a copy of the
submission has been served upon the
patent owner at the correspondence
address of record in the patent, in
accordance with § 1.248, or that a bona
fide attempt of service was made. A
submission that fails to include either
proof of service or a sufficient
explanation and proof of a bona fide
attempt of service will not be entered
into the patent file, and will be
expunged if inadvertently entered.
(f) Consideration of statements of
patent owner: Statements of the patent
owner and accompanying information
submitted under paragraph (a)(2) of this
section shall not be considered by the
Office for any purpose other than as
provided for in 35 U.S.C. 301(d) . If
reexamination is ordered, the patent
owner statements submitted pursuant to
section 301(a)(2) will be considered
when determining the scope of any
claims in the patent subject to
reexamination.
4. Section 1.510 is amended by
revising paragraph (b)(2), and adding
new paragraphs (b)(6) and (b)(7), to read
as follows:
§ 1.510 Request for ex parte
reexamination.
* * * * *
(b) * * *
(2) An identification of every claim
for which reexamination is requested,
and a detailed explanation of the
pertinency and manner of applying the
cited prior art to every claim for which
reexamination is requested. For each
statement and accompanying
information of the patent owner
submitted pursuant to § 1.501(a)(2)
which is relied upon in the detailed
explanation, the request must explain
how that statement is being used to
determine the proper meaning of a
patent claim in connection with the
prior art applied to that claim and how
each relevant claim is being interpreted.
If appropriate, the party requesting
reexamination may also point out how
claims distinguish over cited prior art.
* * * * *
(6) A certification that the statutory
estoppel provisions of both inter partes
review (35 U.S.C. 315(e)(1)) and post
grant review (35 U.S.C. 325(e)(1)) do not
prohibit the ex parte reexamination.
(7) A statement identifying the real
party(ies) in interest to the extent
necessary to determine whether any
inter partes review or post grant review
filed subsequent to an ex parte
reexamination bars a pending ex parte
reexamination filed by the real
party(ies) in interest or its privy from
being maintained.
5. Section 1.515 is amended by
revising paragraph (a) to read as follows:
§ 1.515 Determination of the request for ex
parte reexamination.
(a) Within three months following the
filing date of a request for an ex parte
reexamination, an examiner will
consider the request and determine
whether or not a substantial new
question of patentability affecting any
claim of the patent is raised by the
request and the prior art cited therein,
with or without consideration of other
patents or printed publications. A
statement and any accompanying
information submitted pursuant to
§ 1.501(a)(2) will not be considered by
the examiner in the examiner’s
determination on the request. The
examiner’s determination will be based
on the claims in effect at the time of the
determination, will become a part of the
official file of the patent, and will be
mailed to the patent owner at the
address provided for in § 1.33(c) and to
the person requesting reexamination.
* * * * *
6. Section 1.552 is amended by
adding new paragraph (d) to read as
follows:
§ 1.552 Scope of reexamination in ex parte
reexamination proceedings.
* * * * *
(d) Any statement of the patent owner
and any accompanying information
submitted pursuant to § 1.501(a)(2)
which is of record in the patent being
reexamined (which includes any
reexamination files for the patent) may
be used after a reexamination
proceeding has been ordered to
determine the proper meaning of a
patent claim when applying patents or
printed publications.
Dated: December 30, 2011.
David J. Kappos,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
[FR Doc. 2011–33813 Filed 1–4–12; 8:45 am]
BILLING CODE 3510–16–P
DEPARTMENT OF COMMERCE
United States Patent and Trademark
Office
37 CFR Part 1
[Docket No. PTO–P–2011–0073]
RIN 0651–AC67
Changes To Implement the
Preissuance Submissions by Third
Parties Provision of the Leahy-Smith
America Invents Act
AGENCY: United States Patent and
Trademark Office, Commerce.
ACTION: Notice of proposed rulemaking.
SUMMARY: The United States Patent and
Trademark Office (Office) is proposing
changes to the rules of patent practice
to implement the preissuance
submissions by third parties provision
of the Leahy-Smith America Invents
Act. This provision provides a
mechanism for third parties to
contribute to the quality of issued
patents by submitting to the Office, for
consideration and inclusion in the
record of patent applications, any
patents, published patent applications,
or other printed publications of
potential relevance to the examination
of the applications. A preissuance
submission may be made in any non-
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 449
provisional utility, design, and plant
application, as well as in any continuing
or reissue application. A third-party
preissuance submission must include a
concise description of the asserted
relevance of each document submitted
and be submitted within a certain
statutorily specified time period. The
third party must submit a fee as
prescribed by the Director and a
statement that the submission complies
with all of the statutory requirements.
The third-party preissuance submission
provision of the Leahy-Smith America
Invents Act is effective on September
16, 2012, and applies to any application
filed before, on, or after September 16,
2012.
Comment Deadline: Written
comments must be received on or before
March 5, 2012.
ADDRESSES: Comments should be sent
by electronic mail message over the
Internet addressed to:
preissuance_submissions@uspto.gov.
Comments may also be submitted by
postal mail addressed to: Mail Stop
Comments—Patents, Commissioner for
Patents, P.O. Box 1450, Alexandria, VA,
22313 1450, marked to the attention of
Nicole D. Haines, Legal Advisor, Office
of Patent Legal Administration, Office of
the Associate Commissioner for Patent
Examination Policy.
Comments may also be sent by
electronic mail message over the
Internet via the Federal eRulemaking
Portal. See the Federal eRulemaking
Portal Web site (http://
www.regulations.gov) for additional
instructions on providing comments via
the Federal eRulemaking Portal.
Although comments may be
submitted by postal mail, the Office
prefers to receive comments by
electronic mail message over the
Internet because sharing comments with
the public is more easily accomplished.
Electronic comments are preferred to be
submitted in plain text, but also may be
submitted in ADOBE® portable
document format or MICROSOFT
WORD® format. Comments not
submitted electronically should be
submitted on paper in a format that
facilitates convenient digital scanning
into ADOBE® portable document
format.
The comments will be available for
public inspection at the Office of the
Commissioner for Patents, currently
located in Madison East, Tenth Floor,
600 Dulany Street, Alexandria, Virginia.
Comments also will be available for
viewing via the Office’s Internet Web
site (http://www.uspto.gov). Because
comments will be made available for
public inspection, information that the
submitter does not desire to make
public, such as an address or phone
number, should not be included in the
comments.
FOR FURTHER INFORMATION CONTACT:
Nicole D. Haines, Legal Advisor ((571)
272 7717), Pinchus M. Laufer, Senior
Legal Advisor ((571) 272–7726), or
Hiram H. Bernstein, Senior Legal
Advisor ((571) 272–7707), Office of
Patent Legal Administration, Office of
the Associate Commissioner for Patent
Examination Policy.
SUPPLEMENTARY INFORMATION: The
Leahy-Smith America Invents Act was
enacted into law on September 16, 2011.
See Public Law 112–29, 125 Stat. 284
(2011). This notice proposes changes to
the rules of practice to implement
Section 8 of the Leahy-Smith America
Invents Act, which provides a
mechanism for third parties to submit to
the Office, for consideration and
inclusion in the record of a patent
application, any patents, published
patent applications, or other printed
publications of potential relevance to
the examination of the application.
Section 8 of the Leahy-Smith America
Invents Act amends 35 U.S.C. 122 by
adding 35 U.S.C. 122(e), which
enumerates certain conditions that
apply to a third-party preissuance
submission to the Office in a patent
application. Pursuant to 35 U.S.C.
122(e), third-party preissuance
submissions of patents, published
patent applications, or other printed
publications must be made in patent
applications before the earlier of: (a) The
date a notice of allowance under 35
U.S.C. 151 is given or mailed in the
application; or (b) the later of (i) six
months after the date on which the
application is first published under 35
U.S.C. 122 by the Office, or (ii) the date
of the first rejection under 35 U.S.C. 132
of any claim by the examiner during the
examination of the application. 35
U.S.C. 122(e) also requires a concise
description of the asserted relevance of
each document submitted, a fee as
prescribed by the Director, and a
statement by the person making the
third-party preissuance submission that
the submission was made in compliance
with 35 U.S.C. 122(e). A preissuance
submission by a third party may be
made in any non-provisional utility,
design, or plant application, as well as
in any continuing or reissue application.
The preissuance submissions by third
parties provision of the Leahy-Smith
America Invents Act takes effect on
September 16, 2012. This provision
applies to any patent application filed
before, on, or after September 16, 2012.
The Office plans to permit third-party
preissuance submissions to be filed via
the Office electronic filing system (EFS–
Web). However, third-party preissuance
submissions, whether submitted in
paper or electronically via EFS–Web,
would not be automatically entered into
the electronic image file wrapper (IFW)
for an application. Instead, preissuance
submissions submitted by third parties
would be reviewed to determine
compliance with 35 U.S.C. 122(e) and
new 37 CFR 1.290 before being entered
into the IFW. Third parties filing
preissuance submissions electronically
via EFS–Web, will receive immediate,
electronic acknowledgment of the
Office’s receipt of the submission,
instead of waiting for the Office to mail
a return postcard.
The current EFS–Web Legal
Framework prohibits third-party
submissions under 37 CFR 1.99 and 37
CFR 1.291 in patent applications
because electronically filed documents
are instantly loaded into the IFW. See
Legal Framework for Electronic Filing
System—Web (EFS–Web), 74 FR 55200,
55202, 55206–7 (October 27, 2009).
Because third-party preissuance
submissions would be permitted to be
filed electronically under the proposed
rule, the Office intends to protect
applicants by establishing procedures to
determine whether a third-party
preissuance submission is in
compliance with the requirements of
new 37 CFR 1.290 before entering the
submission into the IFW of an
application or making the submission
available to an examiner for
consideration. The Office intends to
complete such determination, for both
paper and electronic submissions,
promptly following receipt of the
submission so that compliant
preissuance submissions would be
quickly entered into the IFW and made
available to the examiner for
consideration. Non-compliant thirdparty
preissuance submissions would
not be entered into the IFW of an
application or considered and would be
discarded. Also, no refund of the
required fees would be provided in the
event a preissuance submission is
determined to be non-compliant. If an
electronic mail message address is
provided with a third party preissuance
submission, the Office may attempt to
notify the third party submitter of such
non-compliance; however, the statutory
time period for making a preissuance
submission would not be tolled by the
initial non-compliant submission.
The Office does not plan to require
that the third party serve the applicant
with a copy of the third-party’s
preissuance submission. Nor does the
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450 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
Office intend to directly notify the
applicant upon entry of a third-party
preissuance submission. However, the
contents of a compliant third-party
preissuance submission will be made
available to the applicant via its entry in
the IFW of the patent application. By
not requiring service of third-party
preissuance submissions on the
applicant, the Office is underscoring
that such third-party submissions will
not create a duty on the part of the
applicant to independently file the
submitted documents with the Office in
an information disclosure statement
(IDS). Additionally, challenges
regarding whether service of a thirdparty
preissuance submission was
proper could negatively impact the
pendency of the application.
35 U.S.C. 122(e) does not limit thirdparty
preissuance submissions to
pending applications. A third-party
preissuance submission made within
the statutory time period, and otherwise
compliant, would be entered even if the
application to which the submission is
directed has been abandoned. An
examiner would not consider such
preissuance submission unless the
application resumes a pending status
(e.g., the application is revived, the
notice of abandonment is withdrawn,
etc.). The abandonment of an
application will not, however, toll the
statutory time period for making a
preissuance submission. Additionally, a
third-party preissuance submission
made within the statutory time period,
and otherwise compliant, would be
entered even if the application to which
the submission is directed has not been
published.
Compliant third-party preissuance
submissions would be considered by the
examiner when the examiner next takes
up the application for action following
the entry of the preissuance submission
into the IFW. An examiner would
consider the documents and concise
descriptions submitted in a compliant
third-party preissuance submission in
the same manner that the examiner
considers information and concise
explanations of relevance submitted as
part of an IDS. Generally with the next
Office action, a copy of the third party’s
listing of documents, with an indication
of which documents were considered by
the examiner, would be provided to the
applicant. Documents considered by the
examiner would be printed on the
patent. Accordingly, an applicant would
not need to file an IDS to have the same
documents that were previously
submitted by a third party as part of a
compliant preissuance submission
considered by the examiner in the
application.
The Office plans to have examiners
acknowledge in the record of the patent
application the examiner’s
consideration of the documents
submitted. This will be done in a
manner similar to that of the examiner’s
consideration of applicant-submitted
documents filed as part of an IDS. For
example, the examiner would indicate
at the bottom of each page of a
preissuance submission ‘‘All documents
considered except where lined
through,’’ along with the examiner’s
electronic initials and the examiner’s
electronic signature on the final page of
the submission. See, e.g., Manual of
Patent Examining Procedure (MPEP)
§ 609.05(b) (8th ed. 2001) (Rev. 8, July
2010). Such indication by the examiner
placed at the bottom of each page of a
preissuance submission would mean
that the examiner has considered the
listed documents and their
accompanying concise descriptions.
Striking through a document would
mean that the examiner did not consider
either the document or its
accompanying concise description (e.g.,
because the document was listed
improperly, a copy of the document was
not submitted, or a concise description
was not provided for that document).
Since it would be advantageous for
examiners to have the best art before
them prior to issuing the first Office
action on the merits, and because a first
action allowance in the application
could close the time period for making
a preissuance submission under 35
U.S.C. 122(e), third parties should
consider providing any preissuance
submission at the earliest opportunity.
Additionally, because highly relevant
documents can be obfuscated by
voluminous submissions, third parties
should limit any preissuance
submission to the most relevant
documents and should avoid submitting
documents that are cumulative in
nature. Third parties need not submit
documents that are cumulative of each
other or that are cumulative of
information already under consideration
by the Office. Third parties are
reminded that 35 U.S.C. 122(e) requires
that the documents submitted be ‘‘of
potential relevance to the examination
of the application’’ and that the
relevance of each document submitted
must be provided in an accompanying
concise description.
The Director is proposing to set the
fees for third-party preissuance
submissions to recover costs to the
Office for third-party preissuance
submissions to the Office. 35 U.S.C.
122(e) expressly provides for ‘‘such fee
as the Director may prescribe.’’ The
Office is setting fees for third-party
preissuance submissions in this
rulemaking pursuant to its authority
under 35 U.S.C. 41(d)(2), which
provides that fees for all processing,
services, or materials relating to patents
not specified in 35 U.S.C. 41 are to be
set at amounts to recover the estimated
average cost to the Office of such
processing, services, or materials. See 35
U.S.C. 41(d)(2). The current rules of
practice (37 CFR 1.99) provide for a
third-party submission of up to ten
documents for the fee set forth in 37
CFR 1.17(p) (currently $180.00). The
Office expects the processing costs to
the Office for third-party preissuance
submissions under new 37 CFR 1.290 to
be equivalent to the processing costs to
the Office for submissions under 37 CFR
1.99. Accordingly, the Office has
determined that the fee set forth in 37
CFR 1.17(p) would also be applicable to
third-party preissuance submissions
under 37 CFR 1.290 and proposes to
require the fee set forth in 37 CFR
1.17(p) for every ten documents, or
fraction thereof, listed in each thirdparty
preissuance submission.
The Office proposes to provide an
exemption from this fee requirement
where a preissuance submission lists
three or fewer total documents and is
the first preissuance submission
submitted in an application by a third
party or a party in privity with the third
party. The Office is providing this fee
exemption for the first preissuance
submission in an application by a third
party containing three or fewer total
documents because the submission of a
limited number of documents is more
likely to assist in the examination
process and thus offset the cost of
processing the submission. Moreover,
keeping the size of the fee exempted
submission to three or fewer total
documents will help to focus the
attention of third parties on finding and
submitting only the most relevant art to
the claims at hand. Where one third
party takes advantage of the fee
exemption in an application, another
third party is not precluded from also
taking advantage of the fee exemption in
the same application provided that the
third parties are not in privity with each
other.
The Office proposes to implement 35
U.S.C. 122(e) in a new rule 37 CFR
1.290 and to eliminate § 1.99. While
current § 1.99 provides for third-party
submissions of patents, published
patent applications, or printed
publications, it does not permit an
accompanying concise description of
relevance of each document and limits
the time period for such submissions to
up to two months after the date of the
patent application publication, or the
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 451
mailing of a notice of allowance,
whichever is earlier. By contrast, new
35 U.S.C. 122(e) and proposed 37 CFR
1.290 permit third parties to submit the
same types of documents, but with an
accompanying concise description of
relevance of each document submitted
and provide third parties with the same
or more time to file preissuance
submissions with the Office when
compared with current 37 CFR 1.99.
Accordingly, the Office proposes to
eliminate 37 CFR 1.99 in favor of new
37 CFR 1.290.
The Office also plans to eliminate the
public use proceeding provisions of 37
CFR 1.292. Because Section 6 of the
Leahy-Smith America Invents Act
makes available a post-grant review
proceeding in which prior public use
may be raised, the pre-grant public use
proceeding set forth in 37 CFR 1.292 is
no longer considered necessary.
Additionally, information on prior
public use may be submitted by third
parties by way of a protest in a pending
application when the requirements of 37
CFR 1.291 have been met, and
utilization of 37 CFR 1.291 would
promote Office efficiency with respect
to treatment of these issues. Requests for
a public use proceeding under 37 CFR
1.292 are also very rare. The few public
use proceedings conducted each year
are a source of considerable delay in the
involved applications and seldom lead
to the rejection of claims.
In view of the proposed elimination of
37 CFR 1.99 and 37 CFR 1.292, the
Office proposes to amend 37 CFR 1.17
to eliminate the document submission
fees pertaining to 37 CFR 1.99 and 37
CFR 1.292. The Office also proposes to
amend 37 CFR 1.17 to add the
document submission fees pertaining to
new 37 CFR 1.290.
For ease of compliance, the Office
proposes to amend 37 CFR 1.291 to
make the requirements for submitting
protests against pending patent
applications more clear and, where
appropriate, more consistent with the
proposed requirements of new 37 CFR
1.290.
Discussion of Specific Rules
Title 37 of the Code of Federal
Regulations, Part 1, is proposed to be
amended as follows:
Section 1.99: Section 1.99 is proposed
to be removed and reserved. Section
1.99 is unnecessary because proposed
§ 1.290 provides for third-party
preissuance submissions of patents,
published patent applications, and other
printed publications to the Office for
consideration and inclusion in the
record of a patent application, with a
concise description of the relevance of
each document being submitted and
within time periods that are the same or
greater than those permitted under
§ 1.99.
Section 1.290: Section 1.290(a) as
proposed provides that a third party
may submit, for consideration and entry
in the record of a patent application,
any patents, published patent
applications, or other printed
publications of potential relevance to
the examination of the application if the
submission complies with 35 U.S.C.
122(e) and the requirements of § 1.290,
and provides that the submission will
not be entered or considered by the
Office if the submission is not in
compliance with 35 U.S.C. 122(e) and
§ 1.290. Because § 1.290(a) as proposed
requires preissuance submissions be
directed to patent applications, the
Office would not accept preissuance
submissions directed to issued patents.
Such submissions should be filed in
accordance with § 1.501. Section
1.290(a) as proposed does not require
that the application be published. For
example, the Office would accept a
compliant preissuance submission
directed to an application in which a
nonpublication request has been filed
pursuant to 35 U.S.C. 122(b)(2)(B)(i) and
§ 1.213. Preissuance submissions under
§ 1.290 as proposed may be directed to
non-provisional utility, design, and
plant applications, as well as to
continuing and reissue applications.
Also, § 1.290(a) as proposed limits the
type of information that may be
submitted to patent publications, which
include patents and published patent
applications, and other printed
publications of potential relevance to
the examination of a patent application.
For example, a submission under
§ 1.290 could not include unpublished
internal documents or other non-patent
documents which do not qualify as
‘‘printed publications.’’ See MPEP
§ 2128. In the case of a preissuance
submission that includes a lengthy
document, a third party could submit
the relevant portion of the document
(e.g., one chapter of a book) in lieu of
the entire document where it is practical
to do so. Because 35 U.S.C. 122(e) does
not limit the type of information that
may be submitted to prior art, there is
no requirement in § 1.290(a) as
proposed that the information submitted
be prior art documents in order to be
considered by the examiner. Further, in
those situations where a third party is
asserting that a document submitted is
prior art, the third party bears the
burden of establishing the date of the
document where the date is not
apparent from the document regardless
whether the document is in paper or
electronic format. In such situations, the
third party may submit evidence in the
form of affidavits, declarations, or other
evidence. Such evidence will not be
counted toward the document count,
unless the document is in the form of a
patent document or other printed
publication and the document, itself, is
listed and submitted for consideration
by the examiner.
Section 1.290(b) as proposed sets
forth the time periods in which a third
party may file a preissuance submission.
Under § 1.290(b) as proposed, any thirdparty
submission under this section
must be filed before the earlier of: (1)
The date a notice of allowance under
§ 1.311 is given or mailed in the
application; or (2) the later of: (i) six
months after the date on which the
application is first published by the
Office under 35 U.S.C. 122(b) and
§ 1.211, or (ii) the date the first rejection
under § 1.104 of any claim by the
examiner is given or mailed during the
examination of the application.
The time periods provided for in
§ 1.290(b) are statutory and cannot be
waived. Thus, the Office cannot grant
any request for extension of the
§ 1.290(b) time periods. Also,
preissuance submissions must be filed
before, not on, the dates identified in
§ 1.290(b)(i), (b)(2)(i), and (b)(2)(ii). A
preissuance submission under § 1.290 is
filed on its date of receipt in the Office
as set forth in § 1.6 (the provisions of
§ 1.8 do not apply to a preissuance
submission under § 1.290). Third-party
preissuance submissions that are not
timely filed would not be entered or
considered and would be discarded.
Proposed § 1.290(b)(2)(i) highlights a
distinction in the statutory language of
35 U.S.C. 122(c) and (e) with respect to
publication of the application. 35 U.S.C.
122(c) broadly refers to ‘‘publication of
the application,’’ whereas new 35 U.S.C.
122(e) refers to an application ‘‘first
published under section 122 by the
Office.’’ The § 1.290(b)(2)(i) time period
would be initiated only by publications
by the Office under 35 U.S.C. 122(b) and
§ 1.211, and would not be initiated by
a publication by the World Intellectual
Property Organization (WIPO). Thus, an
earlier publication by WIPO of an
international application designating
the U.S. filed on or after November 29,
2000, would not be considered a
publication that would initiate the
§ 1.290(b)(2)(i) time period for an
application which entered the national
stage from the international application
after compliance with 35 U.S.C. 371.
Further, where the Office republishes an
application due to material mistake of
the Office pursuant to 37 CFR 1.221(b),
the date on which the application is
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452 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
republished will be considered the date
the application is ‘‘first published by the
Office’’ under § 1.290(b)(2)(i).
The proposed new § 1.290(b)(2)(ii)
time period would be initiated by the
date the first rejection under § 1.104 of
any claim by the examiner is given or
mailed during the examination of the
application. The § 1.290(b)(2)(ii) time
period would not be initiated, for
example, by a first Office action that
only contains a restriction requirement
or where the first Office action is an
action under Ex parte Quayle, 1935 Dec.
Comm’r Pat. 11 (1935).
Section 1.290(c) as proposed requires
a preissuance submission to be made in
writing. For a paper filing, the third
party may include a self-addressed
postcard with the preissuance
submission to receive an
acknowledgment by the Office that the
preissuance submission has been
received. For an electronic filing, the
third party will receive immediate,
electronic acknowledgment of the
Office’s receipt of the submission. In
either case, the third party will not
receive any communications from the
Office relating to the submission other
than the self-addressed postcard or
electronic acknowledgment of receipt.
Section 1.290(c) as proposed also
requires that the application to which
the third-party submission is directed be
identified on each page of the
submission by application number (i.e.,
the series code and serial number),
except for the copies of the documents
that are being submitted pursuant to
§ 1.290(d)(3). By requiring identification
by application number, third-party
preissuance submissions could be
timely matched with the application file
and routed to the examiner.
Section 1.290(d)(1) as proposed
provides that any third-party
submission under § 1.290 must include
a list of the documents being submitted,
and the listing must include a heading
that identifies the listing as a third-party
preissuance submission under § 1.290.
Proposed § 1.290(e) also sets forth the
requirements for identifying the
documents being submitted and listed
pursuant to § 1.290(d)(1). The Office
proposes to provide a form similar to
forms PTO/SB/08A and 08B to assist
third parties in preparing the listing of
documents in accordance with
§§ 1.290(d)(1) and (e) and to ensure that
the documents are properly made of
record in the application file.
Section 1.290(d)(2) as proposed
requires a concise description of the
asserted relevance of each listed
document. 35 U.S.C. 122(e) requires that
each third-party preissuance submission
be accompanied by a ‘‘concise
description of the asserted relevance of
each document submitted.’’ The concise
description should explain why the
respective document has been
submitted and how it is of potential
relevance to the examination of the
application in which the preissuance
submission has been filed. Unless there
is no concise description provided for a
document that is listed, or the concise
description is merely a bare statement
that the document is relevant and thus
does not amount to a meaningful
concise description, the Office does not
propose to otherwise evaluate the
sufficiency of the concise description. It
would be a best practice that each
concise description point out the
relevant pages or lines of the respective
document, particularly where the
document is lengthy and complex and
the third party can identify a highly
relevant section, such as a particular
figure or paragraph. The third party may
present the concise description in a
format that would best explain to the
examiner the relevance of the
accompanying document, such as in a
narrative description or a claim chart.
Third parties should refrain from
submitting a verbose description of
relevance not only because the statute
calls for a ‘‘concise’’ description but also
because a focused description is more
effective in drawing the examiner’s
attention to the relevant issues.
Section 1.290(d)(3) as proposed
requires submission of a legible copy of
each listed document. See § 1.98(a)(2)
and MPEP § 609.04(a). Where only the
relevant portion of a document is listed,
the third party could submit only a copy
of that portion (e.g., where a particular
chapter of a book is listed and not the
entire book). When a copy of only a
relevant portion of a document is
submitted, the third party should also
submit copies of pages of the document
that provide identifying information
(e.g., a copy of the cover, the title page,
the copyright information page, etc.).
Under § 1.290(d)(3) as proposed, a third
party need not submit copies of U.S.
patents and U.S. patent application
publications, unless required by the
Office, as such documents are readily
accessible to examiners.
Section 1.290(d)(4) as proposed
requires an English language translation
of all relevant portions of any listed
non-English language document to be
considered by the examiner.
Section 1.290(d)(5)(i) as proposed
requires a statement by the party making
the submission that the party is not an
individual who has a duty to disclose
information with respect to the
application (i.e., each individual
associated with the filing and
prosecution of the patent application)
under § 1.56. Such statement is
intended to avoid potential misuse of
preissuance submissions by applicants
(e.g., by employing a third party ‘‘straw
man’’) to attempt to circumvent the IDS
rules.
Section 1.290(d)(5)(ii) as proposed
requires a statement by the party making
the submission that the submission
complies with the requirements of 35
U.S.C. 122(e) and § 1.290. To facilitate
compliance by third parties, the Office
proposes to provide a form for thirdparty
preissuance submissions under
§ 1.290 that includes the statements
required by §§ 1.290(d)(5)(i) and (ii).
Section 1.290(e) as proposed sets forth
the requirements for identifying the
documents submitted and listed
pursuant to § 1.290(d)(1). Section
1.290(e) requires that U.S. patents and
U.S. patent application publications be
listed in a separate section from other
documents. Separating the listing of
U.S. patents and U.S. patent application
publications from the listing of other
documents would facilitate printing the
U.S. patents and U.S. patent application
publications considered by the
examiner in a third-party preissuance
submission on the face of the patent.
Section 1.290(e)(1) as proposed
requires that each U.S. patent be
identified by patent number, first named
inventor, and issue date. Section
1.290(e)(2) as proposed requires that
each U.S. patent application publication
be identified by patent application
publication number, first named
inventor, and publication date. Section
1.290(e)(3) as proposed requires that
each foreign patent or published foreign
patent application be identified by the
country or patent office that issued the
patent or published the application, an
appropriate document number, first
named inventor, and the publication
date indicated on the patent or
published application. Requiring U.S.
and foreign patent and published patent
application documents to be identified
by the first named inventor should aid
in identifying the listed documents in
the event the application number,
publication number, or other
appropriate document number data is
inadvertently transposed or otherwise
misidentified. Section 1.290(e)(4) as
proposed requires that each non-patent
publication be identified by publisher,
author, title, pages being submitted,
publication date, and place of
publication, where such information is
available. The qualifier ‘‘where
available’’ applies to each item of
information specified in § 1.290(e)(4).
Thus, if an item of information is not
available for a particular non-patent
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publication (e.g., publisher
information), the third party need not
provide that information, and the
citation of the non-patent publication
would not be improper as a result of not
providing that information. Further,
§ 1.290(e)(4) as proposed does not
preclude additional information not
specified in § 1.290(e)(4) from being
provided (e.g., journal title and volume/
issue information for a journal article).
Section 1.290(e)(4) as proposed also
provides that the third party bears the
burden of establishing the date of a nonpatent
publication where the non-patent
publication is asserted by the third party
to be prior art and the date is not
apparent from the document, regardless
whether the document is in paper or
electronic form.
Section 1.290(f) as proposed requires
payment of the fee set forth in § 1.17(p)
for every ten documents or fraction
thereof being submitted, except where
the submission is accompanied by the
statement set forth in proposed
§ 1.290(g). The Office proposes to
determine the document count based on
the § 1.290(d)(1) listing of documents.
Thus, if a document is listed but a copy
of the document is not submitted, the
listed document would be counted
toward the document count. If a copy of
a document is submitted but the
document is not listed, the document
would not be counted or considered and
would be discarded. A third party
would be permitted to cite less than an
entire publication in the § 1.290(d)(1)
listing, which would be counted as one
document. Further, while a third party
would be permitted to cite different
publications that are all available from
the same electronic source, such as a
Web site, each such publication would
be counted as a separate document.
Section 1.290(g) as proposed provides
an exemption from the § 1.290(f) fee
requirement where a preissuance
submission listing three or fewer total
documents is the first preissuance
submission submitted in an application
by a third party, or a party in privity
with the third party. Where one third
party takes advantage of the fee
exemption in an application, another
third party is not precluded from also
taking advantage of the fee exemption in
the same application as long as the third
parties are not in privity with each
other. For example, applying the current
37 CFR 1.17(p) fee of $180.00 in
accordance with proposed §§ 1.290(f)
and (g): (1) No fee would be required for
the first preissuance submission by a
third party containing three or fewer
total documents; (2) a $180.00 fee would
be required for the first preissuance
submission by a third party containing
more than three, but ten or fewer total
documents: and (3) a $360.00 fee would
be required for the first preissuance
submission by a third party containing
more than ten, but twenty or fewer total
documents. For a second or subsequent
preissuance submission by the same
third party: (1) A $180.00 fee would be
required where the second or
subsequent preissuance submission by
the third party contains ten or fewer
total documents; and (2) a $360.00 fee
would be required where the second or
subsequent preissuance submission by
the same third party contains more than
ten, but twenty or fewer total
documents.
To implement the fee exemption in
§ 1.290(g) and avoid potential misuse of
such exemption, the Office proposes to
require that exemption-eligible
preissuance submissions be
accompanied by a statement of the third
party that, to the knowledge of the
person signing the statement after
making reasonable inquiry, the
submission is the first and only
preissuance submission submitted in
the application by the third party or a
party in privity with the third party. To
preclude a third party from making
multiple preissuance submissions in the
same application on the same day and
asserting that each such submission is
the first preissuance submission being
submitted in the application by the
third party, the § 1.290(g) statement
would require that the submission be
the ‘‘first and only’’ preissuance
submission. This statement would not,
however, preclude the third party from
making more than one preissuance
submission in an application, where the
need for the subsequent submissions
was not known at the time the earlier
submission including the § 1.290(g)
statement was filed with the Office.
Such additional submissions would not
be exempt from the § 1.290(f) fee
requirement.
The Office does not propose to
entertain challenges to the accuracy of
such third-party statements because,
pursuant to § 11.18(b), whoever
knowingly and willfully makes any
false, fictitious, or fraudulent statements
or representations to the Office shall be
subject to the penalties set forth under
18 U.S.C. 1001. Section 11.18(b) applies
to any paper presented to the Office,
whether by a practitioner or nonpractitioner.
Additionally, the Office does not
propose to require an explicit
identification of a real party in interest
because such identification might
discourage some third parties from
making a preissuance submission or
invite challenges based on allegations of
misidentification.
Section 1.290(h) as proposed provides
that in the absence of a request by the
Office, an applicant has no duty to, and
need not, reply to a submission under
§ 1.290. Likewise, because the
prosecution of a patent application is an
ex parte proceeding, no further response
from a third party with respect to an
examiner’s treatment of the third party’s
preissuance submission would be
permitted or considered.
Section 1.290(i) as proposed provides
that the provisions of § 1.8 do not apply
to the time periods set forth in § 1.290.
Section 1.291: The Office proposes to
amend portions of § 1.291 for clarity and
also for consistency with new 35 U.S.C.
122(e) and proposed § 1.290.
Section 1.291(b) is proposed to be
amended to clarify that the application
publication date is the date the
application was published under 35
U.S.C. 122(b), and § 1.211 and is also
proposed to be amended by including
‘‘given or’’ before ‘‘mailed’’ to provide
for electronic notification of the notice
of allowance (i.e., e-Office action).
Section 1.291(b)(1) is proposed to be
amended to more clearly define the time
period for submitting protests under
§ 1.291 that are accompanied by
applicant consent. Specifically,
§ 1.291(b)(1) is proposed to be amended
to provide that, if a protest is
accompanied by the written consent of
the applicant, the protest will be
considered if the protest is filed before
a notice of allowance under § 1.311 is
given or mailed in the application. This
amendment would provide a definite
standard for both the Office and third
parties and would give more certainty as
to when a protest under § 1.291 that is
accompanied by applicant consent
would or would not be accepted by the
Office. Moreover, it is reasonable that
the time period for submission ends
when a notice of allowance is given or
mailed in the application in view of the
current publication process.
Under the current publication
process, final electronic capture of
information to be printed in a patent
will begin as soon as an allowed
application is received in the Office of
Patent Publication, immediately after
the notice of allowance has been given
or mailed. See MPEP § 1309.
Section 1.291(c)(1) is proposed to be
amended to set forth the requirements
for identifying the information being
submitted and listed, consistent with
proposed § 1.290(e). Section
1.291(c)(1)(i) as proposed to be amended
requires that each U.S. patent be
identified by patent number, first named
inventor, and issue date. Section
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1.291(c)(1)(ii) as proposed to be
amended requires that each U.S. patent
application publication be identified by
patent application publication number,
first named inventor, and publication
date. Section 1.291(c)(1)(iii) as proposed
to be amended requires that each foreign
patent or published foreign patent
application be identified by the country
or patent office that issued the patent or
published the application, an
appropriate document number, first
named inventor, and the publication
date indicated on the patent or
published application. Section
1.291(c)(1)(iv) as proposed to be
amended requires that each non-patent
publication be identified by publisher,
author, title, pages being submitted,
publication date, and place of
publication, where such information is
available. The qualifier ‘‘where such
information is available’’ applies to each
item of information specified in
§ 1.291(c)(1)(iv). Thus, if an item of
information is not available for a
particular non-patent publication (e.g.,
publisher information), the protestor
need not provide that information, and
the citation of the non-patent
publication would not be improper as a
result of not providing that information.
Further, § 1.291(c)(1)(iv) as proposed to
be amended does not preclude
additional information not specified in
§ 1.291(c)(1)(iv) from being provided
(e.g., journal title and volume/issue
information for a journal article).
Section 1.291(c)(1)(v) as proposed to be
amended requires that each item of
other information be identified by date,
if known. Requiring U.S. and foreign
patent and published patent application
documents to be identified by the first
named inventor should aid in
identifying the listed documents in the
event the application number,
publication number, or other
appropriate document number data is
inadvertently transposed or otherwise
misidentified.
Section 1.291(c)(2) is proposed to be
amended to change ‘‘explanation’’ to
‘‘description’’ to conform to proposed
§ 1.290(d)(2). This amendment would
clarify that there is no difference
between the concise description of
relevance for a third-party preissuance
submission and the concise description
of relevance for a protest.
Section 1.291(c)(3) is proposed to be
amended to clarify that copies of
information submitted must be legible.
See § 1.98(a)(2) and MPEP § 609.04(a).
Section 1.291(c)(3) is also proposed to
be amended to provide that copies of
U.S. patents and U.S. patent application
publications would not need to be
submitted, unless required by the
Office, as such documents are readily
accessible to examiners.
Section 1.292: Section 1.292 is
proposed to be removed and reserved.
The practice of providing a pre-grant
public use proceeding as set forth in
§ 1.292 is no longer considered
necessary, and is inefficient as
compared to alternative mechanisms
available to third parties for raising
prior public use; for example, as
provided for by § 1.291 protests, where
appropriate, and also by Section 6 of the
Leahy-Smith America Invents Act
which makes available a post-grant
review proceeding.
Sections 1.17 and 41.202: Sections
1.17 and 41.202 would also be amended
to change or remove references to
§§ 1.99 and 1.292, for consistency with
the proposed addition of new § 1.290
and removal of §§ 1.99 and 1.292.
Section 1.17(i) would also be amended
to correct a misidentification of
§ 1.53(b)(3) to § 1.53(c)(3) concerning
the fee for converting a provisional
application filed under § 1.53(c) into a
nonprovisional application under
§ 1.53(b).
Rulemaking Considerations
A. Administrative Procedure Act: This
notice proposes changes to the rules of
practice concerning the procedure for
filing third party preissuance
submissions. The changes proposed in
this notice do not change the
substantive criteria of patentability.
Therefore, the changes in this proposed
rule are merely procedural and/or
interpretive. See Bachow Communs.,
Inc. v. FCC, 237 F.3d 683, 690 (DC Cir.
2001) (rules governing an application
process are procedural under the
Administrative Procedure Act); Inova
Alexandria Hosp. v. Shalala, 244 F.3d
242, 350 (4th Cir. 2001) (rules for
handling appeals were procedural
where they did not change the
substantive standard for reviewing
claims); Nat’l Org. of Veterans’
Advocates v. Sec’y of Veterans Affairs,
260 F.3d 1365, 1375 (Fed. Cir. 2001)
(rule that clarifies interpretation of a
statute is interpretive).
Accordingly, prior notice and
opportunity for public comment are not
required pursuant to 5 U.S.C. 553(b) or
(c) (or any other law) and thirty-day
advance publication is not required
pursuant to 5 U.S.C. 553(d) (or any other
law). See Cooper Techs. Co. v. Dudas,
536 F.3d 1330, 1336–37 (Fed. Cir. 2008)
(stating that 5 U.S.C. 553, and thus 35
U.S.C. 2(b)(2)(B), does not require notice
and comment rulemaking for
‘‘interpretative rules, general statements
of policy, or rules of agency
organization, procedure, or practice.’’)
(quoting 5 U.S.C. 553(b)(A)). The Office,
however, is publishing these changes
and the Regulatory Flexibility Act
certification discussion below, for
comment as it seeks the benefit of the
public’s views on the Office’s proposed
implementation of this provision of the
Leahy-Smith America Invents Act.
B. Regulatory Flexibility Act: For the
reasons set forth herein, the Deputy
General Counsel for General Law of the
United States Patent and Trademark
Office has certified to the Chief Counsel
for Advocacy of the Small Business
Administration that changes proposed
in this notice will not have a significant
economic impact on a substantial
number of small entities. See 5 U.S.C.
605(b). This notice proposes changes to
the rules of practice to implement
section 8 of the Leahy-Smith America
Invents Act, which provides a
mechanism for third parties to submit to
the Office, for consideration and
inclusion in the record of a patent
application, any patents, published
patent applications, or other printed
publications of potential relevance to
the examination of the application.
The changes proposed in this notice
concern requirements for third parties
submitting patents, published patent
applications, or other printed
publications in a patent application.
The burden to all entities, including
small entities, imposed by these rules is
a minor addition to that of the current
regulations for third-party submissions
under § 1.99. Consistent with the
current regulations, the Office will
continue to require third parties filing
submissions to, for example, file a
listing of the documents submitted
along with a copy of each document,
with minor additional formatting
requirements. Additional requirements
proposed in this notice are requirements
of statute (e.g., the concise explanation)
and thus the sole means of
accomplishing the purpose of the
statute. Because of the expanded scope
of submissions under this rulemaking
and additional requirements by statute,
the Office believes this will take a total
of 10 hours at a cost of $3,400.00 per
submission. Furthermore, the Office
estimates that no more than 730 small
entity third parties will make
preissuance submissions per year.
Therefore, the changes proposed in this
notice will not have a significant
economic impact on a substantial
number of small entities.
C. Executive Order 12866 (Regulatory
Planning and Review): This rulemaking
has been determined to be not
significant for purposes of Executive
Order 12866 (Sept. 30, 1993).
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D. Executive Order 13563 (Improving
Regulation and Regulatory Review): The
Office has complied with Executive
Order 13563. Specifically, the Office
has, to the extent feasible and
applicable: (1) Made a reasoned
determination that the benefits justify
the costs of the rule; (2) tailored the rule
to impose the least burden on society
consistent with obtaining the regulatory
objectives; (3) selected a regulatory
approach that maximizes net benefits;
(4) specified performance objectives; (5)
identified and assessed available
alternatives; (6) involved the public in
an open exchange of information and
perspectives among experts in relevant
disciplines, affected stakeholders in the
private sector and the public as a whole,
and provided on-line access to the
rulemaking docket; (7) attempted to
promote coordination, simplification,
and harmonization across government
agencies and identified goals designed
to promote innovation; (8) considered
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public; and (9) ensured
the objectivity of scientific and
technological information and
processes.
E. Executive Order 13132
(Federalism): This rulemaking does not
contain policies with federalism
implications sufficient to warrant
preparation of a Federalism Assessment
under Executive Order 13132 (Aug. 4,
1999).
F. Executive Order 13175 (Tribal
Consultation): This rulemaking will not:
(1) Have substantial direct effects on one
or more Indian tribes; (2) impose
substantial direct compliance costs on
Indian tribal governments; or (3)
preempt tribal law. Therefore, a tribal
summary impact statement is not
required under Executive Order 13175
(Nov. 6, 2000).
G. Executive Order 13211 (Energy
Effects): This rulemaking is not a
significant energy action under
Executive Order 13211 because this
rulemaking is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Therefore,
a Statement of Energy Effects is not
required under Executive Order 13211
(May 18, 2001).
H. Executive Order 12988 (Civil
Justice Reform): This rulemaking meets
applicable standards to minimize
litigation, eliminate ambiguity, and
reduce burden as set forth in sections
3(a) and 3(b)(2) of Executive Order
12988 (Feb. 5, 1996).
I. Executive Order 13045 (Protection
of Children): This rulemaking does not
concern an environmental risk to health
or safety that may disproportionately
affect children under Executive Order
13045 (Apr. 21, 1997).
J. Executive Order 12630 (Taking of
Private Property): This rulemaking will
not effect a taking of private property or
otherwise have taking implications
under Executive Order 12630 (Mar. 15,
1988).
K. Congressional Review Act: Under
the Congressional Review Act
provisions of the Small Business
Regulatory Enforcement Fairness Act of
1996 (5 U.S.C. 801 et seq.), prior to
issuing any final rule, the United States
Patent and Trademark Office will
submit a report containing the final rule
and other required information to the
United States Senate, the United States
House of Representatives, and the
Comptroller General of the Government
Accountability Office. The changes in
this notice are not expected to result in
an annual effect on the economy of 100
million dollars or more, a major increase
in costs or prices, or significant adverse
effects on competition, employment,
investment, productivity, innovation, or
the ability of United States-based
enterprises to compete with foreignbased
enterprises in domestic and
export markets. Therefore, this notice is
not expected to result in a ‘‘major rule’’
as defined in 5 U.S.C. 804(2).
L. Unfunded Mandates Reform Act of
1995: The changes proposed in this
notice do not involve a Federal
intergovernmental mandate that will
result in the expenditure by State, local,
and tribal governments, in the aggregate,
of 100 million dollars (as adjusted) or
more in any one year, or a Federal
private sector mandate that will result
in the expenditure by the private sector
of 100 million dollars (as adjusted) or
more in any one year, and will not
significantly or uniquely affect small
governments. Therefore, no actions are
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995. See 2 U.S.C. 1501 et seq.
M. National Environmental Policy
Act: This rulemaking will not have any
effect on the quality of environment and
is thus categorically excluded from
review under the National
Environmental Policy Act of 1969. See
42 U.S.C. 4321 et seq.
N. National Technology Transfer and
Advancement Act: The requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) are not
applicable because this rulemaking does
not contain provisions which involve
the use of technical standards.
O. Paperwork Reduction Act: The
Paperwork Reduction Act of 1995 (44
U.S.C. 3501 et seq.) requires that the
Office consider the impact of paperwork
and other information collection
burdens imposed on the public. This
rulemaking proposes changes to the
rules of practice that would impact
existing information collection
requirements previously approved by
the Office of Management and Budget
(OMB) under OMB Control Number
0651–0062. Accordingly, the Office will
submit to the OMB a proposed revision
to the information collection
requirements under 0651–0062. The
proposed revision will be available at
the OMB’s Information Collection
Review Web site (www.reginfo.gov/
public/do/PRAMain).
Needs and Uses: This information
collection is necessary so that the public
may submit patents, published patent
applications, and other printed
publications to the Office for
consideration in a patent application.
The Office will use this information, as
appropriate, during the patent
examination process to assist in
evaluating the patent application. The
Office will provide a form (PTO/SB/429)
to assist the public in making a
submission of patents, published patent
applications, and other printed
publications for consideration in a
patent application.
Title of Collection: Third-Party
Submissions and Protests.
OMB Control Number: 0651–0062.
Form Numbers: PTO/SB/429.
Method of Collection: By mail,
facsimile, hand delivery, or
electronically to the Office.
Affected Public: Individuals or
households; businesses or other forprofits;
and not-for-profit institutions.
Estimated Number of Respondents:
1,030 responses filed per year.
Estimated Time per Response: The
Office estimates that the responses in
this collection will take the public 10
hours.
Estimated Total Annual Respondent
Burden Hours: 10,300 hours per year.
Estimated Total Annual Respondent
Cost Burden: $3,502,000 per year.
Estimated Total Annual Non-hour
Respondent Cost Burden: $185,400 per
year in the form of filing fees.
The Office is soliciting comments to:
(1) Evaluate whether the proposed
information requirement is necessary for
the proper performance of the functions
of the Office, including whether the
information will have practical utility;
(2) evaluate the accuracy of the Office’s
estimate of the burden; (3) enhance the
quality, utility, and clarity of the
information to be collected; and (4)
minimize the burden of collecting the
information on those who are to
respond, including by using appropriate
automated, electronic, mechanical or
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other technological collection
techniques or other forms of information
technology.
Please send comments on or before
March 5, 2012 to Mail Stop Comments—
Patents, Commissioner for Patents, P.O.
Box 1450, Alexandria, VA 22313–1450,
marked to the attention of Raul Tamayo,
Legal Advisor, Office of Patent Legal
Administration, Office of the Associate
Commissioner for Patent Examination
Policy. Comments should also be
submitted to the Office of Information
and Regulatory Affairs, Office of
Management and Budget, New
Executive Office Building, Room 10202,
725 17th Street NW., Washington, DC
20503, Attention: Desk Officer for the
Patent and Trademark Office.
Notwithstanding any other provision
of law, no person is required to respond
to, nor shall a person be subject to a
penalty for failure to comply with, a
collection of information subject to the
requirements of the Paperwork
Reduction Act, unless that collection of
information displays a currently valid
OMB control number.
List of Subjects in 37 CFR Part 1
Administrative practice and
procedure, Courts, Freedom of
Information, Inventions and patents,
Reporting and record keeping
requirements, Small Businesses.
For the reasons set forth in the
preamble, 37 CFR part 1 is proposed to
be amended as follows:
PART 1—RULES OF PRACTICE IN
PATENT CASES
1. The authority citation for 37 CFR
part 1 continues to read as follows:
Authority: 35 U.S.C. 2(b)(2).
2. Section 1.99 is removed and
reserved.
§ 1.99 [Reserved]
3. Section 1.290 is added as follows:
§ 1.290 Submissions by third parties in
applications.
(a) A third party may submit, for
consideration and entry in the record of
a patent application, any patents,
published patent applications, or other
printed publications of potential
relevance to the examination of the
application if the submission is in
compliance with 35 U.S.C. 122(e) and
this section. A third-party submission in
an application will not be entered or
considered by the Office if the
submission is not in compliance with 35
U.S.C. 122(e) and this section.
(b) Any third-party submission under
this section must be filed before the
earlier of:
(1) The date a notice of allowance
under § 1.311 is given or mailed in the
application; or
(2) The later of:
(i) Six months after the date on which
the application is first published by the
Office under 35 U.S.C. 122(b) and
§ 1.211, or
(ii) The date the first rejection under
§ 1.104 of any claim by the examiner is
given or mailed during the examination
of the application.
(c) Any third-party submission under
this section must be made in writing,
and identify on each page of the
submission, except for copies required
by paragraph (d)(3) of this section, the
application to which the submission is
directed by application number.
(d) Any third-party submission under
this section must include:
(1) A list of the documents being
submitted;
(2) A concise description of the
asserted relevance of each listed
document;
(3) A legible copy of each listed
document, or the portion which caused
it to be listed, other than U.S. patents
and U.S. patent application
publications, unless required by the
Office;
(4) An English language translation of
all relevant portions of any listed non-
English language document to be
considered by the examiner; and
(5) A statement by the party making
the submission that:
(i) The party is not an individual who
has a duty to disclose information with
respect to the application under § 1.56;
and
(ii) The submission complies with the
requirements of 35 U.S.C. 122(e) and
this section.
(e) The list of documents required by
paragraph (d)(1) of this section must list
U.S. patents and U.S. patent application
publications in a separate section from
other documents, include a heading that
identifies the listing as a third-party
preissuance submission under § 1.290,
and identify each:
(1) U.S. patent by patent number, first
named inventor, and issue date;
(2) U.S. patent application publication
by patent application publication
number, first named inventor, and
publication date;
(3) Foreign patent or published
foreign patent application by the
country or patent office that issued the
patent or published the application, first
named inventor, an appropriate
document number, and the publication
date indicated on the patent or
published application; and
(4) Non-patent publication by
publisher, author, title, pages being
submitted, publication date, and place
of publication, where available. If not
apparent from the document, the third
party bears the burden of establishing
the date of a non-patent publication
where asserted to be prior art.
(f) Any third-party submission under
this section must be accompanied by the
fee set forth in § 1.17(p) for every ten
documents or fraction thereof being
submitted.
(g) The fee otherwise required by
paragraph (f) of this section is not
required for a submission listing three
or fewer total documents that is
accompanied by a statement by the
party making the submission that, to the
knowledge of the person signing the
statement after making reasonable
inquiry, the submission is the first and
only submission under 35 U.S.C. 122(e)
submitted in the application by the
party or a party in privity with the
party.
(h) In the absence of a request by the
Office, an applicant has no duty to, and
need not, reply to a submission under
this section.
(i) The provisions of § 1.8 do not
apply to the time periods set forth in
this section.
4. Section 1.291 is amended by
revising the introductory text of
paragraph (b) and paragraphs (b)(1) and
(c) to read as follows:
§ 1.291 Protests by the public against
pending applications.
* * * * *
(b) The protest will be entered into
the record of the application if, in
addition to complying with paragraph
(c) of this section, the protest has been
served upon the applicant in accordance
with § 1.248, or filed with the Office in
duplicate in the event service is not
possible; and, except for paragraph
(b)(1) of this section, the protest was
filed prior to the date the application
was published under 35 U.S.C. 122(b)
and § 1.211, or a notice of allowance
under § 1.311 was given or mailed,
whichever occurs first.
(1) If a protest is accompanied by the
written consent of the applicant, the
protest will be considered if the protest
is filed before a notice of allowance
under § 1.311 is given or mailed in the
application.
* * * * *
(c) In addition to compliance with
paragraphs (a) and (b) of this section, a
protest must include:
(1) A listing of the patents,
publications, or other information relied
upon identifying:
(i) Each U.S. patent by patent number,
first named inventor, and issue date;
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(ii) Each U.S. patent application
publication by patent application
publication number, first named
inventor, and publication date;
(iii) Each foreign patent or published
foreign patent application by the
country or patent office that issued the
patent or published the application, an
appropriate document number, first
named inventor, and the publication
date indicated on the patent or
published application;
(iv) Each printed publication is
identified by publisher, author, title,
pages being submitted, publication date,
and place of publication, where
available; and
(vi) Each item of other information by
date, if known.
(2) A concise description of the
relevance of each item listed pursuant to
paragraph (c)(1) of this section;
(3) A legible copy of each listed
patent, publication, or other item of
information in written form, or at least
the pertinent portions thereof, other
than U.S. patents and U.S. patent
application publications, unless
required by the Office;
* * * * *
5. Section 1.292 is removed and
reserved.
§ 1.292 [Reserved]
Dated: December 30, 2011.
David J. Kappos,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
[FR Doc. 2011–33811 Filed 1–4–12; 8:45 am]
BILLING CODE 3510–16–P
DEPARTMENT OF COMMERCE
United States Patent and Trademark
Office
37 CFR Part 11
[Docket No. PTO–C–2011–0089]
RIN 0651–AC76
Implementation of Statute of
Limitations Provisions for Office
Disciplinary Proceedings
AGENCY: United States Patent and
Trademark Office, Commerce.
ACTION: Notice of proposed rulemaking,
request for comments.
SUMMARY: The Leahy-Smith America
Invents Act (AIA) requires that
disciplinary proceedings be commenced
not later than the earlier of the date that
is 10 years after the date on which the
misconduct forming the basis of the
proceeding occurred, or one year from
the date on which the misconduct
forming the basis of the proceeding was
made known to an officer or employee
of the United States Patent and
Trademark Office (Office or USPTO), as
prescribed in the regulations governing
disciplinary proceedings. The Office
initiates disciplinary proceedings via
three types of disciplinary complaints:
complaints predicated on the receipt of
a probable cause determination from the
Committee on Discipline; complaints
seeking reciprocal discipline; and
complaints seeking interim suspension
based on a serious crime conviction.
This notice proposes that the one-year
statute of limitations commences, with
respect to complaints predicated on the
receipt of a probable cause
determination from the Committee on
Discipline, the date on which the
Director, Office of Enrollment and
Discipline (OED Director) receives from
the practitioner a complete, written
response to a request for information
and evidence; with respect to
complaints based on reciprocal
discipline, the date on which the OED
Director receives a certified copy of the
record or order regarding the
practitioner being publicly censured,
publicly reprimanded, subjected to
probation, disbarred, suspended, or
disciplinarily disqualified; and, with
respect to complaints for interim
suspension based on a serious crime
conviction, the date on which the OED
Director receives a certified copy of the
record, docket entry, or judgment
demonstrating that the practitioner has
been convicted of a serious crime.
DATES: To be ensured of consideration,
written comments must be received on
or before March 5, 2012.
ADDRESSES: Comments should be sent
by electronic mail message over the
Internet addressed to:
OED_SOL@uspto.gov. Comments may
also be submitted by mail addressed to:
Mail Stop OED–Ethics Rules, United
States Patent and Trademark Office,
P.O. Box 1450, Alexandria, Virginia
22313–1450, marked to the attention of
William R. Covey, Deputy General
Counsel for Enrollment and Discipline
and Director of the Office of Enrollment
and Discipline. Comments may also be
sent by electronic mail message over the
Internet via the Federal eRulemaking
Portal. See the Federal eRulemaking
Portal Web site (http://
www.regulations.gov) for additional
instructions on providing comments via
the Federal eRulemaking Portal.
Although comments may be
submitted by postal mail, the Office
prefers to receive comments by
electronic mail message over the
Internet because sharing comments with
the public is more easily accomplished.
Electronic comments are preferred to be
submitted in plain text, but also may be
submitted in ADOBE® portable
document format or MICROSOFT
WORD® format. Comments not
submitted electronically should be
submitted on paper in a format that
facilitates convenient digital scanning
into ADOBE® portable document
format.
Comments will be made available for
public inspection at the Office of
Enrollment and Discipline, located on
the 8th Floor of the Madison West
Building, 600 Dulany Street,
Alexandria, Virginia. Comments also
will be available for viewing via the
Office’s Internet Web site (http://
www.uspto.gov). Because comments will
be made available for public inspection,
information that the submitter does not
desire to make public, such as an
address or phone number, should not be
included in the comments.
FOR FURTHER INFORMATION CONTACT:
William R. Covey, Deputy General
Counsel for Enrollment and Discipline
and Director of the Office of Enrollment
and Discipline, by telephone at (571)
272–4097.
SUPPLEMENTARY INFORMATION: Under 35
U.S.C. 32, the Office may take
disciplinary action against any person,
agent, or attorney who fails to comply
with the regulations established under
35 U.S.C. 2(b)(2)(D). Procedural
regulations governing the investigation
of possible grounds for discipline and
the conduct of disciplinary proceedings
are set forth at 37 CFR 11.19 et seq.
Section 32 of Title 35, United States
Code, as amended by the AIA, requires
that a disciplinary proceeding be
commenced not later than the earlier of
either 10 years after the date on which
the misconduct forming the basis for the
proceeding occurred, or one year after
the date on which the misconduct
forming the basis for the proceeding is
made known to an officer or employee
of the Office, as prescribed in the
regulations established under 35 U.S.C.
2(b)(2)(D). Thus, the AIA’s amendment
directs the Office to establish
regulations clarifying when misconduct
forming the basis for a disciplinary
proceeding is made known to the Office.
Prior to the AIA’s amendment to 35
U.S.C. 32, disciplinary actions for
violations of the USPTO Code of
Professional Responsibility were
generally understood to be subject to a
five-year statute of limitations pursuant
to 28 U.S.C. 2462. See, e.g., Sheinbein
v. Dudas, 465 F.3d 493, 496 (Fed. Cir.
2006). With the AIA’s new 10-year
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458 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
limitation period, Congress provided the
Office with five additional years to bring
an action, thus ensuring that the Office
had additional flexibility to initiate ‘‘a
[disciplinary] proceeding for the vast
bulk of misconduct that is discovered,
while also staying within the limits of
what attorneys can reasonably be
expected to remember,’’ Congressional
Record S1372–1373 (daily ed. March 8,
2011) (statement of Sen. Kyl). Therefore,
the new 10-year limitation period
indicates congressional intent to extend
the time permitted to file a disciplinary
action against a practitioner who
violates the USPTO Code of Professional
Responsibility, rather than to allow such
actions to become time-barred. See id. at
S1372 (‘‘[A] strict five-year statute of
limitations that runs from when the
misconduct occurs, rather than from
when it reasonably could have been
discovered, would appear to preclude a
section 32 proceeding for a significant
number of cases of serious
misconduct’’).
The one-year limitation period in the
AIA reflects that disciplinary actions
should be filed in a timely manner from
the date when misconduct forming the
basis of a disciplinary complaint against
a practitioner is made known to ‘‘that
section of PTO charged with conducting
section 32 proceedings,’’ Congressional
Record S1372 (daily ed. March 8, 2011)
(statement of Sen. Kyl). The proposed
regulation satisfies the goal of
commencing section 32 proceedings
without undue delay.
Generally speaking, there are four
steps taken by the OED Director prior to
the filing of a § 11.32 disciplinary
complaint against a practitioner: (1)
Preliminary screening of the allegations
made against the practitioner, see
§ 11.22(d); (2) requesting of information
from the practitioner about his or her
alleged conduct, see § 11.22(f)(1)(ii); (3)
conducting a thorough investigation
after providing the practitioner an
opportunity to respond to the
allegations, see § 11.22(a); and (4)
submitting the investigated case to the
Committee on Discipline for a
determination of whether there is
probable cause to bring charges against
the practitioner, see § 11.32.
The first step is the preliminary
screening of allegations to evaluate
whether they merit providing the
practitioner the opportunity to address
them. Allegations are often incomplete
and do not provide the OED Director
with a full picture of what may have
transpired. In other words, mere
allegations do not necessarily provide
the OED Director with a reasonable
basis for automatically seeking
information from the practitioner
regarding a possible ethical violation;
therefore, the OED Director always
conducts an initial review of the
allegations. Moreover, the OED Director
recognizes that issuing a request for
information to the practitioner—the
second step—typically triggers anxiety
for the practitioner, may interfere with
the practitioner’s practice, and may
cause the practitioner to incur legal
expenses in responding to investigative
inquiries by OED. For this reason also,
OED does not contact the practitioner
automatically upon receipt of
information alleging a practitioner
committed an ethical violation. In short,
the OED Director seeks the practitioner’s
side of the story, if at all, only after the
OED Director preliminarily screens the
information and determines that
possible grounds for discipline exist.
See 37 CFR 11.22(d).
During the preliminary screening
process, an OED staff attorney reviews
the allegations to determine whether
they implicate any of the Disciplinary
Rules of the USPTO Code of
Professional Responsibility. To this end,
the attorney may seek out additional
evidence (review Office records, request
additional information from the person
making the allegations or from third
persons, etc.) to ensure that the matter
is disciplinary in nature and the
allegations are supported by objective
evidence.
The OED’s preliminary screening may
obviate the need to seek information
from the practitioner because the
screening often reveals that the
allegations do not present a basis for
filing a § 11.32 disciplinary action
against the practitioner. Under such
circumstances, the OED Director closes
the case without contacting the
practitioner. Hence, the preliminary
screening helps ensure that a
practitioner is not subjected to a
premature request for information or its
attendant stress, turmoil, and cost. The
screening also ensures that the Office
does not expend its limited resources
seeking information from a practitioner
unnecessarily.
After the preliminary screening, if the
OED Director determines that the
allegations establish possible grounds
for discipline, the OED Director seeks
the practitioner’s side of the story—the
second step prior to filing a § 11.32
action. Specifically, the OED Director
requests information or evidence from
the practitioner pursuant to
§ 11.22(f)(1)(ii). The practitioner will
then have an opportunity to respond to
the allegations levied against him or her.
Typically, the OED Director does not
and cannot have sufficient information
to complete a thorough investigation—
the third step—before the practitioner
has had the opportunity to present his
or her side of the story.
Based on current caseload and staffing
levels, the OED Director has set a goal
to complete the preliminary screening
and issue a § 11.22(f)(1)(ii) request,
when warranted, to the practitioner
under investigation within 60 calendar
days of the initial receipt by the OED
Director of information suggesting
possible misconduct. OED will allow
the practitioner 30 calendar days to
provide a complete, written response
and, as discussed below, may grant a
reasonable request for an extension of
time to respond.
A complete response to an initial
§ 11.22(f) request frequently raises
factual issues that require further
investigation before the OED Director
can determine whether actual grounds
for discipline exist. Hence, after the
OED Director receives the practitioner’s
response to the § 11.22(f)(1)(ii) request,
the OED Director moves to the third
step: conducting a thorough
investigation of the allegations to
uncover all relevant incriminating and
exculpating evidence. The third step is
time-consuming because it involves the
OED Director undertaking a thorough
fact-finding (e.g., reviewing issues
raised for the first time by the
practitioner, obtaining information from
any person who may be reasonably
expected to provide information or
evidence in connection with the
investigation pursuant to § 11.22(f)(iii)
and from non-grieving clients pursuant
to § 11.22(f)(2)) and performing legal
analyses of issues. It is in the interests
of the public as well as the practitioner
under investigation that OED conduct a
thorough investigation prior to
determining whether the matter should
be submitted to the Committee on
Discipline pursuant to § 11.32. Hence,
such additional follow-up investigative
and legal work can take several months
to complete.
After completing an investigation of
the allegations against a practitioner, the
OED Director has the authority to close
the investigation without pursuing
disciplinary action, issue a warning to
the practitioner, enter into a proposed
settlement agreement with the
practitioner, or convene the Committee
on Discipline to determine whether
there is probable cause to file a § 11.32
action against the practitioner. See 37
CFR 11.22(h). Based on current caseload
and staffing levels, the OED Director has
set a goal to submit a matter to the
Committee on Discipline for a probable
cause determination—the fourth step—
within 10 months of the initial receipt
by the OED Director of the allegations
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 459
that a practitioner engaged in
misconduct.
Under the proposed regulation, the
one-year statute of limitations begins to
run for § 11.32 actions when the OED
Director receives the practitioner’s
complete, written response to a
§ 11.22(f)(1)(ii) request. The proposed
regulation reflects that a complete
response to a § 11.22(f)(1)(ii) request
usually is a significant step in making
a practitioner’s misconduct known to
the OED Director in an informed and
meaningful way. This step in the
process gives the practitioner an
opportunity to respond to the
allegations levied against him or her.
Basic notions of fairness to the
practitioner, and integrity of the
process, are primary purposes for
providing an opportunity to respond.
Additionally, the proposed regulation
provides the OED Director with needed
flexibility in obtaining information from
the practitioner. On a case-by-case basis,
the OED Director has the authority to
grant extensions of time to respond to a
§ 11.22(f)(1)(ii) request for information.
Such extensions may be important to
the practitioner because they often give
the practitioner the time needed to
secure legal counsel, conduct his or her
own inquiry, and prepare a complete,
written response to the OED Director’s
request. The OED Director grants such
requests where it is appropriate to do so,
taking into consideration whether an
extension would jeopardize the timely
completion of the investigation in light
of any approaching deadline under the
statute of limitations. Historically, the
OED Director has granted 30-, 60-, or
even 90-day extensions of time to
practitioners. Under the proposed
regulation, the OED Director is able to
continue to afford a practitioner a
reasonable period of time to address
allegations of ethical violations because
the limitation period would not
commence until after the practitioner
provides a complete, written response.
The Office carefully considered, but
decided against proposing, a regulation
that commences the one-year limitation
period for § 11.32 actions on the date on
which the OED Director initially
receives allegations about a practitioner.
The Office did not choose such a
regulation for three reasons. First, the
Office usually receives information
about a practitioner from a client who
alleges that the practitioner acted
improperly. While mere allegations of
ethical violations may alert the Office
that a client is subjectively dissatisfied
with a practitioner, they often do not
provide sufficient objective evidence
that misconduct has occurred. The
accuser’s naked assertions about a
practitioner rarely put the Office on
notice of misconduct forming the basis
of a disciplinary proceeding because
such statements often do not provide a
complete, objective picture of what
transpired between the practitioner and
the client. It is also unfair to the
practitioner that the basis of a
disciplinary proceeding be predicated
only on the allegations levied against
him or her without providing the
practitioner an opportunity to respond
to the allegations. As discussed above,
this basic notion of fairness to the
practitioner against whom allegations of
misconduct have been made is one main
purpose of the proposed regulation.
Second, a regulation that proposes
commencing the one-year limitation
period on the date the OED Director
initially receives allegations about a
practitioner’s alleged misconduct would
unnecessarily restrict the OED Director’s
ability to grant reasonable extensions of
time to respond to the OED Director’s
initial request for information. As
discussed above, such extensions are
important to the practitioner. But the
OED Director might be compelled to
deny an extension of time out of
necessity if the Office only had one year
from the date of initial receipt of
allegations about a practitioner to obtain
and consider the practitioner’s side of
the story; conduct and conclude an
investigation; prepare and submit the
matter to the Committee on Discipline;
and prepare and file a disciplinary
complaint based on the Committee’s
probable cause determination. Likewise,
it would not be in the best interest of the
Office not to grant an extension because
the OED Director strives to present all
available, relevant evidence to the
Committee on Discipline in every
§ 11.32 disciplinary action. By
comparison, the proposed regulation
follows the long-standing practice of
affording a practitioner a reasonable
opportunity to respond to the
allegations levied against him or her.
Third, the Office is concerned that
starting the one-year limitation period
from the date the OED Director initially
receives an allegation of misconduct
might encourage dilatory responses and
other delay tactics by practitioners,
which would not be in the public
interest. For example, a practitioner
could simply choose to hinder the
investigation by providing incomplete
responses to § 11.22(f)(1)(ii) requests
with the purpose of having the one-year
limitation period run without the OED
Director having received the
practitioner’s side of the story. This
would result in a less than thorough
investigation being submitted to the
Committee on Discipline to determine
whether probable cause exists that the
practitioner engaged in misconduct.
The Office also carefully considered,
but decided against proposing, an
alternative regulation that starts the oneyear
limitation period for § 11.32 actions
on the date on which the OED Director
decides, after conducting a preliminary
screening of the initial information
about a practitioner, to obtain the
practitioner’s side of the story. Such a
regulation would not provide the OED
Director the same degree of flexibility in
allowing extensions of time for the
practitioner to respond to
§ 11.22(f)(1)(ii) requests. Moreover, it
would encroach on the sense of fair play
that permeates the proposed regulation.
The Office also considered, but chose
not to propose, two other regulations
starting the one-year limitation period
for § 11.32 actions. The first would start
the limitation period on the date that
the OED Director submits a fully
investigated case to a Committee on
Discipline panel pursuant to 37 CFR
11.32. The second would start the oneyear
limitation period on the date the
Committee on Discipline forwards its
probable cause determination to the
OED Director pursuant to 37 CFR
11.23(b)(2).
In addition to actions filed under 37
CFR 11.32, the OED Director
commences reciprocal disciplinary
complaints under 37 CFR 11.24 and
complaints for interim suspension
predicated upon conviction of a serious
crime under 37 CFR 11.25. Complaints
under § 11.24 and § 11.25 are not
submitted to the Committee on
Discipline for a probable cause
determination but are filed directly with
the USPTO Director. See 37 CFR 11.24
and 11.25. Complaints under § 11.24
and § 11.25, however, must include a
certified copy of the record showing that
a practitioner was disciplined by
another authority or convicted of a
serious crime. Id. Obtaining certified
copies of the requisite records is how
the OED Director learns in a meaningful
way of misconduct which can form the
basis of a disciplinary proceeding
brought under § 11.24 and § 11.25.
It is OED’s practice to request a
certified copy of the requisite records
within 60 calendar days of receiving
information suggesting that a
practitioner has been disciplined by
another authority or has been convicted
of a serious crime. It also is OED’s
practice to contact the practitioner
within the same 60-day period for the
purpose of providing the practitioner an
opportunity to explain whether he or
she is the same person who was
disciplined by another licensing
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460 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
authority or convicted of a serious
crime.
Here, the proposed regulation starts
the one-year limitation period as of the
date the OED Director receives a
certified copy of the requisite records.
Thus, for reciprocal discipline
complaints filed pursuant to § 11.24(a),
this notice proposes that the one-year
limitation period commences the date
on which the OED Director receives a
certified copy of the record or order
regarding the practitioner being publicly
censured, publicly reprimanded,
subjected to probation, disbarred,
suspended, or disciplinarily
disqualified. For interim suspension
complaints filed pursuant to § 11.25(a),
the limitation period begins the date on
which the OED Director receives a
certified copy of the record, docket
entry, or judgment demonstrating that
the practitioner has been convicted of a
serious crime. Based on current
caseload and staffing levels, the OED
Director has set a goal to file § 11.24 and
§ 11.25 complaints with the USPTO
Director within 60 calendar days of the
date when OED obtains certified copies
of the requisite records.
Discussion of Specific Rule
Section 11.22 would be revised to add
subsection (f)(3), which would specify
that the OED Director shall request
information and evidence from the
practitioner prior to convening a panel
of the Committee on Discipline under
§ 11.32. As discussed above, the second
step prior to filing a complaint in a
§ 11.32 action is to request information
or evidence from the practitioner
pursuant to § 11.22(f)(1)(ii). This allows
the practitioner to provide the OED
Director with his or her views as to the
allegations during the course of the
investigation.
Section 11.34 would be revised to add
subsection (d), which would specify the
time in which the OED Director may file
a disciplinary complaint against an
individual subject to the disciplinary
authority of the Office. Specifically, in
accordance with the AIA, a complaint
shall be filed not later than the earlier
of either ten years after the date on
which the misconduct forming the basis
for the proceeding occurred, or one year
after the date on which the misconduct
forming the basis for the proceeding is
made known to an officer or employee
of the Office. The date on which the
misconduct forming the basis for the
proceeding is made known to an officer
or employee of the Office is: (a) For
complaints filed pursuant to section
11.24, the date on which the OED
Director receives a certified copy of the
record or order regarding the
practitioner being publicly censured,
publicly reprimanded, subjected to
probation, disbarred, suspended or
disciplinarily disqualified; (b) for
complaints filed pursuant to section
11.25, the date on which the OED
Director receives a certified copy of the
record, docket entry or judgment
demonstrating that the practitioner has
been convicted of a serious crime; and
(c) for complaints filed pursuant to
§ 11.32, the date on which the OED
Director receives from the practitioner,
who is the subject of an investigation
commenced under section § 11.22(a), a
complete, written response to a request
for information and evidence issued
pursuant to § 11.22(f)(1)(ii).
Rulemaking Considerations
Administrative Procedure Act: This
notice proposes to prescribe regulations
to implement the statute of limitations
provisions for commencing a
disciplinary proceeding pursuant to the
AIA. These proposed changes involve
rules of agency practice and procedure
and/or interpretive rules. See Bachow
Commc’ns Inc. v. FCC, 237 F.3d 683,
690 (DC Cir. 2001) (rules governing an
application process are procedural
under the Administrative Procedure
Act); Inova Alexandria Hosp. v. Shalala,
244 F.3d 342, 350 (4th Cir. 2001) (rules
for handling appeals were procedural
where they did not change the
substantive standard for reviewing
claims); Nat’l Org. of Veterans’
Advocates v. Sec’y of Veterans Affairs,
260 F.3d 1365, 1375 (Fed. Cir. 2001)
(rule that clarifies interpretation of a
statute is interpretive).
Accordingly, prior notice and
opportunity for public comment are not
required pursuant to 5 U.S.C. 553(b) or
(c) (or any other law), and thirty-day
advance publication is not required
pursuant to 5 U.SC. 553(d) (or any other
law). See Cooper Techs. Co. v. Dudas,
536 F.3d 1330, 1336–37 (Fed. Cir. 2008)
(stating that 5 U.S.C. 553, and thus 35
U.S.C. 2(b)(2)(B), does not require notice
and comment rulemaking for
‘‘interpretative rules, general statements
of policy, or rules of agency
organization, procedure, or practice’’)
(quoting 5 U.S.C. 553(b)(A)). The Office,
however, is publishing these proposed
changes and the Regulatory Flexibility
Act certification discussion below, for
comment as it seeks the benefit of the
public’s views on the Office’s proposed
implementation of these provisions of
the AIA.
Regulatory Flexibility Act: As prior
notice and an opportunity for public
comment are not required pursuant to 5
U.S.C. 553 or any other law, neither a
regulatory flexibility analysis nor a
certification under the Regulatory
Flexibility Act (5 U.S.C. 601 et seq.) is
required. See 5 U.S.C. 603.
Nevertheless, the Deputy General
Counsel for General Law of the United
States Patent and Trademark Office has
certified to the Chief Counsel for
Advocacy, Small Business
Administration, that the changes in this
notice of proposed rulemaking will not
have a significant economic impact on
a substantial number of small entities
(Regulatory Flexibility Act, 5 U.S.C.
605(b)). The primary purpose of the
proposed rule is to establish regulations
pursuant to recent revisions to 35 U.S.C.
32 that govern time limits for the Office
to commence a disciplinary action. This
proposed rule does not increase or
change the burdens of practitioners
involved in disciplinary proceedings or
the investigation process. There are
approximately 42,000 individuals
registered to practice before the Office
in patent matters and many unregistered
attorneys who practice before the Office
in trademark matters. In a typical year,
the Office considers approximately 150
to 200 matters concerning possible
misconduct by individuals who practice
before the Office in patent and/or
trademark matters, and fewer than 100
matters per year lead to a formal
disciplinary proceeding or settlement.
Thus, only a relatively small number of
individuals are involved in the
disciplinary process. Additionally,
based on the Office’s experience in
investigations that precede the
disciplinary process, the Office does not
anticipate this proposed rule will result
in a significant increase, if any, in the
number of individuals who are
impacted by a disciplinary proceeding
or investigation. Accordingly, the
changes in this notice of proposed
rulemaking will not have a significant
economic impact on a substantial
number of small entities.
Executive Order 13132 (Federalism):
This notice of proposed rulemaking
does not contain policies with
federalism implications sufficient to
warrant preparation of a Federalism
Assessment under Executive Order
13132 (August 4, 1999).
Executive Order 12866 (Regulatory
Planning and Review): This notice of
proposed rulemaking has been
determined to be not significant for
purposes of Executive Order 12866
(September 30, 1993).
Executive Order 13563 (Improving
Regulation and Regulatory Review): The
Office has complied with Executive
Order 13563. Specifically, the Office
has, to the extent feasible and
applicable: (1) Made a reasoned
determination that the benefits justify
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the costs of the rule; (2) tailored the rule
to impose the least burden on society
consistent with obtaining the regulatory
objectives; (3) selected a regulatory
approach that maximizes net benefits;
(4) specified performance objectives; (5)
identified and assessed available
alternatives; (6) involved the public in
an open exchange of information and
perspectives among experts in relevant
disciplines, affected stakeholders in the
private sector and the public as a whole,
and provided on-line access to the
rulemaking docket; (7) attempted to
promote coordination, simplification,
and harmonization across government
agencies and identified goals designed
to promote innovation; (8) considered
approaches that reduce burdens and
maintain flexibility and freedom of
choice for the public; and (9) ensured
the objectivity of scientific and
technological information and
processes.
Executive Order 13175 (Tribal
Consultation): This rulemaking will not:
(1) Have substantial direct effects on one
or more Indian tribes; (2) impose
substantial direct compliance costs on
Indian tribal governments; or (3)
preempt tribal law. Therefore, a tribal
summary impact statement is not
required under Executive Order 13175
(Nov. 6, 2000).
Executive Order 13211 (Energy
Effects): This rulemaking is not a
significant energy action under
Executive Order 13211 because this
rulemaking is not likely to have a
significant adverse effect on the supply,
distribution, or use of energy. Therefore,
a Statement of Energy Effects is not
required under Executive Order 13211
(May 18, 2001).
Executive Order 12988 (Civil Justice
Reform): This rulemaking meets
applicable standards to minimize
litigation, eliminate ambiguity, and
reduce burden as set forth in sections
3(a) and 3(b)(2) of Executive Order
12988 (Feb. 5, 1996).
Executive Order 13045 (Protection of
Children): This rulemaking does not
concern an environmental risk to health
or safety that may disproportionately
affect children under Executive Order
13045 (Apr. 21, 1997).
Executive Order 12630 (Taking of
Private Property): This rulemaking will
not effect a taking of private property or
otherwise have taking implications
under Executive Order 12630 (Mar. 15,
1988).
Unfunded Mandates Reform Act of
1995: The changes proposed in this
notice do not involve a Federal
intergovernmental mandate that will
result in the expenditure by State, local,
and tribal governments, in the aggregate,
of 100 million dollars (as adjusted) or
more in any one year, or a Federal
private sector mandate that will result
in the expenditure by the private sector
of 100 million dollars (as adjusted) or
more in any one year, and will not
significantly or uniquely affect small
governments. Therefore, no actions are
necessary under the provisions of the
Unfunded Mandates Reform Act of
1995. See 2 U.S.C. 1501 et seq.
National Environmental Policy Act:
This rulemaking will not have any effect
on the quality of the environment and
is thus categorically excluded from
review under the National
Environmental Policy Act of 1969. See
42 U.S.C. 4321 et seq.
National Technology Transfer and
Advancement Act: The requirements of
section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (15 U.S.C. 272 note) are not
applicable because this rulemaking does
not contain provisions which involve
the use of technical standards.
Paperwork Reduction Act: This
rulemaking does not create any
information collection requirements
under the Paperwork Reduction Act of
1995 (44 U.S.C. 3501 et seq.).
Notwithstanding any other provision of
law, no person is required to respond to,
nor shall a person be subject to a
penalty for failure to comply with, a
collection of information subject to the
requirements of the Paperwork
Reduction Act, unless that collection of
information displays a currently valid
OMB control number.
Congressional Review Act: Under the
Congressional Review Act provisions of
the Small Business Regulatory
Enforcement Fairness Act of 1996 (5
U.S.C. 801 et seq.), prior to issuing any
final rule, the USPTO will submit a
report containing the final rule and
other required information to the United
States Senate, the United States House
of Representatives, and the Comptroller
General of the Government
Accountability Office. However, this
action is not a major rule as defined by
5 U.S.C. 804(2).
List of Subjects in 37 CFR Part 11
Administrative practice and
procedure, Inventions and patents,
Lawyers, Reporting and recordkeeping
requirements.
For the reasons set forth in the
preamble, the United States Patent and
Trademark Office proposes to amend 37
CFR Part 11 as follows:
PART 11—REPRESENTATION OF
OTHERS BEFORE THE UNITED
STATES PATENT AND TRADEMARK
OFFICE
1. The authority citation for 37 CFR
Part 11 continues to read as follows:
Authority: 5 U.S.C. 500, 15 U.S.C. 1123,
35 U.S.C. 2(b)(2), 32, 41.
2. Section 11.22 is amended to add
paragraph (f)(3) as follows:
* * * * *
(f) Request for information and
evidence by OED Director.
* * * * *
(3) The OED Director shall request
information and evidence from the
practitioner prior to convening a panel
of the Committee on Discipline under
§ 11.32.
* * * * *
3. Section 11.34 is amended to add
paragraph (d) as follows:
§ 11.34 Complaint.
* * * * *
(d) Time for filing a complaint. A
complaint shall be filed not later than
the earlier of either ten years after the
date on which the misconduct forming
the basis for the proceeding occurred, or
one year after the date on which the
misconduct forming the basis for the
proceeding is made known to an officer
or employee of the Office. The date on
which the misconduct forming the basis
for the proceeding is made known to an
officer or employee of the Office is:
(1) with respect to complaints under
§ 11.24, the date on which the OED
Director receives a certified copy of the
record or order regarding the
practitioner being publicly censured,
publicly reprimanded, subjected to
probation, disbarred, suspended, or
disciplinarily disqualified;
(2) with respect to complaints under
§ 11.25, the date on which the OED
Director receives a certified copy of the
record, docket entry, or judgment
demonstrating that the practitioner has
been convicted of a serious crime; and
(3) with respect to complaints under
§ 11.32, the date on which the OED
Director receives from the practitioner,
who is the subject of an investigation
commenced under section § 11.22(a), a
complete, written response to a request
for information and evidence issued
pursuant to § 11.22(f)(1)(ii).
Dated: December 30, 2011.
David J. Kappos,
Under Secretary of Commerce for Intellectual
Property and Director of the United States
Patent and Trademark Office.
[FR Doc. 2011–33814 Filed 1–4–12; 8:45 am]
BILLING CODE 3510–16–P
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462 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
ENVIRONMENTAL PROTECTION
AGENCY
40 CFR Part 80
[EPA–HQ–OAR–2011–0542; FRL–9502–1]
RIN 2060–AR07
Regulation of Fuels and Fuel
Additives: Identification of Additional
Qualifying Renewable Fuel Pathways
Under the Renewable Fuel Standard
Program
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Proposed rule.
SUMMARY: EPA is issuing a proposed
rule that identifies additional fuel
pathways that EPA has determined meet
the biomass-based diesel, advanced
biofuel or cellulosic biofuel lifecycle
greenhouse gas (GHG) reduction
requirements specified in Clean Air Act
section 211(o), the Renewable Fuel
Standard Program, as amended by the
Energy Independence and Security Act
of 2007 (EISA). This proposed rule
describes EPA’s evaluation of biofuels
produced from camelina oil, energy
cane, giant reed, and napiergrass; it also
includes an evaluation of renewable
gasoline and renewable gasoline
blendstocks, as well as biodiesel from
esterification, and clarifies our
definition of renewable diesel.
This proposed rule adds these
pathways to Table in regulations as
pathways which have been determined
to meet one or more of the GHG
reduction thresholds specified in CAA
211(o), and assigns each pathway a
corresponding D-Code. It allows
producers or importers of fuel produced
pursuant to these pathways to generate
Renewable Identification Numbers
(RINs), providing that the fuel meets the
other requirements specified in the RFS
regulations to qualify it as renewable
fuel.
DATES: Written comments must be
received by February 6, 2012. A request
for a public hearing must be received by
January 20, 2012.
ADDRESSES: Submit your comments,
identified by Docket ID No. EPA–HQ–
OAR–2011–0542, by mail to Air and
Radiation Docket, Docket No. EPA–HQ–
OAR–2011–0542, Environmental
Protection Agency, Mailcode: 6406J,
1200 Pennsylvania Ave. NW.,
Washington, DC 20460. Comments may
also be submitted electronically or
through hand delivery/courier by
following the detailed instructions in
the ADDRESSES section of the direct final
rule located in the rules section of this
Federal Register.
FOR FURTHER INFORMATION CONTACT:
Vincent Camobreco, Office of
Transportation and Air Quality
(MC6401A), Environmental Protection
Agency, 1200 Pennsylvania Ave. NW.,
Washington, DC 20460; telephone
number: (202) 564–9043; fax number:
(202) 564–1686; email address:
camobreco.vincent@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Why is EPA issuing a proposed rule?
This document proposes to take
action to identify additional qualifying
renewable fuel pathways under the
Renewable Fuel Standard Program. We
have published a direct final rule that
describes our rationale for identifying
these additional fuel pathways,
including GHG lifecycle analyses, in the
‘‘Rules and Regulations’’ section of this
Federal Register because we view this
as a noncontroversial action and
anticipate no adverse comment. We
have explained our reasons for this
action in the preamble to the direct final
rule.
If we receive no adverse comment, we
will not take further action on this
proposed rule. If EPA receives relevant
adverse comment or a hearing request
on a distinct provision of this
rulemaking, we will publish a timely
withdrawal in the Federal Register
indicating which portion of the rule is
being withdrawn. Any distinct
amendment, paragraph, or section of
today’s rule not withdrawn will become
effective on the date set out in the direct
final rule. We will address all public
comments in any subsequent final rule
based on this proposed rule. We will not
institute a second comment period on
this action. Any parties interested in
commenting must do so at this time. For
further information about commenting
on this rule, see the ADDRESSES section
of this document.
II. Does this action apply to me?
Entities potentially affected by this
action are those involved with the
production, distribution, and sale of
transportation fuels, including gasoline
and diesel fuel or renewable fuels such
as ethanol and biodiesel. Regulated
categories and entities affected by this
action include:
Category NAICS 1
Codes SIC 2 Codes Examples of potentially regulated entities
Industry ...................................................
Industry ...................................................
Industry ...................................................
Industry ...................................................
Industry ...................................................
Industry ...................................................
Industry ...................................................
324110
325193
325199
424690
424710
424720
454319
2911
2869
2869
5169
5171
5172
5989
Petroleum Refineries.
Ethyl alcohol manufacturing.
Other basic organic chemical manufacturing.
Chemical and allied products merchant wholesalers.
Petroleum bulk stations and terminals.
Petroleum and petroleum products merchant wholesalers.
Other fuel dealers.
1 North American Industry Classification System (NAICS).
2 Standard Industrial Classification (SIC) system code.
This table is not intended to be
exhaustive, but rather provides a guide
for readers regarding entities likely to be
regulated by this action. This table lists
the types of entities that EPA is now
aware could be potentially regulated by
this action. Other types of entities not
listed in the table could also be
regulated. To determine whether your
entity is regulated by this action, you
should carefully examine the
applicability criteria of Part 80, subparts
D, E and F of title 40 of the Code of
Federal Regulations. If you have any
question regarding applicability of this
action to a particular entity, consult the
person in the preceding FOR FURTHER
INFORMATION CONTACT section above.
III. What should I consider as I prepare
my comments for EPA?
A. Submitting information claimed as
CBI. Do not submit information you
claim as CBI to EPA through
www.regulations.gov or email. Clearly
mark the part or all of the information
that you claim to be CBI. For CBI
information in a disk or CD ROM that
you mail to EPA, mark the outside of the
disk or CD ROM as CBI and then
identify electronically within the disk or
CD ROM the specific information that is
claimed as CBI). In addition to one
complete version of the comment that
includes information claimed as CBI, a
copy of the comment that does not
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 463
contain the information claimed as CBI
must be submitted for inclusion in the
public docket. Information so marked
will not be disclosed except in
accordance with procedures set forth in
40 CFR part 2.
B. Tips for Preparing Your Comments.
When submitting comments, remember
to:
• Identify the rulemaking by docket
number and other identifying
information (subject heading, Federal
Register date and page number).
• Follow directions—The agency may
ask you to respond to specific questions
or organize comments by referencing a
Code of Federal Regulations (CFR) part
or section number.
• Explain why you agree or disagree;
suggest alternatives and substitute
language for your requested changes.
• Describe any assumptions and
provide any technical information and/
or data that you used.
• If you estimate potential costs or
burdens, explain how you arrived at
your estimate in sufficient detail to
allow for it to be reproduced.
• Provide specific examples to
illustrate your concerns, and suggest
alternatives.
• Explain your views as clearly as
possible, avoiding the use of profanity
or personal threats.
• Make sure to submit your
comments by the comment period
deadline identified.
C. Docket Copying Costs. You may be
charged a reasonable fee for
photocopying docket materials, as
provided in 40 CFR part 2.
IV. Identification of Additional
Qualifying Renewable Fuel Pathways
Under the Renewable Fuel Standard
(RFS) Program
EPA is issuing a proposed rule to
identify in the RFS regulations
additional renewable fuel production
pathways that we have determined meet
the greenhouse gas (GHG) reduction
requirements of the RFS program. This
proposed rule describes EPA’s
evaluation of:
Camelina oil (new feedstock)
• Biodiesel and renewable diesel
(including jet fuel and heating
oil)—qualifying as biomass-based
diesel and advanced biofuel.
• Naphtha and liquefied petroleum
gas (LPG)—qualifying as advanced
biofuel.
Energy cane, giant reed, and napiergrass
cellulosic biomass (new feedstocks)
• Ethanol, renewable diesel
(including renewable jet fuel and
heating oil), and naphtha—
qualifying as cellulosic biofuel.
Renewable gasoline and renewable
gasoline blendstock (new fuel
types)
• Produced from crop residue, slash,
pre-commercial thinnings, tree
residue, annual cover crops, and
cellulosic components of separated
yard waste, separated food waste,
and separated municipal solid
waste (MSW).
• Using the following processes—all
utilizing natural gas, biogas, and/or
biomass as the only process energy
sources—qualifying as cellulosic
biofuel:
Æ Thermochemical pyrolysis.
Æ Thermochemical gasification.
Æ Biochemical direct fermentation.
Æ Biochemical fermentation with
catalytic upgrading.
Æ Any other process that uses biogas
and/or biomass as the only process
energy sources.
Esterification (new production process)
• Process used to produce biodiesel
from soy bean oil, oil from annual
covercrops, algal oil, biogenic waste
oils/fats/greases, non-food grade
corn oil, Canola/rapeseed oil, and
camelina oil—qualifying as
biomass-based diesel and advanced
biofuel.
This proposed rule adds these
pathways to Table 1 to § 80.1426 and
assigns each pathway one or more DCodes.
Determining whether a fuel pathway
satisfies the CAA’s lifecycle GHG
reduction thresholds for renewable fuels
requires a comprehensive evaluation of
the lifecycle GHG emissions of the
renewable fuel as compared to the
lifecycle GHG emissions of the baseline
gasoline or diesel fuel that it replaces.
As mandated by CAA section 211(o), the
GHG emissions assessments must
evaluate the aggregate quantity of GHG
emissions (including direct emissions
and significant indirect emissions such
as significant emissions from land use
changes) related to the full fuel
lifecycle, including all stages of fuel and
feedstock production, distribution, and
use by the ultimate consumer.
In examining the full lifecycle GHG
impacts of renewable fuels for the RFS
program, EPA considers the following:
• Feedstock production—based on
agricultural sector models that include
direct and indirect impacts of feedstock
production.
• Fuel production—including process
energy requirements, impacts of any raw
materials used in the process, and
benefits from co-products produced.
• Fuel and feedstock distribution—
including impacts of transporting
feedstock from production to use, and
transport of the final fuel to the
consumer.
• Use of the fuel—including
combustion emissions from use of the
fuel in a vehicle.
Many of the pathways evaluated in
this proposal rely on a comparison to
the lifecycle GHG analysis work that
was done as part of the Renewable Fuel
Standard Program (RFS2) Final Rule,
published March 26, 2010.
More information on the different
pathways evaluated is included below.
For additional information on our GHG
lifecycle analyses for this proposal, as
well as the text of the proposed
regulatory changes, see the direct final
rule which is located in the Rules
section of this Federal Register.
Camelina: Current information
suggests that camelina has limited niche
markets and will be produced on land
that would otherwise remain fallow.
Therefore, increased production of
camelina-based renewable fuel is not
expected to result in significant land use
change emissions. For the purposes of
this proposed analysis, EPA is
projecting there will be no land use
emissions associated with camelina
production for use as a renewable fuel
feedstock.
Taking into account the assumption of
no land use change emissions when
camelina is used to produce renewable
fuel, and considering that other sources
of GHG emissions related to camelina
biodiesel or renewable diesel
production have comparable GHG
emissions to biodiesel from soybean oil,
we are proposing that camelina-based
biodiesel and renewable diesel should
be treated in the same manner as soybased
biodiesel and renewable diesel in
qualifying as biomass-based diesel and
advanced biofuel for purposes of RIN
generation since the GHG emission
performance of the camelina-based fuels
will be at least as good and in some
respects better than that modeled for
fuels made from soybean oil. EPA found
as part of the Renewable Fuel Standard
final rulemaking that soybean biodiesel
resulted in a 57% reduction in GHG
emissions compared to the baseline
petroleum diesel fuel. Furthermore,
approximately 80% of the lifecycle
impacts from soybean biodiesel were
from land use change emissions which
are assumed to be not significant for the
camelina pathway considered. Thus,
EPA is proposing to include camelina
oil as a potential feedstock under the
same biodiesel and renewable diesel
pathways for which soybean oil
currently qualifies. We are also
proposing to include a pathway for jet
fuel, naphtha, and LPG produced from
camelina oil through hydrotreating. This
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464 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
is based on the fact that our analysis
shows that even when all of the coproducts
are used to generate RINs the
lifecycle GHG emissions for RINgenerating
co-products including diesel
replacement fuel, jet fuel, naphtha and
LPG produced from camelina oil will all
meet the 50% GHG emissions reduction
threshold.
We are also proposing that two
existing pathways for RIN generation in
the RFS regulations that list ‘‘renewable
diesel’’ as a fuel product produced
through a hydrotreating process include
jet fuel. This applies to two pathways in
Table 1 to § 80.1426 of the RFS
regulations which both list renewable
diesel made from soy bean oil, oil from
annual covercrops, algal oil, biogenic
waste oils/fats/greases, or non-food
grade corn oil using hydrotreating as a
process. We are proposing that if parties
produce jet fuel from the hydrotreating
process and co-process renewable
biomass and petroleum they can
generate advanced biofuel RINs (D code
5) for the jet fuel produced. We are also
proposing that if they do not co-process
renewable biomass and petroleum they
can generate biomass-based diesel RINs
(D code 4) for the jet fuel produced.
§ 80.1401 of the RFS regulations
currently defines non-ester renewable
diesel as a fuel that is not a mono-alkyl
ester and which can be used in an
engine designed to operate on
conventional diesel fuel or be heating
oil or jet fuel. The reference to jet fuel
in this definition was added by direct
final rule dated May 10, 2010. Table 1
to § 80.1426 identifies approved fuel
pathways by fuel type, feedstock source
and fuel production processes. The
table, which was largely adopted as part
of the March 26, 2010 RFS2 final rule,
identifies jet fuel and renewable diesel
as separate fuel types. Accordingly, in
light of the revised definition of
renewable diesel enacted after the RFS2
rule, there is ambiguity regarding the
extent to which references in Table 1 to
‘‘renewable diesel’’ include jet fuel.
The original lifecycle analysis for the
renewable diesel from hydrotreating
pathways listed in Table 1 to § 80.1426
was not based on producing jet fuel but
rather other transportation diesel fuel
products, namely a diesel fuel
replacement. As discussed in the direct
final rule, the hydrotreating process can
produce a mix of products including jet
fuel, diesel, naphtha, LPG and propane.
Also, as discussed, there are differences
in the process configured for maximum
jet fuel production vs. the process
maximized for diesel fuel production
and the lifecycle results vary depending
on what approach is used to consider
co-products (i.e., the allocation or
displacement approach).
In cases where there are no pathways
for generating RINs for the co-products
from the hydrotreating process it would
be appropriate to use the displacement
method for capturing the credits of coproducts
produced. This is the case for
most of the original feedstocks included
in Table 1 to § 80.1426. If the
displacement approach is used when jet
fuel is the primary product produced it
results in lower emissions then the
production maximized for diesel fuel
production. Therefore, since the
hydrotreating process maximized for
diesel fuel meets the 50% lifecycle GHG
threshold for the feedstocks in question,
the process maximized for jet fuel
would also qualify.
Thus, we are proposing that the
references to ‘‘renewable diesel’’ in
Table 1 include jet fuel, consistent with
our regulatory definition of ‘‘non-ester
renewable diesel,’’ since doing so
clarifies the existing regulations while
ensuring that Table 1 to § 80.1426
appropriately identifies fuel pathways
that meet the GHG reduction thresholds
associated with each pathway.
We note that although the definition
of renewable diesel includes jet fuel and
heating oil, we are also proposing to list
in Table 1 of section 80.1426 of the
RFS2 regulations jet fuel and heating oil
as specific co-products in addition to
listing renewable diesel to assure
clarity. This clarification also pertains to
all the feedstocks already included in
Table 1 for renewable diesel.
Energy grasses: Based on our
comparison of switchgrass and the three
feedstocks considered here, EPA is
proposing that cellulosic biofuel
produced from the cellulose,
hemicellulose and lignin portions of
energy cane, giant reed, and napiergrass
has similar or better lifecycle GHG
impacts than biofuel produced from the
cellulosic biomass from switchgrass.
Our proposed analysis suggests that the
three feedstocks considered have GHG
impacts associated with growing and
harvesting the feedstock that are similar
to switchgrass. Emissions from growing
and harvesting energy cane are
approximately 4 kg CO2eq/mmBtu
higher than switchgrass, emissions from
growing and harvesting giant reed are
approximately 2 kg CO2eq/mmBtu
lower than switchgrass, and emissions
from growing and harvesting
napiergrass are approximately 6 kg
CO2eq/mmBtu higher than switchgrass.
These are small changes in the overall
lifecycle, representing at most a 6%
change in the energy grass lifecycle
impacts in comparison to the petroleum
fuel baseline. Furthermore, the three
feedstocks considered are expected to
have similar or lower GHG emissions
than switchgrass associated with other
components of the biofuel lifecycle.
As a hypothetical worst case, if the
calculated increases in growing and
harvesting the new feedstocks are
incorporated into the lifecycle GHG
emissions calculated for switchgrass,
and other lifecycle components are
projected as having similar GHG
impacts to switchgrass (including land
use change associated with switchgrass
production), the overall lifecycle GHG
reductions for biofuel produced from
energy cane, giant reed, and napiergrass
still meet the 60% reduction threshold
for cellulosic biofuel, the lowest being a
64% reduction (for napiergrass F–T
diesel) compared to the petroleum
baseline. We believe these are
conservative estimates, as use of energy
cane, giant reed, or napiergrass as a
feedstock is expected to have smaller
land-use GHG impacts than switchgrass,
due to their higher yields.
Although this analysis assumes
energy cane, giant reed, and napiergrass
biofuels produced for sale and use in
the United States will most likely come
from domestically produced feedstock,
we also intend for the proposed
pathways to cover energy cane, giant
reed, and napiergrass from other
countries. We do not expect incidental
amounts of biofuels from feedstocks
produced in other nations to impact our
average GHG emissions. Moreover, other
countries most likely to be exporting
energy cane, giant reed, or napiergrass
or biofuels produced from these
feedstocks are likely to be major
producers which typically use similar
cultivars and farming techniques.
Therefore, GHG emissions from
producing biofuels with energy cane,
giant reed, or napiergrass grown in other
countries should be similar to the GHG
emissions we estimated for U.S. energy
cane, giant reed, or napiergrass, though
they could be slightly (and
insignificantly) higher or lower. For
example, the renewable biomass
provisions under the Energy
Independence and Security Act would
prohibit direct conversion of previously
unfarmed land in other countries into
cropland for energy grass-based
renewable fuel production.
Furthermore, any energy grass
production on existing cropland
internationally would not be expected
to have land use impacts beyond what
was considered for switchgrass
production. Even if there were
unexpected larger differences, EPA
believes the small amounts of feedstock
or fuel potentially coming from other
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 465
countries will not impact our threshold
analysis.
Based on our assessment of
switchgrass in the RFS2 final rule and
this comparison of GHG emissions from
switchgrass and energy cane, giant reed,
and napiergrass, we do not expect
variations to be large enough to bring
the overall GHG impact of fuel made
from energy cane, giant reed or napier
grass to come close to the 60%
threshold for cellulosic biofuel.
Therefore, EPA is proposing to include
cellulosic biofuel produced from the
cellulose, hemicelluloses and lignin
portions of energy cane, giant reed, and
napiergrass under the same pathways
for which cellulosic biomass from
switchgrass qualifies under the RFS2
final rule.
Renewable gasoline and renewable
gasoline blendstock: Three renewable
gasoline and renewable gasoline
blendstock pathways were compared to
baseline petroleum gasoline, using the
same value for baseline gasoline as in
the RFS2 final rule analysis. The results
of the proposed analysis indicate that
the renewable gasoline and renewable
gasoline blendstock pathways result in
a GHG emissions reduction of 65–129%
or better compared to the gasoline fuel
it would replace using corn stover as a
feedstock. Since the renewable gasoline
and renewable gasoline blendstock
pathways which use corn stover as a
feedstock all exceed the 60% lifecycle
GHG threshold requirements for
cellulosic biofuel, and since these
pathways capture the likely current
technologies and since future
technology improvements are likely to
increase efficiency and lower GHG
emissions, we are proposing that all
processes producing renewable gasoline
or renewable gasoline blendstock from
corn stover can qualify if they fall in the
following process characterizations:
• Catalytic pyrolysis and upgrading
utilizing natural gas, biogas, and/or
biomass as the only process energy
sources.
• Gasification and upgrading utilizing
natural gas, biogas, and/or biomass as
the only process energy sources.
• Direct fermentation utilizing natural
gas, biogas, and/or biomass as the only
process energy sources.
• Fermentation and upgrading
utilizing natural gas, biogas, and/or
biomass as the only process energy
sources.
• Any process utilizing biogas and/or
biomass as the only process energy
sources.
As was the case for extending corn
stover results to other feedstocks in the
RFS2 final rule, we are proposing to
extend these results to feedstocks with
similar or lower GHG emissions
profiles, including the following
feedstocks:
• Cellulosic biomass from crop
residue, slash, pre-commercial
thinnings and tree residue, annual cover
crops;
• Cellulosic components of separated
yard waste;
• Cellulosic components of separated
food waste; and
• Cellulosic components of separated
MSW.
For more information on the
reasoning for extension to these other
feedstocks refer to the feedstock
production and distribution section or
the RFS2 rulemaking (75 FR 14793–
14795).
Based on these results, today’s
proposed rule includes pathways for the
generation of cellulosic biofuel RINs for
renewable gasoline or renewable
gasoline blendstock produced by
catalytic pyrolysis and upgrading,
gasification and upgrading, direct
fermentation, fermentation and
upgrading, all utilizing natural gas,
biogas, and/or biomass as the only onsite
process energy sources or any
process utilizing biogas and/or biomass
as the only on-site energy sources, and
using corn stover as a feedstock or the
feedstocks noted above. In order to
qualify for RIN generation, the fuel must
meet the other definitional criteria for
renewable fuel (e.g., produced from
renewable biomass, and used to reduce
or replace petroleum-based
transportation fuel, heating oil or jet
fuel) specified in the Clean Air Act and
the RFS regulations.
Direct Esterification: Using the same
methodology as was used for the yellow
grease modeling under RFS2, but using
high energy and materials use
assumptions and omitting the glycerin
co-product credit, we estimate the GHG
emissions reduction for the
esterification of specified feedstocks
with any level of FFA process is ¥71%.
Since the GHG threshold is at ¥50% for
biomass-based diesel and advanced
biofuel, we believe that there is a large
enough margin in the results to
reasonably conclude that biodiesel
using esterification of specified
feedstocks with any level of FFA
content meets the biomass-based diesel
and advanced biofuel 50% lifecycle
GHG reduction threshold. Therefore, we
are proposing to include the process
‘‘esterification’’ as an approved
biodiesel production process in Table 1
to § 40 CFR 80.1426. In addition,
consistent with the modeling conducted
for RFS2, we are proposing to interpret
the RFS regulations as they existed prior
to today’s rule as including a direct
esterification process as part of the
biodiesel pathways for which only
‘‘trans-esterification’’ was specifically
referenced in Table 1 to § 40 CFR
80.1426.
V. Additional Changes to Listing of
Available Pathways in Table 1 of
80.1426
We are also proposing two changes to
Table 1 to 80.1426 that were proposed
on July 1, 2011 (76 FR 38844). The first
change adds ID letters to pathways to
facilitate references to specific
pathways. The second change adds
‘‘rapeseed’’ to the existing pathway for
renewable fuel made from canola oil.
On September 28, 2010, EPA
published a ‘‘Supplemental
Determination for Renewable Fuels
Produced Under the Final RFS2
Program from Canola Oil’’ (FR Vol. 75,
No. 187, pg 59622–59634). In the July 1,
2011 NPRM (76 FR 38844) we proposed
to clarify two aspects of the
supplemental determination. First we
proposed to amend the regulatory
language in Table 1 to § 80.1426 to
clarify that the currently-approved
pathway for canola also applies more
generally to rapeseed. While ‘‘canola’’
was specifically described as the
feedstock evaluated in the supplemental
determination, we had not intended the
supplemental determination to cover
just those varieties or sources of
rapeseed that are identified as canola,
but to all rapeseed. As described in the
July 1, 2011 NPRM, we currently
interpret the reference to ‘‘canola’’ in
Table 1 to § 80.1426 to include any
rapeseed. To eliminate ambiguity
caused by the current language,
however, we proposed to replace the
term ‘‘canola’’ in that table with the
term ‘‘canola/rapeseed’’. Canola is a
type of rapeseed. While the term
‘‘canola’’ is often used in the American
continent and in Australia, the term
‘‘rapeseed’’ is often used in Europe and
other countries to describe the same
crop. We received no adverse comments
on our July 1, 2011 proposal but are reproposing
it here in case we receive
adverse comment in response to the
direct final rule also published today.
Second, we wish to clarify that
although the GHG emissions of
producing fuels from canola feedstock
grown in the U.S. and Canada was
specifically modeled as the most likely
source of canola (or rapeseed) oil used
for biodiesel produced for sale and use
in the U.S., we also intended that the
approved pathway cover canola/
rapeseed oil from other countries, and
we propose to interpret our regulations
in that manner. We expect the vast
majority of biodiesel used in the U.S.
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466 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
and produced from canola/rapeseed oil
will come from U.S. and Canadian
crops. Incidental amounts from crops
produced in other nations will not
impact our average GHG emissions.
Therefore, EPA proposes to interpret the
approved canola pathway as covering
canola/rapeseed regardless of country
origin.
VI. Statutory and Executive Order
Reviews
A. Executive Order 12866: Regulatory
Planning and Review
This action is not a ‘‘significant
regulatory action’’ under the terms of
Executive Order 12866 (58 FR 51735,
October 4, 1993) and is therefore not
subject to review under Executive
Orders 12866 and 13563 (76 FR 3821,
January 21, 2011).
B. Paperwork Reduction Act
This action does not impose any new
information collection burden. The
corrections, clarifications, and
modifications to the final RFS2
regulations contained in this rule are
within the scope of the information
collection requirements submitted to the
Office of Management and Budget
(OMB) for the final RFS2 regulations.
OMB has approved the information
collection requirements contained in the
existing regulations at 40 CFR part 80,
subpart M under the provisions of the
Paperwork Reduction Act, 44 U.S.C.
3501 et seq. and has assigned OMB
control numbers 2060–0637 and 2060–
0640. The OMB control numbers for
EPA’s regulations in 40 CFR are listed
in 40 CFR part 9.
C. Regulatory Flexibility Act
The Regulatory Flexibility Act (RFA)
generally requires an agency to prepare
a regulatory flexibility analysis of any
rule subject to notice and comment
rulemaking requirements under the
Administrative Procedure Act or any
other statute unless the agency certifies
that the rule will not have a significant
economic impact on a substantial
number of small entities. Small entities
include small businesses, small
organizations, and small governmental
jurisdictions.
For purposes of assessing the impacts
of today’s rule on small entities, small
entity is defined as: (1) A small business
as defined by the Small Business
Administration’s (SBA) regulations at 13
CFR 121.201; (2) a small governmental
jurisdiction that is a government of a
city, county, town, school district or
special district with a population of less
than 50,000; and (3) a small
organization that is any not-for-profit
enterprise which is independently
owned and operated and is not
dominant in its field.
After considering the economic
impacts of this action on small entities,
I certify that this proposed rule will not
have a significant economic impact on
a substantial number of small entities.
This proposed rule will not impose any
new requirements on small entities. The
relatively minor corrections and
modifications this proposed rule makes
to the final RFS2 regulations do not
impact small entities. We continue to be
interested in the potential impacts of the
rule on small entities and welcome
comments on issues related to such
impacts.
D. Unfunded Mandates Reform Act
This proposed rule does not contain
a Federal mandate that may result in
expenditures of $100 million or more
for State, local, and tribal governments,
in the aggregate, or the private sector in
any one year. We have determined that
this action will not result in
expenditures of $100 million or more
for the above parties and thus, this rule
is not subject to the requirements of
sections 202 or 205 of UMRA.
This proposed rule is also not subject
to the requirements of section 203 of
UMRA because it contains no regulatory
requirements that might significantly or
uniquely affect small governments. It
only applies to gasoline, diesel, and
renewable fuel producers, importers,
distributors and marketers and makes
relatively minor corrections and
modifications to the RFS2 regulations.
E. Executive Order 13132 (Federalism)
This action does not have federalism
implications. It will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132. This action only
applies to gasoline, diesel, and
renewable fuel producers, importers,
distributors and marketers and makes
relatively minor corrections and
modifications to the RFS2 regulations.
Thus, Executive Order 13132 does not
apply to this action.
In the spirit of Executive Order 13132,
and consistent with EPA policy to
promote communications between EPA
and State and local governments, EPA
specifically solicits comment on this
proposed action from State and local
officials.
F. Executive Order 13175 (Consultation
and Coordination With Indian Tribal
Governments)
This proposed rule does not have
tribal implications, as specified in
Executive Order 13175 (65 FR 67249,
November 9, 2000). It applies to
gasoline, diesel, and renewable fuel
producers, importers, distributors and
marketers. This action makes relatively
minor corrections and modifications to
the RFS regulations, and does not
impose any enforceable duties on
communities of Indian tribal
governments. Thus, Executive Order
13175 does not apply to this action.
Nonetheless, EPA specifically solicits
additional comment on this proposed
action from tribal officials.
G. Executive Order 13045: Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets EO 13045 (62 FR
19885, April 23, 1997) as applying only
to those regulatory actions that concern
health or safety risks, such that the
analysis required under section 5–501 of
the EO has the potential to influence the
regulation. This action is not subject to
EO 13045 because it does not establish
an environmental standard intended to
mitigate health or safety risks.
H. Executive Order 13211: Actions
Concerning Regulations That
Significantly Affect Energy Supply,
Distribution, or Use
This proposed rule is not subject to
Executive Order 13211 (66 FR 18355
(May 22, 2001)), because it is not a
significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act
Section 12(d) of the National
Technology Transfer and Advancement
Act of 1995 (‘‘NTTAA’’), Public Law
104–113, 12(d) (15 U.S.C. 272 note)
directs EPA to use voluntary consensus
standards in its regulatory activities
unless to do so would be inconsistent
with applicable law or otherwise
impractical. Voluntary consensus
standards are technical standards (e.g.,
materials specifications, test methods,
sampling procedures, and business
practices) that are developed or adopted
by voluntary consensus standards
bodies. NTTAA directs EPA to provide
Congress, through OMB, explanations
when the Agency decides not to use
available and applicable voluntary
consensus standards.
This action does not involve technical
standards. Therefore, EPA did not
consider the use of any voluntary
consensus standards.
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 467
J. Executive Order 12898: Federal
Actions To Address Environmental
Justice in Minority Populations and
Low-Income Populations
Executive Order (EO) 12898 (59 FR
7629 (Feb. 16, 1994)) establishes Federal
executive policy on environmental
justice. Its main provision directs
Federal agencies, to the greatest extent
practicable and permitted by law, to
make environmental justice part of their
mission by identifying and addressing,
as appropriate, disproportionately high
and adverse human health or
environmental effects of their programs,
policies, and activities on minority
populations and low-income
populations in the United States.
EPA has determined that this
proposed rule will not have
disproportionately high and adverse
human health or environmental effects
on minority or low-income populations
because it does not affect the level of
protection provided to human health or
the environment. These amendments
would not relax the control measures on
sources regulated by the RFS regulations
and therefore would not cause
emissions increases from these sources.
VII. Statutory Provisions and Legal
Authority
Statutory authority for the rule
finalized today can be found in section
211 of the Clean Air Act, 42 U.S.C.
7545. Additional support for the
procedural and compliance related
aspects of today’s rule, including the
recordkeeping requirements, come from
Sections 114, 208, and 301(a) of the
Clean Air Act, 42 U.S.C. 7414, 7542, and
7601(a).
List of Subjects in 40 CFR Part 80
Environmental protection,
Administrative practice and procedure,
Agriculture, Air pollution control,
Confidential business information,
Diesel Fuel, Energy, Forest and Forest
Products, Fuel additives, Gasoline,
Imports, Labeling, Motor vehicle
pollution, Penalties, Petroleum,
Reporting and recordkeeping
requirements.
Dated: November 30, 2011.
Lisa P. Jackson,
Administrator.
[FR Doc. 2011–31577 Filed 1–4–12; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
45 CFR Part 1355
Notice of Tribal Consultation Meetings
Regarding How the Current SACWIS
Regulations Affect Tribes
Administering a Title IV–E Program
AGENCY: Children’s Bureau, ACYF, ACF,
HHS.
ACTION: Notice of Tribal Consultation.
SUMMARY: Title IV–E rules provide
Federal Financial Participation (FFP)
through a beneficial cost allocation
methodology if a State or Tribe
implements a comprehensive Statewide
Automated Child Welfare Information
System (SACWIS) to track and manage
child protection, foster care and
adoption assistance activities. With the
continuing implementation of the
Fostering Connections to Success and
Increasing Adoptions Act of 2008 (Pub.
L. 110–351) we wish to analyze the
impact of the State-centric SACWIS
rules on Tribes and Tribal child welfare
agencies, to determine if Tribes have
sufficient flexibility and latitude to
build information systems that will
meet their business needs.
The Children’s Bureau’s (CB) Division
of State Systems (DSS) has been
assigned responsibility to undertake
consultation with Tribes in this area. To
offer Tribes the opportunity for
informed comment on the implications
that the State-centric rules have on their
ability to build and operate information
systems that will support their title IV–
E programs, we will provide an
education session on the SACWIS
regulations. This will be followed by a
consultation to listen to the concerns
and ideas from Tribal leaders and their
representatives about the existing
SACWIS rules and how CB can support
title IV–E Tribal agencies in building
information systems that will meet their
business needs. We propose two such
combined meetings via teleconferences
to reach a broad audience of interested
parties. The teleconference on February
15, 2012, is intended for consultation
with Tribal leaders; the teleconference
on February 16, 2012, is intended to
engage in consultation with their
representatives.
DATES: The meeting dates and times for
teleconferences are:
• February 15, from 1–3 p.m. EST.
• February 16, from 3–5 p.m. EST.
Access information for these
teleconferences is in the Supplementary
Information section.
Written comments must be submitted
to the office listed in the ADDRESSES
section below on or before April 6,
2012.
ADDRESSES: You may submit written
comments about this topic by any of the
following methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Email: DSSComments@acf.hhs.gov.
Please include ‘‘Comments on Tribal
Consultation’’ in the subject line of the
message.
• Mail or Courier Delivery: Terry
Watt, Director, Division of State
Systems, Children’s Bureau,
Administration on Children, Youth and
Families, Administration for Children
and Families, 1250 Maryland Avenue
SW., 8th Floor, Washington, DC 20024.
If you choose to use an express,
overnight, or other special delivery
method, please verify first that they are
able to deliver to the above address
during the normal workweek. We
encourage you to submit comments
electronically so that they are received
in a timely manner. All comments
received will be posted without change
to http://www.regulations.gov including
any personal information provided.
Written comments and comments
provided during consultation will
receive equal consideration by CB.
FOR FURTHER INFORMATION CONTACT: If
you have questions about this process,
or want further information about
current Federal regulations governing
child welfare automation, please contact
Mr. Peter Howe, John F. Kennedy
Federal Building, Room 2000 West, 15
New Sudbury Street, Boston, MA 02203;
voice: (617) 565–1515; by email at:
peter.howe@acf.hhs.gov.
SUPPLEMENTARY INFORMATION:
Teleconferences: The teleconference
on February 15, 2012 at 1 p.m. EST is
reserved for Tribal leaders; the
teleconference on February 16, 2012 at
3 p.m. EST is intended for their
representatives. Access information for
these teleconferences is as follows:
February 15 call in: (888) 989–8183;
Password: 368–9268.
February 16 call in: (888) 673–9785;
Password: 621–8061.
The teleconferences will be recorded,
and a summary of the content will be
published within 45 days of the
February 16, 2012 call.
SACWIS Background: Sections
474(a)(3)(C) and (D) of the Social
Security Act (the Act) provide States,
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468 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Proposed Rules
and now Tribes, with the opportunity to
access additional funding through title
IV–E to plan, design, develop,
implement, and operate a SACWIS. The
regulations at 45 CFR 1355.50–1355.57
were established in response to
implementing legislation and were
issued on December 22, 1993, and did
not consider the program needs of
Tribal title IV–E agencies.
SACWIS systems are described in
detail in program instructions issued by
CB. A general program description, and
links to statutes, regulations, and other
program guidance related to SACWIS
can be found at: http://www.acf.hhs.gov/
programs/cb/systems/sacwis/
federal.htm. Two Action Transmittals
that can be found there are of particular
interest in understanding SACWIS
rules. They are:
• ACF–OISM–001, issued on
February 24, 1995, provided the CB’s
initial guidance and policy on SACWIS
planning, designing, development and
implementation.
• ACF–OSS–05, issued on August 21,
1998, provides additional guidance on
the implementation and operation of a
SACWIS, and supersedes some sections
of AT–ACF–OISM–001.
Program Instructions (PI) whose
topics may be directly relevant to Tribes
include:
• ACYF–CB–PI–09–11, issued on
September 17, 2009, describes the
Federal Advance Planning Document
(APD) regulations that Tribes have to
comply with to claim title IV–B and/or
title IV–E FFP for child welfare
information technology projects,
equipment and services.
• ACYF–CB–PI–11–07, issued on July
5, 2011, describes for States and Tribes
the changes to the regulations at 45 CFR
Part 95 related to the APD process used
to obtain approval of FFP for acquiring
automated data processing equipment
and services.
• ACYF–CB–PI–11–08, issued on July
7, 2011, describes changes regarding the
APD waiver process within the Federal
regulations at 45 CFR part 95, and offers
guidance when requesting a waiver to
use a commercial-off-the-shelf (COTS)
software product designed for the title
IV–E or title IV–B programs.
Review of these Action Transmittals
and PI may help participants pinpoint
questions for Federal participants in the
education portion of the teleconference.
Since the SACWIS regulations were
issued 18 years ago, Federal child
welfare laws have reflected changes
associated with the enactment of several
major child welfare legislative
initiatives. The Fostering Connections to
Success and Increasing Adoptions Act
of 2008 Public Law 110–351 enabled
Tribal self-governance in child welfare,
permitting Tribes to access title IV–E
reimbursement directly from the Federal
government, rather than working
through a State’s IV–E program. As
Tribes were awarded title IV–E
development grants, staff from their
Child Welfare programs expressed
interest in acquiring automated
technology. It became evident to CB that
the SACWIS model might not meet the
needs of Tribes.
Our desire to hold a consultation
reflects our growing familiarity with the
automation needs and preferences of
Tribes and our desire to seek ideas
about how CB can support title IV–E
Tribal agencies build information
systems that will support their business
needs. CB invites Tribal leaders and
their representatives to join in a
consultation via teleconference to
provide input on the following
questions:
Questions: Please identify the
question to which you are responding.
If you have additional comments about
SACWIS, please identify them by citing
the related section of regulations or
program guidance.
(1) What are the obstacles for your
Tribe in building a child welfare
information system in general and a
SACWIS-type system specifically?
(2) What information do you consider
critical to managing your child welfare
program?
(3) Is there any special information
that Tribes need or will need in order
to operate child welfare programs
funded with title IV–E dollars?
Tribes may also provide written
comments through the methods cited in
the ADDRESSES section, regardless of
participation in the teleconference for
consultation. Please note that Federal
representatives attending the
consultation teleconferences will not be
able to respond directly during the
consultations to questions raised by the
participants.
Authority: HHS ACF Tribal Consultation
Policy.
Dated: December 22, 2011.
Bryan Samuels,
Commissioner, Administration on Children,
Youth and Families.
[FR Doc. 2011–33336 Filed 1–4–12; 8:45 am]
BILLING CODE 4184–25–P
FEDERAL COMMUNICATIONS
COMMISSION
47 CFR Part 76
[MB Docket No. 11–131; DA 11–2025]
Revision of the Commission’s Program
Carriage Rules
AGENCY: Federal Communications
Commission.
ACTION: Proposed rule; extension of
reply comment period.
SUMMARY: The Media Bureau extends
the deadline for filing reply comments
on the Notice of Proposed Rulemaking
(‘‘NPRM’’) in this proceeding which was
published in the Federal Register on
September 29, 2011. The extension will
enable commenters to adequately
review and respond to the comments
filed in response to the NPRM.
DATES: The reply comment period for
the proposed rule published September
29, 2011 (76 FR 60675) is extended.
Submit reply comments on or before
January 11, 2012.
ADDRESSES: You may submit reply
comments, identified by MB Docket No.
11–131, by any of the following
methods:
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
• Federal Communications
Commission’s Electronic Comment
Filing System (ECFS) Web site: http://
www.fcc.gov/cgb/ecfs/. Follow the
instructions for submitting comments.
• Mail: Filings can be sent by hand or
messenger delivery, by commercial
overnight courier, or by first-class or
overnight U.S. Postal Service mail. All
filings must be addressed to the
Commission’s Secretary, Office of the
Secretary, Federal Communications
Commission.
• People With Disabilities: Contact
the FCC to request reasonable
accommodations (accessible format
documents, sign language interpreters,
CART, etc.) by email: FCC504@fcc.gov
or phone: (202) 418–0530 or TTY: (202)
418–0432.
For detailed instructions on
submitting comments and additional
information on the rulemaking process,
see the SUPPLEMENTARY INFORMATION
section of the NPRM.
FOR FURTHER INFORMATION CONTACT:
David Konczal, David.Konczal@fcc.gov,
of the Media Bureau, Policy Division,
(202) 418–2120.
SUPPLEMENTARY INFORMATION: This is a
summary of the Order in MB Docket No.
11–131, DA 11–2025, adopted and
released on December 15, 2011, which
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 / Proposed Rules 469
extends the reply comment deadline
established in the NPRM published
under FCC No. 11–119 at 76 FR 60675,
September 29, 2011. The full text of this
document is available for public
inspection and copying during normal
business hours in the FCC Reference
Center, Portals II, 445 12th Street SW.,
Room CY–A257, Washington, DC 20554.
The complete text may also be
purchased from the Commission’s copy
contractor, Best Copy and Printing, Inc.,
445 12th Street SW., Room CY–B402,
Washington, DC 20554. The full text
may also be downloaded at: http://
www.fcc.gov. Alternative formats are
available to persons with disabilities by
sending an email to FCC504@fcc.gov or
by calling the Consumer &
Governmental Affairs Bureau at (202)
418–0530 (voice), (202) 418–0432
(TTY).
Summary of the Order
1. On August 1, 2011, the Commission
released an NPRM on revisions to the
program carriage rules. The NPRM set
deadlines for filing comments and reply
comments at 60 and 90 days,
respectively, after publication of the
NPRM in the Federal Register. A
summary of the NPRM was published in
the Federal Register on September 29,
2011 (76 FR 60675). Accordingly, the
filing dates were initially established as
November 28, 2011 for comments and
December 28, 2011 for reply comments.
2. On December 13, 2011, the
National Cable & Telecommunications
Association (‘‘NCTA’’), Media Access
Project, and Public Knowledge filed a
joint request to extend the reply
comment deadline by two weeks, until
January 11, 2012. They claim that the
comments filed in response to the
NPRM reflect divergent views and
opposing arguments on virtually every
issue and note further that the current
reply comment deadline falls in the
middle of the holiday season. We grant
the requested extension. As set forth in
Section 1.46 of the Commission’s Rules,
47 CFR 1.46, the Commission’s policy is
that extensions of time for filing
comments in rulemaking proceedings
shall not be routinely granted. In this
case, however, an extension of the reply
comment period is warranted to enable
commenters to adequately review and
respond to the comments filed in
response to the NPRM.
3. Accordingly, it is ordered that,
pursuant to section 4(i) of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), and §§ 0.61,
0.283, and 1.46 of the Commission’s
rules, 47 CFR 0.61, 0.283, and 1.46, the
Motion for Extension of Time filed by
NCTA, Media Access Project, and
Public Knowledge is granted, and the
deadline to file reply comments in this
proceeding is extended to January 11,
2012.
Federal Communications Commission.
Steven A. Broeckaert,
Senior Deputy Chief, Policy Division, Media
Bureau.
[FR Doc. 2011–33847 Filed 1–4–12; 8:45 am]
BILLING CODE 6712–01–P
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This section of the FEDERAL REGISTER
contains documents other than rules or
proposed rules that are applicable to the
public. Notices of hearings and investigations,
committee meetings, agency decisions and
rulings, delegations of authority, filing of
petitions and applications and agency
statements of organization and functions are
examples of documents appearing in this
section.
Notices Federal Register
470
Vol. 77, No. 3
Thursday, January 5, 2012
DEPARTMENT OF AGRICULTURE
Agricultural Marketing Service
[Doc. No. AMS–FV–11–0084]
Specialty Crop Block Grant Program—
Farm Bill Request for Extension and
Revision of a Currently Approved
Information Collection
AGENCY: Agricultural Marketing Service,
USDA.
ACTION: Request for comments.
SUMMARY: In accordance with the
Paperwork Reduction Act of 1995 (44
U.S.C. Chapter 35), this document
announces the Agricultural Marketing
Service’s (AMS) intention to request
approval, from the Office of
Management and Budget, for an
extension of and revision to the
currently approved information
collection under the Specialty Crop
Block Grant Program—Farm Bill
(SCBGP–FB).
DATES: Comments on this document
must be received by March 5, 2012 to
be assured of consideration.
ADDRESSES: Interested persons are
invited to submit comments concerning
this information collection document.
Comments should be submitted online
at www.regulations.gov or sent to Docket
Clerk, Fruit and Vegetable Programs,
Agricultural Marketing Service, U.S.
Department of Agriculture, Stop 0235,
1400 Independence Avenue SW.,
Washington, DC 20250–0243; or by
facsimile to (202) 720–0016. All
comments should reference the docket
number (AMS–FV–11–0084), the date,
and the page number of this issue of the
Federal Register. All comments
received will be posted without change,
including any personal information
provided, online at http://www.
regulations.gov and will be made
available for public inspection at the
above physical address during regular
business hours.
FOR FURTHER INFORMATION CONTACT:
Trista Etzig at the above physical
address, by telephone (202) 690–4942,
or by email at mail to: scblockgrants@
usda.gov.
SUPPLEMENTARY INFORMATION:
Title: Specialty Crop Block Grant
Program—Farm Bill.
OMB Number: 0581–0248.
Expiration Date of Approval: 3 years
from date of OMB approval.
Type of Request: Extension and
revision of a currently approved
information collection.
Abstract: The information collection
requirements in this request are applied
only to those State departments of
agriculture who voluntarily participate
in the SCBGP–FB. The information
collected is needed to certify that grant
participants are complying with
applicable program regulations. Data
collected is the minimum information
necessary to effectively carry out the
requirements of the program, and to
fulfill the intent of section 101 of the
Competitiveness Act of 2004, as
amended by section 10109 of the Food,
Conservation, and Energy Act of 2008,
(2008 Farm Bill) (Pub. L. 110–246).
State departments of agriculture who
wish to participate in the SCBGP–FB
would have to submit the following:
(a) SF–424, ‘‘Application for Federal
Assistance,’’ (approved under OMB
collection number 4040–0004) is
required to apply for Federal assistance.
(b) SF–424A, ‘‘Budget Information-
Non-Construction Programs,’’ (approved
under OMB collection number 0348–
0044) is required to show each project’s
budget breakdown.
(c) Form SF–424B, ‘‘Assurances-Non-
Construction Programs,’’ (approved
under OMB collection number 0348–
0040) to assure the Federal government
of the applicant’s legal authority to
apply for Federal assistance.
(d) State Plan Narrative. Completed
applications must include a State Plan
Narrative to show how grant funds will
be utilized to enhance the
competitiveness of specialty crops.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 10 hours per
response.
Respondents: State departments of
agriculture.
Estimated Number of Respondents: 56
(All 50 States, the District of Columbia,
the Commonwealth of Puerto Rico,
Guam, American Samoa, the U.S. Virgin
Islands, and the Commonwealth of the
Northern Mariana Islands).
Estimated Number of Responses: 56.
Estimated Number of Responses per
Respondent: 1.
Estimated Total Annual Burden on
Respondents: 560 hours.
Before funds are dispersed, State
departments of agriculture must
complete the following forms:
(a) Grant Agreement. The Grant
Agreement sets forth the agreed upon
responsibilities of AMS project work. It
also indicates the agreed upon grant
funding dollar amounts and the
beginning date and ending date of the
project work and the Grant Agreement.
One copy of this Grant Agreement is
required to be returned to AMS with the
grantee’s signatures and dated for each
grant.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 2 hours per
response.
Respondents: State departments of
agriculture.
Estimated Number of Respondents:
56.
Estimated Number of Responses: 56.
Estimated Number of Responses per
Respondent: 1.
Estimated Total Annual Burden on
Respondents: 112 hours.
(b) Form SF–270, ‘‘Request for
Advance and Reimbursement’’
(approved under OMB collection
number 0348–0004) is required
whenever the grantees request an
advance or reimbursement of Federal
grant funds. AMS expects that at least
three (3) SF–270 forms will be
submitted during the grant agreement
period.
(c) Annual Performance Report. The
Annual Performance Report is required
if a grant period is more than one year
in length. The Annual Performance
Report is written documentation
required to notify AMS about the work
activities and progress towards
completing the grantee’s and
subgrantee’s established project
activities, goals and outcomes. AMS
expects that at least two (2) Annual
Performance Reports will be submitted
during the grant agreement period.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 3 hours per
response.
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 471
Respondents: State departments of
agriculture.
Estimated Number of Respondents:
56.
Estimated Number of Responses: 112.
Estimated Number of Responses per
Respondent: 2.
Estimated Total Annual Burden on
Respondents: 336 hours.
(d) Final Performance Report. The
Final Performance Report is written
information required by AMS within 90
days after the ending date of the Grant
Agreement. This information is utilized
as final documentation of completion of
the project activities, goals and
outcomes.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 6 hours per
response.
Respondents: State departments of
agriculture.
Estimated Number of Respondents:
56.
Estimated Number of Responses: 56.
Estimated Number of Responses per
Respondent: 1.
Estimated Total Annual Burden on
Respondents: 336 hours.
(e) Request for Grant Amendment. A
State department of agriculture
participating in the SCBGP–FB would
have to submit a Request for Grant
Amendment to AMS if there is a change
in key personnel, scope or objectives of
the grant, budget changes that exceed
more than 20% of a project’s total
budget, and/or or an extension of the
grant period not to exceed three
calendar years.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 1 hour per
response.
Respondents: State departments of
agriculture.
Estimated Number of Respondents:
56.
Estimated Number of Responses: 56.
Estimated Number of Responses per
Respondent: 2.
Estimated Total Annual Burden on
Respondents: 112 hours.
(f) SF–425 ‘‘Federal Financial Report
(approved under OMB collection
number 0348–0061) is to be completed
90 days after the expiration date of the
grant period to comply with various
legal and regulatory requirements as
described within the form.
(g) Audit Report. A State is required
to conduct an audit of SCBGP–FB
expenditures and an audit report is
required to be submitted to AMS no
later than 30 days after completion of
the audit.
Estimate of Burden: Public reporting
burden for this collection of information
is estimated to average 3 hours per
response.
Respondents: State departments of
agriculture.
Estimated Number of Respondents:
56.
Estimated Number of Responses: 56.
Estimated Number of Responses per
Respondent: 1.
Estimated Total Annual Burden on
Respondents: 168 hours.
Finally, State departments of
agriculture are required to retain records
pertaining to the SCBGP–FB for 3 years
after completion of the grant period or
until final resolution of any audit
findings or litigation claims relating to
the SCBGP–FB. This is a part of normal
business practice.
This program would not be
maintained by any other agency,
therefore, the requested information will
not be available from any other existing
records.
AMS is committed to compliance
with the Government Paperwork
Elimination Act (GPEA) (44 U.S.C. 3540
note), which requires Government
agencies in general to provide the public
the option of submitting information or
transacting business electronically to
the maximum extent possible. The SF–
424, SF–424A, and SF–424B forms and
State Plan (Narrative) can be completed
electronically and are required to be
submitted electronically through www.
grants.gov.
The SF–425 and SF–270 forms can be
filled out electronically and submitted
electronically.
The Annual Performance Report,
Final Performance Report, Audit Report,
and Request for Grant Amendment can
be submitted electronically. The Grant
Agreement requires an original
signature and can be submitted by mail.
Comments are invited on: (1) Whether
the proposed collection of information
is necessary for the proper performance
of the functions of the agency, including
whether the information will have
practical utility; (2) the accuracy of the
agency’s estimate of the burden of the
proposed collection of information,
including the validity of the
methodology and assumptions used; (3)
ways to enhance the quality, utility, and
clarity of the information to be
collected; and (4) ways to minimize the
burden of the collection of information
on those who are to respond, including
the use of appropriate automated,
electronic, mechanical, or other
technological collection techniques or
other forms of information technology.
All responses to this document will
be summarized and included in the
request for OMB approval. All
comments will become a matter of
public record.
Dated: December 22, 2011.
David R. Shipman,
Acting Administrator.
[FR Doc. 2011–33793 Filed 1–4–12; 8:45 am]
BILLING CODE 3410–02–P
DEPARTMENT OF AGRICULTURE
Food and Nutrition Service
Emergency Food Assistance Program;
Availability of Foods for Fiscal Year
2012
AGENCY: Food and Nutrition Service,
USDA.
ACTION: Notice.
SUMMARY: This notice announces the
surplus and purchased foods that the
Department expects to make available
for donation to States for use in
providing nutrition assistance to the
needy under The Emergency Food
Assistance Program (TEFAP) in Fiscal
Year (FY) 2012. The foods made
available under this notice must, at the
discretion of the State, be distributed to
eligible recipient agencies for use in
preparing meals and/or for distribution
to households for home consumption.
DATES: Effective Date: October 1, 2011.
FOR FURTHER INFORMATION CONTACT:
Ashley Bress, Policy Branch, Food
Distribution Division, Food and
Nutrition Service, U.S. Department of
Agriculture, 3101 Park Center Drive
Alexandria, Virginia 22302–1594 or
telephone (703) 305–2662.
SUPPLEMENTARY INFORMATION: In
accordance with the provisions set forth
in the Emergency Food Assistance Act
of 1983 (EFAA), 7 U.S.C. 7501, et seq.,
and the Food and Nutrition Act of 2008,
7 U.S.C. 2036, the Department makes
foods available to States for use in
providing nutrition assistance to those
in need through TEFAP. In accordance
with section 214 of the EFAA, 7 U.S.C.
7515, 60 percent of each State’s share of
TEFAP foods is based on the number of
people with incomes below the poverty
level within the State and 40 percent on
the number of unemployed persons
within the State. State officials are
responsible for establishing the network
through which the foods will be used by
eligible recipient agencies (ERA) in
providing nutrition assistance to those
in need, and for allocating foods among
those ERAs. States have full discretion
in determining the amount of foods that
will be made available to ERAs for use
in preparing meals and/or for
distribution to households for home
consumption.
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472 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
The types of foods the Department
expects to make available to States for
distribution through TEFAP in FY 2012
are described below.
Surplus Foods
Surplus foods donated for distribution
under TEFAP are Commodity Credit
Corporation (CCC) foods purchased
under the authority of section 416 of the
Agricultural Act of 1949, 7 U.S.C. 1431
(section 416) and foods purchased
under the surplus removal authority of
section 32 of the Act of August 24, 1935,
7 U.S.C. 612c (section 32). The types of
foods typically purchased under section
416 include dairy, grains, oils, and
peanut products. The types of foods
purchased under section 32 include
meat, poultry, fish, vegetables, dry
beans, juices, and fruits.
Approximately $37.5 million in
surplus foods acquired in FY 2011 are
being delivered to States in FY 2012.
These foods include carrots, chicken
(leg quarters, thighs/drumsticks), corn,
fig pieces, oranges, peaches, pears,
pistachios, dried plums, potatoes, and
tomato sauce. Other surplus foods may
be made available to TEFAP throughout
the year. The Department would like to
point out that food acquisitions are
based on changing agricultural market
conditions; therefore, the availability of
foods is subject to change.
Purchased Foods
In accordance with section 27 of the
Food and Nutrition Act of 2008, 7
U.S.C. 2036, the Secretary is directed to
purchase about $260.25 million worth
of foods in FY 2012 for distribution
through TEFAP. These foods are made
available to States in addition to those
surplus foods which otherwise might be
provided to States for distribution under
TEFAP.
For FY 2012, the Department
anticipates purchasing the following
foods for distribution through TEFAP:
Dehydrated potatoes, dried plums,
raisins, frozen ground beef, frozen
whole chicken, frozen ham, frozen
turkey roast, blackeye beans, garbanzo
beans, great northern beans, light red
kidney beans, lentils, lima beans, pinto
beans, egg mix, shell eggs, lowfat bakery
mix, egg noodles, white and yellow corn
grits, spaghetti, macaroni, oats, peanut
butter, roasted peanuts, rice, whole
grain rotini, vegetable oil, ultra high
temperature fluid 1 percent milk, bran
flakes, corn flakes, oat cereal, rice
cereal, corn cereal, and corn and rice
cereal; the following canned items:
Green beans, blackeye beans, kidney
beans, refried beans, vegetarian beans,
carrots, cream corn, whole kernel corn,
peas, sliced potatoes, pumpkin,
spaghetti sauce, spinach, sweet
potatoes, tomatoes, diced tomatoes,
tomato sauce, mixed vegetables, tomato
soup, vegetable soup, apricots,
applesauce, mixed fruit, peaches, pears,
beef, beef stew, chicken, pork, and
salmon; and the following bottled
juices: Apple, cherry apple, cran-apple,
grape, grapefruit, orange, and tomato.
The amounts of each item purchased
will depend on the prices the
Department must pay, as well as the
quantity of each item requested by the
States. Changes in agricultural market
conditions may result in the availability
of additional types of foods or the nonavailability
of one or more types listed
above.
Dated: December 27, 2011.
Audrey Rowe,
Administrator, Food and Nutrition Service.
[FR Doc. 2011–33673 Filed 1–4–12; 8:45 am]
BILLING CODE 3410–30–M
DEPARTMENT OF AGRICULTURE
Forest Service
National Advisory Committee for
Implementation of the National Forest
System Land Management Planning
Rule; Correction
AGENCY: USDA Forest Service.
ACTION: Notice; correction.
SUMMARY: The Forest Service published
a notice in the Federal Register on
December 29, 2011, concerning the
intent to establish an advisory
committee and call for nominations.
The document contained incorrect
dates. The published document
contained a due date for nominations of
February 13, 2012. The correction is
February 21, 2012.
FOR FURTHER INFORMATION CONTACT:
Tony Tooke, U.S. Department of
Agriculture, Forest Service, National
Forest System, Ecosystem Management
Coordination; telephone: (202) 205–
0830, fax: (202) 205–1758, or email:
ttooke@fs.fed.us. Individuals who use
telecommunication devices for the deaf
(TDD) may call the Federal Information
Relay Service (FIRS) at 1 (800) 877–8339
between 8 a.m. and 8 p.m., Eastern
Standard Time, Monday through Friday.
Correction
In the Federal Register of December
29, 2011, in FR doc. 2011–33535, on
page 81911, in the first column, correct
the ‘‘Dates’’ caption to read:
Written nominations must be received
by February 21, 2012. Nominations
must contain a completed application
packet that includes the nominee’s
name, resume, and completed form AD–
755 (Advisory Committee Membership
Background Information). The form AD–
755 may be obtained from Forest
Service contact person or from the
following Web site: http://
www.fs.usda.gov/Internet/
FSE_DOCUMENTS/
stelprdb5203568.pdf . The package must
be sent to the address below.
Dated: December 30, 2011.
Pearlie S. Reed,
Assistant Secretary of Administration.
[FR Doc. 2011–33823 Filed 1–4–12; 8:45 am]
BILLING CODE 3410–11–P
COMMISSION ON CIVIL RIGHTS
Sunshine Act Notice
AGENCY: United States Commission on
Civil Rights.
ACTION: Notice of meeting.
DATE AND TIME: Friday, January 13, 2012;
9:30 a.m. EST.
PLACE: 624 Ninth Street NW., Room 540,
Washington, DC 20425.
Meeting Agenda
This meeting is open to the public.
I. Approval of Agenda
II. Approval of the December 19, 2011
Meeting Minutes
III. Program Planning Update and
discussion of projects:
• Update on 2012 Statutory
Enforcement Report planning
• Update on 2012 Trafficking Briefing
planning
• Scheduling of 2012 Immigration
Briefing
• Review of Concept Papers/Approval
IV. Management and Operations
• Staff Director’s report
• Chief of Regional Programs’ Report
V. State Advisory Committee Issues:
• Re-Chartering the Hawaii SAC
VI. Adjourn
FOR FURTHER INFORMATION CONTACT:
Lenore Ostrowsky, Acting Chief, Public
Affairs Unit, (202) 376–8591.
Hearing-impaired persons who will
attend the meeting and require the
services of a sign language interpreter
should contact Pamela Dunston at (202)
376–8105 or at signlanguage@usccr.gov
at least seven business days before the
scheduled date of the meeting.
Dated: January 3, 2012.
David B. Snyder,
Attorney-Advisor, Alternate Certifying
Officer.
[FR Doc. 2012–42 Filed 1–3–12; 4:15 pm]
BILLING CODE 6335–01–P
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 473
1 See Certain Steel Threaded Rod from the
People’s Republic of China: Notice of Antidumping
Duty Order, 74 FR 17154 (April 14, 2009) (‘‘Steel
Threaded Rod Order’’).
2 See the Petitioner’s November 17, 2011
submission (‘‘Circumvention Request’’) at 2.
3 See Notice of Scope Rulings, 76 FR 10558,
10559 (February 25, 2011).
4 See S. Rep. No.71, 100th Cong., 1st Sess. 100
(1987) (‘‘In applying this provision, the Commerce
Department should apply practical measurements
regarding minor alterations, so that circumvention
can be dealt with effectively, even where such
alterations to an article technically transform it into
a differently designated article.’’).
5 See Circumvention Request at 16.
6 Id. at 16–17.
DEPARTMENT OF COMMERCE
International Trade Administration
[A–570–932]
Certain Steel Threaded Rod From the
People’s Republic of China: Initiation
of Anti-Circumvention Inquiry
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: In response to a request from
Vulcan Threaded Products Inc.
(‘‘Petitioner’’), the Department of
Commerce (the ‘‘Department’’) is
initiating an anti-circumvention inquiry
to determine whether certain imports
are circumventing the antidumping duty
order on certain steel threaded rod from
the People’s Republic of China
(‘‘PRC’’).1
DATES: Effective Date: January 5, 2012.
FOR FURTHER INFORMATION CONTACT: Toni
Dach, AD/CVD Operations, Office 9,
Import Administration, International
Trade Administration, U.S. Department
of Commerce, 14th Street and
Constitution Avenue NW., Washington,
DC 20230; telephone: (202) 482–1655.
SUPPLEMENTARY INFORMATION:
Background
On November 17, 2011, pursuant to
section 781(c) of the Tariff Act of 1930,
as amended (the ‘‘Act’’), and 19 CFR
351.225(i), Petitioner submitted a
request for the Department to initiate an
anti-circumvention inquiry of Gem-Year
Industrial Co., Ltd. (‘‘Gem-Year’’) to
determine whether double-arming bolts
(‘‘DA bolts’’), a type of steel threaded
rod produced in the PRC containing
more than 1.25 percent chromium, are
circumventing the Steel Threaded Rod
Order.2 In its request, Petitioner
contends that Gem-Year’s higherchromium
DA bolts are of the same
class or kind as the merchandise
covered by the Steel Threaded Rod
Order, and the addition of small
amounts of chromium above the 1.25
percent threshold in the scope of the
order is a minor alteration that
constitutes circumvention.
Scope of the Order
The merchandise covered by the order
is steel threaded rod. Steel threaded rod
is certain threaded rod, bar, or studs, of
carbon quality steel, having a solid,
circular cross section, of any diameter,
in any straight length, that have been
forged, turned, cold-drawn, cold-rolled,
machine straightened, or otherwise
cold-finished, and into which threaded
grooves have been applied. In addition,
the steel threaded rod, bar, or studs
subject to the order are non-headed and
threaded along greater than 25 percent
of their total length. A variety of finishes
or coatings, such as plain oil finish as
a temporary rust protectant, zinc coating
(i.e., galvanized, whether by
electroplating or hot-dipping), paint,
and other similar finishes and coatings,
may be applied to the merchandise.
Included in the scope of the order are
steel threaded rod, bar, or studs, in
which: (1) Iron predominates, by
weight, over each of the other contained
elements; (2) the carbon content is 2
percent or less, by weight; and (3) none
of the elements listed below exceeds the
quantity, by weight, respectively
indicated:
• 1.80 percent of manganese, or
• 1.50 percent of silicon, or
• 1.00 percent of copper, or
• 0.50 percent of aluminum, or
• 1.25 percent of chromium, or
• 0.30 percent of cobalt, or
• 0.40 percent of lead, or
• 1.25 percent of nickel, or
• 0.30 percent of tungsten, or
• 0.012 percent of boron, or
• 0.10 percent of molybdenum, or
• 0.10 percent of niobium, or
• 0.41 percent of titanium, or
• 0.15 percent of vanadium, or
• 0.15 percent of zirconium.
Steel threaded rod is currently
classifiable under subheading
7318.15.5050, 7318.15.5090, and
7318.15.2095 of the United States
Harmonized Tariff Schedule
(‘‘HTSUS’’). Although the HTSUS
subheading is provided for convenience
and customs purposes, the written
description of the merchandise is
dispositive.
Excluded from the scope of the order
are: (a) Threaded rod, bar, or studs
which are threaded only on one or both
ends and the threading covers 25
percent or less of the total length; and
(b) threaded rod, bar, or studs made to
American Society for Testing and
Materials (‘‘ASTM’’) A193 Grade B7,
ASTM A193 Grade B7M, ASTM A193
Grade B16, or ASTM A320 Grade L7.
Prior Scope Ruling
Among previous scope rulings
concerning the Steel Threaded Rod
Order, the Department on September 10,
2010, responded to a request for a scope
ruling by Hubbell Power Systems, Inc.
and determined that DA bolts meeting
the description of the scope are within
the scope of the Steel Threaded Rod
Order.3
Merchandise Subject to the Minor
Alterations Antidumping
Circumvention Inquiry
The merchandise subject to this
antidumping circumvention inquiry
consists of steel threaded rod from the
PRC produced by Gem-Year containing
greater than 1.25 percent chromium, by
weight, and otherwise meeting the
requirements of the scope of the Steel
Threaded Rod Order as listed under the
‘‘Scope of the Order’’ section above.
Initiation of Minor Alterations
Antidumping Circumvention
Proceeding
Section 781(c)(1) of the Act provides
that the Department may find
circumvention of an antidumping duty
order when products which are of the
class or kind of merchandise subject to
an antidumping duty order have been
‘‘altered in form or appearance in minor
respects * * * whether or not included
in the same tariff classification.’’ The
Department notes that, while the statute
is silent as to what factors to consider
in determining whether alterations are
properly considered ‘‘minor,’’ the
legislative history of this provision
indicates there are certain factors which
should be considered before reaching a
circumvention determination. In
conducting a circumvention inquiry
under section 781(c) of the Act, the
Department has generally relied upon
‘‘such criteria as the overall physical
characteristics of the merchandise, the
expectations of the ultimate users, the
use of the merchandise, the channels of
marketing and the cost of any
modification relative to the total value
of the imported products.’’ 4
Overall Physical Characteristics
Petitioner maintains that steel
threaded rod with the addition of
chromium is produced in the same
manner and to the same specifications
as subject steel threaded rod.5 Petitioner
provides a declaration supporting these
claims in its Circumvention Request.6
Expectations of the Ultimate Users
Petitioner indicates that it is unaware
of any instances where customers would
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474 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
7 Id. at 17.
8 Id.
9 Id. at 19.
10 Id.
11 Id.
12 Id. at 19–20.
13 Id. at 20.
14 Id. at 20.
expect or request steel threaded rod
with small amounts of chromium
added, other than to circumvent the
order.7 Petitioner argues that the
applicable standard for DA bolts does
not address the chemistry of the steel,
focusing instead on basic dimensions,
zinc coating, and tensile strength, none
of which are affected by the additional
amounts of chromium.8
Use of the Merchandise
Petitioner states that the uses of DA
bolts, i.e., fasteners in the utility
industry, are typical applications of
steel threaded rod.9
Channels of Marketing
Petitioner states that the channels of
marketing for the chromium-added DA
bolts and the subject steel threaded rod
are the same, noting that both products
are marketed through distributors.10
Cost of Modification
Petitioner indicates that the addition
of small amounts of chromium involves
minimal additional cost compared to
the overall costs of the merchandise in
question.11
Circumstances Under Which the
Subject Products Entered the United
States
Petitioner argues that entry summary
information indicates that the additional
chromium was added to deliberately
avoid antidumping duties. Petitioner
points to documents contained in the
entry summary for Gem-Year’s entries of
higher-chromium DA bolts to support
its claim that the chromium content of
the DA bolts was manipulated in an
attempt to circumvent the order.12
Because Gem-Year’s merchandise would
be subject to the PRC-wide deposit rate
of 206.00 percent, Petitioner asserts that
Gem-Year and its customers have a
strong financial incentive to avoid
paying antidumping duties.13
Timing of the Entries
Petitioner asserts that the addition of
chromium after the issuance of the Steel
Threaded Rod Order and the
Department’s determination in the
related scope request concerning DA
bolts indicates that this addition of
chromium is an attempt to circumvent
the Steel Threaded Rod Order.14
Based on the information provided by
Petitioner, the Department finds there is
sufficient basis to initiate an
antidumping anti-circumvention
inquiry, pursuant to section 781(c) of
the Act, to determine whether the
merchandise subject to the inquiry
(identified in the ‘‘Merchandise Subject
to the Minor Alterations Antidumping
Circumvention Inquiry’’ section above)
involves a minor alteration to subject
merchandise that is so insignificant as
to render the resulting merchandise
subject to the Steel Threaded Rod
Order.
The Department will not order the
suspension of liquidation of entries of
any additional merchandise at this time.
However, in accordance with 19 CFR
351.225(l)(2), if the Department issues a
preliminary affirmative determination,
we will then instruct U.S. Customs and
Border Protection to suspend
liquidation and require a cash deposit of
estimated duties, at the applicable rate,
for each unliquidated entry of the
merchandise at issue, entered or
withdrawn from warehouse for
consumption on or after the date of
initiation of the inquiry.
The Department will, following
consultation with interested parties,
establish a schedule for questionnaires
and comments on the issues. The
Department intends to issue its final
determination within 300 days of the
date of publication of this initiation
notice.
This notice is published in
accordance with sections 781(c) of the
Act and 19 CFR 351.225(i).
Dated: December 22, 2011.
Christian Marsh,
Acting Assistant Secretary for Import
Administration.
[FR Doc. 2011–33768 Filed 1–4–12; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XA892
2012 Annual Determination for Sea
Turtle Observer Requirement
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice.
SUMMARY: The National Marine
Fisheries Service (NMFS) is providing
notification that the agency will not
identify additional fisheries to observe
on the Annual Determination (AD) for
2012, pursuant to its authority under the
Endangered Species Act (ESA). Through
an AD, NMFS identifies fisheries
operating in the Atlantic Ocean, Gulf of
Mexico, and Pacific Ocean that will be
required to take observers upon NMFS’
request. The purpose of observing
identified fisheries is to learn more
about sea turtle interactions in a given
fishery, evaluate existing measures to
prevent or reduce prohibited sea turtle
takes, and to determine whether
additional measures to implement the
prohibition against sea turtle takes may
be necessary. Fisheries identified in the
2010 AD (see Table 1) remain on the AD
and are therefore required to carry
observers upon NMFS’ request, until
2014.
ADDRESSES: See SUPPLEMENTARY
INFORMATION for a listing of all Regional
Offices.
FOR FURTHER INFORMATION CONTACT:
Kristy Long, Office of Protected
Resources, (301) 713–2322; Ellen Keane,
Northeast Region, (978) 282–8476;
Dennis Klemm, Southeast Region, (727)
824–5312; Elizabeth Petras, Southwest
Region, (562) 980–3238; Kim Maison,
Pacific Islands Region, (808) 944–2257.
Individuals who use a
telecommunications device for the
hearing impaired may call the Federal
Information Relay Service at 1-(800)
877–8339 between 8 a.m. and 4 p.m.
Eastern time, Monday through Friday,
excluding Federal holidays.
SUPPLEMENTARY INFORMATION:
Availability of Published Materials
Information regarding the Sea Turtle
Observer Requirement for Fisheries (72
FR 43176, August 3, 2007) may be
obtained at www.nmfs.noaa.gov/pr/
species/turtles/regulations.htm or from
any NMFS Regional Office at the
addresses listed below:
Æ NMFS, Northeast Region, 55 Great
Republic Drive, Gloucester, MA 01930–
2298;
Æ NMFS, Southeast Region, 263 13th
Avenue South, St. Petersburg, FL 33701;
Æ NMFS, Southwest Region, 501 W.
Ocean Blvd., Suite 4200, Long Beach,
CA 90802–4213; or
Æ NMFS, Pacific Islands Region,
Protected Resources, 1601 Kapiolani
Boulevard, Suite 1100, Honolulu, HI
96814–4700.
Purpose of the Sea Turtle Observer
Requirement
Under the ESA, 16 U.S.C. 1531 et seq.,
NMFS has the responsibility to
implement programs to conserve marine
life listed as endangered or threatened.
All sea turtles found in U.S. waters are
listed as either endangered or
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 475
threatened under the ESA. Kemp’s
ridley (Lepidochelys kempii),
leatherback (Dermochelys coriacea), and
hawksbill (Eretmochelys imbricata) sea
turtles are listed as endangered.
Loggerhead (Caretta caretta), green
(Chelonia mydas), and olive ridley
(Lepidochelys olivacea) sea turtles are
listed as threatened, except for breeding
colony populations of green turtles in
Florida and on the Pacific coast of
Mexico, and breeding colony
populations of olive ridleys on the
Pacific coast of Mexico, which are listed
as endangered. Due to the inability to
distinguish between populations of
green and olive ridley turtles away from
the nesting beach, NMFS considers
these turtles endangered wherever they
occur in U.S. waters. While some sea
turtle populations have shown signs of
recovery, many populations continue to
decline.
Incidental take, or bycatch, in fishing
gear is one of the main sources of sea
turtle injury and mortality nationwide.
Section 9 of the ESA prohibits the take
(including harassing, harming,
pursuing, hunting, shooting, wounding,
killing, trapping, capturing, or collecting
or attempting to engage in any such
conduct), including incidental take, of
endangered sea turtles. Pursuant to
section 4(d) of the ESA, NMFS has
issued regulations extending the
prohibition of take, with exceptions, to
threatened sea turtles (50 CFR 223.205
and 223.206). Sections 9 and 11 of the
ESA authorize the issuance of
regulations to enforce the take
prohibitions. NMFS may grant
exceptions to the take prohibitions with
an incidental take statement or an
incidental take permit issued pursuant
to ESA section 7 or 10, respectively. To
do so, NMFS must determine that the
activity that will result in incidental
take is not likely to jeopardize the
continued existence of the affected
listed species. For some Federal
fisheries and most state fisheries, NMFS
has not granted an exception primarily
because we lack information about
fishery-sea turtle interactions.
The most effective way for NMFS to
learn more about sea turtle-fishery
interactions in order to prevent or
minimize take is to place observers
aboard fishing vessels. In 2007, NMFS
issued a regulation (50 CFR 222.402) to
establish procedures through which
each year NMFS will identify, pursuant
to specified criteria and after notice and
opportunity for comment, those
fisheries in which the agency intends to
place observers (72 FR 43176, August 3,
2007). These regulations specify that
NMFS may place observers on U.S.
fishing vessels, either recreational or
commercial, operating in U.S. territorial
waters, the U.S. exclusive economic
zone (EEZ), or on the high seas, or on
vessels that are otherwise subject to the
jurisdiction of the U.S. Failure to
comply with the requirements under
this rule may result in civil or criminal
penalties under the ESA.
NMFS and/or interested cooperating
entities will pay the direct costs for
vessels to carry observers. These include
observer salary and insurance costs.
NMFS may also evaluate other potential
direct costs, should they arise. Once
selected, a fishery will be eligible to be
observed for 5 years without further
action by NMFS. This will enable NMFS
to develop an appropriate sampling
protocol to investigate whether, how,
when, where, and under what
conditions incidental takes are
occurring; to evaluate whether existing
measures are minimizing or preventing
takes; and to determine whether
additional measures are needed to
conserve and recover turtles.
2012 Annual Determination
NMFS is providing notification that
the agency will not identify additional
fisheries to observe for the 2012 AD,
pursuant to its authority under the ESA.
NMFS is not identifying additional
fisheries at this time given lack of
resources to implement new or expand
existing observer programs to focus on
sea turtles (50 CFR 222.402(a)(4)).
Fisheries identified in the 2010 AD (see
Table 1) remain on the AD and are
therefore required to carry observers,
upon NMFS’ request, until 2014. NMFS
did not identify additional fisheries to
observe in the 2011 AD.
TABLE 1—STATE AND FEDERAL COMMERCIAL FISHERIES INCLUDED ON THE ANNUAL DETERMINATION
Fishery Years eligible to
carry observers
Trawl Fisheries:
Atlantic shellfish bottom trawl ............................................................................................................................................... 2010–2014
Mid-Atlantic bottom trawl ...................................................................................................................................................... 2010–2014
Mid-Atlantic mid-water trawl (including pair trawl) ............................................................................................................... 2010–2014
Southeastern U.S. Atlantic, Gulf of Mexico shrimp trawl ..................................................................................................... 2010–2014
Gillnet Fisheries:
CA halibut, white seabass and other species set gillnet (>3.5 in mesh) ............................................................................ 2010–2014
CA yellowtail, barracuda, and white seabass drift gillnet (mesh size >3.5 in. and <14 in.) ................................................ 2010–2014
Chesapeake Bay inshore gillnet ........................................................................................................................................... 2010–2014
Long Island inshore gillnet ................................................................................................................................................... 2010–2014
Mid-Atlantic gillnet ................................................................................................................................................................ 2010–2014
North Carolina inshore gillnet ............................................................................................................................................... 2010–2014
Northeast sink gillnet ............................................................................................................................................................ 2010–2014
Southeast Atlantic gillnet ...................................................................................................................................................... 2010–2014
Trap/Pot Fisheries:
Atlantic blue crab trap/pot .................................................................................................................................................... 2010–2014
Atlantic mixed species trap/pot ............................................................................................................................................ 2010–2014
Northeast/mid-Atlantic American lobster trap/pot ................................................................................................................. 2010–2014
Pound Net/Weir/Seine Fisheries:
Mid-Atlantic haul/beach seine .............................................................................................................................................. 2010–2014
Mid-Atlantic menhaden purse seine ..................................................................................................................................... 2010–2014
U.S. mid-Atlantic mixed species stop seine/weir/pound net (except the NC roe mullet stop net) ...................................... 2010–2014
Virginia pound net ........................................................................................................................................................................ 2010–2014
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476 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
Dated: December 29, 2011.
P. Michael Payne,
Chief, Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service.
[FR Doc. 2011–33852 Filed 1–4–12; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XA907
Endangered and Threatened Species;
Recovery Plan Southern Oregon/
Northern California Coast Coho
Salmon Evolutionarily Significant Unit
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice of availability; request
for comments.
SUMMARY: NMFS announces the
availability for public review of the draft
Recovery Plan (Plan) for the Southern
Oregon/Northern California Coast
(SONCC) Coho Salmon (Oncorhynchus
kisutch) Evolutionarily Significant Unit
(ESU). NMFS is soliciting review and
comment from the public and all
interested parties on the Plan, and will
consider all substantive comments
received during the review period
before submitting the Plan for final
approval. In addition, public meetings
will be announced as opportunities for
providing comments on the Draft Plan
(dates to be determined).
DATES: Comments must be received no
later than 5 p.m. Pacific daylight time
on March 5, 2012. NMFS will accept
anonymous comments (enter N/A in the
required fields, if you wish to remain
anonymous). You may submit
attachments to electronic comments in
Microsoft Word, Excel, or Adobe PDF
file formats only.
ADDRESSES: You may submit comments
by any of the following methods:
• Via email:
SONCC.Recovery@noaa.gov (No files
larger than 5MB can be accepted).
• Via U.S. Mail: Julie Weeder,
National Marine Fisheries Service, 1655
Heindon Road, Arcata, CA 95521, Attn:
Recovery Coordinator/SONCC Coho
Salmon Public Draft Recovery Plan
Comments.
• Hand delivered: National Marine
Fisheries Service, 1655 Heindon Road,
Arcata, CA 95521, Attn: Recovery
Coordinator/SONCC Coho Salmon
Public Draft Recovery Plan Comments.
Business hours are 8 a.m. to 4:30 p.m.
Monday through Friday, except Federal
holidays.
• Via fax: (707) 825–4840. Please
include the following on the cover page
of the fax: ‘‘Attn: Recovery Coordinator/
SONCC Coho Salmon Public Draft
Recovery Plan Comments.’’
FOR FURTHER INFORMATION CONTACT: Julie
Weeder ((707) 825–5168), email
julie.weeder@noaa.gov.
SUPPLEMENTARY INFORMATION: NMFS is
charged with the recovery of Pacific
salmon and steelhead species listed
under the Endangered Species Act
(ESA). Recovery means that listed
species and their ecosystems are
restored, and their future secured, so
that the protections of the ESA are no
longer necessary. The ESA specifies that
recovery plans must include: (1) A
description of management actions
necessary to achieve the plan’s goals for
the conservation and survival of the
species; (2) objective, measurable
criteria which, when met, would result
in the species being removed from the
list; and (3) estimates of time and costs
required to achieve the plan’s goal and
the intermediate steps towards that goal.
Section 4(f) of the ESA, as amended in
1988, requires that public notice and an
opportunity for public review and
comment be provided during recovery
plan development. NMFS is hereby
soliciting relevant information on
SONCC Coho Salmon ESU populations
and their freshwater/marine habitats. In
addition, NMFS is soliciting comment
on the contents of the proposed
recovery plan.
Persons wishing to review the Draft
Plan can obtain an electronic copy (i.e.,
CD ROM) from Ms. Cynthia Anderson
by calling (707) 825–5162 or by
emailing a request to
Cynthia.Anderson@noaa.gov with the
subject line ‘‘CD ROM Request for
SONCC Coho Salmon Draft Recovery
Plan.’’ Electronic copies of the Draft
Plan are also available on line on the
following NMFS Web site: http://
swr.nmfs.noaa.gov/recovery.
Public Meetings
Public meetings are planned.
Information on locations, dates, and
times will be posted on the Web site
listed above.
Authority: 16 U.S.C. 1531 et seq.
Dated: December 29, 2011.
Susan Pultz,
Acting Chief, Endangered Species Division,
Office of Protected Resources, National
Marine Fisheries Service.
[FR Doc. 2011–33850 Filed 1–4–12; 8:45 am]
BILLING CODE 3510–22–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration (NOAA)
Science Advisory Board
AGENCY: Office of Oceanic and
Atmospheric Research (OAR), National
Oceanic and Atmospheric
Administration (NOAA), Department of
Commerce (DOC).
ACTION: Notice of public meeting.
SUMMARY: This notice sets forth the
schedule and proposed agenda of a
forthcoming meeting of the NOAA
Science Advisory Board. The members
will discuss and provide advice on
issues outlined in the section on Matters
to be Considered.
Time and Date: The meeting is
scheduled for: Tuesday, January 31,
2012, from 3–5 p.m. Eastern Standard
Time.
ADDRESSES: Conference call. Public
access is available at: NOAA, SSMC 3,
Room 11836, 1315 East-West Highway
Silver Spring, Md.
Status: The meeting will be open to
public participation with a 5-minute
public comment period from 4:50–4:55
p.m. The SAB expects that public
statements presented at its meetings will
not be repetitive of previously
submitted verbal or written statements.
In general, each individual or group
making a verbal presentation will be
limited to a total time of one minute.
Written comments should be received in
the SAB Executive Director’s Office by
January 26, 2012 to provide sufficient
time for SAB review. Written comments
received by the SAB Executive Director
after January 26, 2012, will be
distributed to the SAB, but may not be
reviewed prior to the meeting date.
SUPPLEMENTARY INFORMATION: The
Science Advisory Board (SAB) was
established by a Decision Memorandum
dated September 25, 1997, and is the
only Federal Advisory Committee with
responsibility to advise the Under
Secretary of Commerce for Oceans and
Atmosphere on strategies for research,
education, and application of science to
operations and information services.
SAB activities and advice provide
necessary input to ensure that National
Oceanic and Atmospheric
Administration (NOAA) science
programs are of the highest quality and
provide optimal support to resource
management.
Matters To Be Considered: The
meeting will include the following
topics: (1) Review of new members for
the Environmental Information Services
Working Group (2) Review of renewal of
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 477
membership terms for the Ecosystem
Sciences and Management Working
Group and (3) Update from the Research
and Development Portfolio Review Task
Force and discussion of next actions.
For the latest agenda, please visit the
SAB Web site at http://
www.sab.noaa.gov.
FOR FURTHER INFORMATION CONTACT: Dr.
Cynthia Decker, Executive Director,
Science Advisory Board, NOAA, Rm.
11230, 1315 East-West Highway Silver
Spring, Maryland 20910. (Phone: (301)
734–1156, Fax: (301) 713–1459, Email:
Cynthia.Decker@noaa.gov).
Dated: December 28, 2011.
Terry Bevels,
Acting Chief Financial Officer/Chief
Administrative Officer, Office of Oceanic and
Atmospheric Research, National Oceanic and
Atmospheric Administration.
[FR Doc. 2011–33774 Filed 1–4–12; 8:45 am]
BILLING CODE 3510–KD–P
COMMODITY FUTURES TRADING
COMMISSION
Agency Information Collection
Activities: Rules Relating to Regulation
of Domestic Exchange-Traded Options
AGENCY: Commodity Futures Trading
Commission.
ACTION: Extension of an existing
collection.
SUMMARY: The Commodity Futures
Trading Commission (CFTC) is
announcing an opportunity for public
comment on the proposed collection of
certain information by the agency.
Under the Paperwork Reduction Act of
1995 (PRA), 44 U.S.C. 3501 et seq.,
Federal agencies are required to publish
notice in the Federal Register
concerning each proposed collection of
information, including each proposed
extension of an existing collection of
information, and to allow 60 days for
public comment in response to the
notice. This notice solicits comments on
rules related to risk disclosure
concerning exchange traded commodity
options.
DATES: Comments must be submitted on
or before March 5, 2012.
ADDRESSES: Comments may be mailed to
William Penner, Division of Clearing
and Intermediary Oversight, U.S.
Commodity Futures Trading
Commission, 1155 21st Street NW.,
Washington, DC 20581.
FOR FURTHER INFORMATION CONTACT:
Ryne Miller, (202) 418–5921; Fax: (202)
418–5536; email: rmiller@cftc.gov.
SUPPLEMENTARY INFORMATION: Under the
PRA, Federal agencies must obtain
approval from the Office of Management
and Budget (OMB) for each collection of
information they conduct or sponsor.
‘‘Collection of information’’ is defined
in 44 U.S.C. 3502(3) and 5 CFR
1320.3(c) and includes agency requests
or requirements that members of the
public submit reports, keep records, or
provide information to a third party.
Section 3506(c)(2)(A) of the PRA, 44
U.S.C. 3506(c)(2)(A), requires Federal
agencies to provide a 60-day notice in
the Federal Register concerning each
proposed collection of information,
including each proposed extension of an
existing collection of information,
before submitting the collection to OMB
for approval. To comply with this
requirement, the CFTC is publishing
notice of the proposed collection of
information listed below.
With respect to the following
collection of information, the CFTC
invites comments on:
• Whether the proposed collection of
information is necessary for the proper
performance of the functions of the
Commission, including whether the
information will have a practical use;
• The accuracy of the Commission’s
estimate of the burden of the proposed
collection of information, including the
validity of the methodology and
assumptions used;
• Ways to enhance the quality,
usefulness, and clarity of the
information to be collected; and
• Ways to minimize the burden of
collection of information on those who
are to respond, including through the
use of appropriate automated electronic,
mechanical, or other technological
collection techniques or other forms of
information technology; e.g., permitting
electronic submission of responses.
Rules Relating to Regulation of
Domestic Exchange-Traded Options,
OMB Control Number 3038–0007—
Extension
The rules require futures commission
merchants and introducing brokers: (1)
To provide their customers with
standard risk disclosure statements
concerning the risk of trading
commodity interests; and (2) to retain
all promotional material and the source
of authority for information contained
therein. The purpose of these rules is to
ensure that customers are advised of the
risks of trading commodity interests and
to avoid fraud and misrepresentation.
This information collection contains the
recordkeeping and reporting
requirements needed to ensure
regulatory compliance with Commission
rules relating to this issue.
The Commission estimates the burden
of this collection of information as
follows:
ESTIMATED ANNUAL REPORTING BURDEN
Regulation
Estimated number
of respondents
or recordkeepers
per year
Reports annually
by each
respondent
Total annual
responses
Estimated
average number
of hours
per response
Estimated
total number
of hours of annual
burden in fiscal
year
Reporting:
38.3, 38.4, 40.2 and 40.3 (Procedure
for designation or self-certification)
...................................... 13.00 2.00 26.00 25.00 650
33.7—(Risk disclosure) ................... 120.00 115.00 13,800.00 0.08 1,104.00
Subtotal (Reporting requirements)
.................................. 133.00 13,826.00 1,754.00
Recordkeeping:
33.8—(Retention of promotional
material) ...................................... 170.00 1.00 170.00 25.00 4,250.00
Subtotal (Recordkeeping requirements)
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478 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
ESTIMATED ANNUAL REPORTING BURDEN—Continued
Regulation
Estimated number
of respondents
or recordkeepers
per year
Reports annually
by each
respondent
Total annual
responses
Estimated
average number
of hours
per response
Estimated
total number
of hours of annual
burden in fiscal
year
Grand total (Reporting and
recordkeeping) ..................... 303.00 13,996.00 6,004.00
There are no capital costs or operating
and maintenance costs associated with
this collection.
Dated: December 30, 2011.
Sauntia S. Warfield,
Assistant Secretary of the Commission.
[FR Doc. 2011–33841 Filed 1–4–12; 8:45 am]
BILLING CODE P
CONSUMER PRODUCT SAFETY
COMMISSION
Sunshine Act Meeting Notice
TIME AND DATE: Wednesday, January 11,
2012; 10 a.m.–11 a.m.
PLACE: Hearing Room 420, Bethesda
Towers, 4330 East West Highway,
Bethesda, Maryland.
STATUS: Closed to the Public.
Matter To Be Considered
Compliance Status Report
The Commission staff will brief the
Commission on the status of compliance
matters.
For a recorded message containing the
latest agenda information, call (301)
504–7948.
FOR FURTHER INFORMATION CONTACT:
Todd A. Stevenson, Office of the
Secretary, U.S. Consumer Product
Safety Commission, 4330 East West
Highway, Bethesda, MD 20814, (301)
504–7923.
Dated: January 3, 2012.
Todd A Stevenson,
Secretary.
[FR Doc. 2012–64 Filed 1–3–12; 4:15 pm]
BILLING CODE 6355–01–P
CONSUMER PRODUCT SAFETY
COMMISSION
[Docket No. CPSC–2011–0087]
Petition Requesting Exception From
the Lead Content Limits; Reopening of
the Comment Period
AGENCY: U.S. Consumer Product Safety
Commission.
ACTION: Comment request.
SUMMARY: The Consumer Product Safety
Commission (‘‘Commission’’ or ‘‘CPSC’’
or ‘‘we’’ or ‘‘us’’) has received a petition
requesting an exception from the 100
ppm lead content limit under section
101(b) of the Consumer Product Safety
Improvement Act of 2008 (‘‘CPSIA’’), as
amended by Public Law 112–28. We are
reopening the comment period for 30
days.
DATES: Submit comments by February 6,
2012.
ADDRESSES: You may submit comments,
identified by Docket No. CPSC–2011–
0087, by any of the following methods:
Electronic Submissions
Submit electronic comments in the
following way:
Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments.
To ensure timely processing of
comments, the Commission is no longer
accepting comments submitted by
electronic mail (email), except through:
http://www.regulations.gov.
Written Submissions
Submit written submissions in the
following way:
Mail/Hand delivery/Courier (for
paper, disk, or CD–ROM submissions),
preferably in five copies, to: Office of the
Secretary, U.S. Consumer Product
Safety Commission, Room 502, 4330
East West Highway, Bethesda, MD
20814; telephone (301) 504–7923.
Instructions: All submissions received
must include the agency name and
petition number for this rulemaking. All
comments received may be posted
without change, including any personal
identifiers, contact information, or other
personal information provided, to:
http://www.regulations.gov. Do not
submit confidential business
information, trade secret information, or
other sensitive or protected information
electronically. Such information should
be submitted in writing.
Docket: For access to the docket to
read background documents or
comments received, go to: http://www.
regulations.gov.
FOR FURTHER INFORMATION CONTACT:
Kristina Hatlelid, Ph.D., M.P.H.,
Directorate for Health Sciences,
Consumer Product Safety Commission,
4330 East West Highway, Bethesda, MD
20814; email: khatlelid@cpsc.gov.
SUPPLEMENTARY INFORMATION: Under
section 101(a) of the CPSIA, consumer
products designed or intended primarily
for children 12 years old and younger
that contain lead content in excess of
100 ppm manufactured after August 12,
2011, are considered to be banned
hazardous substances under the Federal
Hazardous Substances Act (‘‘FHSA’’).
Section 101(b)(1) of the CPSIA
provides for a functional purpose
exception from lead content limits
under certain circumstances. The
exception allows us, on our own
initiative, or upon petition by an
interested party, to exclude a specific
product, class of product, material, or
component part from the lead limits
established for children’s products
under the CPSIA if, after notice and a
hearing, we determine that: (i) The
product, class of product, material, or
component part requires the inclusion
of lead because it is not practicable or
not technologically feasible to
manufacture such product, class of
product, material, or component part, as
the case may be, in accordance with
section 101(a) of the CPSIA by removing
the excessive lead or by making the lead
inaccessible; (ii) the product, class of
product, material, or component part is
not likely to be placed in the mouth or
ingested, taking into account normal
and reasonably foreseeable use and
abuse of such product, class of product,
material, or component part by a child;
and (iii) an exception for the product,
class of product, material, or component
part will have no measurable adverse
effect on public health or safety, taking
into account normal and reasonably
foreseeable use and abuse. Under
section 101(b)(1)(B) of the CPSIA, there
is no measurable adverse effect on
public health or safety if the exception
will result in no measurable increase in
blood lead levels of a child. Given the
highly technical nature of the
information sought, including data on
the lead content of the product and test
methods used to obtain those data, we
believe that the notice and solicitation
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 479
for written comments would provide the
most efficient process for obtaining the
necessary information, as well as
provide adequate opportunity for all
interested parties to participate in the
proceedings. However, we would have
the option to hold a public hearing or
public meeting, if appropriate, to
determine whether a petition for a
functional purpose exception should be
granted.
On September 29, 2011, Joseph L.
Ertl, Inc., (‘‘petitioner’’), submitted a
petition requesting an exception from
the lead content limit of 100 ppm under
section 101(b) of the CPSIA for its diecast,
ride-on pedal tractors, scaled for
children ages 3–10 years old. The
petitioner states that the components of
its pedal tractors are made of aluminum
metal die castings, which are the best
alloy of choice for pedal tractor
production, based on weight, cost,
structural properties, surface finish and
coatings, corrosion resistance, and
bearing properties and wear resistance.
The pedal tractor components are
manufactured via the aluminum diecasting
process. Although the petitioner
states that it is able to meet the lead
content requirements of 300 ppm for its
pedal tractor components, it is unable to
meet consistently the 100 ppm lead
content limits, due to alloys used in the
aluminum die-cast process.
Accordingly, the petitioner requests an
exception from the 100 ppm lead
content limit to continue to manufacture
its pedal tractors with components
above the 100 ppm lead content limit.
In the Federal Register of November
16, 2011 (76 FR 70975) we invited
comments on the issues raised by the
petition. Interested parties could view a
copy of the petition under supporting
and related materials identified by
Docket No. CPSC–2011–0087, through
http://www.regulations.gov or on the
CPSC Web site at: http://www.cpsc.gov/
library/foia/foia12/brief/ertlpetition.pdf
or obtain a copy of the petition by
writing or calling the Office of the
Secretary, Consumer Product Safety
Commission, Bethesda, MD 20184;
telephone (301) 504–7923.
Recently, however, we learned that
part of the petition was omitted
inadvertently from the public docket.
Accordingly, to give interested parties a
meaningful opportunity to comment, we
have made the entire petition available
for viewing through http://www.
regulations.gov or on the CPSC Web site
at: http://www.cpsc.gov/library/foia/
foia12/brief/ertlpetition.pdf. Interested
parties may also obtain a copy of the
petition by writing or calling the Office
of the Secretary, Consumer Product
Safety Commission, Bethesda, MD
20184; telephone (301) 504–7923.
Through this notice, we are reopening
the comment period to give all
interested parties additional time to
comment on the petition. Thus, the
comment period is reopened until
February 6, 2012.
Dated: December 28, 2011.
Todd A. Stevenson,
Secretary, U.S. Consumer Product Safety
Commission.
[FR Doc. 2011–33631 Filed 1–4–12; 8:45 am]
BILLING CODE 6355–01–P
DEFENSE NUCLEAR FACILITIES
SAFETY BOARD
Sunshine Act Notice
AGENCY: Defense Nuclear Facilities
Safety Board.
ACTION: Notice of public meeting.
SUMMARY: Pursuant to the provisions of
the ‘‘Government in the Sunshine Act’’
(5 U.S.C. 552b), and as authorized by 42
U.S.C. 2286b, notice is hereby given of
the Defense Nuclear Facilities Safety
Board’s (Board) public hearing and
meeting described below. The Board
invites any interested persons or groups
to present any comments, technical
information, or data concerning safety
issues related to the matters to be
considered.
DATES: Time and Date of Meeting:
Session I: 1 p.m.–4 p.m., March 22,
2012; Session II: 6 p.m.–9 p.m., March
22, 2012.
PLACE: Three Rivers Convention Center,
7016 West Grandridge Boulevard,
Kennewick, Washington 99352.
STATUS: Open. While the Government in
the Sunshine Act does not require that
the scheduled discussion be conducted
in a meeting, the Board has determined
that an open meeting in this specific
case furthers the public interests
underlying both the Sunshine Act and
the Board’s enabling legislation.
MATTERS TO BE CONSIDERED: In Session I
of this public hearing and meeting, the
Board will receive testimony from the
Department of Energy (DOE) and its
contractors concerning the status of
actions related to unresolved technical
safety issues in the design of the Waste
Treatment and Immobilization Plant
(WTP). This will include actions
discussed in DOE’s implementation
plan for the Board’s Recommendation
2010–2, Pulse Jet Mixing at the Waste
Treatment and Immobilization Plant,
issued on December 17, 2010, and
progress in defining the infrastructure
needs at the Tank Farms in order to
deliver waste safely and efficiently to
WTP. During Session II, the Board will
receive testimony regarding the status of
actions related to DOE’s implementation
plan for the Board’s Recommendation
2011–1, Safety Culture at the Waste
Treatment and Immobilization Plant,
which was issued on June 9, 2011. The
Board will also examine the link
between the safety culture of DOE and
its contractors and the ability of the
WTP project to identify and resolve
technical issues, such as those
discussed in Session I, in a timely
manner. The public hearing portion of
this proceeding is authorized by 42
U.S.C. 2286b.
FOR FURTHER INFORMATION CONTACT:
Brian Grosner, General Manager,
Defense Nuclear Facilities Safety Board,
625 Indiana Avenue NW., Suite 700,
Washington, DC 20004–2901, (800) 788–
4016. This is a toll-free number.
SUPPLEMENTARY INFORMATION: Public
participation in the hearing is invited.
The Board is setting aside time at the
end of each session of the hearing for
presentations and comments from the
public. Requests to speak may be
submitted in writing or by telephone.
The Board asks that commenters
describe the nature and scope of their
oral presentations. Those who contact
the Board prior to close of business on
March 16, 2012, will be scheduled to
speak at the session of the hearing most
relevant to their presentations. At the
beginning of Session I, the Board will
post a schedule for speakers at the
entrance to the hearing room. Anyone
who wishes to comment or provide
technical information or data may do so
in writing, either in lieu of, or in
addition to, making an oral
presentation. The Board Members may
question presenters to the extent
deemed appropriate. Documents will be
accepted at the hearing or may be sent
to the Board’s Washington, DC, office.
The Board will hold the record open
until April 23, 2012, for the receipt of
additional materials. The hearing will
be presented live through Internet video
streaming. A link to the presentation
will be available on the Board’s Web site
(www.dnfsb.gov). A transcript of the
hearing, along with a DVD video
recording, will be made available by the
Board for inspection and viewing by the
public at the Board’s Washington office
and at DOE’s public reading room at the
DOE Federal Building, 1000
Independence Avenue SW.,
Washington, DC 20585. The Board
specifically reserves its right to further
schedule and otherwise regulate the
course of the meeting and hearing, to
recess, reconvene, postpone, or adjourn
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480 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
the meeting and hearing, conduct
further reviews, and otherwise exercise
its power under the Atomic Energy Act
of 1954, as amended.
Dated: January 3, 2012.
Peter S. Winokur,
Chairman.
[FR Doc. 2012–44 Filed 1–3–12; 4:15 pm]
BILLING CODE 3670–01–P
DEPARTMENT OF EDUCATION
Applications for New Awards;
Disability and Rehabilitation Research
Projects and Centers Program—Field
Initiated Projects Program
AGENCY: Office of Special Education and
Rehabilitative Services, National
Institute on Disability and
Rehabilitation Research (NIDRR),
Department of Education.
ACTION: Notice.
Overview Information
Disability and Rehabilitation Research
Projects and Centers Program—Field
Initiated Projects Program
Notice inviting applications for new
awards for fiscal year (FY) 2012.
Catalog of Federal Domestic Assistance
(CFDA) Numbers: 84.133G–1 (Research) and
84.133G–2 (Development).
DATES: Applications Available:
January 5, 2012.
Deadline for Transmittal of
Applications: March 5, 2012.
Full Text of Announcement
I. Funding Opportunity Description
Purpose of Program: The purpose of
the Field Initiated (FI) Projects program
is to develop methods, procedures, and
rehabilitation technology that maximize
the full inclusion and integration into
society, employment, independent
living, family support, and economic
and social self-sufficiency of individuals
with disabilities, especially individuals
with the most severe disabilities.
Another purpose of the FI Projects
program is to improve the effectiveness
of services authorized under the
Rehabilitation Act of 1973, as amended.
NIDRR makes two types of awards
under the FI Projects program: Research
grants (CFDA 84.133G–1) and
development grants (CFDA 84.133G–2).
In carrying out a research activity
under an FI Project research grant, a
grantee must identify one or more
hypotheses or research questions and,
based on the hypotheses or research
questions identified, perform an
intensive, systematic study directed
toward producing (1) new scientific
knowledge, or (2) better understanding
of the subject, problem studied, or body
of knowledge.
In carrying out a development activity
under an FI Project development grant,
a grantee must use knowledge and
understanding gained from research to
create materials, devices, systems, or
methods, including designing and
developing prototypes and processes,
that are beneficial to the target
population. ‘‘Target population’’ means
the group of individuals, organizations,
or other entities expected to be affected
by the project. There may be more than
one target population because a project
may affect those who receive services,
provide services, or administer services.
Note: Different selection criteria are used
for FI Project research grants (84.133G–1) and
development grants (84.133G–2). Applicants
must clearly indicate in the application
whether they are applying for a research
grant (84.133G–1) or a development grant
(84.133G–2) and must address the selection
criteria relevant for their grant type. Without
exception, NIDRR will review each
application based on the grant designation
made by the applicant. Applications will be
determined ineligible and will not be
reviewed if they do not include a clear
designation as a research grant or a
development grant.
Note: This program is in concert with
NIDRR’s currently approved long range plan
(the Plan). The Plan is comprehensive and
integrates many issues relating to disability
and rehabilitation research topics. The Plan,
which was published in the Federal Register
on February 15, 2006 (71 FR 8165), can be
accessed on the Internet at: www.ed.gov/
about/offices/list/osers/nidrr/policy.html.
Through the implementation of the
Plan, NIDRR seeks to (1) improve the
quality and utility of disability and
rehabilitation research; (2) foster an
exchange of expertise, information, and
training to facilitate the advancement of
knowledge and understanding of the
unique needs of individuals with
disabilities from traditionally
underserved populations; (3) determine
the best strategies and programs to
improve rehabilitation outcomes for
individuals with disabilities from
underserved populations; (4) identify
research gaps; (5) identify mechanisms
of integrating research and practice; and
(6) disseminate findings.
Program Authority: 29 U.S.C. 764.
Applicable Regulations: (a) The
Education Department General
Administrative Regulations (EDGAR) in
34 CFR parts 74, 75, 77, 80, 81, 82, 84,
85, 86, and 97. (b) The regulations for
this program in 34 CFR part 350.
Note: The regulations in 34 CFR part 86
apply to institutions of higher education
(IHEs) only.
II. Award Information
Type of Award: Discretionary grants.
Estimated Available Funds:
$4,000,000.
Estimated Range of Awards: $195,000
to $200,000.
Estimated Average Size of Awards:
$200,000.
Maximum Award: We will reject any
application that proposes a budget
exceeding $200,000 for a single budget
period of 12 months. The Assistant
Secretary for Special Education and
Rehabilitative Services may change the
maximum amount through a notice
published in the Federal Register.
Note: The maximum amount includes
direct and indirect costs.
Estimated Number of Awards: 20.
Note: The Department is not bound by any
estimates in this notice.
Maximum Project Period: We will
reject any application that proposes a
project period exceeding 36 months.
The Assistant Secretary for Special
Education and Rehabilitative Services
may change the maximum project
period through a notice published in the
Federal Register.
III. Eligibility Information
1. Eligible Applicants: States; public
or private agencies, including for-profit
agencies; public or private
organizations, including for-profit
organizations; IHEs; and Indian tribes
and tribal organizations.
2. Cost Sharing or Matching: Cost
sharing is required by 34 CFR 350.62
and will be negotiated at the time of the
grant award.
IV. Application and Submission
Information
1. Address to Request Application
Package: You can obtain an application
package via the Internet or from the
Education Publications Center (ED
Pubs). To obtain a copy via the Internet,
use the following address: www.ed.gov/
fund/grant/apply/grantapps/index.html.
To obtain a copy from ED Pubs, write,
fax, or call the following: ED Pubs, U.S.
Department of Education, P.O. Box
22207, Alexandria, VA 22304.
Telephone, toll free: 1–(877) 433–7827.
Fax: (703) 605–6794. If you use a
telecommunications device for the deaf
(TDD), call, toll free: 1–(877) 576–7734.
You can contact ED Pubs at its Web
site, also: www.EDPubs.gov or at its
email address: edpubs@inet.ed.gov.
If you request an application from ED
Pubs, be sure to identify this
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 481
competition as follows: CFDA number
84.133G–1 or 84.133G–2.
Individuals with disabilities can
obtain a copy of the application package
in an accessible format (e.g., braille,
large print, audiotape, or compact disc)
by contacting the person or team listed
under Accessible Format in section VIII
of this notice.
2. Content and Form of Application
Submission: Requirements concerning
the content of an application, together
with the forms you must submit, are in
the application package for this
competition.
Page Limit: The application narrative
(Part III of the application) is where you,
the applicant, address the selection
criteria that reviewers use to evaluate
your application. We recommend that
you limit Part III to the equivalent of no
more than 50 pages, using the following
standards:
• A ‘‘page’’ is 8.5? x 11?, on one side
only, with 1? margins at the top, bottom,
and both sides.
• Double space (no more than three
lines per vertical inch) all text in the
application narrative, including titles,
headings, footnotes, quotations,
references, and captions, as well as all
text in charts, tables, figures, and
graphs.
• Use a font that is either 12 point or
larger or no smaller than 10 pitch
(characters per inch).
• Use one of the following fonts:
Times New Roman, Courier, Courier
New, or Arial.
The recommended page limit does not
apply to Part I, the cover sheet; Part II,
the budget section, including the
narrative budget justification; Part IV,
the assurances and certifications; or the
one-page abstract, the resumes, the
bibliography, or the letters of support.
However, the page limit does apply to
all of the application narrative section
[Part III].
The application package will provide
instructions for completing all
components to be included in the
application. Each application must
include a cover sheet (Standard Form
424); budget requirements (ED Form
524) and narrative justification; other
required forms; an abstract, Human
Subjects narrative, Part III narrative;
resumes of staff; and other related
materials, if applicable.
Applicants should consult NIDRR’s
Long-Range Plan when preparing their
applications. The Plan is organized
around the following research domains
and arenas: (1) Community Living and
Participation; (2) Health and Function;
(3) Technology; (4) Employment; and (5)
Demographics. Applicants should
indicate, for each application, the
domain or arena under which they are
applying. In their applications,
applicants should clearly indicate
whether they are applying for a research
grant in the area of (1) Community
Living and Participation; (2) Health and
Function; (3) Technology; (4)
Employment; or (5) Demographics.
3. Submission Dates and Times:
Applications Available: January 5,
2012.
Deadline for Transmittal of
Applications: March 5, 2012.
Applications for grants under this
competition must be submitted
electronically using the Grants.gov
Apply site (Grants.gov). For information
(including dates and times) about how
to submit your application
electronically, or in paper format by
mail or hand delivery if you qualify for
an exception to the electronic
submission requirement, please refer to
section IV. 7. Other Submission
Requirements of this notice.
We do not consider an application
that does not comply with the deadline
requirements.
Individuals with disabilities who
need an accommodation or auxiliary aid
in connection with the application
process should contact the person listed
under FOR FURTHER INFORMATION
CONTACT in section VII of this notice. If
the Department provides an
accommodation or auxiliary aid to an
individual with a disability in
connection with the application
process, the individual’s application
remains subject to all other
requirements and limitations in this
notice.
4. Intergovernmental Review: This
program is not subject to Executive
Order 12372 and the regulations in 34
CFR part 79.
5. Funding Restrictions: We reference
regulations outlining funding
restrictions in the Applicable
Regulations section of this notice.
6. Data Universal Numbering System
Number, Taxpayer Identification
Number, and Central Contractor
Registry: To do business with the
Department of Education, you must—
a. Have a Data Universal Numbering
System (DUNS) number and a Taxpayer
Identification Number (TIN);
b. Register both your DUNS number
and TIN with the Central Contractor
Registry (CCR), the Government’s
primary registrant database;
c. Provide your DUNS number and
TIN on your application; and
d. Maintain an active CRR registration
with current information while your
application is under review by the
Department and, if you are awarded a
grant, during the project period.
You can obtain a DUNS number from
DUN and Bradstreet. A DUNS number
can be created within one business day.
If you are a corporate entity, agency,
institution, or organization, you can
obtain a TIN from the Internal Revenue
Service. If you are an individual, you
can obtain a TIN from the Internal
Revenue Service or the Social Security
Administration. If you need a new TIN,
please allow 2–5 weeks for your TIN to
become active.
The CCR registration process may take
five or more business days to complete.
If you are currently registered with the
CCR, you may not need to make any
changes. However, please make certain
that the TIN associated with your DUNS
number is correct. Also note that you
will need to update your CCR
registration on an annual basis. This
may take three or more business days to
complete.
In addition, if you are submitting your
application via Grants.gov, you must (1)
be designated by your organization as an
Authorized Organization Representative
(AOR); and (2) register yourself with
Grants.gov as an AOR. Details on these
steps are outlined at the following
Grants.gov Web page: www.grants.gov/
aapplicants/get_registered.jsp.
7. Other Submission Requirements:
Applications for grants under this
competition must be submitted
electronically unless you qualify for an
exception to this requirement in
accordance with the instructions in this
section.
a. Electronic Submission of
Applications
Applications for grants under the FI
Projects program, CFDA Number
84.133G–1 (Research) or 84.133G–2
(Development), must be submitted
electronically using the
Governmentwide Grants.gov Apply site
at www.Grants.gov. Through this site,
you will be able to download a copy of
the application package, complete it
offline, and then upload and submit
your application. You may not email an
electronic copy of a grant application to
us.
We will reject your application if you
submit it in paper format unless, as
described elsewhere in this section, you
qualify for one of the exceptions to the
electronic submission requirement and
submit, no later than two weeks before
the application deadline date, a written
statement to the Department that you
qualify for one of these exceptions.
Further information regarding
calculation of the date that is two weeks
before the application deadline date is
provided later in this section under
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482 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
Exception to Electronic Submission
Requirement.
You may access the electronic grant
application for the FI Projects
program—CFDA Number 84.133G–1
(Research) or 84.133G–2
(Development)—at www.Grants.gov.
You must search for the downloadable
application package for this competition
by the CFDA number. Do not include
the CFDA number’s alpha suffix in your
search (e.g., search for 84.133, not
84.133G).
Please note the following:
• When you enter the Grants.gov site,
you will find information about
submitting an application electronically
through the site, as well as the hours of
operation.
• Applications received by Grants.gov
are date and time stamped. Your
application must be fully uploaded and
submitted and must be date and time
stamped by the Grants.gov system no
later than 4:30:00 p.m., Washington, DC
time, on the application deadline date.
Except as otherwise noted in this
section, we will not accept your
application if it is received—that is, date
and time stamped by the Grants.gov
system—after 4:30:00 p.m., Washington,
DC time, on the application deadline
date. We do not consider an application
that does not comply with the deadline
requirements. When we retrieve your
application from Grants.gov, we will
notify you if we are rejecting your
application because it was date and time
stamped by the Grants.gov system after
4:30:00 p.m., Washington, DC time, on
the application deadline date.
• The amount of time it can take to
upload an application will vary
depending on a variety of factors,
including the size of the application and
the speed of your Internet connection.
Therefore, we strongly recommend that
you do not wait until the application
deadline date to begin the submission
process through Grants.gov.
• You should review and follow the
Education Submission Procedures for
submitting an application through
Grants.gov that are included in the
application package for this competition
to ensure that you submit your
application in a timely manner to the
Grants.gov system. You can also find the
Education Submission Procedures
pertaining to Grants.gov under News
and Events on the Department’s G5
system home page at http://www.G5.gov.
• You will not receive additional
point value because you submit your
application in electronic format, nor
will we penalize you if you qualify for
an exception to the electronic
submission requirement, as described
elsewhere in this section, and submit
your application in paper format.
• You must submit all documents
electronically, including all information
you typically provide on the following
forms: the Application for Federal
Assistance (SF 424), the Department of
Education Supplemental Information for
SF 424, Budget Information—Non-
Construction Programs (ED 524), and all
necessary assurances and certifications.
• You must upload any narrative
sections and all other attachments to
your application as files in a .PDF
(Portable Document) read-only, nonmodifiable
format. Specifically, do not
upload an interactive or fillable .PDF
file. If you upload a file type other than
a read-only, non-modifiable .PDF or
submit a password-protected file, we
will not review that material.
• Your electronic application must
comply with any page-limit
requirements described in this notice.
• After you electronically submit
your application, you will receive from
Grants.gov an automatic notification of
receipt that contains a Grants.gov
tracking number. (This notification
indicates receipt by Grants.gov only, not
receipt by the Department.) The
Department then will retrieve your
application from Grants.gov and send a
second notification to you by email.
This second notification indicates that
the Department has received your
application and has assigned your
application a PR/Award number (an EDspecified
identifying number unique to
your application).
• We may request that you provide us
original signatures on forms at a later
date.
Application Deadline Date Extension
in Case of Technical Issues with the
Grants.gov System: If you are
experiencing problems submitting your
application through Grants.gov, please
contact the Grants.gov Support Desk,
toll free, at 1–(800) 518–4726. You must
obtain a Grants.gov Support Desk Case
Number and must keep a record of it.
If you are prevented from
electronically submitting your
application on the application deadline
date because of technical problems with
the Grants.gov system, we will grant you
an extension until 4:30:00 p.m.,
Washington, DC time, the following
business day to enable you to transmit
your application electronically or by
hand delivery. You also may mail your
application by following the mailing
instructions described elsewhere in this
notice.
If you submit an application after
4:30:00 p.m., Washington, DC time, on
the application deadline date, please
contact the person listed under FOR
FURTHER INFORMATION CONTACT in
section VII of this notice and provide an
explanation of the technical problem
you experienced with Grants.gov, along
with the Grants.gov Support Desk Case
Number. We will accept your
application if we can confirm that a
technical problem occurred with the
Grants.gov system and that that problem
affected your ability to submit your
application by 4:30:00 p.m.,
Washington, DC time, on the
application deadline date. The
Department will contact you after a
determination is made on whether your
application will be accepted.
Note: The extensions to which we refer in
this section apply only to the unavailability
of, or technical problems with, the Grants.gov
system. We will not grant you an extension
if you failed to fully register to submit your
application to Grants.gov before the
application deadline date and time or if the
technical problem you experienced is
unrelated to the Grants.gov system.
Exception to Electronic Submission
Requirement: You qualify for an
exception to the electronic submission
requirement, and may submit your
application in paper format, if you are
unable to submit an application through
the Grants.gov system because—
• You do not have access to the
Internet; or
• You do not have the capacity to
upload large documents to the
Grants.gov system; and
• No later than two weeks before the
application deadline date (14 calendar
days or, if the fourteenth calendar day
before the application deadline date
falls on a Federal holiday, the next
business day following the Federal
holiday), you mail or fax a written
statement to the Department, explaining
which of the two grounds for an
exception prevent you from using the
Internet to submit your application.
If you mail your written statement to
the Department, it must be postmarked
no later than two weeks before the
application deadline date. If you fax
your written statement to the
Department, we must receive the faxed
statement no later than two weeks
before the application deadline date.
Address and mail or fax your
statement to: Lynn Medley, U.S.
Department of Education, 400 Maryland
Avenue SW., room 5140, Potomac
Center Plaza (PCP), Washington, DC
20202–2700. Fax: (202) 245–7323.
Your paper application must be
submitted in accordance with the mail
or hand delivery instructions described
in this notice.
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 483
b. Submission of Paper Applications by
Mail
If you qualify for an exception to the
electronic submission requirement, you
may mail (through the U.S. Postal
Service or a commercial carrier) your
application to the Department. You
must mail the original and two copies
of your application, on or before the
application deadline date, to the
Department at the following address:
U.S. Department of Education,
Application Control Center, Attention:
CFDA Number 84.133G–1 (Research) or
84.133G–2 (Development), LBJ
Basement Level 1, 400 Maryland
Avenue SW., Washington, DC 20202–
4260.
You must show proof of mailing
consisting of one of the following:
(1) A legibly dated U.S. Postal Service
postmark.
(2) A legible mail receipt with the
date of mailing stamped by the U.S.
Postal Service.
(3) A dated shipping label, invoice, or
receipt from a commercial carrier.
(4) Any other proof of mailing
acceptable to the Secretary of the U.S.
Department of Education.
If you mail your application through
the U.S. Postal Service, we do not
accept either of the following as proof
of mailing:
(1) A private metered postmark.
(2) A mail receipt that is not dated by
the U.S. Postal Service.
If your application is postmarked after
the application deadline date, we will
not consider your application.
Note: The U.S. Postal Service does not
uniformly provide a dated postmark. Before
relying on this method, you should check
with your local post office.
c. Submission of Paper Applications by
Hand Delivery
If you qualify for an exception to the
electronic submission requirement, you
(or a courier service) may deliver your
paper application to the Department by
hand. You must deliver the original and
two copies of your application by hand,
on or before the application deadline
date, to the Department at the following
address: U.S. Department of Education,
Application Control Center, Attention:
CFDA Number 84.133G–1 (Research) or
84.133G–2 (Development), 550 12th
Street SW., Room 7041, Potomac Center
Plaza, Washington, DC 20202–4260.
The Application Control Center
accepts hand deliveries daily between
8 a.m. and 4:30:00 p.m., Washington,
DC time, except Saturdays, Sundays,
and Federal holidays.
Note for Mail or Hand Delivery of Paper
Applications: If you mail or hand deliver
your application to the Department—
(1) You must indicate on the envelope
and—if not provided by the Department—in
Item 11 of the SF 424 the CFDA number,
including suffix letter, if any, of the
competition under which you are submitting
your application; and
(2) The Application Control Center will
mail to you a notification of receipt of your
grant application. If you do not receive this
notification within 15 business days from the
application deadline date, you should call
the U.S. Department of Education
Application Control Center at (202) 245–
6288.
V. Application Review Information
1. Selection Criteria: The selection
criteria for this competition are from 34
CFR 350.54 and 350.55 and are listed in
the application package.
Note: There are two different sets of
selection criteria for the FI projects program:
One set to evaluate applications proposing to
carry out research activities (CFDA 84.133G–
1), and a second set to evaluate applications
proposing to carry out development activities
(CFDA 84.133G–2). Each applicant will be
evaluated using the selection criteria for the
type of project the applicant designates in its
application.
2. Review and Selection Process: We
remind potential applicants that in
reviewing applications in any
discretionary grant competition, the
Secretary may consider, under 34 CFR
75.217(d)(3), the past performance of the
applicant in carrying out a previous
award, such as the applicant’s use of
funds, achievement of project
objectives, and compliance with grant
conditions. The Secretary may also
consider whether the applicant failed to
submit a timely performance report or
submitted a report of unacceptable
quality.
In addition, in making a competitive
grant award, the Secretary also requires
various assurances including those
applicable to Federal civil rights laws
that prohibit discrimination in programs
or activities receiving Federal financial
assistance from the Department of
Education (34 CFR 100.4, 104.5, 106.4,
108.8, and 110.23).
Additional factors we consider in
selecting an application for an award are
as follows:
The Secretary is interested in
outcomes-oriented research or
development projects that use rigorous
scientific methodologies. To address
this interest, applicants are encouraged
to articulate goals, objectives, and
expected outcomes for the proposed
research or development activities.
Proposals should describe how results
and planned outputs are expected to
contribute to advances in knowledge,
improvements in policy and practice,
and public benefits for individuals with
disabilities. Applicants should propose
projects that are designed to be
consistent with these goals. We
encourage applicants to include in their
applications a description of how
results will measure progress towards
achievement of anticipated outcomes
(including a discussion of measures of
effectiveness), the mechanisms that will
be used to evaluate outcomes associated
with specific problems or issues, and
how the proposed activities will support
new intervention approaches and
strategies. Submission of the
information identified in this section is
voluntary, except where required by the
selection criteria listed in the
application package.
3. Special Conditions: Under 34 CFR
74.14 and 80.12, the Secretary may
impose special conditions on a grant if
the applicant or grantee is not
financially stable; has a history of
unsatisfactory performance; has a
financial or other management system
that does not meet the standards in 34
CFR parts 74 or 80, as applicable; has
not fulfilled the conditions of a prior
grant; or is otherwise not responsible.
VI. Award Administration Information
1. Award Notices: If your application
is successful, we notify your U.S.
Representative and U.S. Senators and
send you a Grant Award Notification
(GAN). We may notify you informally,
also.
If your application is not evaluated or
not selected for funding, we notify you.
2. Administrative and National Policy
Requirements: We identify
administrative and national policy
requirements in the application package
and reference these and other
requirements in the Applicable
Regulations section of this notice.
We reference the regulations outlining
the terms and conditions of an award in
the Applicable Regulations section of
this notice and include these and other
specific conditions in the GAN. The
GAN also incorporates your approved
application as part of your binding
commitments under the grant.
3. Reporting: (a) If you apply for a
grant under this competition, you must
ensure that you have in place the
necessary processes and systems to
comply with the reporting requirements
in 2 CFR part 170 should you receive
funding under the competition. This
does not apply if you have an exception
under 2 CFR 170.110(b).
(b) At the end of your project period,
you must submit a final performance
report, including financial information,
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484 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
as directed by the Secretary. If you
receive a multi-year award, you must
submit an annual performance report
that provides the most current
performance and financial expenditure
information as directed by the Secretary
under 34 CFR 75.118. The Secretary
may also require more frequent
performance reports under 34 CFR
75.720(c). For specific requirements on
reporting, please go to www.ed.gov/
fund/grant/apply/appforms/
appforms.html.
Note: NIDRR will provide information by
letter to grantees on how and when to submit
the performance report.
4. Performance Measures: NIDRR
assesses the quality of its funded
projects through review of grantee
performance and products. Each year,
NIDRR examines a portion of its
grantees to determine:
• The number of accomplishments
(e.g., new or improved tools, methods,
discoveries, standards, interventions,
programs, or devices) developed and/or
tested with NIDRR funding that have
been judged by expert panels to be of
high quality and to advance the field.
• The average number of publications
per award that are based on NIDRRfunded
research and development
activities and are in refereed journals.
• The percentage of new grants that
assess the effectiveness of interventions,
programs, and devices using rigorous
and appropriate methods.
Each grantee must annually report on
its performance through NIDRR’s
Annual Performance Report (APR) form.
NIDRR uses APR information submitted
by grantees to assess progress on these
measures.
5. Continuation Awards: In making a
continuation award, the Secretary may
consider, under 34 CFR 75.253, the
extent to which a grantee has made
‘‘substantial progress toward meeting
the objectives in its approved
application.’’ This consideration
includes the review of a grantee’s
progress in meeting the targets and
projected outcomes in its approved
application, and whether the grantee
has expended funds in a manner that is
consistent with its approved application
and budget. In making a continuation
grant, the Secretary also considers
whether the grantee is operating in
compliance with the assurances in its
approved application, including those
applicable to Federal civil rights laws
that prohibit discrimination in programs
or activities receiving Federal financial
assistance from the Department (34 CFR
100.4, 104.5, 106.4, 108.8, and 110.23).
VII. Agency Contacts
FOR FURTHER INFORMATION CONTACT:
Either Lynn Medley or Marlene Spencer
as follows: Lynn Medley, U.S.
Department of Education, 400 Maryland
Avenue SW., room 5140, PCP,
Washington, DC 20202–2700.
Telephone: (202) 245–7338 or by email:
Lynn.Medley@ed.gov. Marlene Spencer,
U.S. Department of Education, 400
Maryland Avenue SW., room 5133, PCP,
Washington, DC 20202–2700.
Telephone: (202) 245–7532 or by email:
Marlene.Spencer@ed.gov.
If you use a TDD, call the Federal
Relay Service (FRS), toll free, at 1–(800)
877–8339.
VIII. Other Information
Accessible Format: Individuals with
disabilities can obtain this document
and a copy of the application package in
an accessible format (e.g., braille, large
print, audiotape, or compact disc) by
contacting the Grants and Contracts
Services Team, U.S. Department of
Education, 400 Maryland Avenue SW.,
room 5075, PCP, Washington, DC
20202–2550. Telephone: (202) 245–
7363. If you use a TDD, call the FRS, toll
free, at 1–800) 877–8339.
Electronic Access to This Document:
The official version of this document is
the document published in the Federal
Register. Free Internet access to the
official edition of the Federal Register
and the Code of Federal Regulations is
available via the Federal Digital System
at: www.gpo.gov/fdsys. At this site you
can view this document, as well as all
other documents of this Department
published in the Federal Register, in
text or Adobe Portable Document
Format (PDF). To use PDF you must
have Adobe Acrobat Reader, which is
available free at the site.
You may also access documents of the
Department published in the Federal
Register by using the article search
feature at: www.federalregister.gov.
Specifically, through the advanced
search feature at this site, you can limit
your search to documents published by
the Department.
Dated: December 30, 2011.
Alexa Posny,
Assistant Secretary for Special Education and
Rehabilitative Services.
[FR Doc. 2011–33807 Filed 1–4–12; 8:45 am]
BILLING CODE 4000–01–P
DEPARTMENT OF EDUCATION
Equity and Excellence Commission
AGENCY: Office for Civil Rights, U.S.
Department of Education.
ACTION: Notice of an open meeting.
SUMMARY: This notice sets forth the
schedule and proposed agenda of an upcoming
meeting of the Equity and
Excellence Commission (Commission).
The notice also describes the functions
of the Commission. Notice of this
meeting is required by section 10(a)(2)
of the Federal Advisory Committee Act
(FACA) and is intended to notify the
public of their opportunity to attend.
DATES: January 23, 2012.
Time: 9 a.m. to 4:30 p.m. Eastern
Standard Time.
ADDRESSES: The Commission will meet
in Washington, DC at the United States
Department of Education at 400
Maryland Avenue SW, Washington, DC
20202, in Barnard Auditorium.
FOR FURTHER INFORMATION CONTACT: Jim
Eichner, Designated Federal Official,
Equity and Excellence Commission,
U.S. Department of Education, 400
Maryland Avenue SW, Washington, DC
20202. Email:
equitycommission@ed.gov. Telephone:
(202) 453–5945.
SUPPLEMENTARY INFORMATION: On
January 23, 2012 from 9 a.m. to 4:30
p.m. Eastern Standard Time, the Equity
and Excellence Commission will hold
an open meeting in Washington, DC in
the Barnard Auditorium at the U.S.
Department of Education’s main
building at 400 Maryland Avenue SW.,
Washington, DC 20202.
The purpose of the Commission is to
collect information, analyze issues, and
obtain broad public input regarding how
the Federal government can increase
educational opportunity by improving
school funding equity. The Commission
will also make recommendations for
restructuring school finance systems to
achieve equity in the distribution of
educational resources and further
student performance, especially for the
students at the lower end of the
achievement gap. The Commission will
examine the disparities in meaningful
educational opportunities that give rise
to the achievement gap, with a focus on
systems of finance, and recommend
appropriate ways in which Federal
policies could address such disparities.
The agenda for the Commission’s
January 23, 2012 meeting will include
discussion of particular language for
certain portions of the report and
reaching consensus on particular
recommendations. The Commission
may have breakout sessions, most likely
during the second half of the meeting,
to discuss particular issues. The
Commission plans to discuss the
establishment of two or more
subcommittees to discuss
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 485
recommendations the Commission may
make regarding teachers and school
leaders; what documents and
information should be included in the
materials that will supplement the main
Commission report; and/or other
subjects within the Commission’s
charter. If time permits, these
subcommittees may meet in the
afternoon to outline their specific tasks
and timing for subsequent meetings.
Due to time constraints, there will not
be a public comment period, but,
individuals wishing to provide
comments may contact the Equity
Commission via email at
equitycommission@ed.gov. For
comments related to the upcoming
meeting, please submit comments no
later than January 13, 2012.
Individuals interested in attending the
meeting must register in advance
because seating may be limited. Please
contact Jim Eichner at (202) 453–5945 or
by email at equitycommission@ed.gov.
Individuals who will need
accommodations for a disability in order
to attend the meeting (e.g., interpreting
services, assistive listening devices, or
materials in alternative format) should
notify Jim Eichner at (202) 245–5945 no
later than January 13, 2012. We will
attempt to meet requests for
accommodations after this date but
cannot guarantee their availability. The
meeting site is accessible to individuals
with disabilities.
Records are kept of all Commission
proceedings and are available for public
inspection at the Department of
Education, 400 Maryland Avenue SW.,
Washington, DC 20202 from the hours
of 9 a.m. to 5 p.m. Eastern Standard
Time.
Russlynn Ali,
Assistant Secretary, Office for Civil Rights.
[FR Doc. 2011–33800 Filed 1–4–12; 8:45 am]
BILLING CODE 4000–01–P
DEPARTMENT OF ENERGY
Fusion Energy Sciences Advisory
Committee
AGENCY: Office of Science, Department
of Energy.
ACTION: Notice of open meeting.
SUMMARY: This notice announces a
meeting of the Fusion Energy Sciences
Advisory Committee (FESAC). The
Federal Advisory Committee Act (Pub.
L. 92–463, 86 Stat. 770) requires that
public notice of these meetings be
announced in the Federal Register.
DATES: Tuesday, February 28, 2012,
9 a.m.–5:45 p.m. and Wednesday,
February 29, 2012, 9 a.m.–12 p.m.
ADDRESSES: Doubletree Bethesda Hotel
and Executive Meeting Center, 8120
Wisconsin Avenue Bethesda, Maryland
20814.
FOR FURTHER INFORMATION CONTACT:
Edmund J. Synakowski, Designated
Federal Officer, Office of Fusion Energy
Sciences; U.S. Department of Energy;
1000 Independence Avenue SW.,
Washington, DC 20585–1290;
Telephone: (301) 903–4941.
SUPPLEMENTARY INFORMATION:
Purpose of the Meeting: To complete
the charge given to the Committee in the
letter from the Director, Office of
Science, dated July 22, 2011, to respond
to the following questions:
1. What areas of research on new
international facilities provide
compelling scientific opportunities for
US researchers over the next 10–20
years?
2. What research modes would best
facilitate international research
collaborations in plasma and fusion
sciences?
3. What areas of research in materials
science and technology provide
compelling opportunities for US
researchers in the near term and in the
ITER era?
Tentative Agenda
February 28, 2012, 9 a.m.–5:45 p.m.
• DOE/SC perspective and FY13
Congressional Budget Request.
• FES perspective and FY 2013
Congressional Budget Request for FES.
• Briefing on the Chinese Fusion
Program.
• Basic Research Directions using the
National Ignition Facility.
• Status of ITER Project.
• Report from the Subcommittee
dealing with opportunities for
collaborations on new tokamaks and
stellarators overseas AND research
modes that best facilitate international
collaborations in plasma and fusion
science.
February 29, 2012, 9 a.m.–12 p.m.
• Report from the Subcommittee
dealing with materials science and
technology research opportunities.
• Public Comments.
Note: The FESAC meeting will be
broadcast live on the Internet. You may find
out how to access this broadcast by going to
the following site prior to the start of the
meeting. A video record of the meeting,
including the presentations that are made
will be archived at this Web site after the
meeting ends: http://doe.granicus.com/
ViewPublisher.php?view_id=3.
Public Participation: The meeting is
open to the public. If you would like to
file a written statement with the
Committee, you may do so either before
or after the meeting. If you would like
to make oral statements regarding any of
the items on the agenda, you should
contact Dr. Ed Synakowski at (301) 903–
8584 (fax) or
Ed.synakowski@science.doe.gov (email).
Reasonable provision will be made to
include the scheduled oral statements
during the public comments time on the
agenda. The Chairperson of the
Committee will conduct the meeting to
facilitate the orderly conduct of
business. Public comment will follow
the 10-minute rule.
Minutes: The minutes of the meeting
will be available for public review and
copying within 30 days on the Fusion
Energy Sciences Advisory Committee
Web site at: http://www.science.doe.gov/
ofes/fesac.shtml.
Issued at Washington, DC, on December 29,
2011.
LaTanya R. Butler,
Acting Deputy Committee Management
Officer.
[FR Doc. 2011–33801 Filed 1–4–12; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF ENERGY
Office of Energy Efficiency and
Renewable Energy
Wind Plant Performance—Public
Meeting on Modeling and Testing
Needs for Complex Air Flow
Characterization
AGENCY: Office of Energy Efficiency and
Renewable Energy, Department of
Energy (DOE).
ACTION: Notice of public meeting.
SUMMARY: This notice announces a
public meeting for interested parties to
provide DOE information on modeling
needs and experimental validation
techniques for complex flow
phenomena in and around off-shore and
on-shore utility-scale wind power
plants. DOE is requesting this
information to support the development
of cost-effective wind power
deployment.
DATES: The meeting will be held
Tuesday, January 17, 2012, from 7:30
a.m. to 5 p.m., and Wednesday, January
18, 2012, 7:30 a.m. to 5 p.m.
ADDRESSES: University Memorial Center
at the University of Colorado, Boulder,
1669 Euclid Avenue, Boulder, CO
80309.
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486 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
FOR FURTHER INFORMATION CONTACT:
Mark Higgins at
mark.higgins@ee.doe.gov. EE–2B, 1000
Independence Avenue SW.,
Washington, DC 20585.
SUPPLEMENTARY INFORMATION: The
purpose of the meeting is for DOE to
obtain input on existing gaps and future
opportunities in regards to complex
flow modeling and experimental
validation. Ultimately, research in this
area may lead to significant
improvements in wind plant efficiency
and performance, leading to a reduced
cost of energy for wind power. The
meeting is an opportunity for
participants to provide, based on their
individual experience, information and
facts regarding this topic. It is not the
object of this session to obtain any
group position or consensus. Rather,
DOE is seeking as many
recommendations as possible from all
individuals at this meeting.
The public meeting will consist of an
initial plenary session in which invited
speakers will survey available
information and needs for various
applications related to complex flow
modeling and validation testing. For the
remainder of the meeting, breakout
groups will be used to provide
participants an opportunity to present to
DOE information on specific areas
regarding existing gaps in observations
and computational products. These
groups will be an opportunity to
provide comment on information needs
for the following topics:
1. Wind Turbine Scale Modeling and
Validation Requirements
Participants will examine inflow and
outflow characteristics in the vicinity of
a single wind turbine, as well as the
implications for aerodynamic loading of
the rotor and overall structure. Several
temporal and spatial scales shall be
considered.
2. Wind Plant Scale Modeling and
Validation Requirements
Participants will examine complex
aerodynamic phenomena in, around,
and through wind plants, including
turbine-wake interaction, wake-wake
interaction, complex terrain, and
turbulence effects. Several temporal and
spatial scales shall be considered.
3. Regional Scale Modeling and
Validation Requirements
Participants will examine the
meteorological effects at the regional,
multi-wind plant scale. This exploration
of atmospheric science topics shall
include model nesting, long-term data
collection requirements, and downwind
effects of wind plants.
4. Experimental Data Validation
Techniques
Participants will examine the
requirements for, as well as the
feasibility and efficacy of, existing and
future experimental techniques for cost
effective, high fidelity data collection.
Both field and laboratory experiments
will be explored.
This meeting is intended to collect
information from individuals involved
in planning, deployment, operation, and
regulation of wind energy projects,
individuals involved in meteorological
and oceanic disciplines relevant to
offshore and onshore wind energy, and
interested members of the public.
However, the meeting will not focus on
environmental impact or management
issues, which are being addressed by
separate efforts. While participation is
open to all interested parties, the
breakout structure of the meeting will
limit its overall size to about 80
participants. When the meeting is fully
subscribed, registration will be closed.
Please email Raphael Tisch at
Raphael.Tisch@ee.doe.gov with
registration inquiries.
TENTATIVE AGENDA
[Subject To Change]
Day 1
7:30 a.m.–8
a.m.
Registration and Continental
Breakfast.
8 a.m.—8:30
a.m.
Plenary Session #1: Welcome
and Introduction.
8:30 a.m.–9:30
a.m.
Plenary Session #2: Overview
of Break-Out Group
Topics.
9:30 a.m.–10
a.m.
Form Break-Out Groups.
10 a.m.–10:20
a.m.
Break.
10:20 a.m.–12
p.m.
Break-Out Group Session
#1: Sub-topic Issue.
12 p.m.–1 p.m. Lunch.
1 p.m.–3 p.m. Break-Out Group Session
#2: Sub-topic Issue.
3 p.m.–3:20
p.m.
Break.
3:20 p.m.–5
p.m.
Break-Out Group Session
#3: Open Comments.
Day 2
7:30 a.m.–8
a.m.
Registration and Continental
Breakfast.
8 a.m.–8:30
a.m.
Plenary Session: Day 1
Progress Report.
8:30 a.m.–9:30
a.m.
Break-Out Group Session
#4: Wrap-up Comments.
9:30 a.m.–10
a.m.
Break-Out Group Session
#5: Prep for Plenary Discussion.
10 a.m.–10:20
a.m.
Break.
10:20 a.m.–12
p.m.
Plenary Session #3: Break-
Out Group Overviews.
12 p.m.–1 p.m. Lunch.
TENTATIVE AGENDA—Continued
[Subject To Change]
1 p.m.–3 p.m. Plenary Session #4: Open
Comments and Q&A.
3 p.m.–3:20
p.m.
Break.
3:20 p.m.–5
p.m.
Plenary Session #3: Summary.
Registration and Accommodations
A room-block for meeting participants
has been established at the Boulderado,
the Boulder Marriott, and Millennium
Harvest House.
Issued in Washington, DC on December 27,
2011.
Jose Zayas,
Program Manager, Wind and Hydropower
Technologies, Energy Efficiency and
Renewable Energy, Department of Energy.
[FR Doc. 2011–33802 Filed 1–4–12; 8:45 am]
BILLING CODE 6450–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
Combined Notice of Filings #1
Take notice that the Commission
received the following electric rate
filings:
Docket Numbers: ER10–2278–001;
ER10–2277–001; ER10–3203–001.
Applicants: Cogentrix Virginia
Leasing Corporation.
Description: Supplement to Updated
Market Power Analysis and Request for
Category 1 Seller Status of Portsmouth
Genco, LLC, et al.
Filed Date: 12/28/11.
Accession Number: 20111228–5033.
Comments Due: 5 p.m. ET 1/18/12.
Docket Numbers: ER10–2566–002.
Applicants: Duke Energy Carolinas,
LLC.
Description: Notice of change in status
of Duke Energy Carolinas, LLC.
Filed Date: 12/27/11.
Accession Number: 20111227–5124.
Comments Due: 5 p.m. ET 1/17/12.
Docket Numbers: ER12–698–000.
Applicants: PJM Interconnection,
L.L.C.
Description: Original Service
Agreement No. 3159; Queue No. W2–
073 to be effective 12/1/2011.
Filed Date: 12/27/11.
Accession Number: 20111227–5094.
Comments Due: 5 p.m. ET 1/17/12.
Docket Numbers: ER12–699–000.
Applicants: ALLETE, Inc.
Description: Notice of Termination of
ALLETE, Inc.—Superior Water, Light
and Power Company ESA.
Filed Date: 12/27/11.
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 487
Accession Number: 20111227–5121.
Comments Due: 5 p.m. ET 1/17/12.
Docket Numbers: ER12–700–000.
Applicants: Central Vermont Public
Service Corporati, ISO New England
Inc.
Description: CVPS, ISO–NE and
Public Serv. Co of NH Local Service
Agreement No. 69 to be effective 1/1/
2012.
Filed Date: 12/28/11.
Accession Number: 20111228–5011.
Comments Due: 5 p.m. ET 1/18/12.
Docket Numbers: ER12–701–000.
Applicants: New York Independent
System Operator, Inc.
Description: NYISO Tariff Revisions
re: Coordinated Transaction Scheduling
to be effective 12/31/9998.
Filed Date: 12/28/11.
Accession Number: 20111228–5026.
Comments Due: 5 p.m. ET 1/18/12.
Docket Numbers: ER12–702–000.
Applicants: PacifiCorp.
Description: PacifiCorp submits tariff
filing per 35.15: Termination of CEP
Funding Point to Point Transmission
Agreements to be effective 1/12/2012.
Filed Date: 12/28/11.
Accession Number: 20111228–5035.
Comments Due: 5 p.m. ET 1/18/12.
Docket Numbers: ER12–703–000.
Applicants: PJM Interconnection,
L.L.C.
Description: PJM Interconnection,
L.L.C. submits tariff filing per
35.13(a)(2)(iii: Original Service
Agreement No. 3168 ? PJM Queue #
W2–049 to be effective 11/28/2011.
Filed Date: 12/28/11.
Accession Number: 20111228–5065.
Comments Due: 5 p.m. ET 1/18/12.
Docket Numbers: ER12–704–000.
Applicants: Pacific Gas and Electric
Company.
Description: Pacific Gas and Electric
Company submits tariff filing per
35.13(a)(2)(iii: Lathrop Irrigation District
IA and WDT SA to be effective 1/1/
2012.
Filed Date: 12/28/11.
Accession Number: 20111228–5077.
Comments Due: 5 p.m. ET 1/18/12.
Docket Numbers: ER12–705–000.
Applicants: ITC Midwest LLC.
Description: ITC Midwest LLC
submits tariff filing per 35.13(a)(2)(iii:
Filing of a Notice of Succession to be
effective 2/28/2012.
Filed Date: 12/28/11.
Accession Number: 20111228–5079.
Comments Due: 5 p.m. ET 1/18/12.
Take notice that the Commission
received the following public utility
holding company filings:
Docket Numbers: PH12–5–000.
Applicants: The AES Corporation.
Description: FERC–65B Notice of
Material Change in Facts for The AES
Corporation.
Filed Date: 12/28/11.
Accession Number: 20111228–5029.
Comments Due: 5 p.m. ET 1/18/12.
The filings are accessible in the
Commission’s eLibrary system by
clicking on the links or querying the
docket number.
Any person desiring to intervene or
protest in any of the above proceedings
must file in accordance with Rules 211
and 214 of the Commission’s
Regulations (18 CFR 385.211 and
385.214) on or before 5 p.m. Eastern
time on the specified comment date.
Protests may be considered, but
intervention is necessary to become a
party to the proceeding.
eFiling is encouraged. More detailed
information relating to filing
requirements, interventions, protests,
service, and qualifying facilities filings
can be found at: http://www.ferc.gov/
docs-filing/efiling/filing-req.pdf. For
other information, call (866) 208–3676
(toll free). For TTY, call (202) 502–8659.
Dated: December 28, 2011.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011–33828 Filed 1–4–12; 8:45 am]
BILLING CODE 6717–01–P
DEPARTMENT OF ENERGY
Federal Energy Regulatory
Commission
[Docket No. PA10–13–000]
ITC Holdings Corp.; Notice of Paper
Hearing Procedure
Take notice that on October 31, 2011,
ITC Holdings Corp. and ITC Midwest
LLC (collectively, ITC) filed a request
for Commission review of certain
findings and recommendations in the
September 30, 2011 Audit Report (Audit
Report) in this docket issued by the
Director of the Office of Enforcement
under authority delegated to him by
section 375.311 of the Commission’s
regulations, 18 CFR 375.311 (2011). ITC
submitted its request for review under
Part 41 of the Commission’s regulations,
18 CFR Part 41.2. In accordance with
section 41.3, ITC requested the use of
shortened procedures. Pursuant to
section 41.3, the Commission directs the
commencement of a paper hearing. The
Commission further provides
clarification on the scope of the paper
hearing.
ITC’s filing states that it challenges
the Audit Report’s findings that ITC
Midwest ‘‘improperly recovered from
customers through formula rate billings
amounts associated with the tax effects
of amortized goodwill reported in
Account 211, Miscellaneous Paid-In
Capital. It also over-accrued its
allowance for funds used during
construction (AFUDC).’’ ITC also
challenges recommendations 2–4 in the
Audit Report:
2. Remove the overstated equity
amounts associated with the tax effects
of amortized goodwill reported in
Account 211. File all correcting entries
and supporting documentation with the
Division of Audits within 30 days of the
issuance of a final audit report in this
docket.
3. Record and file, with supporting
documentation, all correcting entries
and calculations to correct all account
balances affected by the over-accrual of
AFUDC.
4. Adjust formula rate billings, as
appropriate, for amounts
inappropriately recovered from
customers associated with the tax effects
of amortized goodwill and related overaccrual
of AFUDC. Compute interest on
the adjustments in accordance with 18
CFR 35.19a. File a refund analysis with
the Commission within 30 days of the
issuance of a final audit report in this
docket.
The scope of the paper hearing is
limited to these challenged findings and
recommendations.
In accordance with section 41.3, ITC
and any other interested entity,
including the Commission staff, shall
file, within 45 days of this notice, an
initial memorandum that addresses the
relevant facts and applicable law that
support the position or positions taken
regarding the matters at issue. Reply
memoranda may be filed by participants
who filed initial memoranda. Reply
memoranda must be filed within 20
days of the due date for initial
memoranda. Pursuant to section 41.3,
subpart T of Part 385 of the
Commission’s regulations shall apply to
all filings. Further, pursuant to section
41.4, each entity’s memorandum should
set out the facts and argument as
prescribed for briefs in 18 CFR 385.706
(2011). Section 41.5 also requires that
the facts stated in the memorandum
must be sworn to by persons having
knowledge thereof, which latter fact
must affirmatively appear in the
affidavit.
eFiling is encouraged. More detailed
information relating to filing
requirements, interventions, protests,
service, and qualifying facilities filings
can be found at: http://www.ferc.gov/
docs-filing/efiling/filing-req.pdf. For
other information, call (866) 208–3676
(toll free). For TTY, call (202) 502–8659.
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488 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
1 65 FR 6734 (February 10, 2000).
2 66 FR 5002 (January 18, 2001).
3 40 CFR 86.1834–01(b)(4)(ii) and 40 CFR 86.004–
25(b)(4)(iii).
4 Id.
5 40 CFR 86.094(b)(6)(ii) and 86.1834–01(b)(6)(ii).
Both sections present the following conditions as
acceptable of having a reasonable likelihood that
the maintenance item will be performed in-use:
(A) Data are presented which establish for the
Administrator a connection between emissions and
vehicle performance such that as emissions increase
due to lack of maintenance, vehicle performance
will simultaneously deteriorate to a point
unacceptable for typical driving.
(B) Survey data are submitted which adequately
demonstrate to the Administrator that, at an 80
percent confidence level, 80 percent of such
engines already have this critical maintenance item
performed in-use at the recommended interval(s)
Dated: December 29, 2011.
Nathaniel J. Davis, Sr.,
Deputy Secretary.
[FR Doc. 2011–33829 Filed 1–4–12; 8:45 am]
BILLING CODE 6717–01–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9616–1]
Control of Emissions From New
Highway Vehicles and Engines;
Approval of New Scheduled
Maintenance for Selective Catalytic
Reduction Technologies
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice of approval.
SUMMARY: This notice announces that
EPA has granted certain diesel vehicle
and engine manufacturers’ requests for
approval of emission-related
maintenance and scheduled
maintenance intervals for replenishment
of reducing agent in connection with
their use of selective catalytic reduction
(SCR) technologies. EPA’s approval
pertains to the use of SCR with 2011
and later model year (MY) diesel-fueled
light-duty vehicles and light-duty trucks
along with medium-duty passenger
vehicles and chassis-certified diesel
vehicles up to 14,000 pounds gross
vehicle weight (GVW) and 2012 and
later MY heavy-duty diesel engines.
FOR FURTHER INFORMATION CONTACT:
David Dickinson, Compliance Division,
Office of Transportation and Air
Quality, U.S. Environmental Protection
Agency, 1200 Pennsylvania Avenue
(6405J), NW., Washington, DC 20460.
Telephone: (202) 343–9256. Fax: (202)
343–2800. Email:
dickinson.david@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
EPA adopted new emission standards
for light-duty vehicles on February 10,
2000.1 At that time, EPA established an
emission standard of 0.07 grams per
mile for each manufacturer’s average
full life NOX emissions of its vehicles in
each model year. For heavy-duty
vehicles and engines, EPA published a
rule setting stringent new requirements
on January 18, 2001.2 Among other
requirements, the diesel engine NOX
emission standard was set at 0.20 grams
per brake horsepower-hour (g/bhp-hr),
to be phased-in between the 2007 and
2010 model years.
Diesel vehicle and engine
manufacturers began planning to meet
those requirements by optimizing
engine designs for low emissions and
adding high-efficiency aftertreatment
systems. Manufacturers examined the
use of several different types of NOX
reduction technologies, including NOX
absorbers, exhaust gas recirculation, and
selective catalytic reduction (SCR). SCR
systems use a nitrogen-containing
reducing agent that usually contains
urea and is known as diesel exhaust
fluid (DEF). The DEF is injected into the
exhaust gas upstream of a catalyst. For
continued functioning of the systems,
the reducing agent needs to be
replenished periodically by refilling the
DEF tank.
Maintenance performed on vehicles,
engines, subsystems, or components
used to determine exhaust, evaporative,
or refueling emission deterioration
factors is classified as either emissionrelated
or non-emission-related and
scheduled or un-scheduled. Any
emission-related scheduled
maintenance must be technologically
necessary to ensure in-use compliance
with the emission standards.
Manufacturers must demonstrate to EPA
that all of the emission-related
maintenance to be performed is
technologically necessary and must be
approved prior to being performed or
being included in maintenance
instructions provided to purchasers. 40
CFR 86.094–25(b)(3), 86.094–25(b)(4),
86.1834–01(b)(3) and 86.1834–01(b)(4)
establish minimum allowable
maintenance intervals for various
emission-related technologies. EPA
determined that emission-related
maintenance for the specified
technologies at intervals shorter than
those listed in paragraphs (b)(3) and
(b)(4) are not technologically necessary,
except as provided for in paragraphs
(b)(7). Paragraphs (b)(7) of those
regulatory sections allows
manufacturers to request new scheduled
maintenance and maintenance intervals
or a change to existing scheduled
maintenance interval, including an
interval shorter than that prescribed in
paragraphs (b)(3) and (b)(4). For lightduty,
medium-duty, and heavy-duty
diesel-cycle engines, emission-related
maintenance for certain emissionrelated
components cannot occur before
100,000 miles of use.3 Thereafter,
emission-related maintenance cannot
again occur before 100,000 mile
intervals for light heavy-duty engines, or
before 150,000 mile intervals for
medium and heavy heavy-duty
engines.4
Pursuant to 40 CFR 86.1834–01(b)(7),
a manufacturer must submit a request to
EPA for approval of any new scheduled
maintenance that it wishes to perform
during durability determination and
recommend to purchasers. New
scheduled maintenance is maintenance
that did not exist prior to the 1980
model year (such as DEF refills),
including that which is the direct result
of the implementation of new
technology not found in production
prior to the 1980 model year (such as
SCR technology). In their approval
requests to EPA, manufacturers are
required to submit a variety of
information, including a
recommendation as to the maintenance
category (i.e., emission-related or nonemission-
related, and critical or noncritical).
If the suggested maintenance is
emission-related, manufacturers must
indicate the maximum feasible
maintenance interval. Manufacturers
must also provide detailed evidence,
data, or other substantiation supporting
the need for the new scheduled
maintenance, the categorization of such
maintenance, and the suggested
interval, if the maintenance is emissionrelated.
If EPA approves a request for new
scheduled maintenance, the Agency
then designates that maintenance as
emission-related or non-emissionrelated.
For emission-related
maintenance, EPA will further designate
that maintenance as critical or noncritical.
A designation of critical
maintenance will be made if the
component receiving the maintenance
meets the regulatory definition of
critical emission-related component in
40 CFR 86.1834–01(b)(6). Critical
emission-related components include
catalytic converters. 40 CFR 86.1834–
01(b)(6) requires that critical emissionrelated
maintenance must have a
reasonable likelihood of being
performed in use, as shown by the
manufacturer.5 Examples of
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 489
(C) A clearly displayed visible signal system
approved by the Administrator is installed to alert
the vehicle driver that maintenance is due. A signal
bearing the message ‘‘maintenance needed’’ or
‘‘check engine,’’, or a similar message approved by
the Administrator, shall be actuated at the
appropriate mileage point or by component failure.
This signal must be continuous while the engine is
in operation and not be easily eliminated without
performance of the required maintenance. Resetting
the signal shall be a required step in the
maintenance operation. The method for resetting
the signal system shall be approved by the
Administrator.
(D) A manufacturer may desire to demonstrate
through a survey that a critical maintenance item
is likely to be performed without a visible signal on
a maintenance item for which there is no prior inuse
experience without the signal. To that end, the
manufacturer may in a given model year market up
to 200 randomly selected vehicles per critical
emission-related maintenance item without such
visible signals, and monitor the performance of the
critical maintenance item by the owners to show
compliance with paragraph (b)(6)(ii)(B) of this
section. This option is restricted to two consecutive
model years and may not be repeated until any
previous survey has been completed. If the critical
maintenance involves more than one engine family,
the sample will be sales weighted to ensure that it
is representative of all the families in question.
(E) The manufacturer provides the maintenance
free of charge, and clearly informs the customer that
the maintenance is free in the instructions provided
under § 86.087–38.
(F) Any other method which the Administrator
approves as establishing a reasonable likelihood
that the critical maintenance will be performed inuse.
6 U.S. Environmental Protection Agency, CISD
07–07, ‘‘Dear Manufacturer Letter Regarding
Certification Procedure for Light-Duty and Heavy-
Duty Diesel Vehicles and Heavy-Duty Diesel
Engines Using Selective Catalytic Reduction (SCR)
Technologies,’’ March 27, 2007, available at:
http://iaspub.epa.gov/otaqpub/
display_file.jsp?docid=16677&flag=1.
7 EPA issued guidance on December 30, 2009.
U.S. Environmental Protection Agency, Dear
Manufacturer Letter regarding ‘‘Revised Guidance
for Certification of Heavy-Duty Diesel Engines
Using Selective Catalyst Reduction
(SCR)Technologies,’’ December 30, 2009, reference
number CISD–09–04 (HDDE), available at http://
iaspub.epa.gov/otaqpub/
display_file.jsp?docid=20532&flag=1.
8 74 FR 57672 (November 9, 2009).
demonstrations that maintenance will
have a reasonable likelihood of being
performed in use include: Data
establishing that a vehicle’s engine
performance will deteriorate to an
unacceptable point due to poor
emissions performance, survey data
demonstrating an eighty percent
confidence level that maintenance is in
fact performed in use, and installation
of a clearly displayed signal system to
alert drivers that maintenance is
required. When approving a new
scheduled maintenance request, EPA
also establishes a technologically
necessary maintenance interval, based
on the evidence submitted by industry
and any other information available to
the Agency.
In 2007, EPA issued guidance
indicating how the above-described
regulatory requirements for allowable
maintenance could impact EPA
certification decisions regarding
implementation of SCR technologies for
light-duty and heavy-duty diesel
vehicles and engines.6 That guidance
announced that EPA would consider
service operations performed on SCR
systems to be critical emission-related
scheduled maintenance. We stated our
belief that because catalysts are listed in
the (b)(3) and (b)(4) provisions as
critical emission-related components,
and lack of replenishing agent renders
SCR catalysts inoperative, SCR system
maintenance would meet the definition
of critical emission-related
maintenance. Therefore, allowable
maintenance requirements would apply
to SCR systems, including SCR
catalysts, reducing agent, reducing agent
storage tanks, dosing valves, and all
lines and hoses. Additionally, because
manufacturers indicated that packaging
constraints would prevent them from
being able to equip their vehicles with
reducing agent storage tanks of
sufficient size to allow reducing agent
replenishment to comply with the
general maintenance intervals of
100,000 or 150,000 miles, EPA clarified
that manufacturers would likely need to
request a change to the scheduled
maintenance interval pursuant to the
(b)(7) provision.
In that same 2007 guidance, EPA also
stated that an SCR system utilizing a
reducing agent that needs to be
periodically replenished could be an
adjustable parameter as set forth in 40
CFR 86.094–22(e)(1) and 86.1833–
01(a)(1). Those regulatory provisions
establish the requirements for
determining the physically adjustable
ranges of parameters, and EPA’s 2007
guidance addressed its determination
under the regulations that operation
without DEF is within the scope of such
ranges. EPA’s 2007 guidance also
provided industry-wide notice that SCR
system designs and information
submitted by manufacturers during
certification could be used to provide
EPA with assurance that DEF levels will
remain at proper ranges during the
operation of their vehicles and engines
while in use.7
II. Previous Model Year Approval of
New Scheduled Maintenance for SCR
Systems
In 2009, EPA approved manufacturerspecific
and industry-wide new
scheduled maintenance interval
requests for diesel-cycle motor vehicles
and motor vehicle engines equipped
with SCR systems.8 At that time, EPA
stated that:
* * * SCR systems are a new type of
technology designed to meet the newest
emission standards and the DEF refill
intervals represent a new type of scheduled
maintenance; therefore, EPA believes that
manufacturers may request from EPA the
ability to perform the new scheduled
maintenance of DEF refills. Requests from
manufacturers for new scheduled
maintenance intervals must include: (1)
Detailed evidence supporting the need for the
maintenance requested and (2) supporting
data or other substantiation for the
recommended maintenance category and for
the interval suggested for the emission
maintenance. Any emission-related
maintenance must be technologically
necessary to assure in-use compliance with
the emission standards since minimum
service intervals are established in part to
ensure that the control of emissions is not
compromised by a manufacturer’s overly
frequent scheduling of emission-related
maintenance.
Upon review of industry-wide and
manufacturer-specific evidence and
supporting data, EPA approved new
scheduled maintenance intervals for
DEF equal to the scheduled oil change
interval for light-duty vehicles and
trucks for the 2009 and 2010 model
years. For heavy-duty vehicles and
engines through the 2011 model year,
EPA approved new scheduled
maintenance intervals for DEF tanks
based on ratios to a given vehicle’s fuel
capacity. Vocational heavy-duty
vehicles (e.g., dump trucks, concrete
mixers, refuse trucks, and other
centrally-fueled vehicles) were
permitted a DEF tank maintenance
interval no less than the vehicle’s fuel
capacity (i.e., a 1:1 ratio of DEF refill to
fuel refill). For other heavy-duty
vehicles, a longer interval was approved
depending upon whether the vehicle
was equipped with a DEF level
indicator that would be constantly
viewable by the operator. For those
heavy-duty vehicles with a DEF level
indicator, EPA approved a DEF tank
refill interval no less than twice the
range of the vehicle’s fuel capacity (i.e.,
a 2:1 ratio). For those heavy-duty
vehicles without a DEF level indicator,
EPA approved a DEF tank refill interval
no less than three times the range of the
vehicle’s fuel capacity (i.e., a 3:1 ratio).
When evaluating the evidence, data,
and justifications presented by
manufacturers to support their
requested intervals, EPA identified as
significant the impact a larger sized DEF
tank would have on vehicle design and
vehicle weight. To merely accommodate
the inclusion of a DEF tank into vehicle
design, heavy-duty vehicle
manufacturers had to redesign their
configurations by taking such measures
as reducing the number of batteries,
designing space-saver configurations,
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490 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
9 74 FR 57671, 57674 (November 9, 2009).
10 See 40 CFR 86.1834–01(b)(6)(ii) and 86.094–
25(b)(6)(ii).
11 The Alliance represents BMW Group, Chrysler
LLC, Ford Motor Company, General Motors, Jaguar
Land Rover, Mazda, Mercedes-Benz, Mitsubishi
Motors, Porsche, Toyota, and Volkswagen. EPA also
received similar information from Mahindra.
12 Ford notes the undercarriage is already fully
utilized with the engine, exhaust system, catalytic
converters, mufflers, fuel tank, etc severely limiting
any available space for a DEF tank. Ford also notes
that DEF tanks represent a significant weight
challenge which affects performance and fuel
efficiency. To increase a DEF tank for every 2 oil
change interval would increase a tank weight by 72
lbs as one example.
13 EMA members include AGCO Corporation,
American Honda Motor Company, Inc., Briggs &
Stratton Corporation, Caterpillar Inc., Chrysler
Group LLC, Cummins Inc., Daimler Trucks North
America LLC, Deere & Company, DEUTZ
Corporation, Dresser Waukesha, Fiat Powertrain
lengthening frame rails, moving
compressed air tanks inside the frame
rails, and redesigning fuel tank
configurations. Light-duty car and truck
manufacturers had similar vehicle
design issues related to their inherently
space constrained vehicles: they had to
choose whether to reduce interior
vehicle space or find a place to
accommodate a DEF tank in the engine
compartment of vehicle’s undercarriage.
Aside from vehicle design issues, the
addition of a large DEF tank onto any
given vehicle represents a significant
addition of weight to the vehicle. The
addition of a significant amount of
weight to a given vehicle, in turn,
presents its own concerns: added
vehicle weight more quickly
deteriorates engine performance, and
added vehicle weight decreases fuel
economy. With those considerations in
mind, EPA announced its approval of
the requested maintenance intervals:
After reviewing this data and information,
EPA believes that longer refill intervals than
those noted above would require larger and
heavier DEF tanks, and the design and
engineering work performed by
manufacturers thus far indicate that the
recommended DEF refill intervals noted
above approximate the maximum feasible
maintenance intervals associated with
reasonable DEF tank sizes. The maintenance
intervals recommended ensure that the
functions and operational efficiency of such
vehicles are not overly compromised. Based
on this information we believe the intervals
noted above are warranted.9
EPA’s 2009 approval also noted that,
‘‘while not a specific criterion under
paragraph (b)(7) of the regulations,
because DEF refill maintenance is
considered ‘critical emission-related
maintenance,’ paragraph (b)(6) requires
that there be a reasonable likelihood
that the DEF maintenance refill will be
performed in use.’’ 10 EPA then noted
the number of means available to make
such a showing, including a clearly
displayed visible signal system or the
presentation of supporting data.
III. Current Requests for New
Scheduled Maintenance for SCR
Systems
A. Light-Duty Requests
1. Alliance of Automobile
Manufacturers Request
EPA has received information from
the Alliance of Automobile
Manufacturers (the ‘‘Alliance’’), that
requested re-approval of new scheduled
maintenance for DEF refilling at service
intervals (i.e., oil change intervals) for
light-duty vehicles and light-duty trucks
(and heavy-duty engines that are
chassis-certified for NOX) equipped
with SCR systems.11 The Alliance
presented several reasons why the SCR
maintenance interval should be
equivalent to the service interval,
including: ‘‘vehicles will be designed
and equipped to ensure vehicle
compliance with emission standards;
DEF will be readily available and
accessible to drivers; maintenance is
likely to be performed; there are
engineering constraints on packaging a
large DEF tank on light duty vehicles;
and there is a significant penalty on fuel
economy and performance associated
with carrying both a larger DEF tank and
the weight of a large amount of DEF.’’
With regard to the engineering
constraints associated with packaging a
large quantity of DEF on light duty
vehicles, the Alliance notes that it is
impractical to install a DEF tank of
sufficient size to achieve a 100,000 mile
scheduled maintenance interval. ‘‘Light
duty vehicles are constrained in the
amount of space that can be dedicated
to a DEF tank. In addition to the DEF
tank, SCR vehicles must package an SCR
catalyst, SCR mixer and DEF dosing and
heating mechanisms.’’ The Alliance
cites an example of a current production
vehicle that provides a 6.1 gallon DEF
tank to achieve a 10,000 mile change
interval ratio tied to the oil change
interval. To accommodate a 100,000
mile maintenance requirement would
require 60 gallons of DEF and would
take approximately 8 cubic feet of
space—and would also be almost
equivalent to installing 4 extra fuel
tanks. ‘‘To reduce the existing usable
volume to such an extent would result
in an uncompetitive vehicle in terms of
usable passenger or cargo volume.’’
With regard to the Alliance’s concerns
regarding the potential for a significant
penalty on fuel economy and
performance associated with carrying
both a larger DEF tank and the weight
of a large amount of DEF, they note the
simple impracticability for light duty
vehicles to carry the weight of a DEF
tank sufficient in size to achieve a
100,000 mile maintenance interval.
Noting that such a tank could weigh as
much as 540 lbs it could affect fuel
economy almost as much as 10% on a
3800 lb curb weight vehicle. The
Alliance also notes similar handling
performance (acceleration, braking, and
turning) along with passenger space,
cargo carrying and/or towing capacity.
2. Ford Request
EPA has received information from
Ford (regarding its chassis-certified
vehicles) that is similar to the concerns
raised by the Alliance. In addition, Ford
notes that by attempting to go to a
longer service interval, for example a
16–20 gallon DEF tank to meet a two oil
change interval, would not be feasible
with the space limitations and
performance requirements that are
necessary for typical medium-duty
vehicle (chassis-certified) design. In
addition to the market concerns
associated with a loss in fuel capacity,
cargo or truck bed space due to a larger
DEF tank not being acceptable to its
customers, Ford also notes the ‘‘hardpoint’’
packaging issues with attempting
to place a large DEF tank in the engine
compartment or in the vehicles
undercarriage.12
3. Isuzu Request
EPA also received information from
Isuzu for its medium-duty vehicle
(chassis-certified vehicles with GVW of
8,501 to 10,000 pounds) engine families.
Isuzu requested a maintenance interval
based on the rate of DEF consumption.
Isuzu presented that the DEF
consumption rate of 2% the rate of
diesel fuel consumption renders it
‘‘impossible’’ to equip a vehicle with a
DEF tank large enough to operate for the
full 120,000 mile maintenance interval
without DEF. Isuzu requested its
interval based on reasons of
technological necessity, including
maintenance is likely to be performed
on schedule, there is limited space
available on vehicles for a large DEF
tank, the physical properties of DEF
present limitations, and DEF is publicly
and readily available to drivers.
B. Heavy-Duty Requests
1. Engine Manufacturers Association
Request
The Engine Manufacturers
Association (‘‘EMA’’) renewed its
previous request for maintenance
intervals for DEF refill for heavy-duty
on-highway diesel fueled engines and
vehicles.13 EMA presents that the
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 491
Technologies S.p.A., Ford Motor Company, Hino
Motors, Ltd., Isuzu Manufacturing Services of
America, Inc., Kohler Company, Komatsu Ltd.,
Kubota Engine America Corporation, Navistar, Inc.,
Onan—Cummins Power Generation, PACCAR Inc.,
Scania CV AB, Tognum America, Inc., Volkswagen
of America, Inc., Volvo Powertrain Corporation,
Wa¨rtsila¨ North America, Inc., Yamaha Motor
Corporation, and Yanmar America Corporation.
14 EMA cites from EPA’s 2009 FR Notice: ‘‘EPA
believes that in light of the existing tight space
constraints and the overall desire to maximize
cargo-carrying capacity, minimize emissions and
meet consumer operation demands, and the builtin
DEF tank size buffer to insure DEF refills, that
the DEF tank sizes associated with the 2:1 refill and
3:1 intervals are technologically necessary. EPA
believes that requiring tank sizes above these ratios
will cause increases in space constraints and weight
that would not be appropriate for these [HDOH]
vehicles. * * * After reviewing this data and
information, EPA believes that longer refill intervals
than those noted above would require larger and
heavier DEF tanks. And the design and engineering
work performed by manufacturers thus far indicate
that the recommended DEF refill intervals noted
above approximate the maximum feasible
maintenance interval associated with reasonable
DEF tank sizes. The maintenance intervals
recommended ensure that the functions and
operational efficiency of such vehicles are not
overly compromised. Based on this information we
believe the intervals noted above are warranted.’’
See 74 FR at 57674.
15 EMA expressly states that one of its members—
Navistar, Inc.—does not support EMA’s request.
16 This group includes Chrysler Group, LLC,
Cummins Inc., Daimler Trucks North America LLC,
Detroit Diesel Corporation, Ford Motor Company,
Mack Trucks Inc., PACCAR Inc., UD Trucks
Corporation, and Volvo Group North America.
determinations of technological
necessity that EPA made in 2009 still
apply today for DEF refill intervals.14
Specifically, EMA believes that ‘‘while
the SCR-related urea infrastructure has
continued to develop, the space and
weight constraints that are inherent to
the design and operation of [heavy-duty
on-highway] vehicles, and the
underlying DEF consumption rate, have
not changed. As a result, the need and
justification for the previously-approved
reduced DEF maintenance intervals also
have not changed.’’ EMA requests that
EPA’s previously approved new
scheduled maintenance intervals for
DEF be extended for the 2012 and later
model years.15
2. Volvo Request
By letter dated April 28, 2011, Volvo
Powertrain North America and Volvo
Powertrain Japan (collectively, ‘‘Volvo’’)
submitted a request that EPA extend its
previous approval of alternative
scheduled maintenance intervals for
DEF tanks used in SCR systems. Volvo
believes that the intervals EPA
previously approved remain
technologically necessary, ‘‘as nothing
about the design, constraints or
functionality of Volvo vehicles and
engines has changed so as to permit the
use of larger tanks.’’ Volvo further states
that ‘‘The inherent nature of vehicle
space and weight constraints makes
significantly larger DEF tanks infeasible
on a practical basis. That said, larger
DEF tanks also are not necessary in light
of systems Volvo has developed to
ensure that vehicle operators refill DEF
tanks.’’ Volvo states that to ensure
efficient and practical operation its
trucks are designed in such a way that
they necessarily have space and weight
constraints. Thus, there are inherent
limits on the size of add-on
components, such as DEF tanks, that
can be installed on the vehicles and
such limits are unavoidable. In this
context Volvo states that its trucks are
designed to operate using DEF at all
times and that the size of the DEF tanks,
like the vehicle’s fuel tank, dictates the
vehicle’s range of operation. Volvo
maintains that the 2:1 ratio remains
technologically necessary for model
year 2012 engines and vehicles as
nothing about the design, constraints or
functionality of Volvo vehicles and
engines has changed (since the 2009
approval) so as to permit the use of
larger tanks. Volvo also presents that it
has implemented controls to assure that
there is ‘‘more than a ‘reasonable
likelihood’ that the recommended DEF
refill intervals will be complied with inuse.
Volvo asserts that it has equipped
its SCR-based systems with visible
warning systems and driver
inducements such that vehicle
performance will deteriorate to an
unacceptable point, in order to compel
vehicle operators to refill the DEF tank.
Volvo initially developed these
strategies in consultation with EPA staff
in order to ensure its engines met EPA
certification requirements, and has since
improved its strategies for current and
future model year engines. In its
request, Volvo further describes the
specific steps it has taken to design its
SCR systems to protect against operation
of its vehicles without DEF and to
prevent SCR system tampering. In
addition, Volvo seeks the flexibility to
utilize a 1:1 ratio in light of its 40%
power reduction (see further
clarification below in the SCR Engine
Manufacturers request submitted after
the Volvo request—EPA assumes this is
the flexibility that Volvo is seeking).
3. SCR Engine Manufacturers Request
EPA has also received requests for
scheduled maintenance intervals for
2012 and later model years from a group
of SCR engine manufacturers
(collectively the ‘‘SCR Engine
Manufacturers’’ 16) that specifically ask
for EPA to approve the use of a 1:1 DEF
to fuel ratio for vehicles with a DEF
level indicator, in addition to vocational
vehicles. The SCR Engine
Manufacturers state that such approval
is necessary and appropriate to reflect
current and anticipated changes in
vehicle designs, significant changes in
inducement strategies, and the
increased availability of DEF since
EPA’s last approval in 2009.
The SCR Engine Manufacturers note
that much of the information required in
a (b)(7) petition was confirmed by EPA
in its 2009 notice and thus needs no
further elaboration. EPA has already
concluded that replenishment of DEF is
‘‘technologically necessary’’ critical
emission-related maintenance, and that
the 1:1, 2:1, and 3:1 ratios were
‘‘maximum feasible’’ maintenance
intervals based on information available
in 2009. There has been no change in
the need for DEF replenishment or
designation of the category of
maintenance since 2009. The SCR
Engine Manufacturers new petition for a
1:1 DEF interval reflects what is
believed to be the ‘‘maximum feasible
interval’’ based on reasonable tank sizes,
given the latest information regarding
SCR systems and DEF availability.
Included in the SCR Engine
Manufacturers’ petition is their position
regarding the threshold criteria that EPA
should follow for setting a
‘‘technologically necessary maintenance
interval.’’ They claim that the general
maintenance regulations, including the
introductory paragraph of (b)(2) which
helps frame the established intervals in
(b)(3) and (b)(4), provides guidance on
what ‘‘technologically necessary’’ means
when it states that any emission-related
maintenance ‘‘must be technologically
necessary to assure in-use compliance
with the emission standards.’’ Thus EPA
must first determine whether an interval
shorter than the regulatory default is
necessary in order to assure in-use
compliance. They note that in the 2009
notice EPA specifically addressed the
unique nature of liquid DEF
replenishment and the need to strike a
reasonable balance between conflicting
design goals.
Thus, the SCR Engine Manufacturers
maintain that the words
‘‘technologically necessary’’ are used in
two contexts. First, as noted above,
(b)(2) requires all maintenance that
meets the definition of ‘‘emissionrelated
maintenance’’ ‘‘must be
technologically necessary to assure inuse
compliance with the emission
standards.’’ Consistent with this
provision is (b)(7)(ii) which requires
that any alternative interval set by EPA
be ‘‘a technologically necessary
maintenance interval’’ (emphasis
added). Thus the term ‘‘technologically
necessary’’ merely describes the
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492 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
17 EPA made this statement in its 2009 Notice, see
74 FR at 57673.
18 Letters dated August 18, 2011 and September
27, 2011 to Karl Simon, EPA, Director, Compliance
and Innovative Strategies Division from R. Latane
Montague, Hogan Lovells.
19 Navistar throughout its comments returns to its
theme that EPA’s certification scheme allows DEF
category of maintenance that is
allowable but not what the specific
interval must be. Subsequently, the SCR
Engine Manufacturers note that once
EPA makes this threshold determination
(as required in (b)(7)) then the Agency,
with a level of discretion, examines the
information submitted by the petitioner.
Such information includes the
petitioner’s position on what is the
‘‘maximum feasible maintenance’’
including any supporting data or other
substantiation for the interval suggested.
Rather than looking at the ‘‘maximum
level’’ that is technologically feasible,
the term ‘‘feasible’’ requires EPA to look
at the overall practicality and
reasonableness of a particular proposed
interval. The maximum feasible interval
is used as a point of reference for EPA
to evaluate the reasonableness of the
manufacturers’ recommended interval.
According to the SCR Engine
Manufacturers, ‘‘The maximum possible
interval for DEF replenishment is
established in each case by the total
load capacity of the vehicle in question,
the space available for a given DEF tank
size, the fuel efficiency and greenhouse
gas impact of various DEF dosing rates,
the desired operating range of the
vehicle between fuel and DEF refills,
and the impact of extra weight on
vehicle performance, safety, and
compliance with U.S. Department of
Transportation regulatory requirements.
DEF tank size must also be balanced
against the need to carry cargo, or to
enable the vehicle to meet the purpose
for which it was built, to determine
what is feasible in the most economical
way possible while achieving
compliance.’’
The SCR Engine Manufacturers
suggest that as EPA performs its case-bycase
analysis, the likelihood of the
maintenance being performed in-use is
the most important factor in establishing
the precise maintenance interval. EPA
explained that ‘‘minimum service
intervals are established in part to
ensure that the control of emissions is
not compromised by a manufacturer’s
overly frequent scheduling of emissionrelated
maintenance.’’ 17 They also state
that EPA explained in its 2009 notice
that while the likelihood of
maintenance being performed in-use
was a specific criteria under (b)(6), it
was also a factor that was ‘‘important to
note’’ with regard to EPA’s (b)(7)
findings. Further, EPA then concluded
that it was reasonable to base the DEF
refilling event on diesel refueling
intervals due to DEF infrastructure
developed at diesel refueling stations.
EPA has also received information
from the SCR Engine Manufacturers
indicating that EPA should set the
minimum required DEF refill interval at
an interval equal to the vehicle’s fuel
capacity (i.e., a 1:1 ratio) for all heavy
duty engines.18 They claim that this
shorter maintenance interval is
‘‘necessary and appropriate to reflect
current and anticipated changes in
vehicle designs, significant changes in
inducement strategies, and the
increased availability of DEF.’’ They
note that certification practices of the
EPA regarding inducement practices for
SCR-equipped engines make it
‘‘essentially impossible for an SCR
vehicle to operate without regular DEF
replenishment.’’ They state that the
severity of inducements related to DEF
levels (e.g. severe reduction in engine
power and/or vehicle speed) is
‘‘extraordinary and must be taken into
account’’ when EPA is determining
appropriate maintenance intervals. They
state that ‘‘in light of these severe
inducements, it is reasonable to expect
that a driver with a 1:1 tank ratio will
operate under a firm discipline that the
DEF tank must be refilled every time the
fuel tanks are filled, as opposed to a
driver with a 2:1 or greater tank ratio
who may become accustomed to filling
the DEF tank only when necessary, and
is therefore more likely to rely on gauge
levels, warnings, and inducements to
trigger refills.’’
The SCR Engine Manufacturers also
state that EPA’s promulgation of new
standards regulating greenhouse gases
increase the size and weight restraints
associated with DEF tank size.
EPA has announced new [greenhouse gas]
standards for HDOH trucks, and
manufacturers have moved to voluntarily
increase the fuel efficiency of their vehicles
in advance of the effective dates of those
regulations. Within these regulations, EPA
recognizes the impact of weight savings on
fuel efficiency and GHG emissions. In
addition, manufacturers have developed
innovative new DEF dosing strategies to
reduce CO2 emissions. These new strategies
may involve increasing the DEF dosing rate.
Increasing the DEF dosing rate also makes it
more and more difficult to satisfy a 2:1 tank
size ratio without increasing the size of the
DEF tank above the size EPA previously
considered the maximum reasonable size.
For this reason, if the application of the 1:1
tank ratio is not expanded, EPA will
effectively be mandating larger DEF tanks,
with their accompanying weight increase, in
order to accommodate technology
advancements developed to reduce CO2
emissions—tanks that are larger than the
tanks EPA determined to be the maximum
reasonably required in 2009. In addition, this
could inadvertently cause manufacturers to
restrict application of the most fuel efficient
engines to vehicles that have reduced range
between fuel and DEF refills, such that they
will be unattractive to the line-haul fleets
that consume the most fuel.
The commenters elaborated that:
To meet the next round of GHG reduction
requirements, some manufacturers expect to
increase DEF dosing by as much as 100%
over current levels. These increased levels of
dosing will require a corresponding increase
in DEF tank capacity and size to meet the
existing 2:1 tank ratio requirements. For
example, increasing DEF dosing by 40% on
average would require an increase in DEF
tank size of approximately 40% (depending
on how much extra capacity was included in
the tanks used in previous model years). The
shape, size and location of DEF tanks on a
truck frame are constrained by a number of
factors including: the need to place the tank
below the filler-neck; the need for clearance
from other components such as fuel tanks,
battery boxes, air tanks, diesel particulate
filters, and the drive axle and wheels; the
need for gravity feed; body installation
requirements; clear-back-of-cab requirements;
weight distribution requirements; bridge
formula and related axle placement issues;
and fuel capacity/driving range demands.
They state that another consequence
of the greenhouse gas regulations is
more attention to improved
aerodynamics and weight reduction,
which are harmed by the need for a 2:1
DEF tank size requirement. They claim
that EPA should allow manufacturers to
use all available options to increase fuel
economy and meet greenhouse gas
standards. They state the possible harm
of allowing shorter maintenance
intervals is minimal, given the severe
negative inducements associated with
failure to replenish the DEF tank.
4. Navistar’s Opposition to Renewed
Requests
EPA has received information from
Navistar expressing its opposition to
any extension of EPA’s previously
approved DEF refill intervals. Navistar
maintains that the touchstone of
allowable maintenance is whether it is
reasonably likely that the maintenance
will be performed. To this point, it
states that EPA’s own certification
guidance ensures that maintenance will
not occur, or at least not for lengthy
periods of time. It also states that EPA’s
inducements to cause drivers to
replenish DEF do not work and, and by
definition, ensure that maintenance will
not occur.19 Separately, Navistar
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 493
refills to be deferred for lengthy periods of time. As
such, Navistar maintains that EPA has illegally
amended its allowable maintenance regulations to
eliminate the requirement that maintenance be
shown as likely to occur. Similarly, Navistar points
to EPA’s 2001 rulemaking and maintains that EPA
‘‘concluded its maintenance inducements do not
create a reasonable likelihood that the maintenance
will be performed. (See 2011 Rule at 5053 (finding
no ‘‘adequate safeguards in place to ensure the
[DEF] is used throughout the life of the vehicle.’’)
20 Navistar maintains that SCR engine makers
could have substantially increased the 2009–2011
DEF replacement intervals by doubling the size of
the DEF tank and decreasing urea consumption by
half.
21 73 FR 79089 (December 24, 2008).
22 45 FR 4136, 4141 (January 21, 1980).
23 74 FR 57671 (November 9, 2009).
contends that the previously approved
intervals are not ‘‘technologically
necessary’’ under EPA’s regulations.
The purpose of EPA’s maintenance
regulations is to reduce the amount of
driver attention emissions systems
require in order to ensure that certified
engines comply with emission
standards on the road. Navistar claims
that the Clean Air Act (CAA) and EPA’s
regulations require that SCR engine
manufacturers make efforts to improve
the durability of their driver-dependent
emission control systems after MY 2009.
Navistar points to EPA’s statement from
the 2009 approval (‘‘expectation that
SCR-related technologies and the urea
infrastructure will continue to develop
and mature.’’), as evidence that EPA
must require continuous
improvement.20 Navistar states that
‘‘other SCR technology is now available
that offers exponentially longer
maintenance ranges, weighs less and
conserves fuel more.’’ Navistar
maintains that EPA’s approved
maintenance for liquid, urea-based SCR
is not about ‘‘technological necessity’’.
SCR engine manufacturers can easily
quadruple the refill interval with little
or no effort. They also suggest that EPA
cannot legally accept SCR engine
manufacturers’ lack of effort and extend
the same illegal DEF-replacement
maintenance intervals for future model
years. ‘‘Because other SCR technology is
proven to be available with a
maintenance interval in the range of
35,000 to 45,000 miles, EPA’s own
allowable maintenance regulations
require that liquid, urea-based SCR meet
that same benchmark.’’
Navistar also chooses to contrast
liquid, urea-based SCR systems with
other emission control technologies to
suggest that the maintenance interval
tied with DEF refills is unnecessarily
short They note EPA’s approval of new
scheduled maintenance for exhaust
recirculation valves at 67,500 miles.21
Navistar states that EPA’s basis for
defining ‘‘technologically necessary’’
has always been ‘‘the longest interval
that any manufacturer
recommend(s).’’ 22 Lastly, Navistar notes
that EPA is well aware that they have
developed for production and
introduced other SCR technology (i.e.
EGNR) that provides a maintenance
interval in the range of 35,000 to
upwards of 45,000 miles.
IV. Discussion
As set forth above, EPA in its 2007
guidance states that SCR system
maintenance meets the regulatory
definition of critical emission-related
maintenance. EPA has further clarified
that allowable maintenance
requirements apply to SCR systems,
including SCR catalysts, reducing agent,
reducing agent storage tanks, dosing
valves, and all lines and hoses.
Additionally, because manufacturers
indicated that packaging constraints
would prevent them from being able to
equip their vehicles with reducing agent
storage tanks of sufficient size to allow
reducing agent replenishment to comply
with required maintenance intervals of
100,000 or 150,000 miles, EPA clarified
that manufacturers would likely need to
request a change to the scheduled
maintenance interval pursuant to the
(b)(7) provision.
Also set forth above, manufacturers
have in fact requested such changes for
more frequent scheduled maintenance
to accommodate DEF refilling events for
previous, current, and future model
years. When EPA reviewed those
manufacturer requests in 2009, it
determined that maintenance associated
with refill of DEF tanks was new
scheduled maintenance and that the
manufacturer-requested maintenance
request and scheduled maintenance
intervals were appropriate and
announced that determination in the
Federal Register.23 The broad-level
considerations EPA evaluated when
considering the maintenance interval
requests were the space and weight
constraints presented by incorporating a
DEF tank into vehicle design, as well as
the impact a DEF tank’s inclusion could
have on engine performance. In our
2009 Federal Register notice, we
concluded that the requested intervals
were appropriate because we
determined that manufacturerrecommended
DEF refill intervals
approximated the maximum feasible
maintenance intervals associated with
reasonable DEF tank sizes. We also
concluded that the maintenance
intervals recommended ensure that the
functions and operational efficiency of
such vehicles are not overly
compromised.
A. Light-Duty Requests
As EPA explained in its 2009 notice,
automobile manufacturers have stated it
takes approximately an 8 gallon DEF
tank to ensure that DEF will last for the
length of a typical oil change interval.
Assuming an oil change interval of
10,000 miles, a DEF tank size of
approximately 80 gallons would be
required to meet a 100,000 mile DEF
refill maintenance interval. Even a 16–
20 gallon DEF tank (to meet a 2 oil
change interval) would interfere with
the space that is necessary for typical
light-duty vehicle design and
transportation needs of the consumer.
Interior cabin volume and cargo space
are highly valued attributes in light-duty
vehicles and trucks. Manufacturers have
historically strived to optimize these
attributes, even to the point of switching
a vehicle from rear-wheel drive to frontwheel
drive to gain the extra interior
cabin space taken up by where the drive
shaft tunnel existed, or switching the
size of the spare tire from a
conventional sized tire to a small
temporary tire to gain additional trunk
space. Thus any significant interior,
cargo or trunk space used to store a DEF
tank would be unacceptable to
customers. There are also packaging
concerns with placing a large DEF tank
in the engine compartment or in the
vehicles undercarriage. Most vehicle
undercarriages are already crowded
with the engine, exhaust system,
including catalytic converters and
mufflers, fuel tank, etc. limiting any
available space for a DEF tank.
In addition to the inherently space
constrained areas on the vehicle to place
both fuel tanks and DEF tanks (an
additional 8 gallon tank represents a
very significant demand for space) the
addition of the weight associated with
the DEF represents significant concerns
(e.g. performance and efficient
operation) on the operation of the
vehicle. For example, assuming a
density of 9 lb/gallon, an 8 gallon DEF
tank represents an additional 72 lbs on
a vehicle already looking to optimize
performance. Adding additional DEF
tank size to even accommodate a twooil
change interval is not feasible or
practical given these weight constraints.
A requirement for a larger DEF tank may
also have an adverse effect on the ability
of a manufacturer to meet greenhouse
gas emission standards and fuel
economy standards.
Presently, no manufacturer has
presented any indication that things
have changed in any material fashion
that would allow for the installation of
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24 As SCR-equipped vehicles uniformly have a
constantly viewable DEF level indicator, EPA is not
including a DEF tank refill interval equal to no less
than three times the range of the vehicle’s fuel
capacity (i.e., a 3:1 ratio) for vehicles without such
an indicator.
25 Navistar states, at page 5 of its comments, that
‘‘[d]eviation from ‘minimum’ maintenance is rare
and intended * * * to be temporary. As noted
above, EPA has found that DEF refill is a new type
of maintenance and is not fairly considered as part
of the maintenance of the catalyst covered under
(b)(4). In any case, it is clearly of a different type
than normal physical maintenance of an emissionrelated
part and EPA must make its determination
of maintenance interval based on the particular
maintenance being applied. Even Navistar’s
comments do not suggest that 150,000 miles would
be an appropriate maintenance interval for DEF
refill.
larger DEF tanks and/or less frequent
DEF refilling intervals on light duty
vehicles and trucks. More importantly,
EPA is aware of no technological
advances in this area and believes that
none are likely to occur in the near
future. The space and weight constraints
presented by inclusion of a DEF tank
into vehicle design are inherent. Forcing
manufacturers to install larger DEF
tanks would not only be impractical for
manufacturers, it would also present
utility constraints for consumers,
drivers, and operators. Therefore,
alternative maintenance intervals
remain technologically necessary for
refilling DEF tanks used on SCR
systems.
EPA notes that the DEF refill
maintenance interval being equivalent
to and occurring with the oil change
interval is a fairly long interval (e.g.
7,500 to 12,500 miles) for light-duty
vehicles and trucks and is not likely to
result in overly frequent maintenance
under typical vehicle driving. EPA also
believes that an adequate DEF supply
will be available to perform the DEF
refills at the stated intervals. EPA
believes it important to also consider
when, where and how often vehicle
owners or operators are most likely to
perform the DEF refill maintenance. For
light-duty vehicles and light-duty
trucks, EPA believes the requested DEF
refill interval’s association with the oil
change interval is appropriate given the
likelihood of DEF availability at service
stations and the likelihood that DEF
refill would occur during such service.
Recognizing that alternative
maintenance intervals for DEF refilling
remain technologically necessary due to
space and weight constraints, EPA
believes that the above-described
alternative maintenance intervals
requested by light-duty vehicle
manufacturers are appropriate.
B. Heavy-Duty Requests
EPA continues to believe it is
reasonable to base the DEF refilling
event on diesel refueling intervals given
that it is likely that the DEF refill
maintenance would be undertaken at
the time of fuel refill due to DEF
infrastructure developed at diesel
refueling stations. EPA agrees with
manufacturers that the DEF refilling
intervals requested by EMA, as a
threshold matter, are ‘‘technologically
necessary.’’ EPA knows of no SCR
technology that is currently available
that is yet capable of attaining higher
mileage without a DEF refill. Although
Navistar maintains that EPA is aware of
its ‘‘EGNR’’ technology that it has
‘‘developed for production and
introduced’’ that provides a
maintenance interval in the range of
35,000 to upwards of 45,000 miles,
Navistar presents no further evidence
regarding this technology. Navistar has
presented no evidence that such
technology is currently available in the
marketplace and can meet all
requirements of the Clean Air Act and
the regulations promulgated thereunder.
EPA knows of no application for
certification of engines using such
technology; nor have any engines using
such technology on heavy-duty engines
been introduced within the United
States. In any case, such technology
would be different technology than the
DEF-based SCR technology being used
by current SCR manufacturers. If engine
families using such EGNR technology
become established in the marketplace
and can meet all of the requirements in
EPA’s regulations, then it might be
appropriate to revisit this issue,
although the fact that such technology is
substantially different from DEF-based
SCR would be relevant for determining
whether the establishment of this
technology is relevant to the
establishment of maintenance intervals
for DEF-based SCR.
For vocational vehicles such as dump
trucks, concrete mixers, refuse trucks
and similar typically centrally-fueled
applications, EPA believes the DEF tank
refill interval should equal the range (in
miles or hours) of the vehicle operation
that is no less that the vehicle’s fuel
capacity (i.e., a 1:1 ratio). For all other
vehicles, EPA believes the DEF tank
refill interval must provide a range of
vehicle operation that is no less than
twice the range of vehicle’s fuel capacity
(i.e., a 2:1 ratio).24 As EPA has noted
previously, assuming that 25,000
gallons of diesel fuel were consumed to
reach a 150,000 mile interval (the
interval applicable to catalyst
maintenance for heavy-duty engines),
and assuming a 3% DEF consumption
rate, 750 gallons of DEF weighing
approximately 6,750 pounds would be
required to meet a 150,000 mile
maintenance interval for DEF refill. A
line-haul truck is allowed a maximum
gross vehicle weight of 85,000 pounds
of which approximately 45,000 pounds
is for cargo carrying. A DEF tank of this
size would reduce the cargo-carrying
capacity by 15%. Another example from
the line-haul industry suggests that a
DEF tank size of over 900 gallons would
be needed to reach the 150,000 mile
interval for a common highway vehicle
with a diesel fuel capacity of 200
gallons and achieving 6.5 miles per
gallon fuel efficiency. Similarly, a
medium heavy-duty engine would
require 375 gallons of DEF weighing
3,275 lbs to meet a 150,000 mile
interval. EPA believes that such tank
sizes are clearly not reasonably feasible
in light of the weight and space
demands and constraints on heavy-duty
trucks and the consumer demand for as
much cargo-carrying capacity as
possible.25
The Agency also believes that
intervals that are not as long as 150,000
miles but are longer than 2:1 would
require DEF tanks that are too large or
too heavy to be feasibly incorporated
into vehicles. Available data show that
heavy-duty engines equipped with SCRbased
systems will consume DEF at a
rate that is approximately 2%-4% of the
rate of diesel fuel consumption. Because
of inherent space and weight constraints
in the configuration and efficient
operation of heavy-duty vehicles, there
are size limits on the DEF tanks.
Currently, there are truck weight limits
that manufacturers must address when
making adding or modifying truck
designs. EPA expects and believes that
manufacturers are taking significant and
appropriate steps in order to install
reasonably sized DEF tanks to achieve
the DEF refills intervals noted. For
example, manufacturers are taking such
steps as reducing the number of
batteries on vehicles despite customer
demands or designing space saver
configurations, in some instances
extending an already very limited frame
rail distance to incorporate the DEF
tanks and SCR systems, moving
compressed air tanks inside the frame
rails, redesigning fuel tank
configurations at significant costs, and
otherwise working with significant size
and weight constraints to incorporate
DEF tanks. EPA was provided with
examples of the consequences of
requiring heavy-duty vehicles to
accommodate a DEF refill interval of
5:1, and the information provided to the
Agency strongly suggested that great
compromises would be required in cost,
weight and utility of vehicles. Increased
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 495
26 ‘‘Final Technical Support Document:
Nonconformance Penalties for 2004 Highway Heavy
Duty Diesel Engines’’, EPA420–R–02–021, August
2002.
tank sizes and weights on the magnitude
of 150 to 325 lbs. would be required and
in some cases diesel fuel volumes
would need to be reduced. The extra
weight associated with the DEF required
to meet the 2:1 refill intervals represents
a significant challenge to manufacturers
seeking to meet both weight and size
requirements for their vehicle designs.
In addition, requiring a longer DEF refill
interval may result in increased
greenhouse gases and decreased fuel
economy. EPA believes that in light of
the existing tight space constraints and
the overall desire to maximize cargocarrying
capacity to minimize emissions
and meet consumer operational
demands, and the built-in DEF tank size
buffer to ensure DEF refills, that the
proposed DEF tank sizes are
technologically necessary and are also
reasonable and appropriate. EPA
believes that requiring tank sizes above
these ratios will cause increases in
space constraints and weight that would
not be appropriate for these vehicles.
Similarly, EMA notes that under its
request, manufacturers would employ
the 1:1 refilling ratio for only a small
number of vocational applications and
those vehicle applications have very
limited vehicle space available to house
surplus DEF. Such applications (e.g., a
garbage truck, concrete mixer, beverage
truck, or airport refueler) will also be
refueled daily at central locations. At
approximately 0.134 ft3 per gallon, any
extra DEF would displace significant
space available to vehicle components
and subsystems on both the vocational
trucks at the 1:1 refill interval as well as
the 2:1 vehicles.
In its comments, Navistar suggests
that a longer DEF refill maintenance
interval in the range of 35,000 to 45,000
miles should be approved. As noted
above, one of Navistar’s justifications for
this longer interval is the claim that
other technology is available that would
need a maintenance interval no shorter
than this. However, as discussed, EPA
has no evidence that such technology is
actually available at this time, nor does
EPA believe that the availability of this
other technology would necessarily
impact the maintenance interval needed
for DEF-based SCR.
Navistar also argues that engine
manufacturers using SCR should have
made efforts to increase DEF-refill
intervals since 2009 and that it is
‘‘certainly feasible’’ for SCR systems to
meet such a range. Although Navistar
maintains that SCR engine makers can
easily quadruple the refill interval with
little or no effort, Navistar suggests one
way to reach this interval is to double
DEF tank size, and Navistar makes no
effort to present evidence depicting
where such enlarged DEF tanks can
reasonably be located or the effects on
such tanks on operational efficiency. In
addition, in determining the minimum
maintenance interval for DEF, Navistar
suggests that manufacturers can double
maintenance intervals by lowering
engine-out emissions, which would
reduce the DEF dosing frequency and in
turn extend the refill interval for a fixed
DEF tank size. The Agency reviewed the
potential for engine manufacturers to
lower engine-out NOx through incylinder
control techniques such as
injection timing retard and exhaust gas
recirculation (EGR). It is clear that
lowering engine-out NOx will directly
lower the quantity of DEF that is needed
to meet the NOx standard and hence
conceptually might extend the DEF
refill interval. However, as documented
in the EPA rulemaking that set a
Nonconformance Penalty (NCP) for the
2004 NOx standards, for the relevant
range of NOx control (around 2 g/bhphr
NOx engine out) and these specific
in-cylinder NOx control technologies,
each one gram of NOx reduction is
expected to result in a 5 percent
increase in fuel consumption.26 It can
also be estimated that the DEF
consumption rate is approximately one
percent of fuel consumption per one
gram of NOx reduction. Since the
increase in fuel consumption to reduce
NOx by one gram is approximately five
times higher than the increase in DEF
consumption to treat that same one
gram of NOx, it is clear that reducing
engine-out NOx in order to extend the
DEF refill interval would require an
increase in the fuel tank size five times
that of the volume savings in the DEF
tank size in order to keep the same
refueling interval. In other words,
reducing engine-out NOx in order to
extend the DEF refill interval while
keeping the same diesel refueling
interval would cause the fuel tank to
grow larger necessitating a reduction in
the DEF tank volume at a ratio of 5:1.
Since that increased fuel tank size
would then necessitate a smaller DEF
tank, the resulting service interval
would be shortened not lengthened.
It could be argued that there’s no need
to increase fuel tank size in response to
higher fuel consumption rates because
operators can simply refuel at greater
frequencies. To this point, it is
important to note that the effective
operating range of a vehicle on a single
tank of fuel is a key design parameter
that determines the mission capability
of a vehicle. For example, refuse trucks
are designed with appropriate fuel
capacity to operate over residential and
commercial customer routes and have
enough reserve driving range to then
allow delivery of payload to a landfill
often in remote locations. If a
manufacturer maintained fuel tank size
and increased the frequency at which
the trucks must refuel, these trucks may
not be able to accomplish their intended
mission without making additional
stops for fuel. Fueling stations may not
be directly located along the remote
route to some landfills, necessitating
unplanned trip deviations. At the very
least, these trucks would be impaired in
the ability to accomplish their mission.
Similarly, line-haul trucks are designed
with necessary fuel capacity to deliver
freight over significant interstate
distances while minimizing the need for
refueling stops. Increasing the frequency
at which the trucks must refuel
compromises the ability to accomplish
their mission. Increasing the frequency
of refueling stops poses a serious
negative consequence to the end user of
these trucks given their use in
commercial applications where the time
to accomplish a mission is business
critical. EPA does not believe its
allowable maintenance provisions are
intended to drive this type of impact.
Navistar also suggests that SCR engine
makers are legally required to make
efforts to improve the time between
maintenance for their SCR systems.
However, the regulations do not require
this, and EPA must review the
technological necessity of maintenance
intervals based on the existing factual
circumstances. Current circumstances
do not indicate that a larger
maintenance interval is appropriate.
While EPA’s statement made in the
2009 notice indicates that EPA will
continue to monitor the evolution of
SCR systems along with urea
infrastructure to determine whether the
frequency of DEF refills can be adjusted,
this does not imply that adjustment is
necessary or appropriate, or in which
direction such adjustment would go. In
addition, regarding Navistar’s reference
to a 1980 EPA rulemaking regarding
EPA’s consideration of the longest
interval that any manufacturer
recommends, while EPA does look at
such information, that interval does not
necessarily become the interval
determined under (b)(7). In some
instances EPA may set an even more
frequent interval and in others the
Agency may set a less frequent interval;
EPA’s determination of what is a
feasible interval for an engine family or
an industry is based on a number of
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496 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
27 See EPA’s draft guidance at 76 FR 32886 (June
7, 2011).
factors including manufacturer(s)
recommended intervals, any physical or
technological constraints, burdens that
may be placed on the operator and what
are reasonable expectations of durability
from an operator’s perspective, among
other factors.
After reviewing this data and
information, EPA believes that longer
refill intervals than those noted above
would require larger and heavier DEF
tanks, and the design and engineering
work performed by manufacturers thus
far indicate that the recommended DEF
refill intervals noted above
approximates the maximum feasible
maintenance intervals associated with
reasonable DEF tank sizes, given the
substantial negative consequences of
longer DEF refill interval requirements.
The maintenance intervals
recommended ensure that the functions
and operational efficiency of such
vehicles are not overly compromised.
Based on this information we believe
the intervals noted above are warranted.
EPA is not approving a 1:1 DEF
maintenance interval across the heavyduty
engine class at this time. EPA notes
that manufacturers have been meeting a
2:1 ratio for DEF tank size for the past
two years and the commenters have not
yet provided sufficient evidence that
this ratio will be infeasible in the future.
Moreover, the information EPA has
received to date has not shown that any
change in the maintenance interval is
necessary or appropriate throughout the
heavy-duty engine category, rather than
for particular applications, or that a
refill interval as low as 1:1, rather than
1.8:1 or 1.5:1, is necessary or
appropriate. EPA recognizes that the
implementation of the future standards
for greenhouse gases, beginning as early
as the 2013 model year, may have some
implications for this issue, but the SCR
Engine Manufacturers have not shown
that these standards, which are phased
in and are not applicable in the 2012
model year, will cause the 2:1 refill
interval to be infeasible across the
industry, and certainly not in the 2012
model year. While EPA agrees that the
warnings and inducements in place for
failure to replenish DEF will restrict the
ability of operators to run without DEF,
and have made operation without DEF
virtually unheard of, a DEF tank ratio of
1:1 will increase the likelihood that
operators will need to make more
frequent stops to replenish DEF, and
possibly may need to stop solely to
replenish DEF, which may place a
greater burden on the operator in terms
of the frequency of DEF refills.
EPA also notes that the regulations
allow any manufacturer to petition EPA
under the ‘‘paragraph (b)(7) process’’ for
a shorter maintenance interval for a
particular engine family or application
than that approved for the industry if
the manufacturer can show that a
shorter interval is the maximum feasible
interval necessary for the particular
engine or vehicle configuration being
certified.
Navistar and the SCR Engine
Manufacturers suggest, respectively,
that the ‘‘likelihood of the maintenance
being performed in-use’’ is the
touchstone of allowable maintenance, or
is the most important factor in
establishing the precise maintenance
interval. At the outset, EPA believes it
is important to note the context of the
term ‘‘reasonable likelihood of being
performed in-use’’ within paragraph
(b)(6)(ii). For critical emission-related
maintenance (including critical
emission-related maintenance under
paragraph (b)(6)(i), as well as such
maintenance as determined by EPA
under (b)(7)), manufacturers are
required to show such likelihood prior
to performance of such maintenance on
durability test vehicles. Manufacturers
can satisfy this requirement by meeting
one of the specified conditions in
paragraphs (b)(6)(ii) (A) through (F).
Paragraph (b)(7) does not specify any
additional showing required of the
manufacturer should an alternative
maintenance interval for emissionrelated
critical maintenance be
approved. Thus, if a manufacturer can
show compliance with one of the
specified conditions in (b)(6)(ii), the
manufacturer has met the regulatory
requirement to show a ‘‘reasonable
likelihood of [the maintenance] being
performed in-use’’ as required under
paragraph (b)(7). As noted in the 2009
notice, SCR engine manufacturers (or
vehicle manufacturers) are using a
clearly displayed visible signal system
approved by EPA, meeting the
requirements of (b)(6)(ii)(C). In addition,
SCR engine manufacturers are going
beyond the minimum requirements of
(b)(6)(ii) and are designing, and are
expected by EPA to design (under the
adjustable parameter regulatory
provisions) their systems to include
inducements that will adequately trigger
the operators to refill the DEF tanks by
reducing vehicle performance to a point
unacceptable for typical driving, which
would meet the requirements of
(b)(6)(ii)(A).27 Section (b)(7) does not
include an affirmative requirement on
the petitioner to demonstrate nor on
EPA to find a likelihood of maintenance
being performed beyond that which is
clearly and specifically prescribe at
(b)(6). Indeed, although EPA ‘‘noted’’
the likelihood of performance in its
2009 notice, EPA did so in order to
provide the regulated community with a
complete picture of how the allowable
maintenance provisions should be read
together and how they complement each
other. In addition, EPA notes that the
determination of what is maximally
feasible under (b)(7) does not require, or
in fact include, a consideration of the
inducements (as described above). EPA
nevertheless believes that such
inducements clearly and sufficiently
provide the necessary demonstration of
likelihood of maintenance.
Conversely, with respect to the
arguments from the SCR Engine
Manufacturers, the fact that
maintenance is likely to occur does not
affect the determination of what is the
appropriate ‘‘technologically necessary
maintenance interval.’’ While the
likelihood of maintenance and the
technological necessity of regular
maintenance are both required elements
under (b)(7), and the desire to increase
the likelihood of maintenance may
inform the particular form of the
maintenance interval (i.e. having DEF
refill maintenance be at the same time
as oil change), the two requirements are
separate and distinct. The
‘‘technologically necessary maintenance
interval’’ requirement is motivated by a
desire to minimize the amount of
emission-related maintenance, which is
distinct from the need to make sure that
such maintenance is likely to occur. As
noted, the SCR Engine Manufacturers
have not shown that the 1:1
maintenance interval is ‘‘technologically
necessary.’’ Therefore, while EPA agrees
that the DEF refill maintenance is likely
to occur in use, the 1:1 interval does not
meet the requirements of (b)(7).
V. Approval of New Scheduled
Maintenance for SCR Systems
A. Light-Duty Approval
For the reasons set forth above, EPA
finds it appropriate to approve new
scheduled maintenance intervals for
DEF refill equal to the scheduled oil
change interval for all light-duty
vehicles and light-duty trucks, medium
duty vehicles and other chassis certified
vehicles up to 14,000 pounds for 2011
and later model years.
B. Heavy-Duty Approval
For the reasons set forth above, EPA
again approves new scheduled
maintenance intervals for DEF based on
ratios to a given vehicle’s fuel capacity
for engine certified heavy-duty engines
and vehicles for 2012 and later model
years. Vocational heavy-duty vehicles
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 497
1 69 FR 38958 (June 29, 2004).
(e.g., dump trucks, concrete mixers,
refuse trucks, and other centrally-fueled
vehicles) are permitted a DEF tank
maintenance interval no less than the
vehicle’s fuel capacity (i.e., a 1:1 ratio of
DEF refill to fuel refill). For all other
heavy-duty vehicles, EPA approves a
DEF tank refill interval no less than
twice the range of the vehicle’s fuel
capacity (i.e., a 2:1 ratio).
C. Reasonable Likelihood of
Maintenance Being Performed In Use
As stated above, because DEF refills
are considered ‘‘critical emission-related
maintenance,’’ manufacturers must
‘‘show the reasonable likelihood of such
maintenance being performed in use.’’
40 CFR 86.094–25(b)(6)(ii) and
86.1834(b)(6)(ii) provide a number of
means by which manufacturers may
demonstrate such a reasonable
likelihood. Among those means of
demonstration are visible signal systems
to alert drivers and operators that
maintenance is needed, or data
demonstrating that drivers or operators
are induced to perform maintenance.
EPA intends to review specific
manufacturer certification applications
in order to review whether these
regulatory requirements are met.
D. Applicability
The Agency, as stated above, has
approved alternative maintenance
requests to ensure the proper
functioning of SCR systems by allowing
an appropriately frequent refilling of
DEF tanks. We approve these requests
for all future model years. EPA
expressly reserves its ability to review
this approval at any time in the future,
should any technological advances be
made that would allow for more or less
frequent DEF refilling or otherwise call
this approval into question.
VI. Procedures for Manufacturer
Objections
Any manufacturer may request a
hearing on this determination. The
request must be in writing and include
a statement specifying the
manufacturer’s objections to this
determination, and data in support of
such objections. If, after review of the
manufacturer’s objections and
supporting data, we find that the request
raises a substantial factual issue, we
shall provide the manufacturer with a
hearing in accordance with 40 CFR
86.1853–01 with respect to such issue.
Dated: December 23, 2011.
Gina McCarthy,
Assistant Administrator for Air and
Radiation.
[FR Doc. 2011–33842 Filed 1–4–12; 8:45 am]
BILLING CODE–P
ENVIRONMENTAL PROTECTION
AGENCY
[FRL–9615–9]
Control of Emissions From New
Nonroad Compression-Ignition
Engines: Approval of New Scheduled
Maintenance for Selective Catalytic
Reduction Technologies
AGENCY: Environmental Protection
Agency (EPA).
ACTION: Notice.
SUMMARY: This notice announces that
EPA has granted manufacturers new
emission-related scheduled
maintenance and maintenance intervals
for the replenishment of the nitrogencontaining
reducing agent for selective
catalytic reduction (SCR) technologies
used with nonroad compressionignition
(NRCI) engines for 2011 and
later model years. Replenishment of
reducing agent for SCR technologies is
considered critical emission-related
maintenance.
FOR FURTHER INFORMATION CONTACT:
David Dickinson, Compliance Division,
U.S. Environmental Protection Agency,
1200 Pennsylvania Ave. NW., (405J),
Washington, DC 20460. Telephone:
(202) 343–9256. Email address:
Dickinson.David@epa.gov.
SUPPLEMENTARY INFORMATION:
I. Background
EPA adopted new emission standards
for NRCI engines on June 29, 2004.1 We
expect that many manufacturers will
use SCR systems to meet the final Tier
IV NOX reduction requirements for their
diesel engines. SCR systems use a
nitrogen-containing reducing agent that
usually contains urea and is known as
diesel exhaust fluid (DEF). The DEF is
injected into the exhaust gas upstream
of a catalyst and requires periodic
replenishment (maintenance) by
refilling the DEF tank.
NRCI engine manufacturers are
required to provide written instructions
for properly maintaining and using the
engine, including the emission control
system, to purchasers of new engines.
These maintenance instructions,
including the hours associated with the
maintenance intervals, also apply to the
engine during its service accumulation
for emission testing purposes.
Maintenance performed on NRCI
engines is classified as critical emissionrelated
maintenance if it includes any
adjustment, cleaning, repair, or
replacement of critical emission-related
components. As set forth at 40 CFR
1039.125(a)(1), 1039.125(a)(2), and
1039.125(a)(3), a manufacturer may
schedule critical emission-related
maintenance on these types of
components if certain conditions are
met, including a demonstration that the
maintenance is reasonably likely to be
done at the recommended intervals, and
depending upon the size of the engine
and the type of emission-related
component, an EPA-prescribed
minimum hour maintenance interval.
For example, a manufacturer of engines
below 130 kW may not schedule
maintenance more frequently than 3,000
hours for catalytic converters and if the
engines are at or above 130 kW then a
manufacturer may not schedule the
catalytic converter maintenance more
frequently than 4,500 hours.
In addition, should a manufacturer
desire a new or shorter scheduled
maintenance interval (that it wishes to
recommend to purchasers and perform
during service accumulation on
emission-data engines) not found under
§ 1039.125(a)(2) and 1039.125(a)(3), and
instead utilize § 1039.125(a)(5), then the
manufacturer must submit a request to
EPA for approval. A request for a shorter
maintenance interval includes new
scheduled maintenance on emissionrelated
components that were not in
widespread use with NRCI engines
before 2011. Requests from
manufacturers for new scheduled
maintenance intervals must include: (1)
A description of the proposed
maintenance step, (2) the recommended
maximum feasible interval for this
maintenance, (3) the rationale with
supporting evidence to support the need
for the maintenance at the
recommended interval, and (4) a
demonstration that the maintenance
will be done at the recommended
interval on in-use engines.
In considering requests for new
scheduled maintenance EPA will
evaluate the information provided to
EPA and any other available
information to establish alternate
specifications for maintenance intervals
as deemed appropriate.
EPA believes the existing allowable
scheduled maintenance hour intervals
applicable to catalytic converters are
generally applicable to SCR systems
which contain a catalyst, but that SCR
systems are a new type of technology
and that DEF refills are a new type of
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498 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
2 The EMA members participating in nonroad
diesel engine activities include: Caterpillar Inc.,
Cummins Inc., Deere & Company, Daimler Trucks
North America LLC, Deutz Corporation, Fiat
Powertrain Technologies S.p.A., Hino Motors, Ltd.,
Isuzu Manufacturing Services of America, Inc.,
Komatsu Ltd., Kubota Engine America Corporation,
MTU Detroit Diesel Corporation, AB Volvo, and
Yanmar America Corporation.
3 40 CFR 1039.801 defines a critical emissionrelated
component to include, in part, any
component whose primary purpose is to reduce
emissions.
4 Several of the requests also seek a 2:1 DEF refill
ratio if there is no DEF level indicator. However,
because EPA has already made clear that such DEF
level indicator is otherwise necessary (see footnote
8) the Agency is not evaluating the 2:1 ratio request
at this time. Separately, a couple of the requests
seek a DEF tank size that is capable of sustaining
a minimum of 120 hours of operation for engines
used in part-time and full-time stationary
applications when the engine is provided with a
very large, and possibly unlimited fuel supply. One
of those requests has been withdrawn. The other
does not provide sufficient evidence to support why
the recommended interval is the appropriate
maintenance interval for these particular
applications. Thus, the Agency is not taking action
to approve the requests at this time, but may act in
the future if more detailed information on this issue
is provided to EPA.
5 See CISD–07–07, p. 2.
6 In EPA’s November 9, 2009 approval of new
scheduled maintenance for SCR-equipped onhighway
engines and vehicles, the Agency found
that for vocational vehicles the DEF refill interval
should equal the range of the vehicle operation that
is no less than the vehicle’s fuel capacity (i.e. a 1:1
ratio). 74 FR 57671.
maintenance uniquely associated with
SCR systems. Therefore, the 3,000 hour
(engines below 130 kW) and 4,500 hour
(engines at or above 130 kW) intervals
are generally applicable to SCR systems,
but are not controlling in determining
the appropriate DEF refill interval. As
noted, the SCR systems are a new type
of technology designed to meet the
newest emission standards and the DEF
refill intervals represent a new type of
scheduled maintenance; therefore, EPA
believes that manufacturers may request
from EPA the ability to perform the new
scheduled maintenance of DEF refills.
II. Current Requests
EPA has received information from
the Engine Manufacturers Association,2
as well as AGCO, Caterpillar, and
IVECO supporting their requests for new
recommended scheduled maintenance
intervals for their SCR systems.
Several of the requests noted that the
DEF is essential for the proper
functioning of the SCR system, and
thereby constitutes a ‘‘critical’’
maintenance component.3
The requests primarily seek EPA’s
approval of a DEF tank that provides a
range of operation that is equal to the
engine or equipment’s fuel capacity—
this is known as a 1:1 ratio—for 2011
and later model year nonroad engines.4
In determining the recommended DEF
refill intervals, several of the requestors
applied ‘‘good engineering judgment’’ as
described in the March 27, 2007 SCR
certification guidance for on-highway
engines.5 Some noted that since SCR
systems may consume DEF at a rate of
approximately 2% to 4% of the rate of
diesel fuel consumption (consumption
rates could be even higher as one
requestor noted), it would be technically
infeasible to equip a nonroad engine or
piece of equipment with a DEF tank
large enough to operate for the standard
3,000- or 4,500-hour maintenance
interval without DEF refill. For
example, considering a representative
range of construction and agricultural
equipment, to meet the 3,000- to 4,500-
hour maintenance requirements:
• A skid steer loader with a 50
kilowatt (kW) engine, that normally
carries a maximum of 25 gallons of fuel,
would require a DEF capacity of
approximately 150 gallons, weighing
over 1,400 pounds and requiring more
than 20 cubic feet (ft3) of space.
• A bulldozer with a 150 kW engine,
that normally carries a maximum of 110
gallons of fuel, would require a DEF
capacity of approximately 900 gallons,
weighing over 8,000 pounds and
requiring more than 120 ft3 of space.
• A combine harvester with a 250 kW
engine, that normally carries a
maximum of 250 gallons of fuel, would
require a DEF capacity of approximately
900 gallons, weighing over 8,000
pounds—almost half as much as the
combine’s grain tank capacity—and
requiring more than 120 ft3 of space.
• A large off-highway mining truck
with a 900 kW engine, that normally
carries a maximum of 500 gallons of
fuel, would require a DEF capacity of
approximately 5,500 gallons, weighing
over 50,000 pounds and requiring more
than 735 ft3 of space.
Several of the requests suggested that
in order to apply good engineering
judgment EPA must strike the proper
balance between the dictates of
operating nonroad equipment (which
requires DEF tanks of small enough
weight and size so as not to hinder the
engine’s or equipment’s function while
also not causing too frequent stops or
downtime) and what the requestors
suggest is EPA’s need to ensure
emission compliance in use. The
requestors suggest that mobile nonroad
engines and equipment are directly
analogous to ‘‘vocational’’ on-highway
vehicles, in that they typically are
refueled on a daily basis from a central
location and so are well-suited to the
refilling of their DEF tanks on the same
daily basis.6
The requestors also suggest that their
recommended DEF refill intervals are
the maximum intervals since longer
intervals would require larger and
heavier tanks, which may jeopardize the
engine or equipment’s mission or
functionality. One of the requestors
noted, by way of example, that its
average engines used in modern
agriculture and construction machines
would consume as much as 1,000 to
2,200 gallons of DEF in order to meet
the 4,500-hour regulated interval. Such
tanks (weighing 9,000/20,000 pounds)
would be essentially impossible to
install given the limitations in available
space and visibility for operators on
machines, with impacts on safety, along
with massive increases of machine
weight which would pose serious
problems in operability in agricultural
lands along with worsening machine
fuel consumption resulting in higher
CO2 emissions. Such constraints include
the need to work and pass in very
narrow openings in orchards, safety and
visibility concerns, and the operability
of other components on the equipment
(including clearance between the DEF
tank on tires). This requestor also asks
EPA to consider the shelf-life of DEF at
normal ambient temperatures as 18
months, much less than the 3- to 5-year
period which roughly corresponds to
the interval of 4,500 hours.
A separate request noted the
important relationship between DEF
and fuel volume, packaging and
serviceability concerns, along with tilt
capability and weight concerns in
support of its recommended 1:1 DEF
refill ratio. A 1:1 ratio develops the
correct machine operating habit to fill
the DEF at each fuel fill interval, and
from a vehicle design standpoint many
of its applications are taking away fuel
tank volume to create space for the DEF
tank and provide instances where the
DEF tank is nestled in the fuel tank area.
In terms of serviceability, the optimal
placement of the DEF tank is close to
the fuel tank so both can be refueled
conveniently at the same time. As the
filler neck on the fuel tank is already
accessible from ground level, placing
the DEF tank nearby ensures that it is
also accessible. Providing such
accessibility increases the limitations on
the design and placement of the DEF
tank. Tanks sized for a 1:1 ratio are
much more likely to fit within the
allowable space on a piece of equipment
than a larger tank. Examples were
provided by the requestor noting where
2:1 tanks would not fit. This requestor
also noted that a 2:1 DEF tank would
add 65 to 220 pounds to machines and
would negatively affect the ability to
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 499
7 EMA suggests that a severe inducement would
reduce the engine to 60% of the rated speed and
50% rated torque.
8 EPA held a public webinar on July 26, 2011.
Copies of the presentation used at this webinar can
be found at: www.epa.gov/otaq/cert/documents/
nrci-scr-web-conf.2011-07-25.pdf.
9 40 CFR 1039.125(a)(5).
10 74 FR 57561 (November 9, 2009).
carry payload, which is one of the
primary functions of the majority of
construction machines. Lastly,
construction machines must operate in
a variety of conditions and operate often
on steep slopes. Equipment with 1:1
DEF tanks of the correct design creates
a lower risk of losing DEF fluid suction
pickup when operating on extreme tilt
as compared to larger tanks.
In order to fulfill the obligation to
demonstrate that the maintenance will
be done at the recommended interval on
in-use engines, requestors noted that
manufacturers will deploy warnings and
inducements should the DEF level
become too low. In addition to these
initial inducements, should the operator
ignore them, then the requestors noted
that manufacturers will employ ‘‘severe
inducement’’ intended to disable the
functionality of the engine or
equipment.7
Furthermore, EPA notes that several
current SCR systems include the final
inducement of either having the engine
shut down or idle only (with no power)
when no DEF is present in the DEF tank
(or the system is no longer able to dose
with DEF), and such SCR systems meet
EPA’s expectations of what is required
for nonroad SCR systems.8 As an
example, one manufacturer noted that
‘‘To provide the necessary assurance
that the DEF tank will be refilled, each
vehicle will be equipped with a
constant viewable DEF level indicator
included in the vehicle dashboard
display. * * * the operator display
system includes a visible warning signal
that indicates when the level of DEF in
the tank is low and will need refilling.
As a final inducement, the system also
includes programmed engine derates
that limit engine performance once the
DEF level drops below certain levels,
thereby limiting vehicle performance.’’
EMA, in its request, noted that should
operators fail to notice audible or visible
warning signals indicating low DEF,
then the manufacturers may also use a
reduction in engine power or equipment
utility to provide more dramatic notice
that the DEF tank needs refilling. This
‘‘severe inducement’’ is intended to
disable the functionality of the engine or
equipment, and to substantially limit
the likelihood that the engine or
equipment could perform any useful
work, but is not intended to prohibit the
engine or equipment’s mobility or
ability to idle. EMA also notes that it
expects EPA to provide guidance on an
appropriate final inducement once the
SCR system runs out of DEF.
III. Discussion
EPA believes that SCR systems are a
new technology and are properly
considered a critical emission-related
component since their primary purpose
is to control emissions. In addition, the
replenishment of DEF as part of
maintaining the SCR system’s
functionality is considered to be critical
emission-related maintenance under
1039.125(a).
EPA believes it appropriate to
evaluate the DEF refill rates by taking
into consideration the space and weight
constraints typically involved with the
range of NRCI engines using SCR
systems, including safety and impacts of
weight and dosing rates on greenhouse
gas emissions and fuel efficiency. EPA
believes it must also take into
consideration the likelihood that the
maintenance of DEF refills will be
performed by the owner or operator.9
In our 2009 Federal Register notice
regarding heavy-duty on-highway
engines and vehicles using SCR
systems, we concluded that the
requested intervals were appropriate
because we determined that
manufacturer-recommended DEF refill
intervals approximated the maximum
feasible maintenance intervals
associated with reasonable DEF tank
sizes. We also concluded that the
maintenance intervals recommended
ensure that the functions and
operational efficiency of such vehicles
are not overly compromised.10 EPA
knows of no SCR technology for NRCI
engines that is yet capable of attaining
longer operation (generally beyond one
tank full of diesel) without a DEF refill.
As noted by the requests, there are
significant space and weight constraints
associated with increasing the DEF tank
size in order to accommodate a 2:1 refill
ratio. EPA believes it appropriate to take
into consideration the need for locating
the DEF tank in close proximity to the
fuel tank and the remainder of the SCR
system, as well as the increased
likelihood that the DEF tank will be
refilled if it becomes standard operating
practice to refill the DEF tank at the
same time as the fuel tank. EPA believes
that such nonroad equipment is similar
to centrally-fueled heavy-duty onhighway
vehicles and that there is a
sufficient basis and a reasonable
expectation that DEF tank refills will
occur on a timely basis.
EPA notes that the regulations allow
any manufacturer to petition EPA under
the ‘‘paragraph (a)(5) process’’ for a new
maintenance interval for a particular
engine family or application than that
approved for the industry if the
manufacturer can show that a certain
interval is the appropriate maintenance
interval for the particular engine
configuration being certified.
EPA also notes that all critical
emission-related maintenance must
have a reasonable likelihood of being
done at the recommended intervals on
in-use engines. Paragraph 1039.125(a)(1)
sets forth several methods by which
such demonstration can be made,
including data showing that if a lack of
maintenance increases emissions, it also
unacceptably degrades the engine’s
performance. In the context of SCR
systems and the potential of an empty
DEF tank and an inoperable SCR
system, EPA notes that equipment
under such operating conditions are
expected to shut down or idle only.
Engine manufacturers employing such
final inducements meet the
requirements of (a)(1) and furthermore
meet the requirement under (a)(5) for
DEF refill intervals based on a 1:1 ratio.
For the reasons set forth above, EPA
approves a new scheduled maintenance
interval for DEF refill that shall be no
less than the equipment’s fuel capacity
(i.e., a 1:1 ratio of DEF refill to fuel
refill) for 2011 and later model year
nonroad engines.
IV. Procedures for Objections
Anyone may request a hearing on this
determination. The request must be in
writing and include a description of
your objection and any supporting data.
The request must be made by February
6, 2012. If, after review of any objection
and supporting data, we find that the
request raises a substantial factual issue,
we will hold a hearing in accordance
with 40 CFR Part 1068 Subpart G.
Dated: December 23, 2011.
Gina McCarthy,
Assistant Administrator, Office of Air and
Radiation.
[FR Doc. 2011–33840 Filed 1–4–12; 8:45 am]
BILLING CODE P
FEDERAL HOUSING FINANCE
AGENCY
[No. 2011–N–14]
Privacy Act of 1974; System of
Records
AGENCY: Federal Housing Finance
Agency.
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500 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
ACTION: Notice of the establishment of
new systems of records and removal of
existing systems of records.
SUMMARY: In accordance with the
requirements of the Privacy Act of 1974,
as amended (Privacy Act), the Federal
Housing Finance Agency (FHFA) gives
notice of the proposed establishment of
three new Privacy Act systems of
records and the removal of four existing
Privacy Act systems of records.
The three proposed new systems are:
‘‘Emergency Notification System’’
(FHFA–14); ‘‘Payroll, Retirement, Time
and Attendance, and Leave Records’’
(FHFA–15); and ‘‘Personnel
Investigative Records’’ (FHFA–16). The
proposed new systems will replace
systems of records issued by FHFA’s
predecessor agencies, the Office of
Federal Housing Enterprise Oversight
(OFHEO) and the Federal Housing
Finance Board (FHFB). Proposed
systems (FHFA–14) and (FHFA–15) will
replace OFHEO systems ‘‘OFHEO–2 Pay
and Leave System’’ and ‘‘OFHEO–6
Emergency Contingency Plan and
Personnel Locator System,’’ and FHFB
system ‘‘FHFB–1 Employee Attendance
Records.’’ Proposed system (FHFA–16)
will replace FHFB system ‘‘FHFB–5
Personnel Investigative Records.’’
FHFA has previously published a
system of records notice (‘‘Financial
Management System’’ (FHFA–2), 74 FR
31949 (July 6, 2009)); however, in
publishing that notice, FHFA did not
explicitly state that OFHEO and FHFB
system of records notices were being
replaced. Notice is hereby given that the
systems of records notice ‘‘OFHEO–1
Financial Management System’’ and
‘‘FHFB–2 General Travel and
Transportation Files’’ have been
replaced by ‘‘Financial Management
System’’ (FHFA–2). Upon the effective
date of this notice, the replaced OFHEO
system, ‘‘OFHEO–1’’ published at 63 FR
9007 (February 23, 1998) and ‘‘FHFB–2’’
as amended at 71 FR 61053 (October 17,
2006) will be removed.
In addition, upon the effective date of
this notice, the replaced FHFB systems,
‘‘FHFB–1’’ published at 60 FR 46120
(September 5, 1995), as amended at 62
FR 66865 (December 22, 1997) and 71
FR 61052 (October 17, 2006), and
‘‘FHFB–5’’ (originally published as
‘‘FHFB–7 Agency Personnel
Investigative Records’’ at 60 FR 46120
(September 5, 1995)), as amended at 64
FR 14920 (March 29, 1999), 68 FR 39947
(July 3, 2003), and 71 FR 61052 (October
17, 2006); and the replaced OFHEO
systems, ‘‘OFHEO–2’’ published at 63
FR 9007 (February 23, 1998), and
‘‘OFHEO–6’’ published at 71 FR 6085
(February 6, 2006) will be removed.
DATES: The addition of these new
systems of records will become effective
February 14, 2012 without further
notice unless comments necessitate
otherwise. FHFA will publish a new
notice if the effective date is delayed in
order to review comments or if changes
are made based on comments received.
To be assured of consideration,
comments must be received on or before
February 6, 2012.
ADDRESSES: Submit comments only
once, identified by ‘‘2011–N–14,’’ using
any one of the following methods:
• Email: Comments to Alfred M.
Pollard, General Counsel, may be sent
by email to RegComments@fhfa.gov.
Please include ‘‘2011–N–14’’ in the
subject line of the message.
• Federal eRulemaking Portal: http://
www.regulations.gov. Follow the
instructions for submitting comments. If
you submit your comment to the
Federal eRulemaking Portal, please also
send it by email to FHFA at
RegComments@fhfa.gov to ensure
timely receipt by FHFA. Please include
‘‘2011–N–14’’ in the subject line of the
message.
• U.S. Mail, United Parcel Service,
Federal Express, or Other Mail Service:
The mailing address for comments is:
Alfred M. Pollard, General Counsel,
Attention: Comments/2011–N–14,
Federal Housing Finance Agency, 1700
G Street NW., Washington, DC 20552.
Please note that all mail sent to the
FHFA via the U.S. Postal Service is
routed through a national irradiation
facility, a process that may delay
delivery by approximately two weeks.
For any time-sensitive correspondence,
please plan accordingly.
• Hand Delivered/Courier: The hand
delivery address is: Alfred M. Pollard,
General Counsel, Attention: Comments/
2011–N–14, Federal Housing Finance
Agency, 1700 G Street NW.,
Washington, DC 20552. The package
should be logged at the Guard’s Desk,
First Floor, on business days between 9
a.m. to 5 p.m.
See SUPPLEMENTARY INFORMATION for
additional information on submission
and posting of comments.
FOR FURTHER INFORMATION CONTACT:
Stacy Easter, Privacy Act Officer,
privacy@fhfa.gov or (202) 414–3762, or
David A. Lee, Senior Agency Official for
Privacy, privacy@fhfa.gov or (202) 414–
3804 (not toll free numbers), Federal
Housing Finance Agency, 1700 G Street
NW., Washington DC 20552. The
telephone number for the
Telecommunications Device for the Deaf
is (800) 877–8339.
SUPPLEMENTARY INFORMATION:
I. Comments
FHFA seeks public comments on the
three proposed new systems of records
and will take all comments into
consideration. See 5 U.S.C. 552a(e)(4)
and (11).
Instructions: In addition to
referencing ‘‘Comments/2011–N–14,’’
please reference the title and number of
the system of records your comment
addresses.
Posting and Public Availability of
Comments: All comments received will
be posted without change on the FHFA
Web site at http://www.fhfa.gov, and
will include any personal information
provided. In addition, copies of all
comments received will be available for
examination by the public on business
days between the hours of 10 a.m. and
3 p.m., at the Federal Housing Finance
Agency, Fourth Floor, 1700 G Street
NW., Washington, DC 20552. To make
an appointment to inspect comments,
please call the Office of General Counsel
at (202) 414–6924.
II. Introduction
This notice satisfies the Privacy Act
requirement that an agency publish a
system of records notice in the Federal
Register when there is an addition to
the agency’s system of records. Congress
has recognized that application of all
requirements of the Privacy Act to
certain categories of records may have
an undesirable and often unacceptable
effect upon agencies in the conduct of
necessary public business.
Consequently, Congress established
general exemptions and specific
exemptions that could be used to
exempt records from provisions of the
Privacy Act. Congress also required that
exempting records from provisions of
the Privacy Act would require the head
of an agency to publish a determination
to exempt a record from the Privacy Act
as a rule in accordance with the
Administrative Procedure Act. The
Director of FHFA has determined that
records and information in these three
new systems of records are not exempt
from the requirements of the Privacy
Act.
As required by the Privacy Act, 5
U.S.C. 552a(r), and pursuant to
paragraph 4c of Appendix I to OMB
Circular No. A–130, ‘‘Federal Agency
Responsibilities for Maintaining
Records About Individuals,’’ dated
February 8, 1996 (61 FR 6427, 6435
February 20, 1996), FHFA has submitted
a report describing the three new
systems of records covered by this
notice to the Committee on Oversight
and Government Reform of the House of
Representatives, the Committee on
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 501
Homeland Security and Governmental
Affairs of the Senate, and the Office of
Management and Budget.
III. Proposed Systems of Records
The first proposed system is
‘‘Emergency Notification System’’
(FHFA–14). The proposed system will
contain records related to FHFA
employees and contractor personnel
who provide emergency contact
information, including personal phone
numbers, home and email addresses,
and names and contact information of
emergency points of contact. This
proposed system of records will replace
the system of records issued by FHFA’s
predecessor agency OFHEO. The
replaced OFHEO system, ‘‘OFHEO–6
Emergency Contingency Plan and
Personnel Locator System’’ was
published at 71 FR 6085 (February 6,
2006).
The second proposed system is
‘‘Payroll, Retirement, Time and
Attendance, and Leave Records’’
(FHFA–15). The proposed system will
contain records of individual’s name;
home address; telephone numbers;
Social Security number; organization
code; pay rate; salary; grade; length of
service; pay and leave records; source
documents for posting time and leave
attendance; and deductions for
Medicare; Old-Age, Survivors, and
Disability Insurance (also known as
Social Security); bonds; Federal
Employee Group Life Insurance; union
dues; taxes; allotments; retirement;
charities; Federal Government and
commercial health benefits; Flexible
Spending Account; Long Term Care
Insurance; Thrift Savings Plan
contributions; 401k plan contributions;
awards; shift schedules; pay differential;
tax lien data; wage garnishments; and
any other information pertaining to
payroll, retirement, time and
attendance, and leave. This proposed
system of records will replace the
systems of records issued by FHFA’s
predecessor agencies, FHFB and
OFHEO. The replaced FHFB system
‘‘FHFB–1 Employee Attendance
Records’’ was published at 60 FR 46120
(September 5, 1995), as amended at 62
FR 66865 (December 22, 1997), and at
71 FR 61052 (October 17, 2006), and the
OFHEO system, ‘‘OFHEO–2 Pay and
Leave System,’’ was published at 63 FR
9007 (February 23, 1998).
The third proposed system is
‘‘Personnel Investigative Records’’
(FHFA–16). The proposed system will
contain individual’s name; date of birth;
current and former home addresses;
work histories; education and financial
information; Social Security number;
information about family members;
information about references; types and
dates of investigations; investigative
reports; dates, levels and types of
clearances; and other information
pertinent to granting or denying a
security clearance or making a
suitability determination. This proposed
system of records will replace the
system of records issued by FHFA’s
predecessor agency FHFB. The replaced
FHFB system, ‘‘FHFB–5 Personnel
Investigative Records,’’ was originally
published at 60 FR 46120 (September 5,
1995—originally published as ‘‘FHFB–7
Agency Personnel Investigative
Records’’), as amended at 62 FR 66865
(December 22, 1997), 68 FR 39947 (July
3, 2003), and 71 FR 61052 (October 17,
2006).
The three proposed new systems and
the routine uses for each are set out in
their entirety and described in detail
below.
FHFA–14
SYSTEM NAME:
Emergency Notification System.
SECURITY CLASSIFICATION:
Sensitive but unclassified.
SYSTEM LOCATIONS:
Federal Housing Finance Agency,
1700 G Street NW., Washington, DC
20552; 1625 Eye Street NW.,
Washington, DC 20006; 1750
Pennsylvania Avenue NW., Washington,
DC 20006; and any alternate work site
utilized by employees of the Federal
Housing Finance Agency (FHFA) or by
individuals assisting such employees.
CATEGORIES OF INDIVIDUALS COVERED BY THE
SYSTEM:
This system contains records on
current and former employees,
detailees, interns, fellows, volunteers,
persons who work at FHFA under the
Intergovernmental Personnel Act, and
current and former contractor
personnel.
CATEGORIES OF RECORDS IN THE SYSTEM:
The records in the system contain the
individual’s name, division, office,
home, work and personal electronic
mail addresses, work, home and cellular
telephone numbers, Blackberry PIN and
telephone numbers, and other
emergency contact information.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
5 U.S.C. 301 and Executive Order
12656, Assignment of Emergency
Preparedness Responsibilities, dated
November 18, 1988.
PURPOSE(S):
The purpose of the system of records
is to maintain emergency contact
information for employees and
contractor personnel. The system
provides for high-speed message
delivery that reaches employees and
contractor personnel in response to
threat alerts issued by the Department of
Homeland Security, weather related
emergencies, or other critical situations
that disrupt the operations and
accessibility of a worksite. The system
also provides for personnel
accountability during an emergency,
through personnel sign-in and rapid
alert and notification.
ROUTINE USES OF RECORDS MAINTAINED IN THE
SYSTEM, INCLUDING CATEGORIES OF USERS AND
THE PURPOSE OF SUCH USES:
In addition to those disclosures
generally permitted under 5 U.S.C.
552a(b) of the Privacy Act, all or a
portion of the records or information
contained in this system may be
disclosed outside FHFA as a routine use
as follows:
(1) When (a) it is suspected or
confirmed that the security or
confidentiality of information in the
system of records has been
compromised; (b) FHFA has determined
that as a result of the suspected or
confirmed compromise there is a risk of
harm to economic or property interests,
identity theft or fraud, or harm to the
security or integrity of this system or
other systems or programs (whether
maintained by FHFA or another agency
or entity) that rely upon the
compromised information; and (c) the
disclosure is made to such agencies,
entities, and persons who are reasonably
necessary to assist in connection with
FHFA’s efforts to respond to the
suspected or confirmed compromise
and prevent, minimize, or remedy such
harm.
(2) Where there is an indication of a
violation or potential violation of law,
whether civil, criminal or regulatory in
nature, and whether arising by general
statute or particular program statute, or
by regulation, rule or order issued
pursuant thereto, the relevant records in
the system of records may be referred,
as a routine use, to the appropriate
agency, whether federal, state, local,
foreign or a financial regulatory
organization charged with the
responsibility of investigating or
prosecuting such violation or charged
with enforcing or implementing the
statute, or rule, regulation or order
issued pursuant thereto.
(3) To any individual during the
course of any inquiry or investigation
conducted by FHFA, or in connection
with civil or criminal litigation, if FHFA
has reason to believe that the individual
to whom the record is disclosed may
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502 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
have further information about the
matters related therein, and those
matters appeared to be relevant at the
time to the subject matter of the inquiry.
(4) To any individual with whom
FHFA contracts to reproduce, by typing,
photocopy or other means, any record
within this system for use by FHFA and
its employees in connection with their
official duties or to any individual who
is utilized by FHFA to perform clerical
or stenographic functions relating to the
official business of FHFA.
(5) To members of advisory
committees that are created by FHFA or
by Congress to render advice and
recommendations to FHFA or to
Congress, to be used solely in
connection with their official,
designated functions.
(6) To a court, magistrate, or other
administrative body in the course of
presenting evidence, including
disclosures to counsel or witnesses in
the course of civil discovery, litigation,
or settlement negotiations, or in
connection with criminal proceedings,
when FHFA is a party to the proceeding
or has a significant interest in the
proceeding, to the extent that the
information is determined to be relevant
and necessary.
(7) To the Department of Justice when
(a) FHFA, or any component thereof; or
(b) any employee of FHFA in his or her
official capacity; or (c) any employee of
the agency in his or her individual
capacity where the Department of
Justice or FHFA has agreed to represent
the employee; or (d) the United States,
where FHFA determines that litigation
is likely to affect FHFA or any of its
components, is a party to the litigation
or has an interest in such litigation, and
the use of such records by the
Department of Justice or FHFA is
deemed by FHFA to be relevant and
necessary to the litigation provided,
however, that in each case it has been
determined that the disclosure is
compatible with the purpose for which
the records were collected.
(8) To a Member of Congress, to a
Congressional staff member or to a
Congressional Committee in response to
an inquiry from the Member of
Congress, the Congressional staff
member or Congressional Committee
made at the written request of the
individual about whom the record is
maintained.
(9) To contractor personnel, grantees,
volunteers, interns, and others
performing or working on a contract,
service, grant, cooperative agreement, or
project for FHFA.
(10) To appropriate federal agencies
and other public authorities for use in
records management inspections.
(11) To officials of a labor
organization when relevant and
necessary to their duties of exclusive
representation concerning personnel
policies, practices, and matters affecting
working conditions.
(12) To the Office of Management and
Budget and the General Accountability
Office when relevant and necessary to
carry out their responsibilities or to
perform other functions within their
jurisdiction.
(13) To the Office of the Inspector
General for investigating allegations of
abuse or misconduct, or to perform
other functions within the jurisdiction
of the Office of the Inspector General.
(14) To any Federal Government
authority for the purpose of
coordinating and reviewing agency
continuity of operations plans or
emergency contingency plans developed
for responding to Department of
Homeland Security threat alerts,
weather related emergencies, or other
critical situations.
DISCLOSURE TO CONSUMER REPORTING
AGENCIES:
None.
POLICIES AND PRACTICES FOR STORING,
RETRIEVING, ACCESSING, RETAINING, AND
DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
The records are maintained in
electronic format, paper form, and
magnetic disk or tape. Electronic
records are stored in computerized
databases. Paper and magnetic disk or
tape records are stored in locked file
rooms, locked file cabinets, or locked
safes.
RETRIEVABILITY:
The records are retrieved by email
address, the individual’s name, assigned
file number, or some other personal
identifier.
SAFEGUARDS:
Records are safeguarded in a secured
environment. Buildings where records
are stored have security cameras and 24-
hour security guard service.
Computerized records are safeguarded
through use of access codes and other
information technology security
measures. Paper records are safeguarded
by locked file rooms, locked file
cabinets, or locked safes. Access to
records is restricted to those who
require the records in the performance
of official duties related to the purposes
for which the system is maintained.
RETENTION AND DISPOSAL:
The records are retained and disposed
of in accordance with the appropriate
National Archives and Records
Administration General Records
Schedules and FHFA Records Retention
and Disposition Schedules. Disposal is
by shredding or other appropriate
disposal systems.
SYSTEM MANAGER(S) AND ADDRESS:
Office of the Deputy Chief Operating
Officer, Federal Housing Finance
Agency, 1625 Eye Street NW.,
Washington, DC 20006.
NOTIFICATION PROCEDURES:
Direct inquiries as to whether this
system contains a record pertaining to
an individual to the Privacy Act Officer,
Federal Housing Finance Agency, 1700
G Street NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
RECORD ACCESS PROCEDURES:
Direct requests for access to a record
to the Privacy Act Officer, Federal
Housing Finance Agency, 1700 G Street
NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
CONTESTING RECORD PROCEDURES:
Direct requests to contest or appeal an
adverse determination for a record to
the Privacy Act Appeals Officer, Federal
Housing Finance Agency, 1700 G Street
NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
RECORD SOURCE CATEGORIES:
Record source is from the individuals
on whom the records are maintained.
EXEMPTIONS CLAIMED FOR THE SYSTEM:
None.
FHFA–15
SYSTEM NAME:
Payroll, Retirement, Time and
Attendance, and Leave Records.
SECURITY CLASSIFICATION:
Sensitive but unclassified.
SYSTEM LOCATIONS:
(1) Payroll files, retirement case files,
time and attendance records and
reports, and service history files:
Federal Housing Finance Agency
(FHFA), 1625 Eye Street NW.,
Washington, DC 20006;
(2) Notices of personnel action and
other pay-related records: Government
Employees Services Division, National
Finance Center, U.S. Department of
Agriculture, Attn: CS–0106, P.O. Box
60000, New Orleans, LA 70160–0001;
(3) Retired official personnel files:
National Archives and Records
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Administration, National Personnel
Records Center (Civilian Personnel
Records Center), 1411 Boulder
Boulevard, Valmeyer, IL 62295; and
(4) Any alternate work site utilized by
employees of FHFA or by individuals
assisting such employees. For
administrative purposes, duplicate
systems may exist within FHFA at the
duty station of each employee.
CATEGORIES OF INDIVIDUALS COVERED BY THE
SYSTEM:
This system contains records on
current and former employees,
detailees, interns, fellows, volunteers,
persons who work at FHFA under the
Intergovernmental Personnel Act, and
current and former contractor
personnel.
CATEGORIES OF RECORDS IN THE SYSTEM:
The records in the system contain the
individual’s name; home address;
telephone numbers; Social Security
number; organization code; pay rate;
salary; grade; length of service; pay and
leave records; source documents for
posting time and attendance; and
deductions for Medicare; Old-Age,
Survivors, and Disability Insurance (also
known as Social Security); bonds;
Federal Employee Group Life Insurance;
union dues; taxes; allotments;
retirement; charities; Federal
Government and commercial health
benefits; Flexible Spending Account;
Long Term Care Insurance; Thrift
Savings Plan contributions; 401k plan
contributions; awards; shift schedules;
pay differential; tax lien data; and wage
garnishments; and any other
information pertaining to payroll,
retirement, time and attendance, and
leave. The payroll, retirement, and leave
records described in this notice form a
part of the information contained in the
National Finance Center’s integrated
Personnel and Payroll System (PPS).
Personnel records contained in PPS are
covered under the government-wide
systems of records notice published by
the Office of Personnel Management
(OPM/GOVT–1 and OPM/GOVT–5).
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
5 U.S.C. 301, the Federal Home Loan
Bank Act (12 U.S.C. 1421–1449), and
the Federal Housing Enterprises
Financial Safety and Soundness Act of
1992 (12 U.S.C. 4501, et seq.), both as
amended by the Housing and Economic
Recovery Act of 2008, Public Law No.
110–289, 122 Stat. 2654 (2008).
PURPOSE(S):
The purpose of the system of records
is for FHFA’s operations for payroll,
time and attendance, leave, insurance,
tax, retirement, qualifications, and
benefits; to prepare related reports to
other Federal agencies including the
Department of Treasury and the Office
of Personnel Management; and to locate
FHFA employees and determine such
matters as their period of service, type
of leave, qualifications, benefits, and
pay.
ROUTINE USES OF RECORDS MAINTAINED IN THE
SYSTEM, INCLUDING CATEGORIES OF USERS AND
THE PURPOSES OF SUCH USES:
In addition to those disclosures
generally permitted under 5 U.S.C.
552a(b) of the Privacy Act, all or a
portion of the records or information
contained in this system may be
disclosed outside FHFA as a routine use
as follows:
(1) When (a) it is suspected or
confirmed that the security or
confidentiality of information in the
system of records has been
compromised; (b) FHFA has determined
that as a result of the suspected or
confirmed compromise there is a risk of
harm to economic or property interests,
identity theft or fraud, or harm to the
security or integrity of this system or
other systems or programs (whether
maintained by FHFA or another agency
or entity) that rely upon the
compromised information; and (c) the
disclosure is made to such agencies,
entities, and persons who are reasonably
necessary to assist in connection with
FHFA’s efforts to respond to the
suspected or confirmed compromise
and prevent, minimize, or remedy such
harm.
(2) Where there is an indication of a
violation or potential violation of law,
whether civil, criminal or regulatory in
nature, and whether arising by general
statute or particular program statute, or
by regulation, rule or order issued
pursuant thereto, the relevant records in
the system of records may be referred,
as a routine use, to the appropriate
agency, whether federal, state, local,
foreign or a financial regulatory
organization charged with the
responsibility of investigating or
prosecuting such violation or charged
with enforcing or implementing the
statute, or rule, regulation or order
issued pursuant thereto.
(3) To any individual during the
course of any inquiry or investigation
conducted by FHFA, or in connection
with civil or criminal litigation, if FHFA
has reason to believe that the individual
to whom the record is disclosed may
have further information about the
matters related therein, and those
matters appeared to be relevant at the
time to the subject matter of the inquiry.
(4) To any individual with whom
FHFA contracts to reproduce, by typing,
photocopy or other means, any record
within this system for use by FHFA and
its employees in connection with their
official duties or to any individual who
is utilized by FHFA to perform clerical
or stenographic functions relating to the
official business of FHFA.
(5) To members of advisory
committees that are created by FHFA or
by Congress to render advice and
recommendations to FHFA or to
Congress, to be used solely in
connection with their official,
designated functions.
(6) To a court, magistrate, or other
administrative body in the course of
presenting evidence, including
disclosures to counsel or witnesses in
the course of civil discovery, litigation,
or settlement negotiations, or in
connection with criminal proceedings,
when FHFA is a party to the proceeding
or has a significant interest in the
proceeding, to the extent that the
information is determined to be relevant
and necessary.
(7) To the Department of Justice when
(a) FHFA, or any component thereof; or
(b) any employee of FHFA in his or her
official capacity; or (c) any employee of
the agency in his or her individual
capacity where the Department of
Justice or FHFA has agreed to represent
the employee; or (d) the United States,
where FHFA determines that litigation
is likely to affect FHFA or any of its
components, is a party to the litigation
or has an interest in such litigation, and
the use of such records by the
Department of Justice or FHFA is
deemed by FHFA to be relevant and
necessary to the litigation provided,
however, that in each case it has been
determined that the disclosure is
compatible with the purpose for which
the records were collected.
(8) To a Member of Congress, to a
Congressional staff member or to a
Congressional Committee in response to
an inquiry from the Member of
Congress, the Congressional staff
member or Congressional Committee
made at the written request of the
individual about whom the record is
maintained.
(9) To contractor personnel, grantees,
volunteers, interns, and others
performing or working on a contract,
service, grant, cooperative agreement, or
project for FHFA.
(10) To appropriate federal agencies
and other public authorities for use in
records management inspections.
(11) To officials of a labor
organization when relevant and
necessary to their duties of exclusive
representation concerning personnel
policies, practices, and matters affecting
working conditions.
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504 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
(12) To the Office of Management and
Budget and the General Accountability
Office when relevant and necessary to
carry out their responsibilities or to
perform other functions within their
jurisdiction.
(13) To the Office of the Inspector
General for investigating allegations of
abuse or misconduct, or to perform
other functions within the jurisdiction
of the Office of the Inspector General.
(14) To the Department of Agriculture,
National Finance Center to provide
personnel, payroll, and related services
and systems involving FHFA
employees.
(15) To the Department of the
Treasury, Bureau of the Public Debt to
provide financial management services
and systems, including local and
temporary duty travel, involving FHFA
employees.
(16) To the Internal Revenue Service
and appropriate State and local taxing
authorities.
(17) To appropriate Federal agencies
to effect salary or administrative offsets,
or for other purposes connected with
the collection of debts owed to the
United States.
(18) To the Office of Child Support
Enforcement, Administration for
Children and Families, Department of
Health and Human Services for the
purpose of locating individuals to
establish paternity, establish and modify
orders of child support enforcement
actions as required by the Personal
Responsibility and Work Opportunity
Reconciliation Act, the Federal Parent
Locator System and the Federal Tax
Offset System.
(19) To the Office of Child Support
Enforcement for release to the Social
Security Administration for verifying
Social Security numbers in connection
with the operation of the Federal Parent
Locator System by the Office of Child
Support Enforcement.
(20) To the Office of Child Support
Enforcement for release to the
Department of Treasury for purposes of
administering the Earned Income Tax
Credit Program and verifying a claim
with respect to employment in a tax
return.
(21) To commercial benefit providers,
carriers, vendors, contractor personnel,
and agents to process claims and
provide related administrative services
involving FHFA employees.
(22) To any Federal, state, or local
government agency compiling tax
withholding, retirement contributions,
or allotments to charities, labor unions,
wage garnishments, and other
authorized recipients.
(23) To any member of the public for
employment verification at an
employee’s written request.
(24) To any judgment creditor for the
purpose of wage garnishment.
DISCLOSURE TO CONSUMER REPORTING
AGENCIES:
None.
POLICIES AND PRACTICES FOR STORING,
RETRIEVING, ACCESSING, RETAINING, AND
DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
The records are maintained in
electronic format, paper form, and
magnetic disk or tape. Electronic
records are stored in computerized
databases. Paper and magnetic disk or
tape records are stored in locked file
rooms, locked file cabinets, or locked
safes.
RETRIEVABILITY:
The records are retrieved by the
individual’s name, Social Security
number, birth date, or some other
personal identifier.
SAFEGUARDS:
Records are safeguarded in a secured
environment. Buildings where records
are stored have security cameras and
24-hour security guard service.
Computerized records are safeguarded
through use of access codes and other
information technology security
measures. Paper records are safeguarded
by locked file rooms, locked file
cabinets, or locked safes. Access to
records is restricted to those who
require the records in the performance
of official duties related to the purposes
for which the system is maintained.
RETENTION AND DISPOSAL:
The records are retained and disposed
of in accordance with the appropriate
National Archives and Records
Administration General Records
Schedules and FHFA Records Retention
and Disposition Schedules. Disposal is
by shredding or other appropriate
disposal systems.
SYSTEM MANAGER(S) AND ADDRESS:
Office of Human Resources
Management, Federal Housing Finance
Agency, 1625 Eye Street NW.,
Washington, DC 20006.
NOTIFICATION PROCEDURE:
Direct inquiries as to whether this
system contains a record pertaining to
an individual to the Privacy Act Officer,
Federal Housing Finance Agency, 1700
G Street NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
RECORD ACCESS PROCEDURES:
Direct requests for access to a record
to the Privacy Act Officer, Federal
Housing Finance Agency, 1700 G Street
NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
CONTESTING RECORD PROCEDURES:
Direct requests to contest or appeal an
adverse determination for a record to
the Privacy Act Appeals Officer, Federal
Housing Finance Agency, 1700 G Street
NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
RECORD SOURCE CATEGORIES:
Record source is from the individuals
on whom the records are maintained,
official personnel records of individuals
on whom the records are maintained,
time and attendance records,
withholding certificates, third-party
benefit providers, and other pay-related
records prepared by the individual or
the Office of Human Resources
Management.
EXEMPTIONS CLAIMED FOR THE SYSTEM:
None.
FHFA–16
SYSTEM NAME:
Personnel Investigative Records.
SECURITY CLASSIFICATION:
Sensitive but unclassified.
SYSTEM LOCATIONS:
Federal Housing Finance Agency,
1700 G Street NW., Washington, DC
20552; 1625 Eye Street NW.,
Washington, DC 20006; 1750
Pennsylvania Avenue NW., Washington,
DC 20006; and any alternate work site
utilized by employees of the Federal
Housing Finance Agency (FHFA) or by
individuals assisting such employees.
For administrative purposes, duplicate
systems may exist within FHFA at the
duty station of each employee. For
background investigations adjudicated
by the Department of State (DOS) or the
Office of Personnel Management (OPM),
DOS and OPM may retain copies of
those files pursuant to their records
retention schedules.
CATEGORIES OF INDIVIDUALS COVERED BY THE
SYSTEM:
This system contains records on
current and former employees,
detailees, interns, fellows, volunteers,
persons who work at FHFA under the
Intergovernmental Personnel Act, and
current and former contractor
personnel.
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 505
CATEGORIES OF RECORDS IN THE SYSTEM:
The records in the system contain the
individual’s name, date of birth,
citizenship, current and former home
addresses, work histories, education and
financial information, Social Security
number, information about family
members, information about references,
types and dates of investigations,
investigative reports (including those
from Federal and State law enforcement
agencies, DOS, Department of Defense,
OPM, and other federal entities), dates,
levels and types of clearances, and any
other information pertinent to granting
or denying a security clearance or
making a suitability determination.
AUTHORITY FOR MAINTENANCE OF THE SYSTEM:
Executive Order 10450, Security
Requirements for Government
Employment, dated April 27, 1953; and
Executive Order 12958, Classified
National Security Information, dated
April 17, 1995.
PURPOSE(S):
The purpose of the system of records
is to collect and maintain records of
processing of personnel-security related
clearance actions, to record suitability
determinations, to record whether
security clearances are issued or denied,
and to verify eligibility for access to
classified information or assignment to
a sensitive position. Records may also
be used for personnel actions, such as
removal from sensitive duties, removal
from employment, or revocation of a
security clearance.
ROUTINE USES OF RECORDS MAINTAINED IN THE
SYSTEM, INCLUDING CATEGORIES OF USERS AND
THE PURPOSES OF SUCH USES:
In addition to those disclosures
generally permitted under 5 U.S.C.
552a(b) of the Privacy Act, all or a
portion of the records or information
contained in this system may be
disclosed outside FHFA as a routine use
as follows:
(1) When (a) it is suspected or
confirmed that the security or
confidentiality of information in the
system of records has been
compromised; (b) FHFA has determined
that as a result of the suspected or
confirmed compromise there is a risk of
harm to economic or property interests,
identity theft or fraud, or harm to the
security or integrity of this system or
other systems or programs (whether
maintained by FHFA or another agency
or entity) that rely upon the
compromised information; and (c) the
disclosure is made to such agencies,
entities, and persons who are reasonably
necessary to assist in connection with
FHFA’s efforts to respond to the
suspected or confirmed compromise
and prevent, minimize, or remedy such
harm.
(2) Where there is an indication of a
violation or potential violation of law,
whether civil, criminal or regulatory in
nature, and whether arising by general
statute or particular program statute, or
by regulation, rule or order issued
pursuant thereto, the relevant records in
the system of records may be referred,
as a routine use, to the appropriate
agency, whether federal, state, local,
foreign or a financial regulatory
organization charged with the
responsibility of investigating or
prosecuting such violation or charged
with enforcing or implementing the
statute, or rule, regulation or order
issued pursuant thereto.
(3) To any individual during the
course of any inquiry or investigation
conducted by FHFA, or in connection
with civil or criminal litigation, if FHFA
has reason to believe that the individual
to whom the record is disclosed may
have further information about the
matters related therein, and those
matters appeared to be relevant at the
time to the subject matter of the inquiry.
(4) To any individual with whom
FHFA contracts to reproduce, by typing,
photocopy or other means, any record
within this system for use by FHFA and
its employees in connection with their
official duties or to any individual who
is utilized by FHFA to perform clerical
or stenographic functions relating to the
official business of FHFA.
(5) To members of advisory
committees that are created by FHFA or
by Congress to render advice and
recommendations to FHFA or to
Congress, to be used solely in
connection with their official,
designated functions.
(6) To a court, magistrate, or other
administrative body in the course of
presenting evidence, including
disclosures to counsel or witnesses in
the course of civil discovery, litigation,
or settlement negotiations, or in
connection with criminal proceedings,
when FHFA is a party to the proceeding
or has a significant interest in the
proceeding, to the extent that the
information is determined to be relevant
and necessary.
(7) To the Department of Justice when
(a) FHFA, or any component thereof; or
(b) any employee of FHFA in his or her
official capacity; or (c) any employee of
the agency in his or her individual
capacity where the Department of
Justice or FHFA has agreed to represent
the employee; or (d) the United States,
where FHFA determines that litigation
is likely to affect FHFA or any of its
components, is a party to the litigation
or has an interest in such litigation, and
the use of such records by the
Department of Justice or FHFA is
deemed by FHFA to be relevant and
necessary to the litigation provided,
however, that in each case it has been
determined that the disclosure is
compatible with the purpose for which
the records were collected.
(8) To a Member of Congress, to a
Congressional staff member or to a
Congressional Committee in response to
an inquiry from the Member of
Congress, the Congressional staff
member or Congressional Committee
made at the written request of the
individual about whom the record is
maintained.
(9) To contractor personnel, grantees,
volunteers, interns, and others
performing or working on a contract,
service, grant, cooperative agreement, or
project for FHFA.
(10) To appropriate federal agencies
and other public authorities for use in
records management inspections.
(11) To officials of a labor
organization when relevant and
necessary to their duties of exclusive
representation concerning personnel
policies, practices, and matters affecting
working conditions.
(12) To the Office of Management and
Budget and the General Accountability
Office when relevant and necessary to
carry out their responsibilities or to
perform other functions within their
jurisdiction.
(13) To the Office of the Inspector
General for investigating allegations of
abuse or misconduct, or to perform
other functions within the jurisdiction
of the Office of the Inspector General.
(14) To disclose information to an
agency in the executive, legislative, or
judicial branch, or the District of
Columbia Government, in response to
its request related to issuing a security
clearance or conducting a security or
suitability investigation of an
individual. Only information that is
relevant and necessary to the requesting
agency’s decision on the matter will be
released.
(15) To verify a security clearance in
response to an inquiry from a security
office of an agency in the executive,
legislative, or judicial branch, or the
District of Columbia Government. Also,
to provide FHFA employees and
contractor personnel access to classified
data or areas, when their official duties
require such access.
DISCLOSURE TO CONSUMER REPORTING
AGENCIES:
None.
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506 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
POLICIES AND PRACTICES FOR STORING,
RETRIEVING, ACCESSING, RETAINING AND
DISPOSING OF RECORDS IN THE SYSTEM:
STORAGE:
The records are maintained in
electronic format, paper form, and
magnetic disk or tape. Electronic
records are stored in computerized
databases. Paper and magnetic disk or
tape records are stored in locked file
rooms, locked file cabinets, or locked
safes.
RETRIEVABILITY:
The records are retrieved by the
individual’s name, Social Security
number, date of birth, or some other
personal identifier.
SAFEGUARDS:
Records are safeguarded in a secured
environment. Buildings where records
are stored have security cameras and 24-
hour security guard service.
Computerized records are safeguarded
through use of access codes and other
information technology security
measures. Paper records are safeguarded
by locked file rooms, locked file
cabinets, or locked safes. Access to
records is restricted to those who
require the records in the performance
of official duties related to the purposes
for which the system is maintained.
RETENTION AND DISPOSAL:
The records are retained and disposed
of in accordance with the appropriate
National Archives and Records
Administration General Records
Schedules and FHFA Records Retention
and Disposition Schedules. Disposal is
by shredding or other appropriate
disposal systems.
SYSTEM MANAGER(S) AND ADDRESS:
Office of Human Resources
Management, Federal Housing Finance
Agency, 1625 Eye Street NW.,
Washington, DC 20006.
NOTIFICATION PROCEDURE:
Direct inquiries as to whether this
system contains a record pertaining to
an individual to the Privacy Act Officer,
Federal Housing Finance Agency, 1700
G Street NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
RECORD ACCESS PROCEDURES:
Direct requests for access to a record
to the Privacy Act Officer, Federal
Housing Finance Agency, 1700 G Street
NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
CONTESTING RECORD PROCEDURES:
Direct requests to contest or appeal an
adverse determination for a record to
the Privacy Act Appeals Officer, Federal
Housing Finance Agency, 1700 G Street
NW., Washington, DC 20552, or
privacy@fhfa.gov in accordance with the
procedures set forth in 12 CFR part
1204.
RECORD SOURCE CATEGORIES:
Record source is from the individuals
on whom the records are maintained,
official personnel records of individuals
on whom the records are maintained,
the Office of Personnel Management and
Departments of State and Defense
investigative files, employment
information maintained by FHFA’s
personnel office, current and former
FHFA employees, other individuals
who provide information during the
course of an investigation, Federal law
enforcement agencies, and external and
internal inquiries.
EXEMPTIONS CLAIMED FOR THE SYSTEM:
Pursuant to 5 U.S.C. 552a(k)(5), a
record contained in this system is
exempt from 5 U.S.C. 552a(c)(3), (d),
(e)(1), (e)(4)(G), (e)(4)(H), (e)(4)(I) and (f),
to the extent that disclosure would
reveal the identity of a source who
furnished information to the Federal
Government under an express promise
that his or her identity would be held
in confidence.
Dated: December 28, 2011.
Edward J. DeMarco,
Acting Director, Federal Housing Finance
Agency.
[FR Doc. 2011–33794 Filed 1–4–12; 8:45 am]
BILLING CODE 8070–01–P
FEDERAL MARITIME COMMISSION
Notice of Agreements Filed
The Commission hereby gives notice
of the filing of the following agreements
under the Shipping Act of 1984.
Interested parties may submit comments
on the agreements to the Secretary,
Federal Maritime Commission,
Washington, DC 20573, within ten days
of the date this notice appears in the
Federal Register. Copies of the
agreements are available through the
Commission’s Web site (www.fmc.gov)
or by contacting the Office of
Agreements at (202) 523–5793 or
tradeanalysis@fmc.gov.
Agreement No.: 011707–008.
Title: Gulf/South America Discussion
Agreement.
Parties: BBC Chartering & Logistic
GMBH & Co. KG; Industrial Maritime
Carriers LLC; Seaboard Marine, Ltd.;
and West Coast Industrial Express, LLC.
Filing Party: Wade S. Hooker, Esq.;
211 Central Park W; New York, NY
10024.
Synopsis: The amendment removes
West Coast Industrial Express as a party
to the agreement.
Agreement No.: 012115–001.
Title: HSDG–CCNI USWC–Europe
Vessel Sharing Agreement.
Parties: Compania Chilena De
Navegacion Interoceanica, S.A and
Hamburg Sudamerikanische
Dampfschiffahrts-Gesellschaft KG.
Filing Party: Wade S. Hooker, Esq.;
211 Central Park W; New York, NY
10024.
Synopsis: The amendment deletes
Europe, Canada, Panama, and portions
of the U.S. West Coast from the
geographic scope of the agreement,
reduces the number of vessels to be
operated by the parties, revises the
space allocations of the parties, and
renames and restates the agreement.
Agreement No.: 012149.
Title: MSC/CMA CGM U.S. East
Coast-West Coast South America Space
Charter Agreement.
Parties: MSC Mediterranean Shipping
Company, S.A. and CMA CGM, S.A.
Filing Party: Marc J. Fink, Esquire;
Cozen O’Connor; 1627 I Street NW.,
Suite 1100; Washington, DC 20006–
4007.
Synopsis: The agreement authorizes
Med Shipping to charter space to CMA
in the trade between the U.S. East Coast
and the Bahamas, on the one hand, and
the West Coast of South America, on the
other.
By Order of the Federal Maritime
Commission.
Dated: December 30, 2011.
Rachel E. Dickon,
Assistant Secretary.
[FR Doc. 2011–33808 Filed 1–4–12; 8:45 am]
BILLING CODE 6730–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
[Document Identifier OS–0990–New; 30-day
notice]
Agency Information Collection
Request. 30-Day Public Comment
Request
AGENCY: Office of the Secretary, HHS.
In compliance with the requirement
of section 3506(c)(2)(A) of the
Paperwork Reduction Act of 1995, the
Office of the Secretary (OS), Department
of Health and Human Services, is
publishing the following summary of a
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 507
proposed collection for public
comment. Interested persons are invited
to send comments regarding this burden
estimate or any other aspect of this
collection of information, including any
of the following subjects: (1) The
necessity and utility of the proposed
information collection for the proper
performance of the agency’s functions;
(2) the accuracy of the estimated
burden; (3) ways to enhance the quality,
utility, and clarity of the information to
be collected; and (4) the use of
automated collection techniques or
other forms of information technology to
minimize the information collection
burden.
To obtain copies of the supporting
statement and any related forms for the
proposed paperwork collections
referenced above, email your request,
including your address, phone number,
OMB number, and OS document
identifier, to
Sherette.funncoleman@hhs.gov, or call
the Reports Clearance Office on (202)
690–5683. Send written comments and
recommendations for the proposed
information collections within 30 days
of this notice directly to the OS OMB
Desk Officer; faxed to OMB at (202)
395–5806.
Proposed Project: Teen Pregnancy
Prevention Replication Evaluation
Study: Baseline Data Collection—OMB
No. OS–0990–NEW—The Office of
Adolescent Health.
Abstract
The Office of Adolescent Health
(OAH), Office of the Assistant Secretary
for Health (OASH), U.S. Department of
Health and Human Services (HHS), is
overseeing and coordinating adolescent
pregnancy prevention evaluation efforts
as part of the Teen Pregnancy
Prevention Initiative. OAH is working
collaboratively with the Office of the
Assistant Secretary for Planning and
Evaluation (ASPE), the Centers for
Disease Control and Prevention (CDC),
and the Administration for Children and
Families (ACF) on adolescent pregnancy
prevention evaluation activities.
OAH will jointly oversee with ASPE
the Teen Pregnancy Prevention
Replication Evaluation Study (TPP
Replication Study). The TPP Replication
Study will be a random assignment
evaluation which will determine the
extent to which evidence-based program
models that have been shown to be
effective in an earlier trial, demonstrate
effects on adolescent sexual risk
behavior and teenage pregnancy when
they are replicated in similar and in
different settings and for different
populations.
The findings from this evaluation will
be of interest to the general public, to
policy-makers, and to organizations
interested in teen pregnancy prevention.
OAH and ASPE are proposing
baseline data collection activity as part
of the TPP Replication Evaluation.
Respondents will be asked to answer
carefully selected questions about
demographics and risk and protective
factors related to teen pregnancy.
Information from this data collection
will be used to perform meaningful
analysis to determine significant
program effects.
Respondents: The survey data will be
collected through private, selfadministered
questionnaires completed
by study participants, i.e. adolescents
assigned to a select school or
community teen pregnancy prevention
program or a control group. Surveys will
be distributed and collected by trained
professional staff.
Estimated Annualized Burden Table
Reporting Burden on Study Participants
TEEN PREGNANCY PREVENTION REPLICATION EVALUATION STUDY
Instrument
Annual number
of
respondents
Number of
responses per
respondent
Average
burden hours
per response
Total annual
burden hours
Baseline instrument ......................................................................................... 5,250 1 0.5 2,625
Keith A. Tucker,
Office of the Secretary, Paperwork Reduction
Act Clearance Officer.
[FR Doc. 2011–33827 Filed 1–4–12; 8:45 am]
BILLING CODE 4150–30–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
[30-Day–12–0765]
Agency Forms Undergoing Paperwork
Reduction Act Review
The Centers for Disease Control and
Prevention (CDC) publishes a list of
information collection requests under
review by the Office of Management and
Budget (OMB) in compliance with the
Paperwork Reduction Act (44 U.S.C.
Chapter 35). To request a copy of these
requests, call Daniel Holcomb, the CDC
Reports Clearance Officer, at (404) 639–
5960 or send an email to omb@cdc.gov.
Send written comments to CDC Desk
Officer, Office of Management and
Budget, Washington, DC 20503 or by fax
to (202) 395–5806. Written comments
should be received within 30 days of
this notice.
Proposed Project
Fellowship Management System,
OMB No. 0920–0765—Revision—
Scientific Education and Professional
Development Program Office (SEPDPO),
Office of Surveillance, Epidemiology
and Laboratory Services (OSELS),
Centers for Disease Control and
Prevention (CDC).
Background and Brief Description
SEPDPO is requesting approval to
revise and extend for three years; CDC’s
use of the online Fellowship
Management System (FMS) to allow
public health agencies and
organizations to submit fellowship
assignment proposals electronically,
using FMS. The FMS system will
continue to be used for its electronic
application and directory processes that
allow individuals to apply to
fellowships online, track applicant and
alumni information.
The mission of SEPDPO is to provide
leadership in public health training and
education, and manage innovative,
evidence-based programs to prepare the
health workforce to meet public health
challenges of the 21st century.
Professionals in public health,
epidemiology, medicine, economics,
information science, veterinary
medicine, nursing, public policy, and
other related professions seek
opportunities, through CDC fellowships,
to broaden their knowledge, skills, and
experience to improve the science and
practice of public health. CDC fellows
are assigned to state, tribal, local and
territorial public health agencies; federal
government agencies, including CDC,
and HHS operational divisions, such as
Indian Health Service; and to
nongovernmental organizations,
including academic institutions, tribal
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508 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
organizations, and private public health
organizations.
FMS provides an efficient and
effective way for processing fellowship
application data, selecting qualified
candidates, maintaining a current
alumni database, documenting the
impact of the fellowships on alumni
careers, and generating reports. This
proposed revision will provide a secure
site within this existing electronic
system for designated employees of
public health agencies and
organizations to submit fellowship
assignment proposals electronically.
Designated employees of public
health agencies or organizations will
answer a standardized set of core
questions within FMS about the
proposed assignments, including the
type of public health agency or
organization submitting the proposal;
proposed fellow activities, including
training and opportunities for service
and collaboration; and how the fellow
will be supported, including the type
and extent of mentorship and
supervision the fellow will receive.
This revision enhances FMS to
include a function that will result in a
standardized process for submitting and
reviewing host assignment proposals
across fellowships. The electronic
assignment proposal process that FMS
provides optimizes the matching of
qualified fellowship candidates with
host sites and will result in an optimal
fit between fellows and their
assignments—ultimately leading to
long-term employment and sustained
public health capacity of state and local
health departments and other nonfederal
public health agencies and
organizations.
The annual burden table has been
updated to reflect the number of
respondents from nonfederal public
health agencies or organizations that
submit assignment proposals to host
fellows. Some alumni are deceased or
cannot be located. Response burden
assumes response from an individual
responding alumnus, on average, every
3 years (which is likely an overestimate
of frequency). There is no cost to
respondents other than their time. The
total estimated annual burden hours are
1201.
ESTIMATED ANNUALIZED BURDEN HOURS
Type of
respondents
Number of
respondents
Frequency of
response
Average
annualized
burden per
response
(in hours)
Public Health Agency or Organization ........................................................................................ 226 1 1.5
Fellowship applicants ................................................................................................................... 1122 1 40/60
Fellowship alumni ........................................................................................................................ 454 1 15/60
Dated: December 29, 2011.
Daniel Holcomb,
Reports Clearance Officer, Centers for Disease
Control and Prevention.
[FR Doc. 2011–33798 Filed 1–4–12; 8:45 am]
BILLING CODE 4163–18–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
[30-Day–12–12CO]
Agency Forms Undergoing Paperwork
Reduction Act Review
The Centers for Disease Control and
Prevention (CDC) publishes a list of
information collection requests under
review by the Office of Management and
Budget (OMB) in compliance with the
Paperwork Reduction Act (44 U.S.C.
chapter 35). To request a copy of these
requests, call the CDC Reports Clearance
Officer at (404) 639–5960 or send an
email to omb@cdc.gov. Send written
comments to CDC Desk Officer, Office of
Management and Budget, Washington,
DC or by fax to (202) 395–5806. Written
comments should be received within 30
days of this notice.
Proposed Project
Evaluation of the National Tobacco
Prevention and Control Public
Education Campaign—New—National
Center for Chronic Disease Prevention
and Health Promotion (NCCDPHP),
Centers for Disease Control and
Prevention (CDC).
Background and Brief Description
The Centers for Disease Control and
Prevention (CDC) requests OMB
approval to collect information needed
for evaluating the CDC’s National
Tobacco Prevention and Control Public
Education Campaign (The Campaign).
This campaign, which is expected to
launch in February/March 2012, is the
first Federally-funded media campaign
in the U.S. that describes the harms
from smoking and will feature televised
advertisements that will air nationally
along with complementary ads on radio,
the Internet, in print, and other forms of
media.
CDC plans to conduct an initial
baseline survey of adults before the
launch of The Campaign and a
longitudinal follow-up survey of those
participants approximately three to four
months later. Information will be
collected about adult smokers’
awareness of and exposure to campaign
advertisements, and about their
knowledge, attitudes, and beliefs related
to smoking and secondhand smoke. In
addition, the survey will measure
behaviors related to smoking cessation
and behaviors related to interpersonal
communication about smoking.
Information will also be collected on
demographic variables including age,
sex, race, education, income, primary
language, and marital status.
Data from this survey will be used to
estimate the extent to which smokers
and non-smokers in the U.S. were
exposed to The Campaign and to
examine the statistical relationships
between adults’ exposure to The
Campaign and changes in outcome
variables of interest including attempts
to quit smoking.
Information will be collected through
on-line questionnaires involving adult
smokers and non-smokers in the U.S.,
ages 18–54. Respondents who are
smokers will be recruited from two
sources: a probability sample drawn
from the Knowledge Networks
KnowledgePanel®, a panel that uses
address-based postal mail sampling to
generate a probability-based online
panel of U.S. adults, and a supplemental
sample from SSI, a leading provider of
online sampling in the U.S.
Respondents who are non-smokers will
be recruited from Knowledge Networks.
The target number of complete pre-/
post-campaign questionnaires for
smokers is 5,000. The target number of
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 509
complete pre-/post-campaign
questionnaires for non-smokers is 2,000.
To obtain the target number of
complete pre-/post-campaign responses,
approximately 34,660 respondents will
be contacted through an initial
screening and consent process. The
estimated burden per response is two
minutes.
An estimated 11,600 smokers will be
recruited to complete the Smoker
Baseline Questionnaire in order to yield
5,000 completed post-campaign Smoker
Follow-Up Questionnaires. An
estimated 2,666 non-smokers will be
recruited to complete the Non-smoker
Baseline Questionnaire in order to yield
2,000 completed post-campaign Nonsmoker
Follow-up Questionnaires. For
both respondent groups, the estimated
burden per response is 25 minutes for
each baseline questionnaire. In addition,
the estimated burden per response is 25
minutes for each post-campaign (followup)
questionnaire.
Data from this information collection
will be used to estimate awareness of
and exposure to The Campaign among
smokers and non-smokers nationally as
well as among the planned subset of
smokers in high-delivery geographic
areas for The Campaign. These estimates
will take the form of self-reported ad
recognition and recall estimates that
assess basic exposure as well as
frequency of ad exposure. Data from this
information collection will also be used
to examine statistical associations
between exposure to The Campaign and
pre-post changes in specific outcomes of
interest which will include knowledge,
attitudes, beliefs and intentions related
to smoking and cessation as well as
behavioral outcomes including quit
attempts and cigarette consumption.
OMB approval is requested for one
year. There are no costs to respondents
other than their time. The total
estimated burden hours are 10,015.
ESTIMATED ANNUALIZED BURDEN HOURS
Type of respondent Form name Number of
respondents
Number of
responses per
respondent
Average
burden per
response
(in hours)
General Population ......................................... Screening and Consent Process ................... 34,660 1 2/60
Adults, ages 18–54 in the U.S. ....................... Smoker Baseline Questionnaire .................... 11,600 1 25/60
Smoker Follow-Up Questionnaire .................. 5,000 1 25/60
Non-Smoker Baseline Questionnaire ............. 2,666 1 25/60
Non-Smoker Follow-up Questionnaire ........... 2,000 1 25/60
Dated: December 29, 2011.
Daniel Holcomb,
Reports Clearance Officer, Centers for Disease
Control and Prevention.
[FR Doc. 2011–33799 Filed 1–4–12; 8:45 am]
BILLING CODE 4163–18–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Centers for Disease Control and
Prevention
Statement of Organization, Functions,
and Delegations of Authority
Part C (Centers for Disease Control
and Prevention) of the Statement of
Organization, Functions, and
Delegations of Authority of the
Department of Health and Human
Services (45 PR 67772–76, dated
October 14, 1980, and corrected at 45 FR
69296, October 20, 1980, as amended
most recently at 76 FR 66308–66309,
dated October 26, 2011) is amended to
reflect the reorganization of the
Financial Management Office within the
Office of the Chief Operating Officer,
Centers for Disease Control and
Prevention.
Section C–B, Organization and
Functions, is hereby amended as
follows:
Delete items (1), (2) and (3) of the
functional statements for the Financial
Management Office (CAJE), and insert
the following: (1) Provides leadership
and coordination in the development
and administration of the Centers for
Disease Control and Prevention’s (CDC)
financial management policies; (2)
provides leadership and advice on
matters of public health policy, budget
formulation, budget and performance
integration, and Congressional
appropriations for CDC and the Agency
for Toxic Substances and Disease
Registry (ATSDR); (3) collaborates with
the CDC Office of the Director (OD) in
the development and implementation of
long-range, strategic program and
financial plans;
Delete in its entirety the title and
functional statements for the Travel
Management Activity (CAJE12).
Delete in its entirety the title and
functional statements for the Office of
Organizational Excellence (CAJE13) and
the Office of Formulation, Evaluation,
and Analysis (CAJE14) and insert the
following:
Office of Management Services
(CAJE13). (1) Collaborates and
maintains liaison with CDC
management officials to monitor and
address priority issues of concern to
CDC leadership; (2) manages the
Financial Management Office’s (FMO)
operational budget processes, including
planning, execution, and monitoring; (3)
manages FMO’s acquisition processes;
(4) analyzes and provides
recommendations on workload
efficiency and resource utilization; (5)
provides direction, strategy, analysis,
operational support, and
recommendations in matters concerning
organizational performance and
management services within FMO; (6)
coordinates the development of, and
maintains, strategic management and
performance measurement tools within
FMO; (7) monitors FMO organizational
performance and provides
recommendations on performance
improvement; (8) provides management,
oversight, and administrative support
for FMO service desk operations; (9)
provides direction, strategy, analysis,
and operational support in all aspects of
FMO’s human resources operations; (10)
provides leading practices in
government financial management
practices to FMO; (11) develops,
implements, and manages recruiting,
hiring, retention, and succession
strategies; (12) coordinates creation and
implementation of operating standards/
procedures and processes, and monitors
compliance; (13) develops, implements,
and manages professional development
strategy and plan for FMO; (14)
develops and implements FMO’s
communication strategy and plan; (15)
manages the development and
communication of financial
management policies; (16) serves as
FMO’s point of contact on all matters
concerning facilities management and
space utilization; and (17) serves as
FMO’s coordinator of COOP activities.
Appropriations, Legislation, and
Formulation Office (CAJE14). (1)
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510 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
Provides leadership, consultation,
guidance, and advice on matters of
public health and financial policy; (2)
leads all CDC/ATSDR Congressional
appropriations activities; (3) develops
CDC/ATSDR’s annual financial and
public health policy request in
accordance with DHHS, Office of
Management and Budget (OMB), and
Congressional requirements, policies,
procedures, and regulations; (4)
maintains liaison with the DHHS, OMB,
other government organizations, and
Congress on appropriations and
financial policy matters; (5) develops
materials for, and participates in, public
health policy and financial reviews and
hearings before DHHS, OMB, and
Congress; (6) collaborates with other
parts of CDC, and outside stakeholders,
in the development and implementation
of agency-wide financial and public
health program plans; and (7) provides
guidance and advice on the
consolidation of budget and
performance information as part of
CDC’s annual budget request.
Delete the functional statements for
the Accounting Branch (CAJEB) and the
Commercial Payment Branch (CAJEE)
and insert the following:
Accounting Branch (CAJEB). (1)
Oversees and provides accounting for
the Agency; (2) manages accounting
treatment for CDC on all business
systems implementations and upgrades
to current business systems; (3) manages
all financial audit reviews for FMO and
conducts risk assessment on internal
controls; (4) prepares SF 133 Report on
Budget Execution for CDC
Appropriation and IDDAs, FACTS I and
IT Report and Year-End Closing
Statement (2108 Report), and SF 224 or
their equivalent and all other required
financial reports as applicable; (5)
prepares, analyzes fluctuations, and
coordinates explanation for differences
on all required financial statements and
notes: (6) performs GPRA reporting
analysis for compliance; (7) ensures
compliance of Federal and Department
reporting requirements; (8) coordinates
accounting policy issues with the
Department of Health and Human
Services (DHHS) Office of Financial
Policy and FMO’s Office of Management
Services; (9) manages Fund Balance
with Treasury, including authority,
disbursements (payroll and nonpayroll),
collections, deposit funds and
budget clearing accounts; (10) prepares
manual and ADI journal vouchers for
corrections to the general ledger; (11)
performs monthly, quarterly, and yearend
close out process of the general
ledger; (12) serves as liaison with the
Procurements and Grants Office,
Buildings and Facilities Offices,
Program Offices, and Budget Execution
Services on capital asset procedures;
(13) manages financial accounting for all
assets for CDC, including real and
personal property, equipment, land,
leases, software, personal property, and
stockpiles; (14) conducts financial and
inventory reconciliations for all
applicable assets, including inventory
such as Vaccine for Children and
Strategic National Stockpile, real and
personal property, equipment, leases,
leasehold improvements, land, and
others as needed; (15) leads and directs
grants management activities within
FMO; (16) provides training and
assistance to CDC project officers and
grants management officials on various
financial management aspects of grants;
(17) serves as liaison with grantees and
other operating divisions for financial
questions/inquiries related to grants;
(18) manages the process to perform
grant processing for commitments,
obligations, advances, disbursements,
and accruals; (19) manages grants
transactions, such as vendor set-up,
establishing sub-accounts, Common
Accounting Number set-up within the
Payment Management System (PMS),
reconciling sync file to PMS, and
posting files from PMS; (20) conducts
grant reviews, monitors rates of
expenditure for existing grant awards,
and supports Program in grant
execution; and (21) records undelivered
order adjustments or obligations as
needed.
Commercial Payment Branch (CAJEE).
(1) Manages all activities, policies,
quality control, and audit support for
accounts payable and disbursement
functions for commercial payments; (2)
serves as the CDC subject matter expert
on all financial matters dealing with
commercial payments; (3) ensures all
commercial payments are made in
accordance with applicable Federal
laws and standards, such as
Appropriations Law; (4) serves as
liaison with the Department of Treasury,
the Centers/Institutes/Offices (CIO’s), as
well as outside customers, to provide
financial information and reconcile
commercial payment issues; (5)
provides training and advice on
commercial payment and disbursement
issues; (6) manages transactions related
to commercial accounts payable and
disbursements; (7) completes all
reconciliations of sub-legers to general
ledger related to commercial payments;
(8) compiles and submits a variety of
cash management and commercial
reports required by Treasury and
various outside agencies; (9) responds to
commercial inquiries for invoices and
certifies payments; (10) performs
Quality Control and Quality Assurance
reviews and participates in internal
reviews; and (11) assists with
undelivered order adjustments or
obligations as needed.
Delete in its entirety the title and
function statements for the Grants and
Asset Management Branch (CAJEK).
After the functional statements for the
Budget Execution Branch 6 (CAJES)
insert the following:
Travel, IPAC, and International
Payment Branch (CAJET). (1) Manages
all activities, policies, quality control,
and audit support for accounts payable
and disbursement functions for travel,
IPAC, and international payments; (2)
serves as the CDC subject matter expert
on all financial matters dealing with all
travel, IPAC, and international
payments; (3) ensures all travel, IPAC,
and international payments are made in
accordance with applicable Federal and
international laws and standards, such
as appropriations law; (4) serves as
liaison with the Department of Treasury,
the CIOs, as well as outside customers,
to provide financial information and
reconcile travel, IPAC, and international
payment issues; (5) compiles and
submits a variety of cash management
and travel reports required by the
Department of Treasury and various
other outside agencies; (6) provides
training and advice on payment, travel
and disbursement issues; (7) manages
transactions related to accounts payable,
such as processing cables,
reimbursements, IPAC disbursements,
and payments for Foreign nationals and
visiting fellows; (8) completes all
reconciliations of sub-legers to general
ledger related to travel, IPAC, and
international payments; (9) responds to
traveler inquiries for vouchers and
certifies payments; (10) manages change
of station payment processing; (11)
perform quality control and quality
assurance reviews; (12) provides
expertise, guidance, oversight, and
interpretation of policies, laws, rules
and regulations for all aspects of travel
procedures and policies at CDC,
including the use of the automated
travel system, local travel, domestic and
foreign temporary duty travel, and
change of station travel for civil service
employees, foreign service employees,
commissioned officers, CDC fellows,
etc.; (13) communicates and implements
departmental travel policies; (14)
manages the administrative aspects of
travel for the agency, including
enforcement of travel card policy,
delegation of authority, distribution of
cash purchase memos, and approval of
first-class memos; (15) serves as liaison
with travel provider for travel contract
matters; (16) provides the CDC’s
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 511
Emergency Operations Center travel
support; and (17) develops CDC
conference travel planning and
reporting for DHHS and Congress.
Dated: December 22, 2011.
Sherri A. Berger,
Chief Operating Officer, Centers for Disease
Control and Prevention.
[FR Doc. 2011–33791 Filed 1–4–12; 8:45 am]
BILLING CODE 4163–18–M
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
Center for Scientific Review; Notice of
Closed Meetings
Pursuant to section 10(d) of the
Federal Advisory Committee Act, as
amended (5 U.S.C. App.), notice is
hereby given of the following meetings.
The meetings will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: Center for Scientific
Review Special Emphasis Panel, PAR–11–
259: Pregnancy in Women with Disabilities.
Date: January 24, 2012.
Time: 11 a.m. to 4 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institutes of Health, 6701
Rockledge Drive, Bethesda, MD 20892,
(Telephone Conference Call).
Contact Person: Priscah Mujuru, RN, MPH,
DRPH, COHNS, Scientific Review Officer,
Center for Scientific Review, National
Institutes of Health, 6701 Rockledge Drive,
Room 3139, MSC 7770, Bethesda, MD 20892,
(301) 594–6594, mujurup@mail.nih.gov.
Name of Committee: Oncology 1—Basic
Translational Integrated Review Group,
Cancer Etiology Study Section.
Date: January 30–31, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: The Mandarin Oriental, 1330
Maryland Avenue SW., Washington, DC
20024.
Contact Person: Elaine Sierra-Rivera, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 6184,
MSC 7804, Bethesda, MD 20892, (301) 435–
1779, riverase@csr.nih.gov.
Name of Committee: Oncology 2—
Translational Clinical Integrated Review
Group, Developmental Therapeutics Study
Section.
Date: January 30–31, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Marina del Rey Marriott, 4100
Admiralty Way, Marina del Rey, CA 90292.
Contact Person: Sharon K Gubanich, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 6214,
MSC 7804, Bethesda, MD 20892, (301) 408–
9512, gubanics@csr.nih.gov.
Name of Committee: Digestive, Kidney and
Urological Systems Integrated Review Group,
Clinical, Integrative and Molecular
Gastroenterology Study Section.
Date: January 30, 2012.
Time: 8 a.m. to 7 p.m.
Agenda: To review and evaluate grant
applications.
Place: Hyatt Regency Bethesda, One
Bethesda Metro Center, Bethesda, MD 20814.
Contact Person: Mushtaq A Khan, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 2176,
MSC 7818, Bethesda, MD 20892, (301) 435–
1778, khanm@csr.nih.gov.
Name of Committee: Genes, Genomes, and
Genetics Integrated Review Group, Molecular
Genetics B Study Section.
Date: January 30–31, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Westin Los Angeles Airport Hotel,
5400 West Century Boulevard, Los Angeles,
CA 90045.
Contact Person: Richard A Currie, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5128,
MSC 7840, Bethesda, MD 20892, (301) 435–
1219, currieri@csr.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel Program
Project, Proteome Technologies.
Date: January 30, 2012.
Time: 1 p.m. to 2:30 p.m.
Agenda: To review and evaluate grant
applications.
Place: The Westin Los Angeles Airport
Hotel, 5400 W Century Boulevard, Los
Angeles, CA 90045.
Contact Person: Richard A Currie, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 1108,
MSC 7890, Bethesda, MD 20892, (301) 435–
1219, currieri@csr.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel, Chronic
Fatigue Syndromes.
Date: January 31–February 1, 2012.
Time: 8 a.m. to 6 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institutes of Health, 6701
Rockledge Drive, Bethesda, MD 20892,
(Virtual Meeting).
Contact Person: Lynn E Luethke, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5166,
MSC 7844, Bethesda, MD 20892, (301) 806–
3323, luethkel@csr.nih.gov.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.306, Comparative Medicine;
93.333, Clinical Research, 93.306, 93.333,
93.337, 93.393–93.396, 93.837–93.844,
93.846–93.878, 93.892, 93.893, National
Institutes of Health, HHS)
Dated: December 29, 2011.
Jennifer S. Spaeth,
Director, Office of Federal Advisory
Committee Policy.
[FR Doc. 2011–33834 Filed 1–4–12; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
Center for Scientific Review; Notice of
Closed Meetings
Pursuant to section 10(d) of the
Federal Advisory Committee Act, as
amended (5 U.S.C. App.), notice is
hereby given of the following meetings.
The meetings will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: Center for Scientific
Review Special Emphasis Panel, Special Pilot
Clinical Studies in Nephrology and Urology.
Date: January 12–13, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institutes of Health, 6701
Rockledge Drive, Bethesda, MD 20892
(Virtual Meeting).
Contact Person: Ryan G Morris, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 4205,
MSC 7814 Bethesda, MD 20892, (301) 435–
1501, morrisr@csr.nih.gov.
This notice is being published less than 15
days prior to the meeting due to the timing
limitations imposed by the review and
funding cycle.
Name of Committee: Emerging
Technologies and Training Neurosciences
Integrated Review Group, Bioengineering of
Neuroscience, Vision and Low Vision
Technologies Study Section.
Date: January 31, 2012.
Time: 8 a.m. to 6 p.m.
Agenda: To review and evaluate grant
applications.
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512 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
Place: Ritz Carlton Washington DC, 1150
22nd Street NW., Washington, DC 20037.
Contact Person: Robert C Elliott, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5190,
MSC 7846, Bethesda, MD 20892, (301) 435–
3009, elliotro@csr.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel,
Neurotechnology 2.
Date: January 31, 2012.
Time: 5 p.m. to 6 p.m.
Agenda: To review and evaluate grant
applications.
Place: Ritz-Carlton Washington DC, 1150
22nd Street NW., Washington, DC 20037.
Contact Person: Robert C Elliott, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 3130,
MSC 7850, Bethesda, MD 20892, (301) 435–
3009, elliotro@csr.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel, PAR–11–
228: Shared Instrumentation: Cell Biology,
Physiology and Robotics.
Date: February 1, 2012.
Time: 1 p.m. to 3 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institutes of Health, 6701
Rockledge Drive, Bethesda, MD 20892
(Virtual Meeting).
Contact Person: Dominique Lorang-Leins,
Ph.D., Scientific Review Officer, National
Institutes of Health, Center for Scientific
Review, 6701 Rockledge Dr., Bethesda, MD
20872, (301) 435–2204, Lorand@mail.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel,
Multidisciplinary Healthcare Delivery
Research AREA Grant Applications.
Date: February 2, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Hyatt Regency Hotel on Capitol Hill,
400 New Jersey Avenue NW., Washington,
DC 20001.
Contact Person: Priscah Mujuru, RN, MPH,
DRPH, COHNS, Scientific Review Officer,
Center for Scientific Review, National
Institutes of Health, 6701 Rockledge Drive,
Room 3139, MSC 7770, Bethesda, MD 20892,
(301) 594–6594, mujurup@mail.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel,
Pathophysiology and Clinical Studies of
Osteonecrosis of the Jaw.
Date: February 3, 2012.
Time: 11 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Hyatt Regency Bethesda, One
Bethesda Metro Center, 7400 Wisconsin
Avenue, Bethesda, MD 20814.
Contact Person: Yi-Hsin Liu, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 4214,
MSC 7814, Bethesda, MD 20892, (301) 435–
1781, liuyh@csr.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel, AREA
Topics in Infectious Diseases and
Microbiology.
Date: February 3, 2012.
Time: 1 p.m. to 3 p.m.
Agenda: To review and evaluate grant
applications.
Place: National Institutes of Health, 6701
Rockledge Drive, Bethesda, MD 20892
(Telephone Conference Call).
Contact Person: Liangbiao Zheng, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 3202,
MSC 7808, Bethesda, MD 20892, (301) 996–
5819, zhengli@csr.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel, RFA Panel:
Innovations in Molecular Imaging Probes.
Date: February 3, 2012.
Time: 1:30 p.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Serrano Hotel, 405 Taylor Street,
San Francisco, CA 94102.
Contact Person: David L Williams, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5110,
MSC 7854, Bethesda, MD 20892, (301) 435–
1174, williamsdl2@csr.nih.gov.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.306, Comparative Medicine;
93.333, Clinical Research, 93.306, 93.333,
93.337, 93.393–93.396, 93.837–93.844,
93.846–93.878, 93.892, 93.893, National
Institutes of Health, HHS)
Dated: December 29, 2011.
Jennifer S. Spaeth,
Director, Office of Federal Advisory
Committee Policy.
[FR Doc. 2011–33836 Filed 1–4–12; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
National Institutes of Health
Center for Scientific Review; Notice of
Closed Meetings
Pursuant to section 10(d) of the
Federal Advisory Committee Act, as
amended (5 U.S.C. App.), notice is
hereby given of the following meetings.
The meetings will be closed to the
public in accordance with the
provisions set forth in sections
552b(c)(4) and 552b(c)(6), Title 5 U.S.C.,
as amended. The grant applications and
the discussions could disclose
confidential trade secrets or commercial
property such as patentable material,
and personal information concerning
individuals associated with the grant
applications, the disclosure of which
would constitute a clearly unwarranted
invasion of personal privacy.
Name of Committee: Biobehavioral and
Behavioral Processes Integrated Review
Group, Adult Psychopathology and Disorders
of Aging Study Section.
Date: February 6–7, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Doubletree Guest Suites Santa
Monica, 1707 Fourth Street, Santa Monica,
CA 90401.
Contact Person: Mark D. Lindner, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 3182,
MSC 7770, Bethesda, MD 20892, (301) 435–
0913, lindnermd@csr.nih.gov.
Name of Committee: Endocrinology,
Metabolism, Nutrition and Reproductive
Sciences Integrated Review Group, Cellular,
Molecular and Integrative Reproduction
Study Section.
Date: February 6, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Embassy Suites at the Chevy Chase
Pavilion, 4300 Military Road NW.,
Washington, DC 20015.
Contact Person: Gary Hunnicutt, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 6164,
MSC 7892, Bethesda, MD 20892, (301) 435–
0229, gary.hunnicutt@nih.gov.
Name of Committee: Digestive, Kidney and
Urological Systems Integrated Review Group,
Pathobiology of Kidney Disease Study
Section.
Date: February 6–7, 2012.
Time: 8 a.m. to 6 p.m.
Agenda: To review and evaluate grant
applications.
Place: Hyatt Regency Bethesda, One
Bethesda Metro Center, 7400 Wisconsin
Avenue, Bethesda, MD 20814.
Contact Person: Atul Sahai, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 2188,
MSC 7818, Bethesda, MD 20892, (301) 435–
1198, sahaia@csr.nih.gov.
Name of Committee: Oncology 2—
Translational Clinical Integrated Review
Group, Clinical Oncology Study Section.
Date: February 6–7, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Embassy Suites at the Chevy Chase
Pavilion, 4300 Military Road NW.,
Washington, DC 20015.
Contact Person: Malaya Chatterjee, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 6192,
MSC 7804, Bethesda, MD 20892, (301) 806–
2515, chatterm@csr.nih.gov.
Name of Committee: Emerging
Technologies and Training Neurosciences
Integrated Review Group, Neuroscience and
Ophthalmic Technologies Study Section.
Date: February 6–7, 2012.
Time: 8 a.m. to 4 p.m.
Agenda: To review and evaluate grant
applications.
Place: Sheraton Delfina, 530 Pico
Boulevard, Santa Monica, CA 90405.
Contact Person: Yvonne Bennett, Ph.D.,
Scientific Review Officer, Center for
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 513
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5199,
MSC 7846, Bethesda, MD 20892, (301) 379–
3793, bennetty@csr.nih.gov.
Name of Committee: Brain Disorders and
Clinical Neuroscience Integrated Review
Group, Aging Systems and Geriatrics Study
Section.
Date: February 6, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Sheraton Delfina Santa Monica
Hotel, 530 West Pico Boulevard, Santa
Monica, CA 90405.
Contact Person: James P Harwood, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5168,
MSC 7840, Bethesda, MD 20892, (301) 435–
1256, harwoodj@csr.nih.gov.
Name of Committee: Brain Disorders and
Clinical Neuroscience Integrated Review
Group, Diseases and Pathophysiology of the
Visual System Study Section.
Date: February 6–7, 2012.
Time: 8 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Ritz Carlton Hotel, 1150 22nd Street
NW., Washington, DC 20037.
Contact Person: Jerry L Taylor, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 5202,
MSC 7846, Bethesda, MD 20892, (301) 435–
1175, taylorje@csr.nih.gov.
Name of Committee: Musculoskeletal, Oral
and Skin Sciences Integrated Review Group,
Arthritis, Connective Tissue and Skin Study
Section.
Date: February 6–7, 2012.
Time: 8:30 a.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Bethesda North Marriott Hotel &
Conference Center, 5701 Marinelli Road,
Bethesda, MD 20852.
Contact Person: Aftab A Ansari, Ph.D.,
Scientific Review Officer, Center for
Scientific Review, National Institutes of
Health, 6701 Rockledge Drive, Room 4108,
MSC 7814, Bethesda, MD 20892, (301) 237–
9931, ansaria@csr.nih.gov.
Name of Committee: Center for Scientific
Review Special Emphasis Panel, Shared
Instrumentation: NCRR High End Grant
Program.
Date: February 7, 2012.
Time: 4 p.m. to 5 p.m.
Agenda: To review and evaluate grant
applications.
Place: Sheraton Delfina, 530 Pico
Boulevard, Santa Monica, CA 90405.
Contact Person: Yvonne Bennett, Scientific
Review Officer, Center for Scientific Review,
National Institutes of Health, 6701 Rockledge
Drive, Room 5199, MSC 7846, Bethesda, MD
20892, (301) 379–3793, bennetty@csr.nih.gov.
(Catalogue of Federal Domestic Assistance
Program Nos. 93.306, Comparative Medicine;
93.333, Clinical Research, 93.306, 93.333,
93.337, 93.393–93.396, 93.837–93.844,
93.846–93.878, 93.892, 93.893, National
Institutes of Health, HHS)
Dated: December 29, 2011.
Jennifer S. Spaeth,
Director, Office of Federal Advisory
Committee Policy.
[FR Doc. 2011–33835 Filed 1–4–12; 8:45 am]
BILLING CODE 4140–01–P
DEPARTMENT OF HOMELAND
SECURITY
Federal Emergency Management
Agency
[Internal Agency Docket No. FEMA–4042–
DR; Docket ID FEMA–2011–0001]
Virginia; Amendment No. 4 to Notice of
a Major Disaster Declaration
AGENCY: Federal Emergency
Management Agency, DHS.
ACTION: Notice.
SUMMARY: This notice amends the notice
of a major disaster declaration for the
Commonwealth of Virginia (FEMA–
4042–DR), dated November 4, 2011, and
related determinations.
DATES: Effective Date: December 28,
2011.
FOR FURTHER INFORMATION CONTACT:
Peggy Miller, Office of Response and
Recovery, Federal Emergency
Management Agency, 500 C Street SW.,
Washington, DC 20472, (202) 646–3886.
SUPPLEMENTARY INFORMATION: The notice
of a major disaster declaration for the
Commonwealth of Virginia is hereby
amended to include the following areas
among those areas determined to have
been adversely affected by the event
declared a major disaster by the
President in his declaration of
November 4, 2011.
Culpeper, Fluvanna, Goochland, and
Orange Counties for Individual Assistance.
Spotsylvania County and the City of
Fredericksburg for Individual Assistance
(already designated for Public Assistance).
Culpeper and Northampton Counties for
Public Assistance.
The following Catalog of Federal Domestic
Assistance Numbers (CFDA) are to be used
for reporting and drawing funds: 97.030,
Community Disaster Loans; 97.031, Cora
Brown Fund; 97.032, Crisis Counseling;
97.033, Disaster Legal Services; 97.034,
Disaster Unemployment Assistance (DUA);
97.046, Fire Management Assistance Grant;
97.048, Disaster Housing Assistance to
Individuals and Households in Presidentially
Declared Disaster Areas; 97.049,
Presidentially Declared Disaster Assistance—
Disaster Housing Operations for Individuals
and Households; 97.050, Presidentially
Declared Disaster Assistance to Individuals
and Households—Other Needs; 97.036,
Disaster Grants—Public Assistance
(Presidentially Declared Disasters); 97.039,
Hazard Mitigation Grant.
W. Craig Fugate,
Administrator, Federal Emergency
Management Agency.
[FR Doc. 2011–33778 Filed 1–4–12; 8:45 am]
BILLING CODE 9111–23–P
DEPARTMENT OF HOMELAND
SECURITY
Transportation Security Administration
[Docket No. TSA–2005–20118]
Intent To Request Renewal From OMB
of One Current Public Collection of
Information; Maryland Three Airports:
Enhanced Security Procedures at
Certain Airports in the Washington,
DC, Area
AGENCY: Transportation Security
Administration, DHS.
ACTION: 60-Day notice.
SUMMARY: The Transportation Security
Administration (TSA) invites public
comment on one currently approved
Information Collection Request (ICR),
Office of Management and Budget
(OMB) control number 1652–0029,
abstracted below that we will submit to
OMB for renewal in compliance with
the Paperwork Reduction Act (PRA).
The ICR describes the nature of the
information collection and its expected
burden. This collection requires
individuals to successfully complete a
security threat assessment in order to
operate an aircraft to or from one of the
three Maryland airports that are located
within the Washington, DC,
Metropolitan Area Flight Restricted
Zone (Maryland Three Airports), or to
serve as an airport security coordinator
at one of these three airports.
DATES: Send your comments by March
5, 2012.
ADDRESSES: Comments may be emailed
to TSAPRA@dhs.gov or delivered to the
TSA PRA Officer, Office of Information
Technology (OIT), TSA–11,
Transportation Security Administration,
601 South 12th Street, Arlington, VA
20598–6011.
FOR FURTHER INFORMATION CONTACT:
Joanna Johnson at the above address, or
by telephone (571) 227–3651.
SUPPLEMENTARY INFORMATION:
Comments Invited
In accordance with the Paperwork
Reduction Act of 1995, (44 U.S.C. 3501
et seq.), an agency may not conduct or
sponsor, and a person is not required to
respond to a collection of information
unless it displays a valid OMB control
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514 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
number. The ICR documentation is
available at http://www.reginfo.gov.
Therefore, in preparation for OMB
review and approval of the following
information collection, TSA is soliciting
comments to—
(1) Evaluate whether the proposed
information requirement is necessary for
the proper performance of the functions
of the agency, including whether the
information will have practical utility;
(2) Evaluate the accuracy of the
agency’s estimate of the burden;
(3) Enhance the quality, utility, and
clarity of the information to be
collected; and
(4) Minimize the burden of the
collection of information on those who
are to respond, including using
appropriate automated, electronic,
mechanical, or other technological
collection techniques or other forms of
information technology.
Information Collection Requirement
OMB Control Number 1652–0029;
Maryland Three Airports: Enhanced
Security Procedures at Certain Airports
in the Washington, DC Area, 49 CFR
part 1562. Codified under 49 CFR part
1562, TSA has responsibility for ground
security requirements and security
procedures at three Maryland airports
that are located within the Washington,
DC, Metropolitan Area Flight Restricted
Zone (Maryland Three Airports), and for
individuals operating aircraft to or from
these three airports. The Maryland
Three Airports are College Park Airport
(CGS), Potomac Airfield (VKX), and
Washington Executive/Hyde Field
(W32). The information collected is
used to determine compliance with 49
CFR part 1562.
Part 1562 allows an individual who is
approved by TSA to operate an aircraft
to or from one of the Maryland Three
Airports or to serve as an airport
security coordinator in one of these
three airports. In order to be approved,
an individual is required to successfully
complete a security threat assessment.
As part of this threat assessment, an
individual (pilot or airport security
coordinator) is required to undergo a
criminal history records check and a
check of Government terrorist watch
lists and other databases to determine
whether the individual poses, or is
suspected of posing, a threat to
transportation or national security. An
individual will not receive TSA’s
approval under this analysis if TSA
determines or suspects the individual of
being a threat to national or
transportation security. Prospective
pilots must be fingerprinted at the
Ronald Reagan Washington National
Airport’s (DCA) badging office with the
airport security coordinator, as well as
provide the following information to
TSA as part of the application process:
full name, Social Security number,
current Airmen Certificate and medical
certificate, date of birth, home address,
home and work phone numbers, email
address, emergency contact number,
aircraft make and model, and FAA
aircraft registration number. TSA
receives approximately 312 applications
annually, and estimates respondents
spend approximately 180 minutes to
submit the information to TSA, which is
a total annual burden of 56,160 hours.
Issued in Arlington, Virginia, on December
29, 2011.
Joanna Johnson,
TSA Paperwork Reduction Act Officer, Office
of Information Technology.
[FR Doc. 2011–33792 Filed 1–4–12; 8:45 am]
BILLING CODE 9110–05–P
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[LLNV05600.L14300000
.EU0000.LVTFF1000770.241A00; N–76649;
12–08807; TAS: 14X5232]
Correction for Conveyance of Public
Lands for Recreation and Public
Purposes in Clark County, NV
AGENCY: Bureau of Land Management,
Interior.
ACTION: Notice of Realty Action.
SUMMARY: This Notice corrects a Notice
of Realty Action published in the
Federal Register on April 26, 2004, (69
FR22547–22548), which listed an
incorrect legal land description for the
South Hills Church Community in the
City of Las Vegas, Clark County,
Nevada.
FOR FURTHER INFORMATION CONTACT:
Shawna Woods, (702) 515–5099, or
email: swoods@blm.gov. Persons who
use a telecommunications device for the
deaf (TDD) may call the Federal
Information Relay Service (FIRS) at 1–
(800) 877–8339 to contact the above
individual during normal business
hours. The FIRS is available 24 hours a
day, 7 days a week, to leave a message
or question with the above individual.
You will receive a reply during normal
business hours.
SUPPLEMENTARY INFORMATION: The
erroneous legal land description is on
page 22547, 3rd column, line 6. The
legal land description is corrected to
read:
Mount Diablo Meridian
T. 22 S., R. 61 E.,
Sec. 24, N1/2SW1/4SE1/4NE1/4,
N1/2SE1/4SE1/4NE1/4.
The area described contains 10 acres, more
or less in Clark County, Nevada.
Authority: 43 CFR 2741.5.
Vanessa L. Hice,
Assistant Field Manager, Las Vegas Field
Office.
[FR Doc. 2011–33809 Filed 1–4–12; 8:45 am]
BILLING CODE 4310–HC–P
DEPARTMENT OF THE INTERIOR
Bureau of Land Management
[OR–65891, L51010000 ER0000
LVRWH09H0560 LLORB00000]
Notice of Availability of the Record of
Decision for the North Steens 230
Kilovolt Transmission Line, Harney
County, OR
AGENCY: Bureau of Land Management,
Interior.
ACTION: Notice of availability.
SUMMARY: The Bureau of Land
Management (BLM) announces the
availability of the Record of Decision
(ROD) for the North Steens 230 kilovolt
(kV) Transmission Line Project. The
Secretary of the Interior approved the
ROD on December 28, 2011, which
constitutes the Department’s final
decision.
ADDRESSES: Copies of the ROD are
available upon request from the District
Manager, BLM Burns District Office,
28910 Hwy 20 West, Hines, Oregon
97738, or at the following Web site:
http://www.blm.gov/or/districts/burns/
plans/index.php.
FOR FURTHER INFORMATION CONTACT: Skip
Renchler, Realty Specialist, telephone;
(541) 573–4443; address; BLM Burns
District Office, 28910 Hwy 20 West,
Hines, Oregon 97738; email:
BLM_OR_BU_NS_Transmission_Line_
EIS@blm.gov.
SUPPLEMENTARY INFORMATION: The
applicant, Echanis, LLC, a subsidiary of
Columbia Energy Partners, LLC, filed
right-of-way (ROW) applications for
ROWs with the BLM and the U.S. Fish
and Wildlife Service for construction,
operation, maintenance, and
termination of a 29-mile-long, 230kV
transmission line that would connect
the proposed Echanis Wind Energy
Project, located on private land on the
north end of Steens Mountain, with
Harney Electric Cooperative’s existing
transmission system near Diamond
Junction, Oregon.
The ROD approves the BLM-preferred
Alternative, now the Selected
Alternative, and will result in the grant
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 515
of ROWs for construction, operation,
maintenance and termination of a 230-
kV transmission line, tensioning sites
and related access across lands
administered by the BLM. The route for
the Selected Alternative would originate
at the Echanis Wind Energy Project
substation, south of Diamond, Oregon
and connect to Harney Electric
Cooperative’s existing 115-kV
transmission line near Crane, Oregon.
The Selected Alternative would not
cross the Malheur National Wildlife
Refuge administered by the U.S. Fish
and Wildlife Service. This alternative
will enable the construction of the
Echanis Wind Energy Project on private
land. The effects of the wind project on
private land are analyzed in the Final
Environmental Impact Statement (EIS)
because they are ‘‘connected actions’’
under the National Environmental
Policy Act of 1969.
This BLM-preferred Alternative was
evaluated in the Final EIS. The Notice
of Availability of the Final EIS for the
North Steens 230kV Transmission Line
Project was published in the Federal
Register on October 21, 2011 (76 FR
65509).
Because this decision is approved by
the Secretary of the Interior, it is not
subject to administrative appeal (43 CFR
4.410(a)(3)).
Authority: 40 CFR 1506.6.
Mike Pool,
Deputy Director, Bureau of Land
Management.
[FR Doc. 2011–33810 Filed 1–4–12; 8:45 am]
BILLING CODE 4310–33–P
DEPARTMENT OF THE INTERIOR
National Park Service
[NPS–WASO–NRNHL–1211–9092; 2200–
3200–665]
National Register of Historic Places;
Notification of Pending Nominations
and Related Actions
Nominations for the following
properties being considered for listing
or related actions in the National
Register were received by the National
Park Service before December 10, 2011.
Pursuant to section 60.13 of 36 CFR part
60, written comments are being
accepted concerning the significance of
the nominated properties under the
National Register criteria for evaluation.
Comments may be forwarded by United
States Postal Service, to the National
Register of Historic Places, National
Park Service, 1849 C St. NW., MS 2280,
Washington, DC 20240; by all other
carriers, National Register of Historic
Places, National Park Service, 1201 Eye
St. NW., 8th floor, Washington DC
20005; or by fax, (202) 371–6447.
Written or faxed comments should be
submitted by January 20, 2012. Before
including your address, phone number,
email address, or other personal
identifying information in your
comment, you should be aware that
your entire comment—including your
personal identifying information—may
be made publicly available at any time.
While you can ask us in your comment
to withhold your personal identifying
information from public review, we
cannot guarantee that we will be able to
do so.
J. Paul Loether,
Chief, National Register of Historic Places,
National Historic Landmarks Program.
FLORIDA
Miami-Dade County
Bryan, William Jennings, House, 3115
Brickell Ave., Miami, 11001029
ILLINOIS
Winnebago County
Garrison—Coronado—Haskill Historic
District, Roughly bounded by Salem,
Summer, Main, Court, Whitman &
Winnebago Sts., & Fisher, Ridge, & North
Aves., Rockford, 11001030
KANSAS
Cowley County
Winfield National Bank Building, 901 Main
St., Winfield, 11001031
Marion County
Peabody City Park (New Deal-Era Resources
of Kansas MPS), W. 2nd & Locust Sts.,
Peabody, 11001032
Riley County
Rocky Ford School (Public Schools of Kansas
MPS), 1669 Barnes Rd., Manhattan,
11001033
Shawnee County
ATSF Motive Power Building, 1001 NE.
Atchison, Topeka, 11001034
Church of the Holy Name, 1110 SW. 10th
Ave., Topeka, 11001035
Harmon, John C., House, 915 SW. Buchanan,
Topeka, 11001036
Wyandotte County
Kansas City, Kansas High School Gymnasium
and Laboratory, (Public Schools of Kansas
MPS), 1017 N. 9th St., Kansas City,
11001038
Mann, Horace, Elementary School (Public
Schools of Kansas MPS), 824 State Ave.,
Kansas City, 11001037
MINNESOTA
Hennepin County
Buzza Company Building, 1006 W. Lake St.,
Minneapolis, 11001039
St. Louis County
Engine House No. 1, 101 E. 3rd St., Duluth,
11001040
NEW JERSEY
Ocean County
Bartlett—Rockhill—Bartlett House, Bartlett
Ln., Tuckerton, 11001041
NORTH CAROLINA
Edgecombe County
Lincoln Park Historic District, 800 blk.
Ellison Dr., 800–900 & 1000–1002 Leggett
Rd. & 800 Carver Pl., Rocky Mount,
11001042
SOUTH CAROLINA
Marlboro County
McLaurin—Roper—McColl Farmstead, 1104
Laurin Willis Rd., Clio, 11001043
UTAH
Wayne County
Horseshoe Canyon Archeological District
(Boundary Increase), Horseshoe Canyon
Detached Unit, Canyonlands NP.,
Hanksville, 11001044
WISCONSIN
Clark County
Tufts, William B. and Jennie, House, 321 E.
4th St., Neillsville, 11001045
[FR Doc. 2011–33790 Filed 1–4–12; 8:45 am]
BILLING CODE 4312–51–P
INTERNATIONAL TRADE
COMMISSION
[DN 2861]
Certain Portable Communication
Devices; Receipt of Amended
Complaint; Solicitation of Comments
Relating to the Public Interest
AGENCY: U.S. International Trade
Commission.
ACTION: Notice.
SUMMARY: Notice is hereby given that
the U.S. International Trade
Commission has received an amended
complaint entitled In Re Certain
Portable Communication Devices, DN
2861; the Commission is soliciting
comments on any public interest issues
raised by the amended complaint.
FOR FURTHER INFORMATION CONTACT:
James R. Holbein, Secretary to the
Commission, U.S. International Trade
Commission, 500 E Street SW.,
Washington, DC 20436, telephone (202)
205–2000. The public version of the
complaint can be accessed on the
Commission’s electronic docket (EDIS)
at http://edis.usitc.gov, and will be
available for inspection during official
business hours (8:45 a.m. to 5:15 p.m.)
in the Office of the Secretary, U.S.
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516 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
International Trade Commission, 500 E
Street SW., Washington, DC 20436,
telephone (202) 205–2000.
General information concerning the
Commission may also be obtained by
accessing its Internet server (http://
www.usitc.gov). The public record for
this investigation may be viewed on the
Commission’s electronic docket (EDIS)
at http://edis.usitc.gov. Hearingimpaired
persons are advised that
information on this matter can be
obtained by contacting the
Commission’s TDD terminal on (202)
205–1810.
SUPPLEMENTARY INFORMATION: The
Commission has received a complaint,
as amended, filed on behalf of Digitude
Innovations LLC on December 16, 2011.
The complaint alleges violations of
section 337 of the Tariff Act of 1930 (19
U.S.C. 1337) in the importation into the
United States, the sale for importation,
and the sale within the United States
after importation of certain portable
communication devices. The complaint
names Research In Motion Ltd. of
Canada; Research In Motion Corp. of
Irving, TX; HTC Corporation of Taiwan;
HTC America, Inc. of Bellevue, WA; LG
Electronics, Inc. of South Korea; LG
Electronics U.S.A. Inc. of Englewood
Cliffs, NJ; LG Electronics MobileComm
U.S.A. Inc. of San Diego, CA; Motorola
Mobility Holdings, Inc. of Libertyville,
Illinois; Samsung Electronics Co., Ltd.
of South Korea; Samsung Electronics
America, Inc. of Ridgefield Park, New
Jersey; Samsung Telecommunications
America, LLC of Richardson, TX; Sony
Corporation of Japan; Sony Corporation
of America of New York, NY; Sony
Electronics, Inc. of San Diego, CA; Sony
Ericsson Mobile Communication AB of
Sweden; Sony Ericsson Mobile
Communication (USA) Inc. of Research
Triangle Park, NC; Amazon.com, Inc. of
Seattle, WA; Nokia Corporation of
Finland; Nokia Inc. of Irving, TX;
Pantech & Curitel Communication, Inc.
of South Korea; Pantech Wireless, Inc.
of Atlanta, Georgia as respondents.
The complainant, proposed
respondents, other interested parties,
and members of the public are invited
to file comments, not to exceed five
pages in length, on any public interest
issues raised by the complaint.
Comments should address whether
issuance of an exclusion order and/or a
cease and desist order in this
investigation would negatively affect the
public health and welfare in the United
States, competitive conditions in the
United States economy, the production
of like or directly competitive articles in
the United States, or United States
consumers.
In particular, the Commission is
interested in comments that:
(i) Explain how the articles
potentially subject to the orders are used
in the United States;
(ii) Identify any public health, safety,
or welfare concerns in the United States
relating to the potential orders;
(iii) Indicate the extent to which like
or directly competitive articles are
produced in the United States or are
otherwise available in the United States,
with respect to the articles potentially
subject to the orders; and
(iv) Indicate whether Complainant,
Complainant’s licensees, and/or third
party suppliers have the capacity to
replace the volume of articles
potentially subject to an exclusion order
and a cease and desist order within a
commercially reasonable time.
Written submissions must be filed no
later than by close of business, five
business days after the date of
publication of this notice in the Federal
Register. There will be further
opportunities for comment on the
public interest after the issuance of any
final initial determination in this
investigation.
Persons filing written submissions
must file the original document and 12
true copies thereof on or before the
deadlines stated above with the Office
of the Secretary. Submissions should
refer to the docket number (‘‘Docket No.
2861’’) in a prominent place on the
cover page and/or the first page. The
Commission’s rules authorize filing
submissions with the Secretary by
facsimile or electronic means only to the
extent permitted by section 201.8 of the
rules (see Handbook for Electronic
Filing Procedures, http://www.usitc.gov/
secretary/fed_reg_notices/rules/
documents/handbook_on_electronic_
filing.pdf. Persons with questions
regarding electronic filing should
contact the Secretary (202) 205–2000).
Any person desiring to submit a
document to the Commission in
confidence must request confidential
treatment. All such requests should be
directed to the Secretary to the
Commission and must include a full
statement of the reasons why the
Commission should grant such
treatment. See 19 CFR 201.6. Documents
for which confidential treatment by the
Commission is properly sought will be
treated accordingly. All nonconfidential
written submissions will be available for
public inspection at the Office of the
Secretary.
This action is taken under the
authority of section 337 of the Tariff Act
of 1930, as amended (19 U.S.C. 1337),
and of sections 201.10 and 210.50(a)(4)
of the Commission’s Rules of Practice
and Procedure (19 CFR 201.10,
210.50(a)(4)).
By order of the Commission.
Issued: December 29, 2011.
James R. Holbein,
Secretary to the Commission.
[FR Doc. 2011–33771 Filed 1–4–12; 8:45 am]
BILLING CODE 7020–02–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Proposed Natural
Resource Damages Consent Decree
Under the Comprehensive
Environmental Response,
Compensation, and Liability Act
Notice is hereby given that on
December 29, 2011, a proposed Consent
Decree in United States and State of
New Mexico v. Freeport-McMoRan Corp.
et al. (‘‘Freeport-McMoRan Consent
Decree’’), Civil Action No. 1:11–cv–1140
(D. N.M.), was lodged with the United
States District Court for the District of
New Mexico.
The Complaint in this case was filed
against Freeport-McMoRan Corporation,
Freeport-McMoRan Chino Mines
Company, Freeport-McMoRan Tyrone
Inc., Freeport-McMoRan Tyrone Mining
LLC, and Freeport-McMoRan Cobre
Mining Company (collectively
‘‘Freeport-McMoRan’’) on December 29,
2011. The cause of action is based on
Section 107(a) of the Comprehensive
Environmental Response,
Compensation, and Liability Act of
1980, as amended (‘‘CERCLA’’), 42
U.S.C. 9607(a). The Complaint alleges
that Freeport-McMoRan is civilly liable
for payment of damages for injuries to
natural resources belonging to, managed
by, or controlled by the United States
and the State of New Mexico that
resulted from hazardous substance
releases at and from Freeport-
McMoRan’s Chino Mine, Tyrone Mine,
and Cobre Mine in southwestern New
Mexico. The Complaint further alleges
that surface waters, ground water,
terrestrial habitat and wildlife, and
migratory birds have been injured,
destroyed, or lost as a result of releases
of hazardous substances at and from the
mine sites.
Under the settlement, Freeport-
McMoRan will pay $5.5 million to the
United States Department of the
Interior’s Natural Resource Damage
Assessment and Restoration Fund,
which can be used to restore,
rehabilitate, replace, or acquire the
equivalent of wildlife and wildlife
habitat injured, destroyed, or lost as a
result of releases at the mine sites.
Freeport-McMoRan will also convey to
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 517
the New Mexico State Parks Division
approximately 715 acres of land
adjacent to the City of Rocks State Park
in Grant County, New Mexico to further
offset natural resource losses at the mine
sites. Finally, Freeport-McMoRan will
reimburse the Department of Interior’s
remaining unpaid past natural resource
damage assessment costs, which amount
to $59,750.99.
The Department of Justice will receive
for a period of thirty (30) days from the
date of this publication comments
relating to the Freeport-McMoRan
Consent Decree. Comments should be
addressed to the Assistant Attorney
General, Environment and Natural
Resources Division, and either emailed
to pubcomment-ees-enrd@usdoj.gov or
mailed to P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611, and should refer to United
States and State of New Mexico v.
Freeport-McMoran Corp. et al., Case No.
1:11–cv–1140 (D. N.M.), D.J. Ref. 90–11–
3–08069.
During the public comment period,
the Freeport-McMoRan Consent Decree
may also be examined on the following
Department of Justice Web site: http://
www.usdoj.gov/enrd/
Consent_Decrees.html. A copy of the
Freeport-McMoRan Consent Decree may
also be obtained by mail from the
Consent Decree Library, P.O. Box 7611,
U.S. Department of Justice, Washington,
DC 20044–7611 or by faxing or emailing
a request to ‘‘Consent Decree Copy’’
(EESCDCopy.ENRD@usdoj.gov), fax no.
(202) 514–0097, phone confirmation
number (202) 514–5271. If requesting a
copy from the Consent Decree Library
by mail, please enclose a check in the
amount of $14.75 (25 cents per page
reproduction cost) payable to the U.S.
Treasury or, if requesting by email or
fax, forward a check in that amount to
the Consent Decree Library at the
address given above.
Ronald G. Gluck,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resources Division.
[FR Doc. 2011–33803 Filed 1–4–12; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Consent Decree
Under the Comprehensive
Environmental Response,
Compensation, and Liability Act
Notice is hereby given that on
December 29, 2011, a proposed Consent
Decree (‘‘Decree’’) in United States and
State of Rhode Island v. Ashland, Inc.,
et al., Civil Action No. 11–558, was
lodged with the United States District
Court for the District of Rhode Island.
The Decree resolves claims of the
United States and the State of Rhode
Island pursuant to Sections 106 and 107
of the Comprehensive Environmental
Response, Compensation, and Liability
Act (‘‘CERCLA’’), 42 U.S.C. 9606, 9607,
against seven parties in connection with
the Davis Liquid Waste Superfund Site
located in Smithfield, Rhode Island
(‘‘Site’’). The Decree requires the settling
defendants to perform the remedial
action selected in the Amended Record
of Decision (‘‘Amended ROD’’) issued
on September 20, 2010.
The Department of Justice will receive
for a period of thirty (30) days from the
date of this publication comments
relating to the Decree. Comments should
be addressed to the Assistant Attorney
General, Environmental and Natural
Resources Division, and either emailed
to pubcomment-ees.enrd@usdoj.gov or
mailed to P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611, and should refer to United
States and State of Rhode Island v.
Ashland, Inc., et al., Civil Action No.
11–558, D.J. Ref. 90–11–2–137/3.
During the public comment period,
the Consent Decree also may be
examined on the following Department
of Justice Web site: http://
www.usdoj.gov/enrd/
Consent_Decrees.html. A copy of the
Decree may also be obtained by mail
from the Consent Decree Library, P.O.
Box 7611, U.S. Department of Justice,
Washington, DC 20044–7611 or by
faxing or emailing a request to ‘‘Consent
Decree Copy’’
(EESCDCopy.ENRD@usdoj.gov), fax no.
(202) 514–0097, phone confirmation
number (202) 514–5271. If requesting a
copy from the Consent Decree Library,
please enclose a check in the amount of
$71.00 (25 cents per page reproduction
cost) payable to the U.S. Treasury or, if
by email or fax, forward a check in that
amount to the Consent Decree Library at
the address given above. If requesting a
copy exclusive of exhibits, please
enclose a check in the amount of $17.00.
Ronald Gluck,
Assistant Chief, Environmental Enforcement
Section, Environment and Natural Resources
Division.
[FR Doc. 2011–33804 Filed 1–4–12; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF JUSTICE
Notice of Lodging of Consent Decree
Under the Clean Air Act
Notice is hereby given that on
December 29, 2011, a proposed consent
decree in United States, et al. v. Essroc
Cement Company, Civil Action No.
2:11–cv–0650–DSC was lodged with the
United States District Court for the
Western District of Pennsylvania.
In this action the United States and
Indiana, Pennsylvania, Puerto Rico and
West Virginia sought injunctive relief
and civil penalties for violations of the
following statutory and regulatory
requirements of the Clean Air Act (the
‘‘Act’’) at Essroc cement plants: the
Prevention of Significant Deterioration
(‘‘PSD’’) provisions of the Act, 42 U.S.C.
7470 to 7492; the nonattainment New
Source Review (‘‘nonattainment NSR’’)
provisions of the Act, 42 U.S.C. 7501 to
7515; the federally-approved and
enforceable state implementation plans,
or SIPs, which incorporate and/or
implement the above-listed Federal PSD
and/or nonattainment NSR
requirements; and, Title V of the Act, 42
U.S.C. 7661 to 7661f, and Title V’s
implementing Federal and state
regulations. The proposed consent
decree requires installation and
continuous operation of a selective noncatalytic
reduction system (SNCR) for
NOX at five cement kilns. The proposed
consent decree also requires testing a
selective catalytic reduction system
(SCR) for NOX control at two cement
kilns. If the SCR tests are unsuccessful,
Essroc will apply SNCR at each of the
kilns. For controlling SO2, Essroc will
install a Dry Scrubber/Lime Injection
system at seven cement kilns. Two
cement kilns, under the proposed
settlement, will be permanently retired.
As mitigation for violations under the
Act, Essroc will replace old engines in
several off-road vehicles at its facilities.
Essroc will also pay a civil penalty of
$1.7 million, with 50 percent ($850,000)
payable to the United States and the
remander allocated among the four
states.
The Department of Justice will receive
for a period of thirty (30) days from the
date of this publication comments
relating to the proposed consent decree.
Comments should be addressed to the
Assistant Attorney General,
Environment and Natural Resources
Division, and either emailed to
pubcomment-ees.enrd@usdoj.gov or
mailed to P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611, and should refer to United
States, et al. v. Essroc Cement Company,
Civil Action No. 2:11–cv–0650–DSC (DJ
No. 90–5–2–1–09608).
During the public comment period,
the proposed consent decree, may also
be examined on the following
Department of Justice Web site, http://
www.usdoj.gov/enrd/
Consent_Decrees.html. A copy of the
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518 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 See CBSX Fees Schedule, Section 1.
4 See SR–CBOE–2011–121.
proposed consent decree may also be
obtained by mail from the Consent
Decree Library, P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611, or by faxing or emailing a
request to ‘‘Consent Decree Copy’’
(EESCDCopy.ENRD@usdoj.gov), fax no.
(202) 514–0097, phone confirmation
number (202) 514–5271. If requesting a
copy from the Consent Decree Library
by mail, please enclose a check in the
amount of $21.50 (25 cents per page
reproduction cost) payable to the U.S.
Treasury or, if requesting by email or
fax, please forward a check in that
amount to the Consent Decree Library at
the address given above.
Robert Brook,
Assistant Chief, Environmental Enforcement
Section, Environment and Natural Resources
Division.
[FR Doc. 2011–33821 Filed 1–4–12; 8:45 am]
BILLING CODE 4410–15–P
DEPARTMENT OF JUSTICE
Notice of Lodging of the Consent
Decree Under the Resource
Conservation and Recovery Act and
the Clean Water Act
Notice is hereby given that on
December 22, 2011, a proposed Consent
Decree in United States v. County of
Erie (‘‘Erie’’), Civil Action No. 1:11–cv–
01083 (WMS), was lodged with the
United States Court for the Western
District of New York.
The proposed Consent Decree
resolves Erie’s Resource Conservation
and Recovery Act (‘‘RCRA’’) violations
stemming from its failure to meet
cathodic protection requirements,
release detection requirements, and
other record-keeping requirements in to
relation to its Underground Storage
Tanks (‘‘USTs’’) at sixteen facilities
throughout the county. The Consent
Decree also resolves Erie’s Clean Water
Act (‘‘CWA’’) violations stemming from
its failure to prepare and implement
Spill Prevention Control and
Countermeasure plans (‘‘SPCC plans’’)
at eleven facilities throughout the
county that utilize applicable above
ground storage tanks. Under the terms of
the Consent Decree, Erie will pay a
$275,000 penalty, prepare and
implement eleven SPCC plans, and
undertake a full RCRA audit to certify
to the United States that it is in
complete compliance with all RCRA
requirements at the thirty-six facilities it
owns or operates that utilize USTs.
The Department of Justice will receive
for a period of thirty (30) days from the
date of this publication comments
relating to the Consent Decree.
Comments should be addressed to the
Assistant Attorney General,
Environment and Natural Resources
Division, and either emailed to
pubcomment-ees.enrd@usdoj.gov or
mailed to P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611, and should refer to the
matter as United States v. County of
Erie, D.J. Ref. 90–7–1–09728.
During the public comment period,
the Consent Decree may also be
examined on the following Department
of Justice Web site, http://www.usdoj.
gov/enrd/Consent_Decrees.html. A copy
of the Consent Decree may also be
obtained by mail from the Consent
Decree Library, P.O. Box 7611, U.S.
Department of Justice, Washington, DC
20044–7611 or by faxing or emailing a
request to ‘‘Consent Decree Copy’’
(EESCDCopy.ENRD@usdoj.gov), fax no.
(202) 514–0097, phone confirmation
number (202) 514–5271. If requesting a
copy from the Consent Decree Library
by mail, please enclose a check in the
amount of $8.75 (25 cents per page
reproduction cost) payable to the U.S.
Treasury or, if requesting by email or
fax, forward a check in that amount to
the Consent Decree Library at the
address given above.
Ronald G. Gluck,
Assistant Section Chief, Environmental
Enforcement Section, Environment and
Natural Resource Division.
[FR Doc. 2011–33805 Filed 1–4–12; 8:45 am]
BILLING CODE 4410–15–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–66067; File No. SR–CBOE–
2011–127]
Self-Regulatory Organizations;
Chicago Board Options Exchange,
Incorporated; Notice of Filing and
Immediate Effectiveness of a Proposed
Rule Change To Amend the CBOE
Stock Exchange Fees Schedule
December 29, 2011.
Pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934 (the
‘‘Act’’),1 and Rule 19b–4 thereunder,2
notice is hereby given that on December
20, 2011, Chicago Board Options
Exchange, Incorporated (the ‘‘Exchange’’
or ‘‘CBOE’’) filed with the Securities
and Exchange Commission
(‘‘Commission’’) the proposed rule
change as described in Items I, II, and
III below, which items have been
prepared by the self-regulatory
organization. The Commission is
publishing this notice to solicit
comments on the proposed rule change
from interested persons.
I. Self-Regulatory Organization’s
Statement of the Terms of Substance of
the Proposed Rule Change
The Exchange proposes to amend the
CBOE Stock Exchange (‘‘CBSX’’) Fees
Schedule. The text of the proposed rule
change is available on the Exchange’s
Web site (http://www.cboe.org/legal), at
the Exchange’s Office of the Secretary,
and at the Commission’s Public
Reference Room.
II. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
In its filing with the Commission, the
self-regulatory organization included
statements concerning the purpose of
and basis for the proposed rule change
and discussed any comments it received
on the proposed rule change. The text
of those statements may be examined at
the places specified in Item IV below.
The Exchange has prepared summaries,
set forth in sections A, B, and C below,
of the most significant parts of such
statements.
A. Self-Regulatory Organization’s
Statement of the Purpose of, and
Statutory Basis for, the Proposed Rule
Change
1. Purpose
CBSX proposes to amend its
CBOEdirect Connectivity Charges.
Currently, the CBSX Fees Schedule
applies CBOE’s CBOEdirect
Connectivity Charges to CBSX users.3
However, CBOE recently filed a
proposed rule change to increase its
CBOEdirect Connectivity Charges.4
Because CBSX does not desire to adopt
all of the proposed changes to CBOE’s
CBOEdirect Connectivity Charges, CBSX
hereby proposes to amend its Fees
Schedule to adopt its own CBOEdirect
Connectivity Charges.
Currently, CBSX assesses a monthly
Network Access Port fee of $250 for
regular access and $500 for Sponsored
User access, as those are the amounts of
the Network Access Port fees on CBOE.
In SR–CBOE–2011–121, CBOE proposes
to increase the fees charged for access to
a Network Access Port to $500 per
month for regular access and $1000 per
month for Sponsored User access. CBSX
desires to keep the Network Access Port
fee rates at their current levels and not
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 519
5 See SR–CBOE–2011–121.
6 See ISE Schedule of Fees, page 8. The
Commission notes that the ISE fees cited by the
Exchange were modified as of December 1, 2011. As
of December 23, 2011, ISE assesses a FIX fee of
$1000 for a minimum of two monthly login IDs and
does not have a separate fee for a higher-volume
user. See Securities Exchange Act Release No.
65916 (December 8, 2011), 76 FR 77881 (December
14, 2011) (SR–ISE–2011–80).
7 See NOM Rule 7053.
8 15 U.S.C. 78f(b).
9 15 U.S.C. 78f(b)(4).
10 See ISE Schedule of Fees, page 8 and NOM
Rule 7053 and also SR–CBOE–2011–121.
11 15 U.S.C. 78s(b)(3)(A).
12 17 CFR 240.19b–4(f)(2). 13 17 CFR 200.30–3(a)(12).
increase them to the levels proposed by
CBOE.
CBOE also proposes to increase their
monthly CMI and FIX charges from $80
to $500 per month for regular access and
$160 to $1000 per month for Sponsored
User access.5 CBSX does not desire to
adopt these increases. Instead, CBSX
proposes to adopt more moderate
increases, from $80 to $100 for regular
access and $160 to $200 for Sponsored
User access. Sizable investment [sic]
were recently made to upgrade the
equipment involved in the CMI Client
Application Servers and FIX Ports, and
thereby increasing these fees will help
recoup such costs and maintain such
equipment in the future. Moreover,
following these changes, CBSX
connectivity costs will still be lower
than those assessed for connectivity at
other exchanges. Along with the
proposed CBOE changes, ISE assesses a
FIX fee of $1200 for a minimum of two
monthly login IDs (so, $600 for one), or
a fee of $2,400 for a higher-volume
user.6 The NASDAQ Stock Market LLC’s
Options Market (‘‘NOM’’) assesses a fee
of $500 per FIX port per month, as
well.7 Regarding the Sponsored User
fees, the Exchange currently charges a
different rate for regular access and
Sponsored User access, and merely
proposes to increase the rates in equal
proportion.
The proposed changes are to take
effect January 1, 2012.
2. Basis
The proposed rule change is
consistent with Section 6(b) of the Act,8
in general, and furthers the objectives of
Section 6(b)(4) 9 of the Act in particular,
in that it is designed to provide for the
equitable allocation of reasonable dues,
fees, and other charges among CBOE
Trading Permit Holders and other
persons using Exchange facilities. The
proposed ‘‘change’’ to add the Network
Access Port fees into the CBSX Fees
Schedule is reasonable because the
amounts of the fees are not changing.
This proposed ‘‘change’’ is equitable
and not unfairly discriminatory because
the fees, as before, will be assessed to all
market participants, and in the same
amounts as previously assessed.
The proposed changes to increase the
fees assessed for CMI Login IDs and FIX
Login IDs are also reasonable because
the amounts of such fees are
significantly lower than those assessed
on other exchanges,10 and because such
increases will assist in recouping
expenditures recently made to upgrade
the CBOEdirect connectivity equipment.
This proposed change is equitable and
not unfairly discriminatory because the
fees, as before, will be assessed to all
market participants. Assessing higher
fees for Sponsored Users is equitable
and not unfairly discriminatory because
Sponsored Users are able to access the
Exchange and use the equipment
provided without purchasing a trading
permit. As such, Trading Permit Holders
who have purchased a trading permit
will have a higher level of commitment
to transacting business on the Exchange
and using Exchange facilities than
Sponsored Users.
B. Self-Regulatory Organization’s
Statement on Burden on Competition
CBOE does not believe that the
proposed rule change will impose any
burden on competition not necessary or
appropriate in furtherance of the
purposes of the Act.
C. Self-Regulatory Organization’s
Statement on Comments on the
Proposed Rule Change Received From
Members, Participants, or Others
No written comments were solicited
or received with respect to the proposed
rule change.
III. Date of Effectiveness of the
Proposed Rule Change and Timing for
Commission Action
The proposed rule change is
designated by the Exchange as
establishing or changing a due, fee, or
other charge, thereby qualifying for
effectiveness on filing pursuant to
Section 19(b)(3)(A) of the Act 11 and
subparagraph (f)(2) of Rule 19b–4 12
thereunder. At any time within 60 days
of the filing of the proposed rule change,
the Commission summarily may
temporarily suspend such rule change if
it appears to the Commission that such
action is necessary or appropriate in the
public interest, for the protection of
investors, or otherwise in furtherance of
the purposes of the Act.
IV. Solicitation of Comments
Interested persons are invited to
submit written data, views, and
arguments concerning the foregoing,
including whether the proposed rule
change is consistent with the Act.
Comments may be submitted by any of
the following methods:
Electronic Comments
• Use the Commission’s Internet
comment form (http://www.sec.gov/
rules/sro.shtml); or
• Send an email to rulecomments@
sec.gov. Please include File
Number SR–CBOE–2011–127 on the
subject line.
Paper Comments
• Send paper comments in triplicate
to Elizabeth M. Murphy, Secretary,
Securities and Exchange Commission,
100 F Street NE., Washington, DC
20549–1090.
All submissions should refer to File
Number SR–CBOE–2011–127. This file
number should be included on the
subject line if email is used. To help the
Commission process and review your
comments more efficiently, please use
only one method. The Commission will
post all comments on the Commission’s
Internet Web site (http://www.sec.gov/
rules/sro.shtml). Copies of the
submission, all subsequent
amendments, all written statements
with respect to the proposed rule
change that are filed with the
Commission, and all written
communications relating to the
proposed rule change between the
Commission and any person, other than
those that may be withheld from the
public in accordance with the
provisions of 5 U.S.C. 552, will be
available for Web site viewing and
printing in the Commission’s Public
Reference Room, 100 F Street NE.,
Washington, DC 20549, on official
business days between the hours of
10 a.m. and 3 p.m. Copies of the filing
also will be available for inspection and
copying at the principal office of the
Exchange. All comments received will
be posted without change; the
Commission does not edit personal
identifying information from
submissions. You should submit only
information that you wish to make
available publicly. All submissions
should refer to File Number SR–CBOE–
2011–127 and should be submitted on
or before January 26, 2012.
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520 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 Securities Exchange Act Release No. 65483
(October 4, 2011), 76 FR 62981 (October 11, 2011).
4 Securities Exchange Act Release No. 65807
(September 21, 2011), 76 FR 73752 (November 29,
2011).
5 The staff notes that on August 17, 2011, the
Commission issued an Order granting approval to
this proposed rule change. See Securities Exchange
Act Release No. 34–65149, 76 FR 52729 (August 23,
2011).
6 The staff notes that OCC is also adding a
definition of ‘‘relative performance index’’ to
Section 1, which will be defined as an index
designed to measure the relative performance of a
reference security or reference index in relation to
another reference security or reference index.
7 See Securities Exchange Act Release No. 34–
62290, 75 FR 35861 (June 23, 2010); CFTC Order
Exempting the Trading and Clearing of Certain
Products Related to the CBOE Gold ETF Volatility
Index and Similar Products, 75 FR 81977
(December 29, 2010).
8 The staff notes that Amendment Nos. 2 and 3
provide that the interpretation will not include
options on relative performance indexes for which
a reference security is an exchange-traded fund
designed to measure the return of a commodity
other than gold or silver.
9 15 U.S.C. 78q–1(b)(3)(F).
10 15 U.S.C. 78q–1.
11 15 U.S.C. 78s(b)(2).
12 In approving this proposed rule change the
Commission has considered the proposed rule’s
impact of efficiency, competition, and capital
formation. See 15 U.S.C. 78c(f).
13 17 CFR 200.30–3(a)(12).
For the Commission, by the Division of
Trading and Markets, pursuant to delegated
authority.13
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2011–33789 Filed 1–4–12; 8:45 am]
BILLING CODE 8011–01–P
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–66070; File No. SR–OCC–
2011–13]
Self-Regulatory Organizations;
Options Clearing Corporation; Order
Approving Proposed Rule Change, as
Modified by Amendments No. 1, No. 2,
and No. 3, Relating to Relative
Performance Indexes
December 29, 2011.
I. Introduction
On September 21, 2011, the Options
Clearing Corporation (‘‘OCC’’) filed with
the Securities and Exchange
Commission (‘‘Commission’’) the
proposed rule change SR–OCC–2011–13
pursuant to Section 19(b)(1) of the
Securities Exchange Act of 1934
(‘‘Act’’) 1 and Rule 19b–4 thereunder.2
On October 4, 2011, OCC filed
Amendment No. 1 to the proposed rule
change. The proposed rule change, as
modified by Amendment No. 1, was
published for comment in the Federal
Register on October 11, 2011.3 On
November 17, 2011, OCC filed
Amendment No. 2 and Amendment No.
3 to the proposed rule change. The
proposed rule change, as modified by
Amendments No. 1, No. 2 and No. 3 was
published in the Federal Register on
November 29, 2011.4 The Commission
received no comment letters on the
proposed rule change, as modified by
Amendments No. 1, No. 2, and No. 3.
This order approves the proposed rule
change as modified by Amendments No.
1, No. 2, and No. 3.
II. Description
The purpose of the proposed rule
change is to remove any potential cloud
on the jurisdictional status of relative
performance indexes. NASDAQ OMX
PHLX has proposed to trade options on
indexes (‘‘Alpha Index Options’’) that
measure the relative total returns of a
stock or exchange-traded fund (‘‘ETF’’)
against another stock or ETF, including
where one of the reference ETFs
measured by the index is a gold- or
silver-based ETF.5 Generally, OCC
believes that a relative performance
index should be considered to be an
index of securities since the
components of a relative performance
index are ETFs or other securities.
However, OCC would like to confirm
the jurisdictional treatment of relative
performance indexes in situations in
which a reference security of an
underlying relative performance index
is an ETF designed to measure the
return of gold or silver. To accomplish
this purpose, OCC is adding an
interpretation following Section 2 in
Article XVII of its By-Laws,6 clarifying
that OCC will clear and treat as
securities any relative performance
index. The Commission and Commodity
Futures Trading Commission (‘‘CFTC’’)
have previously approved changes to
OCC’s By-Laws clarifying that options
on the CBOE Gold ETF Volatility Index
will be cleared and treated as
securities.7
In its capacity as a ‘‘derivatives
clearing organization’’ registered as such
with the CFTC, OCC filed the proposed
rule change for prior approval by the
CFTC pursuant to provisions of the
Commodity Exchange Act (the ‘‘CEA’’)
in order to foreclose any potential
liability under the CEA based on an
argument that the clearing by OCC of
such options as securities options
constitutes a violation of the CEA. OCC
amended the rule filing at the request of
the CFTC to clarify that OCC will clear
and treat as options on securities any
options on relative performance indexes
for which a reference security is an
exchange-traded fund designed to
measure the return of gold or silver.8
III. Discussion
Section 17A(b)(3)(F) of the Act
requires, among other things, that the
rules of a clearing agency be designed to
promote the prompt and accurate
clearance and settlement of securities
transactions and derivative
transactions.9 The proposed rule change
is similar to a proposed rule change the
Commission approved previously with
respect to the jurisdictional status CBOE
Gold ETF Volatility Index and clarifies
that OCC will clear and treat as
securities any relative performance
index, including in situations in which
one of the reference securities of a
relative performance index is an ETF
designed to measure the return of gold
or silver. Any uncertainty regarding the
jurisdictional status of a product could
presumably interfere with OCC’s ability
to provide clearance and settlement
services with respect to the product.
The proposed rule change, by allowing
OCC to clarify in its rules the treatment
of a relative performance index, should
facilitate the clearance and settlement of
such products and, thus, should help
promote the prompt and accurate
clearance and settlement of securities
transactions and of derivative
transactions.
IV. Conclusion
On the basis of the foregoing, the
Commission finds that the proposal is
consistent with the requirements of the
Act and in particular with the
requirements of Section 17A of the
Act 10 and the rules and regulations
thereunder.
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,11 that the
proposed rule change, as modified by
Amendments No. 1, No. 2, and No. 3,
(File No. SR–OCC–2011–13) be, and
hereby is, approved.12
For the Commission by the Division of
Trading and Markets, pursuant to delegated
authority.13
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2011–33795 Filed 1–4–12; 8:45 am]
BILLING CODE 8011–01–P
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 521
1 15 U.S.C. 78s(b)(1).
2 17 CFR 240.19b–4.
3 See Securities Exchange Act Release Nos. 65843
(November 28, 2011), 76 FR 75577 (December 2,
2011) (SR–CBOE–2011–107) (‘‘CBOE Notice’’) and
65842 (November 28, 2011), 76 FR 75586
(December 2, 2011) (SR–NSX–2011–14) (‘‘NSX
Notice’’).
4 Conditions precedent to closing the Transaction
are formal requirements set forth in the Purchase
Agreement and include delivery of certain
documents (such as officers’ certificates, legal
opinions, and agreements), compliance by each
party with specified representations, warranties and
covenants, and receipt of necessary approvals by
each party. See NSX Notice, supra note 3, at note
1.
5 15 U.S.C. 78f.
6 NSX would continue to adhere to the
undertakings in the Order Instituting
Administrative and Cease-and-Desist Proceedings
Pursuant to Sections 19(h) and 21C of the Act,
Making Findings, and Imposing Sanctions,
including those related to a Regulatory Oversight
Committee and the separation of the regulatory
functions from the commercial interests of NSX.
See Securities Exchange Act Release No. 51714
(May 19, 2005).
7 15 U.S.C. 78c(a)(2).
8 See Securities Exchange Act Release No. 55389
(March 2, 2007), 72 FR 10575 (March 8, 2007) (SR–
CBOE–2006–110) (the ‘‘CBSX Approval Order’’).
See also Securities Exchange Act Release No. 55172
(January 25, 2007), 72 FR 4745 (February 1, 2007)
(SR–CBOE–2006–110) (the ‘‘CBSX Notice of
Filing’’).
9 CBOE Rule 3.32(a) provides, in part: For as long
as CBSX LLC operates as a facility of CBOE, no
Trading Permit Holder, either alone or together with
its Affiliates, at any time, may own, directly or
indirectly, of record or beneficially, an aggregate
amount of Shares that would result in a greater than
twenty percent (20%) Percentage Interest in CBSX
LLC (the ‘‘Concentration Limitation’’).
In addition, the Certificate of Incorporation of
CBOE Holdings, Inc., the owner of CBOE (‘‘CBOE
Holdings’’), provides that no person (either alone or
together with its related persons) may beneficially
own more than 20% of the total outstanding shares
of CBOE Holdings stock. See Article Sixth (b) of the
Amended and Restated Certificate of Incorporation
of CBOE Holdings, Inc. See also Securities
Exchange Act Release No. 62158 (May 24, 2010), 75
FR 30082 (May 28, 2010) (SR–CBOE–2008–88).
10 ‘‘Voting Shares’’ means those Shares entitled to
vote on matters submitted to the Owners, which
Voting Shares are held by the Voting Owners. See
Section 2.1(a)(28) of the CBSX Operating
Agreement.
11 As noted in Section 3.2 of the CBSX Operating
Agreement, it is the intention of the Owners that no
other members of CBSX (other than Affiliates of
CBOE) be owners of Series A Voting Shares, and
that no additional Series A Voting Shares be
authorized, created or issued for such purpose;
provided however, that this provision is not
intended to limit or restrict any rights of CBOE to
transfer any of its Series A Voting Shares with the
prior approval of the Commission as provided for
in Article VI, including Section 6.14 of the CBSX
Operating Agreement, or any other provision
thereof, or any rights to be acquired by a transferee
of those Shares as provided therein.
12 The CBSX Operating Agreement also provides
for Series C Non-Voting Restricted Shares. Such
Shares are not entitled to vote on any matter
submitted to a vote of the Owners and there are
currently no Series C shares outstanding. See
Section 8.9 of the CBSX Operating Agreement.
13 Section 6.12(a) of the CBSX Operating
Agreement provides that no person (other than
CBOE), either alone or together with its Affiliates,
may directly or indirectly own an aggregate amount
Continued
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–66071; File Nos. SR–
CBOE–2011–107 and SR–NSX–2011–14]
Self-Regulatory Organizations;
Chicago Board Options Exchange,
Incorporated and National Stock
Exchange, Inc.; Order Granting
Accelerated Approval to Proposed
Rule Changes in Connection With the
Proposed Acquisition of the National
Stock Exchange, Inc. by CBOE Stock
Exchange, LLC
December 29, 2011.
I. Introduction
On November 28, 2011, each of the
Chicago Board Options Exchange,
Incorporated (‘‘CBOE’’) and the National
Stock Exchange, Inc. (‘‘NSX’’) filed with
the Securities and Exchange
Commission (‘‘Commission’’), pursuant
to Section 19(b)(1) of the Securities
Exchange Act of 1934 (‘‘Act’’) 1 and Rule
19b–4 thereunder,2 proposed rule
changes in connection with the
proposed acquisition of NSX by CBOE
Stock Exchange, LLC (‘‘CBSX’’) (the
‘‘Transaction’’). On December 2, 2011,
the proposed rule changes were
published for comment in the Federal
Register.3 The Commission received no
comments on either proposed rule
change. This order approves each of the
proposed rule changes on an accelerated
basis.
II. Background
A. The Transaction
Currently, NSX is wholly and directly
owned by NSX Holdings, Inc. (‘‘NSX
Holdings’’). Under a Purchase
Agreement (the ‘‘Purchase Agreement’’)
dated September 28, 2011 by and
between NSX, NSX Holdings, and
CBSX, CBSX would acquire all of the
outstanding capital stock of NSX on the
date of or after all conditions precedent
to closing have been satisfied or waived,
including approval by the Commission
of these proposed rule changes.4
Following the completion of the
Transaction, NSX would become a
wholly-owned subsidiary of CBSX. NSX
would remain a Delaware for-profit
stock corporation, with the authority to
issue 1,000 shares of common stock, 100
shares of which would be issued and
would be held in their entirety by
CBSX. At all times, all of the
outstanding stock of NSX would be
owned by CBSX. NSX would remain
registered as a national securities
exchange under Section 6 of the Act,5
and accordingly, NSX would remain a
self-regulatory organization (‘‘SRO’’).6
NSX has proposed to amend its
Certificate of Incorporation and By-Laws
to reflect and address the acquisition of
NSX by CBSX following the
Transaction. In addition, NSX has
proposed other changes to its governing
documents that are not directly related
to the Transaction to update and
enhance the governing documents and
generally make them consistent with
parallel provisions contained in the
governing documents of other SROs.
These changes are discussed below.
B. CBSX
In 2007, the Commission approved
the establishment of CBSX as a facility 7
of CBOE.8 As the SRO for CBSX, CBOE
has regulatory responsibility for the
activities of CBSX. CBSX administers
the CBOE Stock Exchange, a fully
automated trading platform for
securities other than options (the ‘‘CBSX
Trading Facility’’). As a limited liability
company, the governance structure and
operating authority of CBSX are set forth
in the Operating Agreement of CBSX
(‘‘CBSX Operating Agreement’’) and the
CBSX Certificate of Formation. In
connection with the establishment of
the CBSX Trading Facility, CBOE
adopted Rule 3.32 pertaining to
ownership concentration and affiliation
limitations.9
As a limited liability company,
ownership of CBSX is represented by
limited liability membership interests.
The holders of such interests are
referred to as ‘‘Owners.’’ CBOE is one of
the Owners of CBSX and owns all
outstanding ‘‘Series A’’ Voting Shares 10
of CBSX, representing just under 50% of
all outstanding shares of CBSX.11 The
outstanding ‘‘Series B’’ Voting Shares of
CBSX are held by nine broker-dealers.
As provided in Section 8.9 of the
CBSX Operating Agreement, the
outstanding Series A Voting Shares, in
the aggregate, are entitled to a number
of votes equal to 50% of the total
number of Voting Shares outstanding on
each matter submitted to a vote of the
Owners. Each outstanding Series B
Voting Share is entitled to one vote on
each matter submitted to a vote of the
Owners.12
The CBSX Approval Order and the
CBSX Notice of Filing describe various
characteristics of CBSX, including: the
relationship between CBSX and CBOE;
changes in control of CBSX; the
regulatory jurisdiction of the
Commission and CBOE over the
controlling parties and the Owners; and
the ownership and voting restrictions on
Owners.13 These provisions, as
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522 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
of Shares that would result in a greater than 20%
Percentage Interest in CBSX. In addition, Section
8.10 provides that if an Owner of Series B Voting
Shares that is also a CBOE member owns more than
20% of the outstanding Voting Shares (‘‘Excess
Shares’’), alone or together with any Affiliate, such
Owner will have no voting rights with respect to the
Excess Shares.
14 In approving the proposed rule change, the
Commission has considered its impact on
efficiency, competition, and capital formation. See
15 U.S.C. 78c(f).
15 15 U.S.C. 78f(b)(1).
16 15 U.S.C. 78f(b)(3).
17 15 U.S.C. 78f(b)(5).
18 15 U.S.C. 78f.
19 15 U.S.C. 78f(b)(8).
20 See, e.g., Sections 1.6 and 9.15(a)(9) and (10)
of the CBSX Operating Agreement.
21 See Section 2.1(a)(23) of the CBSX Operating
Agreement defining ‘‘Related Person.’’
22 Section 2.1(a)(1) of the CBSX Operating
Agreement defines ‘‘Affiliate’’ as, with respect to
any person, any other person that directly, or
indirectly through one or more intermediaries,
controls, is controlled by, or is under common
control with, such person. As used in this
definition, ‘‘control’’ means the possession, directly
or indirectly, of the power to direct or cause the
direction of management and policies of a person,
whether through the ownership of voting securities,
by contract or otherwise with respect to such
person.
contained in the CBSX Operating
Agreement and applicable CBOE rules,
will remain unchanged after the
Transaction except as otherwise
described below.
In connection with the Transaction,
CBOE proposes to amend and restate the
CBSX Operating Agreement to be
effective as of the closing of the
Transaction. CBOE also proposes to
adopt new CBOE Rule 2.50 regarding its
policy with respect to NSX. These
changes are discussed below.
III. Discussion and Commission
Findings
After careful consideration, the
Commission finds that each proposed
rule change is consistent with the
requirements of the Act and the rules
and regulations thereunder applicable to
a national securities exchange.14 In
particular, the Commission finds that
the proposed rule changes are consistent
with Section 6(b)(1) of the Act,15 which,
among other things, requires a national
securities exchange to be so organized
and have the capacity to be able to carry
out the purposes of the Act and to
enforce compliance by its members and
persons associated with its members
with the provisions of the Act, the rules
and regulations thereunder, and the
rules of the exchange. Further, the
Commission finds that the proposed
rule changes are consistent with Section
6(b)(3) of the Act,16 which requires that
the rules of a national securities
exchange assure the fair representation
of its members in the selection of its
directors and administration of its
affairs, and provide that one or more
directors shall be representative of
issuers and investors and not be
associated with a member of the
exchange, broker, or dealer. The
Commission also finds that the
proposed rule change are consistent
with Section 6(b)(5) of the Act,17 which
requires, among other things, that the
rules of a national securities exchange
be designed to prevent fraudulent and
manipulative acts and practices; to
promote just and equitable principles of
trade; to foster cooperation and
coordination with persons engaged in
regulating, clearing, settling, and
processing information with respect to,
and facilitating transactions in
securities; to remove impediments to
and perfect the mechanism of a free and
open market and a national market
system; and, in general, to protect
investors and the public interest.
As noted above, following the
Transaction, NSX will be a whollyowned
subsidiary of CBSX. NSX will
remain registered as a national
securities exchange under Section 6 of
the Act,18 and, accordingly, NSX will
remain an SRO. The Commission
believes that the ownership of NSX by
CBSX would not impose any burden on
competition not necessary or
appropriate in furtherance of the
purposes of the Act.19 Though CBSX is
not itself an SRO, as a holding company
of an SRO, its activities with respect to
the operation of NSX must be consistent
with, and must not interfere with, the
self-regulatory obligations of NSX.
A. CBOE–2011–107
1. Changes To Accommodate CBSX’s
Ownership of NSX
CBOE’s proposed rule change
includes several amendments designed
to accommodate CBSX’s ownership of
NSX. These amendments address the
fact that CBSX will effectively serve as
a holding company for NSX after the
Transaction to the extent related to
CBSX’s control of NSX. The changes
also clarify CBSX’s rights and
responsibilities relating to its role as a
holding company of a registered
national securities exchange. For
example, CBOE’s proposal amends
Section 1.6 of the CBSX Operating
Agreement to reflect CBSX’s new
purpose to act as a holding company of
NSX (in addition to its current purpose
to act as a trading market for securities
other than options as a facility of
CBOE). The proposal also amends
several provisions in the CBSX
Operating Agreement to clarify that
certain references to CBSX include its
subsidiaries, including NSX.20
In addition, the proposal amends
Section 6.12 of the CBSX Operating
Agreement to provide that the
Ownership Concentration Limitation
described in that section, which
currently carves out CBOE (because
CBOE owns greater than 20% of CBSX)
does not apply to CBOE Holdings as
well (because CBOE Holdings indirectly
owns CBOE). It also expands the
applicability of the Concentration
Limitation to persons and the broader
category of their ‘‘Related Persons’’ 21
rather than to persons and their
‘‘Affiliates.’’ 22 The proposal also
amends Section 6.12(c) and (e) of the
CBSX Operating Agreement to impose
on NSX equity trading permit holders
the Ownership Concentration
Limitation prohibitions described in
those paragraphs, which are currently
only imposed on CBOE Trading Permit
Holders. This change recognizes CBSX’s
new ownership of NSX and is intended
to guard against members of NSX
obtaining an ownership stake in CBSX
that could potentially be used to
influence the performance by NSX of
regulatory authority over such members
or others. The Commission finds that
these changes, which are necessary to
reflect the change in ownership of NSX
after the Transaction, are consistent
with the Act.
The proposal makes similar
amendments to Section 8.10 of the
CBSX Operating Agreement to expand
applicability of the voting restriction
described in that section to persons and
their Related Persons and to provide
that if any person, not just a CBOE
Trading Permit Holder, exceeds the
Concentration Limitation set forth in
Section 6.12 of the CBSX Operating
Agreement, then the Owner and its
Related Persons will have no voting
rights with respect to the shares in
excess of such limitation unless it
satisfies certain requirements set forth
in proposed Section 8.10(b) through (d)
of the CBSX Operating Agreement. The
proposed rule change also extends the
applicability of the voting restriction in
Section 8.10 of the CBSX Operating
Agreement to cover voting agreements,
plans, and arrangements.
Further, the proposal amends Section
9.15(a)(9) of the CBSX Operating
Agreement to clarify that with respect to
the sale of material assets or ownership
interests that requires approval pursuant
to Section 9.15, ‘‘material assets or
ownership interests’’ includes
subsidiaries of CBSX. In addition, the
proposed rule change adds Section
15.19 to the CBSX Operating Agreement
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23 Section 6.15(a) of the CBSX Operating
Agreement currently provides: ‘‘The Owners
acknowledge that to the extent they are related to
[CBSX’s] activities, the books, records, premises,
officers, directors, agents, and employees of the
Owners shall be deemed to be the books, records,
premises, officers, directors, agents, and employees
of CBOE for the purpose of and subject to oversight
pursuant to the Exchange Act.’’
24 Section 6.15(b) of the CBSX Operating
Agreement currently provides: ‘‘The books, records,
premises, officers, directors, agents, and employees
of [CBSX] shall be deemed to be the books, records,
premises, officers, directors, agents, and employees
of CBOE for the purpose of and subject to oversight
pursuant to the Exchange Act.’’
25 CBSX’s complete records and books of account
must be subject at all times to inspection and
examination by CBOE (to the extent related to the
CBSX Trading Facility), NSX (to the extent related
to CBSX’s control of NSX), and the Commission at
no additional charge to CBOE, NSX, and the
Commission, as applicable. See Section 13.2 of the
CBSX Operating Agreement.
26 Revisions to Section 6.15(c) (consent to
jurisdiction) and (d) (consent in writing to
applicability) of the CBSX Operating Agreement
also extend the requirements of these provisions to
all agents and employees of CBSX and its Owners,
rather than only agents and employees whose
principal place of business and residence is outside
of the United States.
27 Interference with respect to the CBSX Trading
Facility will be determined by the CBSX board
designees of CBOE. See Section 9.15(c) of the CBSX
Operating Agreement.
to obligate CBSX, when voting as NSX’s
sole shareholder in an election of the
NSX board of directors, to vote in favor
of ETP Holder Directors (a certain class
of directors defined in the NSX Bylaws
that are intended to provide NSX
members with fair representation in the
governance of NSX consistent with the
Act) that were nominated in accordance
with the procedures set forth in NSX’s
governing documents.
2. Preservation of the Self-Regulatory
Function of NSX
After the Transaction, NSX would
become a subsidiary of CBSX. Although
CBSX is not an SRO and, therefore, does
not itself have self-regulatory functions,
its activities with respect to the
operation of NSX must be consistent
with, and not interfere with, NSX’s selfregulatory
obligations. To address this
concern, the proposal adds various
provisions to the CBSX Operating
Agreement that are designed to protect
the independence of the self-regulatory
function of NSX and to clarify NSX’s
rights with respect to CBSX.
For example, the proposed rule
change adds Section 5.7(b) to the CBSX
Operating Agreement, which, among
other things:
• Requires CBSX Owners, the CBSX
board of directors, CBSX officers, and
CBSX employees (for so long as CBSX
controls NSX and to the extent related
to the activities of NSX) to give due
regard to the preservation of the
independence of the self-regulatory
function of NSX and to NSX’s
obligations under the Act;
• Prohibits CBSX Owners, the CBSX
board of directors, CBSX officers, and
CBSX employees from taking any
actions that would interfere with the
effectuation of any decisions by the NSX
board of directors relating to NSX’s
regulatory functions, including
disciplinary matters, or with NSX’s
ability to carry out its responsibilities
under the Act; and
• Requires CBSX to comply with
federal securities laws and the rules and
regulations thereunder, and requires
CBSX and its officers, directors,
employees, and agents to cooperate with
the Commission and NSX pursuant to
and to the extent of their regulatory
authority.
In addition, the proposed rule amends
Section 6.15(a) of the CBSX Operating
Agreement to reflect the acquisition by
CBSX of the NSX SRO and to ensure
access by NSX to the Owners of CBSX
that is necessary for NSX to perform its
responsibilities as an SRO.23
Specifically, the revisions:
• Clarify that the Owners
acknowledge that the books, records,
premises, officers, directors, agents, and
employees of the Owners will be
deemed to be the books, records,
premises, officers, directors, agents, and
employees of CBOE for the purpose of
and subject to oversight pursuant to the
Act, but only to the extent they are
related to the CBSX Trading Facility;
and
• Add a provision in which the
Owners acknowledge that the books,
records, premises, officers, directors,
agents, and employees of the Owners
will be deemed to be the books, records,
premises, officers, directors, agents, and
employees of NSX for the purpose of
and subject to oversight pursuant to the
Act, but only to the extent they are
related to the activities of NSX.
Similarly, the proposed rule change
amends Section 6.15(b) of the CBSX
Operating Agreement concerning access
by NSX to CBSX personnel and
records 24 to add the provision that the
books, records, premises, officers,
directors, agents, and employees of
CBSX will be deemed to be the books,
records, premises, officers, directors,
agents, and employees of NSX for the
purpose of and subject to oversight
pursuant to the Act, but only to the
extent related to the activities of NSX.25
The proposal also amends Section
6.15(c) of the CBSX Operating
Agreement to provide that CBSX and
the Owners and their respective officers,
directors, agents, and employees,26
irrevocably submit to the jurisdiction of
the U.S. federal courts, the Commission,
CBOE, and NSX for the purposes of any
suit, action, or proceeding pursuant to
U.S. federal securities laws or the rules
or regulations thereunder, commenced
or initiated by the Commission arising
out of, or relating to, the CBSX Trading
Facility or the CBSX’s control of NSX,
as applicable.
In addition, the proposed rule change
amends Sections 9.15(c) and 9.16 of the
CBSX Operating Agreement to provide
that CBSX directors agree to comply
with the federal securities laws and the
rules and regulations thereunder, and to
cooperate with the Commission, CBOE,
and NSX pursuant to their regulatory
authority, as applicable, and the
provisions of the CBSX Operating
Agreement. The proposal also amends
Section 9.15(c) of the CBSX Operating
Agreement to provide that CBSX
directors will take into consideration
whether any actions taken or proposed
to be taken as a director for or on behalf
of CBSX, or any failure or refusal to act,
would constitute interference with
CBOE’s or NSX’s regulatory functions
and responsibilities, as applicable, in
violation of the CBSX Operating
Agreement or the Act.27 These
provisions are designed to foster
compliance with the federal securities
laws and to emphasize the
considerations that are necessary on the
part of CBSX’s directors to reflect NSX’s
responsibilities as an SRO.
Additionally, the proposal amends
Section 14.1(a) of the CBSX Operating
Agreement to provide that, for so long
as CBSX controls NSX, before any
amendment, alteration, or repeal of any
provision of the CBSX Operating
Agreement, to the extent related to
CBSX’s control of NSX, will be effective,
such amendment, alteration, or repeal
must be submitted to the NSX board of
directors, and if CBOE and the NSX
board of directors determine that such
amendment, alteration, or repeal must
be filed with or filed with and approved
by the Commission, then such
amendment, alteration, or repeal will
not become effective until filed with or
filed with and approved by the
Commission, as the case may be. The
proposal also adds a 10-day notice
provision for any amendment,
alteration, or repeal of the CBSX
Operating Agreement made pursuant to
Section 14.1(a) to provide CBOE and
NSX with sufficient opportunity to
review any potential regulatory impacts
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28 15 U.S.C. 78f(b)(1).
29 See CBOE Holdings Certificate of Incorporation
Article Fifth (a)(xi).
30 See also Sections 1.8, 6.2(e), 6.15(c) and (d),
9.2(d), 9.15(a)(14) and 14.1(a) for additional
clarifications.
31 See Section 3.2(d), signature page, and Exhibit
A to the CBSX Operating Agreement.
32 See Sections 6.12(c) and (e) and 8.10 of the
CBSX Operating Agreement.
33 See Section 2.1 of the CBSX Operating
Agreement.
34 See Section 2.1(a)(26). This change is
consistent with the original structure of CBSX
under which a super majority could be obtained
with an affirmative vote of CBOE and two initial
owners, who all initially had ten (10%) percentage
interests in CBSX.
of such amendment, alteration, or repeal
before it becomes effective.
Further, to ensure unencumbered
access to all relevant information,
regardless of whether such information
is considered ‘‘confidential,’’ the
proposal amends Section 15.2 of the
CBSX Operating Agreement to provide
that nothing in the CBSX Operating
Agreement will be interpreted to limit
or impede the rights of the Commission,
CBOE, or NSX to access and examine
any Confidential Information (as
defined in the CBSX Operating
Agreement) pursuant to the U.S. federal
securities laws and the rules thereunder,
or to limit or impede the ability of an
Owner or an officer, director, agent, or
employee of an Owner to disclose any
Confidential Information to the
Commission, CBOE, or NSX. Proposed
Section 15.2 of the CBSX Operating
Agreement also provides that the
obligation of Owners not to disclose
Confidential Information described in
that section does not apply to CBOE’s or
NSX’s communications with the
Commission with respect to the conduct
of the CBSX Trading Facility’s business
or NSX’s business, respectively.
3. CBOE Rule 2.50
The CBOE proposed rule change
proposes to adopt new CBOE Rule 2.50,
which is intended to foster and preserve
the self-regulatory function of NSX.
Specifically, CBOE Rule 2.50(a)
proposes a policy that CBOE, as a
controlling owner of CBSX, will not take
any action related to NSX’s activities
that would interfere with NSX’s efforts
to carry out its self-regulatory
obligations under the Act and the rules
and regulations thereunder.
Additionally, proposed CBOE Rule
2.50(b) provides that CBOE will
‘‘exercise its powers as a partial owner
of CBSX to support the fulfillment by
NSX of its self-regulatory obligations,
including the appropriate allocation by
NSX of such financial, technological,
technical and personnel resources as
may be necessary or appropriate for
NSX to meet its obligations under the
[Act].’’ The purpose of proposed CBOE
Rule 2.50(a) is to provide that CBOE
will, through its control interest in
CBSX and consistent with its
relationship with CBSX, work with NSX
to establish and maintain adequate and
appropriate resources to enable NSX to
perform its self-regulatory obligations.
CBOE Rule 2.50 is designed to
facilitate NSX’s ability to fulfill its selfregulatory
obligations and, therefore, is
consistent with the Act, including
Section 6(b)(1) of the Act,28 which
requires, among other things, that a
national securities exchange be so
organized and have the capacity to carry
out the purposes of the Act, and to
comply and enforce compliance by its
members and persons associated with
its members, with the provisions of the
Act, the rules and regulations
thereunder, and the rules of the
exchange. Proposed Rule 2.50
represents CBOE’s commitment, as a
controlling owner of CBSX, to support
NSX in the fulfillment of NSX’s role as
an SRO.
4. CBOE Holdings and Regulated
Securities Exchange Subsidiaries
CBOE is wholly-owned by CBOE
Holdings, and as discussed above, CBOE
owns a controlling interest in CBSX.
The CBOE Holdings Certificate of
Incorporation contains provisions that
are applicable to ‘‘Regulated Securities
Exchange Subsidiaries’’ of CBOE
Holdings, which entities are defined as
‘‘any national securities exchange
controlled, directly or indirectly, by
[CBOE Holdings], including, but not
limited to CBOE.’’ 29 Various provisions
in the CBOE Holdings Certificate of
Incorporation reference ‘‘Regulated
Securities Exchange Subsidiary,’’
including Articles Sixth (voting and
ownership limitations), Eleventh
(amendments to the CBOE Holdings
Certificate of Incorporation must be
submitted to the board of each
Regulated Securities Exchange
Subsidiary), Twelfth (amendments to
the CBOE Holdings Bylaws must be
submitted to the board of each
Regulated Securities Exchange
Subsidiary), Fourteenth (submission to
jurisdiction arising out of or relating to
Regulated Securities Exchange
Subsidiaries’ activities), Fifteenth
(confidential information of Regulated
Securities Exchange Subsidiaries and
access to CBOE Holdings’ books and
records by Regulated Securities
Exchange Subsidiaries), and Sixteenth
(cooperation with the SEC and each
Regulated Securities Exchange
Subsidiary, consent to applicability of
various provisions, due regard to
preservation of regulatory
independence, and consideration of
effect of actions on each Regulated
Securities Exchange Subsidiary). NSX,
to the extent it is indirectly controlled
by CBOE Holdings by virtue of CBOE
Holdings’ control of CBOE and CBOE’s
controlling interest in CBSX, which in
turn will wholly-own NSX after the
consummation of the Transaction,
would qualify as a ‘‘Regulated Securities
Exchange Subsidiary.’’
5. Facility of CBOE
The proposed rule change amends
various provisions to clarify that the
operations of CBSX that relate to the
CBSX Stock Exchange trading facility
are a facility of CBOE under the Act,
while the aspect of CBSX that relates to
its control of NSX will not be a
‘‘facility’’ of CBOE. For example, the
proposal amends Section 1.7 of the
CBSX Operating Agreement to clarify
that the CBSX Trading Facility (and not
CBSX to the extent it will act as a
holding company for NSX) is a facility
of CBOE under the Act, and therefore
the CBSX Trading Facility will be
subject to self-regulation by CBOE, with
oversight by the Commission.30
6. Additional Changes
Finally, the proposed rule change
makes several non-substantive technical
and conforming changes throughout the
CBSX Operating Agreement, including:
updating the name and date of the CBSX
Operating Agreement; updating the
current Owners and their current
percentage interests and CBSX shares
owned; 31 replacing references to CBOE
members with CBOE trading permit
holders; 32 updating the table of contents
and section references; and adding new
defined terms and renumbering the
defined terms as necessary.33 In
connection with the updates to reflect
the current Owners, the proposed rule
change amends the definition of ‘‘Super
Majority of the Owners’’ to mean,
subject to the regulatory requirements
described in Section 1.8 of the CBSX
Operating Agreement, the affirmative
vote of both (i) all of the Owners of the
Series A Voting Shares at the time, and
(ii) Owners of the Series B Voting
Shares who then retain ownership of
Series B Voting Shares and represent at
least a twenty (20%) percentage interest
in CBSX, which more accurately
corresponds to CBSX’s current
ownership structure.34 The Commission
finds these non-substantive changes to
be consistent with the Act as they are
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35 See 15 U.S.C. 78c(a)(26).
36 See Securities Exchange Act Release No. 53963
(June 8, 2006), 71 FR 34660 (June 15, 2006) (SR–
NSX–2006–03) (Commission order approving NSX’s
demutualization).
37 See, e.g., Article 6 of the Certificate of
Incorporation of EDGA Exchange, Inc. and Article
9 of the Certificate of Incorporation of C2 Options
Exchange, Inc.
38 See A&R Certificate of Incorporation, Articles
Seventh and Eleventh.
39 See A&R Certificate of Incorporation, Article
Fifth, (b). See also, e.g., Article II, Section 7(a) of
the Amended and Restated By-Laws of BATS
Exchange, Inc. and Article II, Section 7(a) of the
Amended and Restated Bylaws of EDGA Exchange,
Inc.
40 15 U.S.C. 78f(b)(1).
necessary to reflect the acquisition by
CBSX of NSX following the Transaction.
B. NSX–2011–14
NSX proposes to amend its Certificate
of Incorporation and By-Laws to reflect
and address NSX’s proposed new
ownership pursuant to which NSX will
become wholly-owned by CBSX
following the Transaction. In addition,
NSX is making several other changes to
its governing documents that are not
directly related to the Transaction to
update and enhance the governing
documents and generally make them
consistent with parallel provisions
contained in the governing documents
of other SROs. Certain provisions of the
current NSX By-Laws that are historic in
nature are also proposed to be deleted
as no longer applicable.
Except as described below, NSX’s
governing documents, rules, and
manner of operation, including
restrictions on ownership and transfer,
registration as a national securities
exchange under Section 6 of the Act,
and the continuance of NSX as an
SRO35 will remain unchanged.36
In addition, the NSX proposal also
contains the CBSX Operating
Agreement, as revised in the
contemporaneous rule filing CBOE–
2011–107 and as described above, since
provisions in the CBSX Operating
Agreement are relevant to NSX’s
structure and operations. The proposed
amendments to the NSX governing
documents and the CBSX Operating
Agreement are intended to provide NSX
with the authority and ability to
effectively fulfill its self-regulatory
duties pursuant to the Act and the rules
promulgated thereunder. The proposed
amendments also modernize and
enhance the ownership and voting
limitations in order to guard against
undue influence over or interference
with the NSX’s regulatory functions and
fulfillment of its regulatory obligations
under the Act.
The proposed Amended and Restated
NSX Certificate of Incorporation (the
‘‘A&R Certificate’’) and Second
Amended and Restated NSX By-Laws
(the ‘‘A&R By-Laws’’), amended as
described below, and NSX Rules (which
are proposed to remain unchanged)
would continue to govern the activities
of NSX. These revised documents reflect
NSX’s status as a wholly-owned
subsidiary of CBSX, continued
management of NSX by the NSX Board
of Directors (‘‘NSX Board’’) and
designated officers, and the NSX’s
continuing self-regulatory
responsibilities pursuant to NSX’s
registration under Section 6 of the Act.
Currently, the NSX Board consists of
thirteen director positions, of which
seven are Independent, three are ETP
Holder, two are At Large, and one is the
NSX Chief Executive Officer. The
Transaction contemplates that all
current Exchange directors and
committee members, including the
Chief Executive Officer, will resign from
the Board and committees, as
applicable, effective upon closing. At
such time, the vacancies on the Board
and committees of the Board will be
filled in accordance with applicable
procedures contained in the A&R By-
Laws. Candidates with the necessary
qualifications will be appointed in
accordance with Sections 3 or 5, as
applicable, of the A&R By-Laws to fulfill
the expired portion of any vacancies
created by the resignation. Thereafter,
directors and committee members will
be nominated and elected in accordance
with the A&R By-Laws.
1. Amended and Restated Certificate of
Incorporation of NSX
Under the proposed rule change, the
requirement that NSX be at all times
wholly-owned by NSX Holdings is
proposed to be changed to allow for the
consummation of the Transaction and
acquisition of all of the outstanding
NSX stock by CBSX. To make clear that
NSX will be entirely owned by CBSX
(regardless of whether outstanding NSX
stock is voting or non-voting), the
proposed A&R Certificate would be
modified in Article IV to provide that,
at all times, all of the outstanding stock
of NSX shall be owned by CBSX.
In addition, new language is proposed
to be added to Articles VII and XI of the
NSX Certificate of Incorporation
designed to enable NSX Board and the
Commission to continue to exercise
oversight of NSX. In conformity with
similar language in other governing
documents of other exchanges,37 NSX
proposes to add a provision to each of
Articles VII and XI to make clear that
before any amendment to, or repeal of,
any provision of the NSX By-Laws and/
or Certificate of Incorporation shall be
effective, those changes shall be
submitted to the NSX Board and, if such
amendment or repeal must be filed with
or filed with and approved by the
Commission, then the proposed changes
shall not become effective until filed
with or filed with and approved by the
Commission.38 For purposes of clarity
regarding Commission approval of NSX
proposed rule changes, specific
reference to Section 19 of the Act and
the rules promulgated thereunder is also
introduced to Articles VII and XI.
Finally, consistent with similar
provisions in the governing documents
of other exchanges,39 the proposed A&R
Certificate in Article V is amended to
allow directors (other than ETP Holder
Directors) to be removed with or
without cause by a majority vote of
stockholders. This amendment is
intended to promote efficient NSX
governance while continuing to protect
and preserve the fair representation of
ETP Holders through the ETP Holder
Director election process contained in
NSX’s By-Laws.
The Commission believes that the
proposed A&R Certificate, as amended
to accommodate the Transaction, is
designed to facilitate the NSX’s ability
to fulfill its self-regulatory obligations
and are, therefore, consistent with the
Act. In particular, the Commission
believes the changes are consistent with
Section 6(b)(1) of the Act,40 which
requires, among other things, that a
national securities exchange be so
organized and have the capacity to carry
out the purposes of the Act, and to
comply and enforce compliance by its
members and persons associated with
its members, with the provisions of the
Act, the rules and regulations
thereunder, and the rules of the
exchange.
2. Second Amended and Restated By-
Laws of NSX
Under the proposed rule change, due
to the transfer of ownership of NSX
from NSX Holdings to CBSX, references
in the NSX By-Laws specific to NSX
Holdings are proposed to be replaced
with references to CBSX. Specifically,
Section 3.2(c) is proposed to be
modified to provide that no two or more
directors of NSX may be partners,
officers, or directors of the same person
or be affiliated with the same person,
unless such affiliation is with a national
securities exchange or CBSX. In
addition, Section 10.2 is proposed to be
modified to provide that in no event
shall members of the CBSX Board who
are not also members of the NSX Board,
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41 See, e.g., Third Amended and Restated Bylaws
of the C2 Options Exchange, Inc.; Second Amended
and Restated By-Laws of CBOE; Amended and
Restated By-Laws of BATS Exchange, Inc.; and the
Amended and Restated Bylaws of EDGA Exchange,
Inc.
42 See A&R By-Laws Section 3.2 (Board
composition requirements) and 1.1 (definitions of
‘‘Industry Director’’ and ‘‘Non-Industry Director’’).
See also e.g., Third Amended and Restated Bylaws
of the C2 Options Exchange, Inc., Article III, Section
1; Second Amended and Restated Bylaws of the
CBOE Article III, Section 1; and the Amended and
Restated By-Laws of BATS Exchange, Inc., Article
I.
43 See A&R By-Laws Section 1.5 (definitions) and
deletions to current By-Laws in Sections 3.2(b) and
3.4(e).
44 See deletions to current By-Laws in Sections
1.5, 3.2(b), 3.3, 3.4(d), 3.5(g) and 3.7.
45 See A&R By-Laws Section 3.2(a).
46 See A&R By-Laws Section 3.2(b). See also
Third Amended and Restated Bylaws of the C2
Options Exchange, Inc. Article III, Section 3.1;
Second Amended and Restated Bylaws of CBOE
Section III, Article 3.1; and the Amended and
Restated By-Laws of BATS Exchange, Inc., Article
III, Section 2.
47 See Third Amended and Restated Bylaws of the
C2 Options Exchange, Inc., Article III, Section 3.1;
and Second Amended and Restated Bylaws of the
CBOE. Section III, Article 3.1.
48 See A&R By-Laws Section 3.4(a) through (e).
49 See Third Amended and Restated Bylaws of the
C2 Options Exchange, Inc., Article III, Section 3.1;
Second Amended and Restated Bylaws of the CBOE
Article III, Section 3.1.
50 See NSX Notice, supra note 3, at 76 FR 75589.
51 See A&R By-Laws Section 3.7. See also Third
Amended and Restated Bylaws of the C2 Options
Exchange, Inc., Article III, Section 3.5; Second
Amended and Restated Bylaws of the CBOE Section
III, Article 3.5; Amended and Restated By-Laws of
BATS Exchange, Inc., Article III, Section 6; and
Amended and Restated Bylaws of EDGA Exchange,
Inc., Article III, Section 6.
52 See NSX Notice, supra note 3, at 76 FR 75589.
53 See A&R By-Laws Section 3.7(a)(i).
54 See Third Amended and Restated Bylaws of the
C2 Options Exchange, Inc., Article III, Section 3.5.
55 15 U.S.C. 78f(b)(1).
56 See, e.g., Third Amended and Restated Bylaws
of the C2 Options Exchange, Inc.; Second Amended
and Restated By-Laws of CBOE; Amended and
Restated By-Laws of BATS Exchange, Inc.; and
Amended and Restated Bylaws of EDGA Exchange,
Inc.
57 See A&R By-Laws Section 3.5(d) and (e). See
also, e.g., Amended and Restated By-Laws of BATS
Exchange, Inc., Article III, Section 4.
or any officers, staff, counsel, or
advisors of CBSX who are not also
officers, staff, counsel, or advisors of
NSX (or any committees of NSX), be
allowed to participate in any meetings
of the NSX Board (or any committee of
NSX) pertaining to the self-regulatory
function of NSX (including disciplinary
matters). These amendments recognize
CBSX as direct owner of NSX while
preserving a mechanism to prevent
undue influence over NSX’s selfregulatory
functions.
In connection with the ownership of
NSX by CBSX, new Section 10.1(b) will
provide that, for so long as CBSX
controls NSX, NSX shall promptly
inform the CBSX board of directors, in
writing, in the event that NSX has, or
experiences, a deficiency related to its
ability to carry out its obligations as a
national securities exchange under the
Act, including if NSX does not have or
is not appropriately allocating such
financial, technological, technical, and
personnel resources as may be necessary
or appropriate for NSX to meet its
obligations under the Act. This
provision will assist the CBSX board in
its oversight of NSX, and will also assist
CBOE, pursuant to CBOE Rule 2.50, in
CBOE’s commitment, as a controlling
owner of CBSX, to support NSX in the
fulfillment of NSX’s role as an SRO.
In addition, in conformity with the
board composition provisions of other
SROs,41 certain NSX Board composition
changes are proposed in order to
streamline and promote the efficiency
and effectiveness of NSX Board
governance. Specifically, By-Law
provisions regarding the number of
directors on the NSX Board are
proposed to be amended to allow any
number between (and including) seven
(7) and twenty-five (25). In addition, the
requirement that at least 50% of NSX
Board members be ‘‘Independent’’
Directors is proposed to be replaced
with a requirement that at least 50% of
NSX Board members be ‘‘Non-Industry’’
Directors, at least one of whom must
qualify as Independent.42 The category
of ‘‘At Large’’ Directors, which under
current By-Laws means directors who
are not Independent, is eliminated.43
Finally, the category of CBOE Director,
and corresponding provisions
discussing CBOE ownership of Class B
stock and related Board representation,
are proposed to be deleted as obsolete.44
As a result, the proposed NSX Board
composition after the closing of the
Transaction will consist of not fewer
than seven (7) and not more than
twenty-five (25) directors 45 and at all
times shall include the Chief Executive
Officer of NSX, at least 50% Non-
Industry Directors (at least one of whom
shall be an Independent Director), and
such number of ETP Holder Directors as
is necessary to comprise at least 20% of
the NSX Board.46 For purposes of
calculating the percentage of Non-
Industry Directors, the Chief Executive
Officer of NSX is excluded.47
By-Law provisions relating to the
terms of office of each type of director
are also amended from staggered threeyear
terms to one-year terms (other than
the CEO Director, which individual’s
term expires upon ceasing to be
Exchange Chief Executive Officer).48
NSX stated that the change to annual
from staggered three-year director terms,
which is consistent with provisions of
other SROs,49 promotes efficient
Exchange governance and effective ETP
Holder representation.50
With respect to the filling of vacancies
on the NSX Board,51 the A&R By-Laws
are proposed to be amended to
differentiate the procedure depending
on whether the vacancy is of an ETP
Holder Director or another type of
director. Under current NSX By-Laws,
no such distinction is made. NSX stated
that it believes a distinction is necessary
in order to promote, in the event of a
vacancy of an ETP Holder Director, the
fair representation of ETP Holders on
the NSX Board.52 For non-ETP Holder
Directors, the A&R By-Laws provide,
consistent with current Exchange By-
Laws, that any vacancy may be filled by
vote of a majority of the directors then
in office, although less than a quorum,
or by a sole remaining director,
provided such new director qualifies for
the category in which the vacancy
exists. A director elected to fill a
vacancy shall hold office until the next
annual meeting of stockholders, subject
to the election and qualification of his
or her successor and to his or her earlier
death, resignation, disqualification, or
removal.53 Regarding the filling of
vacancies of ETP Holder Directors, the
ETP Holder Director Nominating
Committee shall either recommend an
individual to the NSX Board to be
elected to fill such vacancy or provide
a list of recommended individuals to the
NSX Board from which the NSX Board
shall elect the individual to fill such
vacancy. The NSX Board shall elect
only individuals recommended by the
ETP Holder Director Nominating
Committee. The proposed amendments
conform to analogous provisions of the
governance documents of another
exchange.54
The Commission finds that the
proposed changes regarding the
composition of the Board are consistent
with the Act, including Section 6(b)(1)
of the Act,55 which requires, among
other things, that a national securities
exchange be organized to carry out the
purposes of the Act and comply with
the requirements of the Act. The
Commission notes that the proposed
changes are consistent with the board
composition provisions of other SROs.56
Certain other edits are proposed to the
current NSX By-Laws to promote clarity
and efficient governance. Such edits
generally are intended to conform NSX’s
governing documents to analogous
provisions contained in the governing
documents of other exchanges.57
Specifically, in order to promote fair
representation among all ETP Holders,
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58 See A&R By-Laws Sections 5.5 through 5.13.
See also, e.g., Amended and Restated By-Laws of
BATS Exchange, Inc., Article V, Section 6, and
Article VI, Section 2.
59 See A&R By-Laws Section 5.5(a), which
provides, in part, that the Executive Committee at
all times shall include the Chief Executive Officer
of NSX, at least 50% Non-Industry Directors, at
least one Independent Director and such number of
ETP Holder Directors as is necessary to comprise at
least 20% of the Executive Committee. See also,
e.g., Amended and Restated By-Laws of BATS
Exchange, Inc., Article V, Section 6(e).
60 See A&R By-Laws Section 8.1. See also, e.g.,
Amended and Restated By-Laws of BATS Exchange,
Inc., Article IX, Section 1.
61 See A&R By-Laws Section 3.8. See also, e.g.,
Article II, Section 7(a) of the Amended and Restated
By-Laws of BATS Exchange, Inc.; and Article II,
Section 7(a) of the Amended and Restated Bylaws
of EDGA Exchange, Inc.
62 See A&R By-Laws Section 10.3.
63 Non-substantive, conforming edits to the A&R
By-Laws are reflected in the following Sections of
the A&R By-Laws: 3.2(d) (clarifying that directors
may not serve if subject to statutory disqualification
as such term is defined in the Act); 3.7(c) (providing
that any grace periods for re-qualification of a
director must be for only a reasonable length of
time); 3.17(clarifying that NSX Board authority to
interpret Exchange By-Laws remains subject to the
Act); 5.2(clarifying that the composition
requirements set forth in description of each
committee in Article V control, and that
responsibility for maintenance of committee
composition in connection with new committee
appointments resides with the Chairman); 5.6
(specifying that the Regulatory Oversight
Committee shall at all times be comprised entirely
of Non-Industry Directors); and 6.3 (clarifying that
officer disqualification will terminate an officer’s
term of office). Relevant definitions are also added
to Section 1.1.
64 15 U.S.C. 78s(b)(2).
65 15 U.S.C. 78s(b)(2)(C)(iii).
66 15 U.S.C. 78s(b)(2).
67 17 CFR 200.30–3(a)(12).
A&R By-Laws Section 3.5(d) is proposed
to be amended to provide that no ETP
Holder, together with its affiliates, may
account for more than fifty percent
(50%) of the signatures endorsing a
particular candidate, and any signatures
of such ETP Holder, together with its
affiliates, in excess of fifty percent
(50%) limitation shall be disregarded.
Similarly, in order to promote fair
representation among all ETP Holders,
in an election among ETP Holders of
candidates for ETP Holder Director,
A&R By-Laws Section 3.5(e) is proposed
to be amended to provide that any vote
must be cast for a person duly
nominated on the list of candidates and
that no ETP Holder, together with its
affiliates, may account for more than
twenty percent (20%) of the votes cast
for a candidate, and any votes cast by
such ETP Holder, together with its
affiliates, in excess of such twenty
percent (20%) limitation shall be
disregarded. These provisions are
intended to guard against the exercise of
undue influence in the selection of ETP
Holder directors.
In addition, the A&R By-Laws have
been revised to include a fuller
description of the composition and
authority of Exchange committees.58
The description of the Executive
Committee, which has authority to act
on behalf of the full NSX Board under
certain circumstances, is amended to
clarify that the composition
requirements of such committee must
mirror the requirements applicable to
the full Board.59 Regarding other
Exchange committees, descriptions of
the duties and composition
requirements are included for each of
the ETP Holder Director Nominating
Committee, the Executive Compensation
Committee, the Audit Committee, the
Governance and Nominating
Committee, the Appeals Committee, and
the Business Conduct Committee.
Reference to a Securities Committee was
deleted.
Consistent with analogous provisions
contained in the governing documents
of other exchanges, the procedures for
amendments to NSX’s By-Laws are
proposed to be amended to provide for
NSX Board review and, as necessary,
Commission approval, prior to the
effectiveness of any amendments to the
Exchange’s By-Laws.60
Consistent with the proposed edits to
the A&R Certificate and similar
provisions in the governing documents
of other exchanges,61 the proposed A&R
By-Laws are further proposed to be
modified to allow directors (other than
ETP Holder Directors) to be removed
with or without cause by a majority vote
of stockholders. This amendment,
consistent with a parallel proposed
amendment to the NSX A&R Certificate,
is intended to promote efficient
Exchange governance while protecting
the fair representation of ETP Holders
through the ETP Holder Director
election process as set forth in the A&R
By-Laws.
In addition, to clarify that the
confidentiality provisions of Section
10.3 may not be interpreted to limit
Commission jurisdiction over NSX
books and records, a clarifying
statement is proposed to be added to
A&R By-Laws Section 10.3 to provide
that nothing in Section 10.3 shall be
interpreted as to limit or impede the
rights of the Commission to access and
examine Exchange confidential
information pursuant to the federal
securities laws and the rules and
regulations thereunder, or to limit or
impede the ability of any officers,
directors, employees, or agents of NSX
to disclose such confidential
information to the Commission.62
Finally, the proposed A&R By-Laws
contain several other non-substantive,
conforming edits to the A&R By-Laws
that are consistent with the principles
discussed above, as well as the Act and
the rules promulgated thereunder.63
C. Accelerated Approval
The Commission finds good cause,
pursuant to Section 19(b)(2) of the
Act,64 for approving each of the
proposed rule changes prior to the 30th
day after the date of publication of
notice in the Federal Register. Both the
NSX Notice and the CBOE Notice were
published in the Federal Register on
December 2, 2011. Pursuant to Section
19(b)(2)(C)(iii) of the Act,65 the
Commission may not approve a
proposed rule change earlier than 30
days after the date of publication thereof
unless the Commission finds good cause
for so doing. In the case of the CBOE
and NSX proposals, the 30th day occurs
in three days and falls on a nonbusiness
day (a Sunday). Further, the
comment period on each proposal has
closed, and the Commission has not
received comment on either proposal. In
light of the Commission’s findings that
the proposals are consistent with the
Act, the Commission believes that good
cause exists to accelerate approval of
each proposal by a few days in order to
accommodate the closing of the
Transaction in calendar year 2011.
IV. Conclusion
For the foregoing reasons, the
Commission finds that each of the
proposed rule changes are consistent
with the Act and the rules and
regulations thereunder applicable to a
national securities exchange.
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act,66 that the
proposed rule changes (SR–CBOE–
2011–107 and SR–NSX–2011–14) be
and hereby are approved on an
accelerated basis.
For the Commission, by the Division
of Trading and Markets, pursuant to
delegated authority.67
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2011–33826 Filed 1–4–12; 8:45 am]
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528 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
1 15 U.S.C. 78s(b)(1).
2 Securities Exchange Act Release No. 65788
(November 18, 2011), 76 FR 72741 (November 25,
2011).
3 Members will be able to input such limits into
the Trade Risk Pro interface in order to receive
system alerts in the event of a breach; however,
these limits will not trigger a block by NSCC on any
activity processed through NSCC’s clearance and
settlement systems.
SECURITIES AND EXCHANGE
COMMISSION
[Release No. 34–66068; File No. SR–NSCC–
2011–10]
Self-Regulatory Organizations; The
National Securities Clearing
Corporation; Order Granting Approval
of a Proposed Rule Change To Amend
Rules Relating To the Creation of a
Service To Provide Post-Trade
Information
December 29, 2011.
I. Introduction
On November 7, 2011, The National
Securities Clearing Corporation
(‘‘NSCC’’) filed proposed rule change
SR–NSCC–2011–10 with the Securities
and Exchange Commission
(‘‘Commission’’) pursuant to Section
19(b)(1) of the Securities Exchange Act
of 1934 (‘‘Act’’).1 Notice of the proposed
rule change was published in the
Federal Register on November 25,
2011.2 The Commission received no
comment letters. For the reasons
discussed below, the Commission is
granting approval of the proposed rule
change.
II. Description
NSCC is creating an optional service
for NSCC members, ‘‘Trade Risk Pro’’ or
‘‘DTCC Trade Risk Pro,’’ which will
enable members to monitor intraday
trading activity of their organizations,
their correspondent firms, or both
through review of post-trade data. An
effective risk management structure
provides for multiple check points,
including pre-trade controls and posttrade
surveillance. Industry participants
have indicated to NSCC that pre-trade
monitoring as a stand-alone risk
management tool may not provide
adequate protection for firms or against
systemic risk. For example, many orders
are never actually executed and thus a
pre-trade filter could overestimate
potential positions or could generate
false positives if not combined with
information about what orders are
actually executed. In addition, clearing
firms only see their correspondents’
orders that are routed through the
clearing firm’s trading desks or through
the firm’s order entry systems. Orders
sent directly to the market can bypass
pretrade controls. Trade Risk Pro will
provide NSCC’s members with a method
to monitor clearing activity in their
accounts and to set parameters that will
enable them to monitor exposure.
As approved, the service will be
available to NSCC members on a
voluntary basis to provide those
members electing to participate in the
service with: (1) Post-trade data relating
to unsettled equity and fixed income
securities trades for a given day that
have been compared or recorded
through NSCC’s trade capture
mechanisms on that day (‘‘RP Trade
Date Data’’) and (2) other information
based upon data the participating
member may itself provide at start of or
throughout the day (‘‘RP Memberprovided
Data’’), as provided in NSCC’s
Rules and Procedures governing the
proposed service (RP Trade Date Data
and RP Member-provided Data shall
collectively be referred to as ‘‘RP
Transaction Data’’). This will include
allowing members the ability to input or
load trade information from prior days
into the system to supplement their
view of overall risk exposure. As such,
the Trade Risk Pro service will offer an
industry-wide post-trade reporting
system that will allow members to
monitor their U.S. equity and fixedincome
trading exposure.
Overview of the Trade Risk Pro Service
Through Trade Risk Pro, NSCC will
utilize market and other information to
report post-trade activity to
participating members. Such reporting
will incorporate RP Trade Date Data
from transactions in equity and
municipal and corporate debt securities
after such transactions have: (1) Passed
through the NSCC’s edit checks and not
been pended or rejected and (2) been
recorded or compared through NSCC’s
Universal Trade Capture and/or Real-
Time Trade Matching trade capture and
comparison systems. In addition, Trade
Risk Pro will allow participating
members to input or load start of day
and intraday positions (i.e., RP Memberprovided
Data) to allow members to
view their organization’s (or one or
more correspondent’s) aggregate open
positions in securities cleared through
NSCC. Within Trade Risk Pro, members
will be able to create ‘‘Risk Entities’’ to
track activity for specific
correspondents and clients as well as
their own trading desks and to define
the rules for the aggregation of trade
data, to set parameters on open
positions allowable for each Risk Entity,
and to receive alerts for the display of
breaches or near breaches of the
parameters.3 Trade Risk Pro will
provide members with a screen-based
view of their trade data residing in
Trade Risk Pro for a given day
aggregated and organized according to
parameters set by the member. Displays
provided to participating members will
offer the option to view aggregate and
net value, to view share exposure across
markets and other liquidity
destinations, and to see exposure at the
CUSIP and individual trade levels. In
conformance with NSCC’s Rule 49
(Release of Clearing Data and Clearing
Fund Data), each member will only be
able to view information with respect to
its own clearing account(s). Trade Risk
Pro will be a reporting service only and
any action taken by a member as a result
of any alert, parameter breach, or other
information associated with the service
will be at the discretion of the member
and not either in whole or part by
NSCC.
NSCC will create a new Rule 54
(Trade Risk Pro) and Procedure XVII
(Trade Risk Pro) to reflect the proposed
rule changes described below. The new
rule change also will amend Rule 58
(Limitations of Liability) and will
update Rule 1 (Definitions) to include
definitions for RP Trade Data, RP
Member-provided Data, and RP
Transaction Data, as described more
fully below.
1. Establishing and Maintaining Risk
Entities and Limits
As an initial step in using the Trade
Risk Pro service, members will be
required to establish Risk Entities (e.g.,
trading activity of a single desk, a
correspondent, single or multiple NSCC
clearing number(s), or a combination of
entities). Trade Risk Pro will provide
members with the ability to create Risk
Entities through the defining and
updating of the data structure and
relationships for the entities to which
they assign a parameter or risk limit.
The Risk Entity definitions entered by
members will drive position
calculations and displays in Trade Risk
Pro. Trade Risk Pro will provide
members with a facility to set share and
dollar limits with respect to each Risk
Entity at a gross and net level, and it
may provide for additional limits as
NSCC may determine from time to time
are appropriate.
Through the use of trade arrays, each
member may define the Risk Entities so
that only trades that the member intends
to belong to that Risk Entity are
included. For each trade, relevant data
elements to create a trade array may
include: (1) The member’s account
number(s), (2) the executing broker, (3)
the submitting market or firm, and (4)
other categories as allowed by NSCC
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 529
4 Post-implementation of Trade Risk Pro, NSCC
may eventually at its discretion provide for realtime
updates.
5 15 U.S.C. 78q–1(b)(3)(F).
6 In approving this proposal, the Commission has
considered its impact on efficiency, competition,
and capital formation. 15 U.S.C. 78c(f).
7 17 CFR 200.30–3(a)(12).
from time to time. Use of these elements
will create an array so that each
transaction will be assigned by virtue of
the array to one or more Risk Entities.
Users can assign multiple trade arrays to
a single Risk Entity.
Once implemented, updates and
changes made to Risk Entities by the
member will take effect overnight with
a cut-off time designated by NSCC from
time to time.4 Although Trade Risk Pro
will prohibit double counting of trades
within the same Risk Entity, it is
possible that two separate Risk Entities
may contain defined elements as
specified by the member that cause a
specific trade to be included into both
Risk Entities.
2. Limit Monitoring
Trade Risk Pro will aggregate and
make available position information for
purposes of the member’s limit
monitoring. The aggregate data will be
the sum of RP Member-provided data
and RP Trade Date Data with the
aggregated data defined as RP
Transaction Data in NSCC’s Rules and
Procedures. RP Trade Date Data, RP
Member-provided Data, and other
relevant data will be aggregated and
sorted, and the data will then be
displayed to the member. The display
may include shares and values on a
gross or net basis or any other total
aggregation and sorting methods as
NSCC may from time to time make
available to members. RP Trade Date
Data will be carried at contract amount
unless another pricing method is
implemented by NSCC. RP Memberprovided
Data will be priced according
to information provided by the member.
Intraday allocations in the settlement
system will not be taken into
consideration because they are not fully
effective until money settlement
completes (i.e., after the day cycle). The
totals will be compared to the
parameters set by the members, and the
members will be alerted to breaches
based upon their set parameters. The
alerts may take the form of visual screen
changes or other notification methods.
The service will also provide updated
information when the alert is resolved
(e.g., when the Risk Entity is within the
relevant limit as a result of an offsetting
transaction reducing the position or the
participant raises the limit for a Risk
Entity). Information such as alert
history, members’ Risk Entity
definitions, end of day positions, and
other data that NSCC provides from
time to time will be supplied to
members in an end of day report.
3. No Effect on Trade Guaranty and
Other Considerations
The rule change will provide that any
reports and data supplied to members
through Trade Risk Pro is not intended
to impact the timing or status of the
guaranty of any transaction in CNS or
Balance Order Securities. In addition,
the issuance of information or data
through Trade Risk Pro to a member or
the lack of the issuance of information
will not of itself indicate or have any
bearing on the status of any trade
including, but not limited to, as
compared, locked-in, validated,
guaranteed, or not guaranteed.
4. Limitation of Liability
Trade Risk Pro provides members
with a facility to review and monitor
trade activity in a manner they select,
including providing members with the
ability to populate the service (but not
limited to the ability to input or load
positions), define Risk Entities and set
limits, and receive alerts and position
data of their choosing. Since NSCC is
not the originator of information made
available through Trade Risk Pro, NSCC
will make clear that it is not responsible
for the completeness or accuracy of
Trade Date Data or other information or
data which it receives from members or
third parties used in offering the Trade
Risk Pro service, for information or data
that is received and compared or
recorded by NSCC, or for any errors,
omissions, or delays which may occur
in the transmission of such data or
information. In addition, because not all
transactions are submitted to NSCC on
a real-time basis, NSCC can only
provide members using the service with
Trade Date Data as it becomes compared
or recorded. Accordingly, members
should be aware that such Trade Date
Data may not be complete.
5. Indemnification
Since each member may use the
information for purposes of its own
discretion, the rule change will provide
that any member participating in Trade
Risk Pro shall indemnify NSCC and any
or all of its employees, officers,
directors, shareholders, agents, and
participants who may sustain any loss,
liability or expense as a result of a third
party claim related to any act or
omission of the member made in
reliance upon data or information
transmitted through Trade Risk Pro by
NSCC to the member.
6. Implementation Time Frame
NSCC will implement the above
changes during the first quarter of 2012
or soon thereafter, with the actual
implementation date announced to
members through an Important Notice.
III. Discussion
Section 17A(b)(3)(F) of the Act
requires, among other things, that the
rules of a clearing agency be designed to
remove impediments to and perfect the
mechanism of a national system for the
prompt and accurate clearance and
settlement of securities transactions.5
The Commission believes that by
providing its members with a
mechanism to their monitor post-trade
activity on an intraday basis, the
proposed rule change should enhance
the risk management ability of those
members using the service. By
providing for enhanced risk
management, the proposed rule change
should help remove impediments to and
perfect the mechanism of the national
system for the prompt and accurate
clearance and settlement of securities
transactions.
Accordingly, for the reasons stated
above the Commission believes that the
proposed rule change is consistent with
NSCC’s obligation under Section 17A of
the Exchange Act and the rules and
regulations thereunder.6
IV. Conclusion
On the basis of the foregoing, the
Commission finds that the proposed
rule change is consistent with the
requirements of the Act, particularly
with the requirements of Section 17A of
the Act, and the rules and regulations
thereunder.
It is therefore ordered, pursuant to
Section 19(b)(2) of the Act, that the
proposed rule change (File No. SR–
NSCC–2011–10) be and hereby is
approved.
For the Commission by the Division of
Trading and Markets, pursuant to delegated
authority.7
Kevin M. O’Neill,
Deputy Secretary.
[FR Doc. 2011–33825 Filed 1–4–12; 8:45 am]
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530 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #12784 and #12785]
Vermont Disaster Number VT–00021
AGENCY: U.S. Small Business
Administration.
ACTION: Amendment 7.
SUMMARY: This is an amendment of the
Presidential declaration of a major
disaster for the State of Vermont
(FEMA—4022—DR), dated 09/01/2011.
Incident: Tropical Storm Irene.
Incident Period: 08/27/2011 through
09/02/2011.
Effective Date: 12/22/2011.
Physical Loan Application Deadline
Date: 12/15/2011.
EIDL Loan Application Deadline Date:
06/01/2012.
ADDRESSES: Submit completed loan
applications to: U.S. Small Business
Administration, Processing And
Disbursement Center, 14925 Kingsport
Road, Fort Worth, TX 76155.
FOR FURTHER INFORMATION CONTACT: A.
Escobar, Office of Disaster Assistance,
U.S. Small Business Administration,
409 3rd Street SW., Suite 6050,
Washington, DC 20416.
SUPPLEMENTARY INFORMATION: The notice
of the President’s major disaster
declaration for the State of Vermont,
dated 09/01/2011 is hereby amended to
extend the deadline for filing
applications for physical damages as a
result of this disaster to 12/15/2011.
All other information in the original
declaration remains unchanged.
(Catalog of Federal Domestic Assistance
Numbers 59002 and 59008)
James E. Rivera,
Associate Administrator for Disaster
Assistance.
[FR Doc. 2011–33831 Filed 1–4–12; 8:45 am]
BILLING CODE 8025–01–P
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #12909 and #12910]
Virginia Disaster Number VA–00037
AGENCY: U.S. Small Business
Administration.
ACTION: Amendment 1.
SUMMARY: This is an amendment of the
Presidential declaration of a major
disaster for the Commonwealth of
Virginia (FEMA–4042–DR), dated
11/04/2011.
Incident: Earthquake.
Incident Period: 08/23/2011 through
10/25/2011.
Effective Date: 12/21/2011.
Physical Loan Application Deadline
Date: 03/05/2012.
EIDL Loan Application Deadline Date:
08/06/2012.
ADDRESSES: Submit completed loan
applications to: U.S. Small Business
Administration, Processing and
Disbursement Center, 14925 Kingsport
Road, Fort Worth, TX 76155.
FOR FURTHER INFORMATION CONTACT: A.
Escobar, Office of Disaster Assistance,
U.S. Small Business Administration,
409 3rd Street SW., Suite 6050,
Washington, DC 20416.
SUPPLEMENTARY INFORMATION: The notice
of the President’s major disaster
declaration for the Commonwealth of
Virginia, dated 11/04/2011 is hereby
amended to extend the deadline for
filing applications for physical damages
as a result of this disaster to 03/05/2012.
All other information in the original
declaration remains unchanged.
(Catalog of Federal Domestic Assistance
Numbers 59002 and 59008)
James E. Rivera,
Associate Administrator for Disaster
Assistance.
[FR Doc. 2011–33839 Filed 1–4–12; 8:45 am]
BILLING CODE 8025–01–P
SMALL BUSINESS ADMINISTRATION
[Disaster Declaration #12976 and #12977]
Alaska Disaster # AK–00022
AGENCY: U.S. Small Business
Administration.
ACTION: Notice.
SUMMARY: This is a Notice of the
Presidential declaration of a major
disaster for Public Assistance Only for
the State of Alaska (FEMA–4050–DR),
dated 12/22/2011.
Incident: Severe Winter Storms and
Flooding.
Incident Period: 11/08/2011 through
11/10/2011
Effective Date: 12/22/2011.
Physical Loan Application Deadline
Date: 02/21/2012.
Economic Injury (EIDL) Loan
Application Deadline Date: 09/24/2012.
ADDRESSES: Submit completed loan
applications to: U.S. Small Business
Administration, Processing and
Disbursement Center, 14925 Kingsport
Road, Fort Worth, TX 76155.
FOR FURTHER INFORMATION CONTACT: A.
Escobar, Office of Disaster Assistance,
U.S. Small Business Administration,
409 3rd Street SW., Suite 6050,
Washington, DC 20416.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that as a result of the
President’s major disaster declaration on
12/22/2011, Private Non-Profit
organizations that provide essential
services of governmental nature may file
disaster loan applications at the address
listed above or other locally announced
locations.
The following areas have been
determined to be adversely affected by
the disaster:
Primary Counties: Bering Strait REAA,
Lower Kuskokwim REAA, Lower
Yukon REAA, North Slope
Borough, Southwest Region REAA.
The Interest Rates are:
Percent
For Physical Damage:
Non-Profit Organizations with
Credit Available Elsewhere ... 3.125
Non-Profit Organizations without
Credit Available Elsewhere
..................................... 3.000
For Economic Injury:
Non-Profit Organizations without
Credit Available Elsewhere
..................................... 3.000
The number assigned to this disaster
for physical damage is 12976B and for
economic injury is 12977B.
(Catalog of Federal Domestic Assistance
Numbers 59002 and 59008)
James E. Rivera,
Associate Administrator for Disaster
Assistance.
[FR Doc. 2011–33837 Filed 1–4–12; 8:45 am]
BILLING CODE 8025–01–P
DEPARTMENT OF STATE
[Public Notice 7714]
Department of State Advisory
Committee on Private International
Law: Notice of Renewal of Charter
The Charter of the Department of
State’s Advisory Committee on Private
International Law has been renewed,
effective for a two-year period. Pursuant
to the Federal Advisory Committee Act,
notification of the renewal was provided
to the Senate Foreign Relations
Committee, the House Foreign Affairs
Committee, and the Library of Congress
on December 16, 2011. The Advisory
Committee assists the State Department
to monitor domestic and international
developments in private international
law; provides a means for state, local
and private sector viewpoints to be
made available to the Department; and
provides information to assist in the
development of positions for efforts to
harmonize or negotiate uniform rules of
private law at the international level
through model national laws, legal
guidelines, treaties, and other means.
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 531
The Advisory Committee focuses on
work undertaken or proposed in various
international bodies, including but not
limited to the Hague Conference on
Private International Law; the United
Nations Commission on International
Trade Law (UNCITRAL), the
International Institute for the
Unification of Private Law (UNIDROIT),
and the Organization of American States
(OAS).
Topics considered by the Advisory
Committee have included, for example:
jurisdiction and enforcement of foreign
judgments; party choice of forum;
arbitration rules; enforcement of foreign
arbitral awards; the protection of
minors; inter-country adoption; child
abduction; cross-border insolvency;
electronic commerce; secured finance;
carriage of goods by sea and by other
modes of transportation; cross-border
securities transactions; online dispute
resolution; international leasing and
franchising; and other topics of current
interest in private law as they arise.
Advisory Committee meetings are
open to the public, and participation by
the public is encouraged. Interested
persons, organizations, academic
centers and others can participate in all
aspects of the Committee’s work.
Notices of meetings are published in the
Federal Register at least 15 calendar
days prior to the meeting date, unless
circumstances require that the meeting
be held with a shorter notice period.
Interested parties can obtain additional
information from the Office of the
Assistant Legal Adviser for Private
International Law (L/PIL), Department
of State, at (202) 776–8420, fax 776–
8482, or by email to Tricia Smeltzer at
SmeltzerTK@State.gov.
Dated: December 23, 2011.
Harold S. Burman,
Executive Director, Department of State
Advisory, Committee on Private International
Law.
[FR Doc. 2011–33830 Filed 1–4–12; 8:45 am]
BILLING CODE 4710–08–P
DEPARTMENT OF TRANSPORTATION
Federal Highway Administration
Federal Transit Administration
Notice of Limitation on Claims Against
a Proposed Transportation Project
AGENCY: Federal Highway
Administration (FHWA), Federal
Transit Administration (FTA), DOT.
ACTION: Notice of limitation on claims
for judicial review of actions by FHWA,
FTA and other agencies.
SUMMARY: This notice announces final
environmental actions taken by FHWA,
FTA, and other agencies that are final
within the meaning of Federal
transportation law. The actions relate to
the Interstate 5 Columbia River Crossing
Project in Clark County, Washington
and Multnomah County, Oregon.
DATES: By this notice, FHWA and FTA
are advising the public of final agency
actions subject to 23 U.S.C. 139(l). A
claim seeking judicial review of the
Federal agency actions announced
herein for the listed transportation
project will be barred unless the claim
is filed on or before July 3, 2012.
FOR FURTHER INFORMATION CONTACT: John
McAvoy, Major Project Manager,
Federal Highway Administration,
Western Federal Lands Highway
Division, 610 E. Fifth Street, Vancouver,
WA 98661; telephone: (360) 619–7591;
and email: john.mcavoy@dot.gov, or
Terence Plaskon, Environmental
Protection Specialist, Office of Planning
and the Environment, FTA; telephone:
(202) 366–0442; and email: terence.
plaskon@dot.gov. FHWA and FTA
headquarters are located at 1200 New
Jersey Avenue SE., Washington, DC
20590. Office hours are from 9 a.m. to
5:30 p.m., EST, Monday through Friday,
except Federal holidays.
SUPPLEMENTARY INFORMATION: Notice is
hereby given that FHWA, FTA and other
agencies have taken final agency actions
by issuing licenses, permits, and
approvals for the transportation project
in the States of Oregon and Washington.
Federal Lead Agencies: Federal
Highway Administration (FHWA) and
Federal Transit Administration (FTA).
Project Sponsors: Oregon and
Washington Departments of
Transportation (ODOT, WSDOT),
Southwest Washington Regional
Transportation Council (RTC), Metro,
Clark County Public Transportation
Benefit Area (C–TRAN), and Tri-County
Metropolitan Transportation District
(TriMet). Project Description: The
project is a bridge, transit, highway, and
bicycle and pedestrian improvement
project, consisting of a new river
crossing over the Columbia River,
improvements to highway interchanges
and the local street network, bicycle and
pedestrian improvements, and an
extension of light rail from the Expo
Center in Portland (OR) to Clark College
in Vancouver (WA). The actions by the
Federal and other agencies on this
project, as well as the laws under which
such actions were taken, are described
in the Final Environmental Impact
Statement (FEIS) for the project
published in the Federal Register on
September 23, 2011, and in the Record
of Decision issued on December 7, 2011.
The FEIS and ROD are available by
contacting FHWA at the address above
or can be downloaded from the project
Web site at
www.columbiarivercrossing.org.
This notice applies to all FHWA,
FTA, and other agency decisions on the
listed project as of the issuance date of
this notice and all laws under which
such actions were taken, including, but
not limited to those arising under the
following laws, as amended:
1. General: National Environmental
Policy Act [42 U.S.C. 4321–4347];
Federal-Aid Highway Act [23 U.S.C.
109]; the Federal transit statutes [49
U.S.C. Chapter 53].
2. Air: Clean Air Act, as amended [42
U.S.C. 7401–7671(q)].
3. Land: Section 4(f) of the
Department of Transportation Act of
1966 [49 U.S.C. 303]; Landscaping and
Scenic Enhancement (Wildflowers) [23
U.S.C. 319].
4. Wildlife: Endangered Species Act
[16 U.S.C. 1531–1544]; Anadromous
Fish Conservation Act [16 U.S.C.
757(a)–757(f)]; Fish and Wildlife
Coordination Act [16 U.S.C. 661–
667(e)]; Magnuson-Stevenson Fishery
Conservation and Management Act of
1976, as amended [16 U.S.C. 1801 et
seq.]; Migratory Bird Treaty Act [16
U.S.C. 703–712].
5. Historic and Cultural Resources:
Section 106 of the National Historic
Preservation Act of 1966, as amended
[16 U.S.C. 470f]; Archaeological
Resources Protection Act of 1977 [16
U.S.C. 470aa–470mm]; Archaeological
and Historic Preservation Act [16 U.S.C.
469–469c–2]; Native American Grave
Protection and Repatriation Act [25
U.S.C. 3001–3013].
6. Social and Economic: Civil Rights
Act of 1964 [42 U.S.C. 2000(d)–
2000(d)(1)); American Indian Religious
Freedom Act [42 U.S.C. 1996); Farmland
Protection Policy Act [7 U.S.C. 4201–
4209]; the Uniform Relocation
Assistance and Real Property
Acquisition Policies Act of 1970, as
amended [42 U.S.C. 61].
7. Wetlands and Water Resources:
Clean Water Act, 33 U.S.C. 1251–1377
[Section 404, Section 401, Section 319];
Coastal Zone Management Act [16
U.S.C. 1451–1465]; Land and Water
Conservation Fund [16 U.S.C. 4601–4–
4601–11]; Safe Drinking Water Act [42
U.S.C. 300f et seq.]; Rivers and Harbors
Act of 1899 [33 U.S.C. 401–406]; TEA–
21 Wetlands Mitigation [23 U.S.C.
103(b)(6)(m), 133(b)(11)]; Flood Disaster
Protection Act [42 U.S.C. 4001–4129].
8. Executive Orders: E.O. 11990
Protection of Wetlands; E.O. 11988
Floodplain Management; E.O. 12898,
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532 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
Federal Actions to Address
Environmental Justice in Minority
Populations and Low Income
Populations; E.O. 11593 Protection and
Enhancement of Cultural Resources;
E.O. 13007 Indian Sacred Sites; E.O.
13287 Preserve America; E.O. 13175
Consultation and Coordination with
Indian Tribal Governments; E.O. 11514
Protection and Enhancement of
Environmental Quality; E.O. 13112
Invasive Species. (Catalog of Federal
Domestic Assistance Program Number
20.205, Highway Planning and
Construction. The regulations
implementing Executive Order 12372
regarding intergovernmental
consultation on Federal programs and
activities apply to this program.)
Nothing in this notice creates a cause of
action under these executive orders.
Issued on: December 29, 2011.
John McAvoy,
FHWA Major Project Manager, Vancouver,
WA.
Lucy Garliauskas,
Associate Administrator for Planning and
Environment, Washington, DC.
[FR Doc. 2011–33784 Filed 1–4–12; 8:45 am]
BILLING CODE 4910–57–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[FMCSA Docket No. FMCSA–2011–0300]
Qualification of Drivers; Exemption
Applications; Diabetes Mellitus
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA), DOT.
ACTION: Notice of final disposition.
SUMMARY: FMCSA announces its
decision to exempt twenty-two
individuals from its rule prohibiting
persons with insulin-treated diabetes
mellitus (ITDM) from operating
commercial motor vehicles (CMVs) in
interstate commerce. The exemptions
will enable these individuals to operate
CMVs in interstate commerce.
DATES: The exemptions are effective
January 5, 2012. The exemptions expire
on January 5, 2014.
FOR FURTHER INFORMATION CONTACT:
Elaine M. Papp, Chief, Medical
Programs Division, (202) 366–4001,
fmcsamedical@dot.gov, FMCSA, Room
W64–224, Department of
Transportation, 1200 New Jersey
Avenue SE., Washington, DC 20590–
0001. Office hours are from 8:30 a.m. to
5 p.m., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
Electronic Access
You may see all the comments online
through the Federal Document
Management System (FDMS) at: http://
www.regulations.gov.
Docket: For access to the docket to
read background documents or
comments, go to http://
www.regulations.gov and/or Room
W12–140 on the ground level of the
West Building, 1200 New Jersey Avenue
SE., Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays.
Privacy Act: Anyone may search the
electronic form of all comments
received into any of DOT’s dockets by
the name of the individual submitting
the comment (or of the person signing
the comment, if submitted on behalf of
an association, business, labor union, or
other entity). You may review DOT’s
Privacy Act Statement for the Federal
Docket Management System (FDMS)
published in the Federal Register on
January 17, 2008 (73 FR 3316), or you
may visit http://edocket.access.gpo.gov/
2008/pdf/E8-785.pdf.
Background
On November 16, 2011, FMCSA
published a notice of receipt of Federal
diabetes exemption applications from
twenty individuals and requested
comments from the public (76 FR
71112). The public comment period
closed on December 16, 2011, and no
comments were received.
FMCSA has evaluated the eligibility
of the twenty applicants and determined
that granting the exemptions to these
individuals would achieve a level of
safety equivalent to or greater than the
level that would be achieved by
complying with the current regulation
49 CFR 391.41(b)(3).
Two individuals, Mr. Matthew J.
Cipolloni (NJ) and Mr. Michael K.
Schulist (MI) were both published in a
notice of comments published on
October 17, 2011 (76 FR 64165). They
were both granted exemptions on
December 19, 2011 but their names were
inadvertently omitted from the Notice of
Final Disposition published on that date
(76 FR 78718) and they are now
included in this notice.
Diabetes Mellitus and Driving
Experience of the Applicants
The Agency established the current
requirement for diabetes in 1970
because several risk studies indicated
that drivers with diabetes had a higher
rate of crash involvement than the
general population. The diabetes rule
provides that ‘‘A person is physically
qualified to drive a commercial motor
vehicle if that person has no established
medical history or clinical diagnosis of
diabetes mellitus currently requiring
insulin for control’’ (49 CFR
391.41(b)(3)).
FMCSA established its diabetes
exemption program, based on the
Agency’s July 2000 study entitled ‘‘A
Report to Congress on the Feasibility of
a Program to Qualify Individuals with
Insulin-Treated Diabetes Mellitus to
Operate in Interstate Commerce as
Directed by the Transportation Act for
the 21st Century.’’ The report concluded
that a safe and practicable protocol to
allow some drivers with ITDM to
operate CMVs is feasible. The
September 3, 2003 (68 FR 52441),
Federal Register notice in conjunction
with the November 8, 2005 (70 FR
67777), Federal Register notice provides
the current protocol for allowing such
drivers to operate CMVs in interstate
commerce.
These twenty-two applicants have
had ITDM over a range of 1 to 23 years.
These applicants report no severe
hypoglycemic reactions resulting in loss
of consciousness or seizure, requiring
the assistance of another person, or
resulting in impaired cognitive function
that occurred without warning
symptoms, in the past 12 months and no
recurrent (2 or more) severe
hypoglycemic episodes in the past 5
years. In each case, an endocrinologist
verified that the driver has
demonstrated a willingness to properly
monitor and manage his/her diabetes
mellitus, received education related to
diabetes management, and is on a stable
insulin regimen. These drivers report no
other disqualifying conditions,
including diabetes-related
complications. Each meets the vision
requirement at 49 CFR 391.41(b)(10).
The qualifications and medical
condition of each applicant were stated
and discussed in detail in the November
16, 2011, Federal Register notice and
they will not be repeated in this notice.
Discussion of Comment
FMCSA did not receive any
comments in this proceeding.
Basis for Exemption Determination
Under 49 U.S.C. 31136(e) and 31315,
FMCSA may grant an exemption from
the diabetes requirement in 49 CFR
391.41(b)(3) if the exemption is likely to
achieve an equivalent or greater level of
safety than would be achieved without
the exemption. The exemption allows
the applicants to operate CMVs in
interstate commerce.
To evaluate the effect of these
exemptions on safety, FMCSA
considered medical reports about the
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 533
applicants’ ITDM and vision, and
reviewed the treating endocrinologists’
medical opinion related to the ability of
the driver to safely operate a CMV while
using insulin.
Consequently, FMCSA finds that in
each case exempting these applicants
from the diabetes requirement in 49 CFR
391.41(b)(3) is likely to achieve a level
of safety equal to that existing without
the exemption.
Conditions and Requirements
The terms and conditions of the
exemption will be provided to the
applicants in the exemption document
and they include the following: (1) That
each individual submit a quarterly
monitoring checklist completed by the
treating endocrinologist as well as an
annual checklist with a comprehensive
medical evaluation; (2) that each
individual reports within 2 business
days of occurrence, all episodes of
severe hypoglycemia, significant
complications, or inability to manage
diabetes; also, any involvement in an
accident or any other adverse event in
a CMV or personal vehicle, whether or
not it is related to an episode of
hypoglycemia; (3) that each individual
provide a copy of the ophthalmologist’s
or optometrist’s report to the medical
examiner at the time of the annual
medical examination; and (4) that each
individual provide a copy of the annual
medical certification to the employer for
retention in the driver’s qualification
file, or keep a copy in his/her driver’s
qualification file if he/she is selfemployed.
The driver must also have a
copy of the certification when driving,
for presentation to a duly authorized
Federal, State, or local enforcement
official.
Conclusion
Based upon its evaluation of the
twenty-two exemption applications,
FMCSA exempts, George T. Beard (VA),
Gary L. Breitenbach (SC), Matthew J.
Cipolloni (NJ), Matthew G. Denisov
(NE), Marlin L. Enquist (SD), Steven W.
Gerling (IA), Jackie D. Greenlee (MO),
Justin W. Jackson (OK), Edward L. Keith
(IL), David T. Kylander (MO), Eugene J.
Nowicki (MI), Jonathan R. Oskin (PA),
Kevin A. Perdue (MD), Michael E. Pleak
(IN), Sarah M. Powell (NM), Michael K.
Schulist (MI), Christopher C.
Stephenson (KS), Richard F. VanPelt
(NY), Michael A. Villareal (AZ), Richard
L. White (MS), Jon W. Wood (MN) and
Paul A. Wright (NY) from the ITDM
requirement in 49 CFR 391.41(b)(3),
subject to the conditions listed under
‘‘Conditions and Requirements’’ above.
In accordance with 49 U.S.C. 31136(e)
and 31315 each exemption will be valid
for two years unless revoked earlier by
FMCSA. The exemption will be revoked
if the following occurs: (1) The person
fails to comply with the terms and
conditions of the exemption; (2) the
exemption has resulted in a lower level
of safety than was maintained before it
was granted; or (3) continuation of the
exemption would not be consistent with
the goals and objectives of 49 U.S.C.
31136(e) and 31315. If the exemption is
still effective at the end of the 2-year
period, the person may apply to FMCSA
for a renewal under procedures in effect
at that time.
Issued on: December 22, 2011.
Larry W. Minor,
Associate Administrator for Policy.
[FR Doc. 2011–33777 Filed 1–4–12; 8:45 am]
BILLING CODE 4910–EX–P
DEPARTMENT OF TRANSPORTATION
Federal Motor Carrier Safety
Administration
[Docket No. FMCSA–2011–0367]
Qualification of Drivers; Exemption
Applications; Diabetes Mellitus
AGENCY: Federal Motor Carrier Safety
Administration (FMCSA).
ACTION: Notice of applications for
exemption from the diabetes mellitus
requirement; request for comments.
SUMMARY: FMCSA announces receipt of
applications from seventeen individuals
for exemption from the prohibition
against persons with insulin-treated
diabetes mellitus (ITDM) operating
commercial motor vehicles (CMVs) in
interstate commerce. If granted, the
exemptions would enable these
individuals with ITDM to operate CMVs
in interstate commerce.
DATES: Comments must be received on
or before February 6, 2012.
ADDRESSES: You may submit comments
bearing the Federal Docket Management
System (FDMS) Docket No. FMCSA–
2011–0367 using any of the following
methods:
• Federal eRulemaking Portal: Go to
http://www.regulations.gov. Follow the
on-line instructions for submitting
comments.
• Mail: Docket Management Facility;
U.S. Department of Transportation, 1200
New Jersey Avenue SE., West Building
Ground Floor, Room W12–140,
Washington, DC 20590–0001.
• Hand Delivery: West Building
Ground Floor, Room W12–140, 1200
New Jersey Avenue SE., Washington,
DC, between 9 a.m. and 5 p.m., Monday
through Friday, except Federal holidays.
• Fax: 1–(202) 493–2251.
Instructions: Each submission must
include the Agency name and the
docket numbers for this notice. Note
that all comments received will be
posted without change to http://www.
regulations.gov, including any personal
information provided. Please see the
Privacy Act heading below for further
information.
Docket: For access to the docket to
read background documents or
comments, go to http://www.
regulations.gov at any time or Room
W12–140 on the ground level of the
West Building, 1200 New Jersey Avenue
SE., Washington, DC, between 9 a.m.
and 5 p.m., Monday through Friday,
except Federal holidays. The Federal
Docket Management System (FDMS) is
available 24 hours each day, 365 days
each year. If you want acknowledgment
that we received your comments, please
include a self-addressed, stamped
envelope or postcard or print the
acknowledgement page that appears
after submitting comments on-line.
Privacy Act: Anyone may search the
electronic form of all comments
received into any of our dockets by the
name of the individual submitting the
comment (or of the person signing the
comment, if submitted on behalf of an
association, business, labor union, etc.).
You may review DOT’s Privacy Act
Statement for the FDMS published in
the Federal Register on January 17,
2008 (73 FR 3316), or you may visit
http://edocket.access.gpo.gov/2008/pdf/
E8-785.pdf.
FOR FURTHER INFORMATION CONTACT:
Elaine M. Papp, Chief, Medical
Programs Division, (202) 366–4001,
fmcsamedical@dot.gov, FMCSA,
Department of Transportation, 1200
New Jersey Avenue SE., Room W64–
224, Washington, DC 20590–0001.
Office hours are from 8:30 a.m. to 5
p.m., Monday through Friday, except
Federal holidays.
SUPPLEMENTARY INFORMATION:
Background
Under 49 U.S.C. 31136(e) and 31315,
FMCSA may grant an exemption from
the Federal Motor Carrier Safety
Regulations for a 2-year period if it finds
‘‘such exemption would likely achieve a
level of safety that is equivalent to or
greater than the level that would be
achieved absent such exemption.’’ The
statute also allows the Agency to renew
exemptions at the end of the 2-year
period. The seventeen individuals listed
in this notice have recently requested
such an exemption from the diabetes
prohibition in 49 CFR 391.41(b)(3)
which applies to drivers of CMVs in
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534 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
interstate commerce. Accordingly, the
Agency will evaluate the qualifications
of each applicant to determine whether
granting the exemption will achieve the
required level of safety mandated by the
statutes.
Qualifications of Applicants
Randall T. Buffkin
Mr. Buffkin, age 50, has had ITDM
since 2011. His endocrinologist
examined him in 2011 and certified that
he has had no severe hypoglycemic
reactions resulting in loss of
consciousness, requiring the assistance
of another person, or resulting in
impaired cognitive function that
occurred without warning in the past 12
months and no recurrent (2 or more)
severe hypoglycemic episodes in the
last 5 years. His endocrinologist certifies
that Mr. Buffkin understands diabetes
management and monitoring, has stable
control of his diabetes using insulin,
and is able to drive a CMV safely. Mr.
Buffkin meets the vision requirements
of 49 CFR 391.41(b)(10). His optometrist
examined him in 2011 and certified that
he does not have diabetic retinopathy.
He holds a Class A Commercial Driver’s
License (CDL) from North Carolina.
Gary L. Camden
Mr. Camden, 58, has had ITDM since
2005. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Camden understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Camden meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Indiana.
Loren A. Cox
Mr. Cox, 53, has had ITDM since
2011. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Cox understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Cox meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from New York.
Dennis D. Dingman
Mr. Dingman, 63, has had ITDM since
2001. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Dingman understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Dingman meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class R
operator’s license from Colorado.
Daryl F. Gilbertson
Mr. Gilbertson, 34, has had ITDM
since 2011. His endocrinologist
examined him in 2011 and certified that
he has had no severe hypoglycemic
reactions resulting in loss of
consciousness, requiring the assistance
of another person, or resulting in
impaired cognitive function that
occurred without warning in the past 12
months and no recurrent (2 or more)
severe hypoglycemic episodes in the
last 5 years. His endocrinologist certifies
that Mr. Gilbertson understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Gilbertson meets the vision
requirements of 49 CFR 391.41(b)(10).
His ophthalmologist examined him in
2011 and certified that he does not have
diabetic retinopathy. He holds a Class B
CDL from Wisconsin.
Alfred Gutierrez, II
Mr. Gutierrez, 36, has had ITDM since
2009. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Gutierrez understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Gutierrez meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Oklahoma.
Matthew D. Hulse
Mr. Hulse, 42, has had ITDM since
2010. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Hulse understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Hulse meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Kansas.
Jeremy L. Igert
Mr. Igert, 35, has had ITDM since
2008. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Igert understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Igert meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Missouri.
Neil E. Karvonen
Mr. Karvonen, 24, has had ITDM
since 1994. His endocrinologist
examined him in 2011 and certified that
he has had no severe hypoglycemic
reactions resulting in loss of
consciousness, requiring the assistance
of another person, or resulting in
impaired cognitive function that
occurred without warning in the past 12
months and no recurrent (2 or more)
severe hypoglycemic episodes in the
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Federal Register /Vol. 77, No. 3 /Thursday, January 5, 2012 /Notices 535
last 5 years. His endocrinologist certifies
that Mr. Karvonen understands diabetes
management and monitoring, has stable
control of his diabetes using insulin,
and is able to drive a CMV safely. Mr.
Karvonen meets the vision requirements
of 49 CFR 391.41(b)(10). His optometrist
examined him in 2011 and certified that
he does not have diabetic retinopathy.
He holds a Class A CDL from
Washington.
Damon A. Kruger
Mr. Kruger, 32, has had ITDM since
1993. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Kruger understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Kruger meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Colorado.
Bryan R. Lee
Mr. Lee, 39, has had ITDM since 2010.
His endocrinologist examined him in
2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Lee understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Lee meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds an
operator’s license from Michigan.
Earl T. Morton
Mr. Morton, 58, has had ITDM since
2011. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Morton understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Morton meets the vision
requirements of 49 CFR 391.41(b)(10).
His ophthalmologist examined him in
2011 and certified that he has stable
nonproliferative diabetic retinopathy.
He holds a Class A CDL from Virginia.
Richard A. Norstebon
Mr. Norstebon, 54, has had ITDM
since 2005. His endocrinologist
examined him in 2011 and certified that
he has had no severe hypoglycemic
reactions resulting in loss of
consciousness, requiring the assistance
of another person, or resulting in
impaired cognitive function that
occurred without warning in the past 12
months and no recurrent (2 or more)
severe hypoglycemic episodes in the
last 5 years. His endocrinologist certifies
that Mr. Norstebon understands diabetes
management and monitoring, has stable
control of his diabetes using insulin,
and is able to drive a CMV safely. Mr.
Norstebon meets the vision
requirements of 49 CFR 391.41(b)(10).
His ophthalmologist examined him in
2011 and certified that he has stable
nonproliferative diabetic retinopathy.
He holds a Class D operator’s license
from North Dakota.
Donald J. Olbinski
Mr. Olbinski, 58, has had ITDM since
2006. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Olbinski understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Olbinski meets the vision
requirements of 49 CFR 391.41(b)(10).
His ophthalmologist examined him in
2011 and certified that he does not have
diabetic retinopathy. He holds a Class B
CDL from Illinois.
Kevin E. Risley
Mr. Risley, 50, has had ITDM since
2010. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Risley understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Risley meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Indiana.
Steven L. Schmenk
Mr. Schmenk, 54, has had ITDM since
2009. His endocrinologist examined him
in 2011 and certified that he has had no
severe hypoglycemic reactions resulting
in loss of consciousness, requiring the
assistance of another person, or
resulting in impaired cognitive function
that occurred without warning in the
past 12 months and no recurrent (2 or
more) severe hypoglycemic episodes in
the last 5 years. His endocrinologist
certifies that Mr. Schmenk understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Schmenk meets the vision
requirements of 49 CFR 391.41(b)(10).
His optometrist examined him in 2011
and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Ohio.
Benny L. Westbrooks
Mr. Westbrooks, 60, has had ITDM
since 2011. His endocrinologist
examined him in 2011 and certified that
he has had no severe hypoglycemic
reactions resulting in loss of
consciousness, requiring the assistance
of another person, or resulting in
impaired cognitive function that
occurred without warning in the past 12
months and no recurrent (2 or more)
severe hypoglycemic episodes in the
last 5 years. His endocrinologist certifies
that Mr. Westbrooks understands
diabetes management and monitoring,
has stable control of his diabetes using
insulin, and is able to drive a CMV
safely. Mr. Westbrooks meets the vision
requirements of 49 CFR 391.41(b)(10).
His opthalmologist examined him in
2011 and certified that he does not have
diabetic retinopathy. He holds a Class A
CDL from Texas.
Request for Comments
In accordance with 49 U.S.C. 31136(e)
and 31315, FMCSA requests public
comment from all interested persons on
the exemption petitions described in
this notice. We will consider all
comments received before the close of
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536 Federal Register / Vol. 77, No. 3 / Thursday, January 5, 2012 / Notices
1 Section 4129(a) refers to the 2003 notice as a
‘‘final rule.’’ However, the 2003 notice did not issue
a ‘‘final rule’’ but did establish the procedures and
standards for issuing exemptions for drivers with
ITDM.
business on the closing date indicated
in the date section of the notice.
FMCSA notes that section 4129 of the
Safe, Accountable, Flexible and
Efficient Transportation Equity Act: A
Legacy for Users requires the Secretary
to revise its diabetes exemption program
established on September 3, 2003 (68 FR
52441).1 The revision must provide for
individual assessment of drivers with
diabetes mellitus, and be consistent
with the criteria described in section
4018 of the Transportation Equity Act
for the 21st Century (49 U.S.C. 31305).
Section 4129 requires: (1) Elimination
of the requirement for 3 years of
experience operating CMVs while being
treated with insulin; and (2)
establishment of a specified minimum
period of insulin use to demonstrate
stable control of diabetes before being
allowed to operate a CMV.
In response to section 4129, FMCSA
made immediate revisions to the
diabetes exemption program established
by the September 3, 2003 notice.
FMCSA discontinued use of the 3-year
driving experience and fulfilled the
requirements of section 4129 while
continuing to ensure that operation of
CMVs by drivers with ITDM will
achieve the requisite level of safety
required of all exemptions